In the modern world, most developed countries separate the criminal responsibility of minors from the criminal liability of adult offenders. The status of a minor in criminal law includes many specific details, starting with a certain age framework for prosecution and a special order of consideration of the case in court, ending with the features of the appointment and serving of sentences. However, despite this, today the rules governing this area in different countries differ from each other. This is explained by the fact that each state has its own culture, features of historical development, as well as national traditions.
As correctly notes E.D. Kankishev, in some countries the criminal law does not provide for means of differentiating their responsibility, and it is implemented for this age group of persons on general grounds, in others there is a rather developed system of combating juvenile delinquency, but in some cases the measures applied to this category of persons for the commission of crimes, were taken outside the Criminal Code and implemented outside the framework of criminal law relations. As a rule, it all depends on which legal system (Anglo-Saxon or continental) one country or another belongs to.
Nevertheless, we consider it necessary to consider some features of criminal prosecution and punishment of minors in foreign countries, in order to clarify what modern foreign experience in this area can be perceived by the criminal legislation of Russia.
International legal documents generally do not indicate the age of bringing minors to criminal responsibility. Only the 1989 Convention on the Rights of the Child establishes in Art. 40.3 “The minimum age below which children are considered incapable of violating criminal law” (art. 40.3).
In foreign countries there is no single approach to determining the age of criminal responsibility for minors. Thus, in Australia, the total age of criminal responsibility is 14 gm. The legislation establishes that minors aged 10 to 14 years are brought to criminal responsibility for the crimes committed only if at the time of the commission they were aware of its unlawful and socially dangerous nature. In Turkey, the age of criminal prosecution is much less – from 11 years; in Brazil, Israel, Canada, the Netherlands is almost the same – from 12 years. But in France, Monaco, Uzbekistan juvenile criminals will be responsible for their actions after they reach 13 years of age.
In Japan, adolescents under the age of fourteen are not subject to criminal liability and criminal penalties. Similarly, the issue is resolved with the age of criminal responsibility in Germany, Austria, Italy, Spain, Macedonia, Bulgaria, Azerbaijan, the EEU countries, Tajikistan, and Vietnam. In Finland and the Scandinavian countries, as well as in Poland and Slovakia, criminal liability begins at 15 years; in Belgium, Portugal and Chile, at 16; in Luxembourg at the age of 18.
In some countries, the age of criminal prosecution is very low, so in Ireland a teenager can be held criminally liable for serious and grave crimes after he reaches the age of seven. Also, from the age of 7, criminal liability arises in countries such as Bangladesh, Jordan, Egypt, Lebanon, Libya, Pakistan, and Singapore.
In the UK, criminal prosecution is based on historical and cultural traditions. In this state, it is legally established and confirmed by judicial practice that a teenager aged between 10 and 14 years is brought to criminal responsibility and punishment, firstly, only if he is aware of the seriousness of the harm, secondly, if the prosecution proves that Both elements of the crime are present in his actions – actus reus and mens rea.
In the Netherlands, juvenile offenders can be prosecuted from the age of 12, with a maximum age of 21 years. Depending on the severity of the crime committed, the norms of “general” criminal law may also be applied to minors. With regard to the category of persons aged 18 to 21, on the contrary, the provisions of juvenile criminal law can be used.
In the US, the age of criminal responsibility has different boundaries in different states, it can vary from 10 to 15 years. Thus, in the state of New York, a teenager can be held criminally liable for murder from the age of 13, for other grave and especially grave crimes from the age of 14, for small and medium crimes from the age of sixteen. In the state of Oklahoma, when committing a particularly serious crime in cases where a minor understands the public danger and wrongfulness of the act, he can be brought to criminal responsibility and punished from the age of seven. In Nevada, the age of criminal
responsibility – 8 years, in Colorado and Louisiana – 10, in Oregon – 12 years. In some US states, the minimum boundaries for criminal prosecution are not established at all (for example, in the Federal District of Columbia). In these states, adolescents are responsible for their wrongful acts on a par with adults for grave and especially grave crimes.
Thus, in foreign countries, as in Russia, the differentiation of the scope of criminal responsibility is carried out depending on the age, which is based on the traditions of these states.
Let us now consider what punishments are imposed on minors in foreign countries. Regarding the most severe punishment – the death penalty, it should be noted that it is against juvenile offenders in all countries is prohibited. This rule is also established at the international level: the International Covenant on Civil and Political Rights of 1966 and the UN Convention on the Rights of the Child 1989. Life imprisonment for minors in many countries also does not apply (Russia, Finland, Poland, etc.) . Nevertheless, there are countries in which this is possible (USA, UK and South Africa).
Imprisonment for a certain period is established in the criminal law of almost all states. For example, in France, imprisonment for juvenile offenders is possible for up to 20 years. The legislation of England differentiates the term of imprisonment depending on the age of the minor offender: until the age of 17, the period must not exceed 1 year, from 17–20 years the maximum term is similar to the term for an adult for a crime of the same severity. In Finland, the term of imprisonment for minors cannot exceed 12 years.
The Criminal Code of Ukraine contains five types of punishment, but unlike Russia, among them there is no such punishment as deprivation of the right to engage in certain activities. However, according to Art. 98 of the Criminal Code of Ukraine, minor types of persons may be subject to other additional penalties, such as fines and deprivation of the right to occupy certain positions or engage in certain activities.
The Criminal Code of the Republic of Armenia provides four types of punishment: public works; fine; arrest; imprisonment for a fixed term.
It should be noted that all neighboring countries include a fine in the system of penalties for minors, but it can be appointed only if the minor has independent earnings or property on which a penalty can be levied. A fine is only collected from the convict himself, and not from his relatives.
The Criminal Code of Armenia establishes the following gradation of sentences: for a grave and especially grave crime at the age of 16, not more than 7 years, and up to 18 years – 10 years. In other neighboring countries, the maximum period does not exceed 10 years. Despite this, the punishment may be imposed more severe. For example, for murder with aggravating circumstances, under the criminal legislation of Kazakhstan, the maximum term of imprisonment is 12 years, and under the criminal legislation of the Republic of Belarus and Ukraine for a particularly grave crime in the case of assault on life – up to 15 years imprisonment. According to the legislation of Armenia, Kazakhstan and Ukraine, the term of imprisonment for minors can be appointed by the court up to 15 years in cases of a combination of crimes and sentences, and in the Republic of Belarus – up to 17 years. No deprivation of liberty is granted to persons who have committed crimes for the first time: under the criminal law of Russia, Kazakhstan, of minor or moderate severity under the age of 16, and also for the rest of the minor, of minor severity; under the criminal legislation of the Republic of Belarus and Ukraine – a small weight at the age of 18 years.
The criminal law of Switzerland enshrines the system of penalties and educational measures applicable to minors. In section IV of the Criminal Code of Switzerland found that children from 7 to 15 years old are placed in a suitable family or educational institution, special supervision, disciplinary punishments (reprimand, duty to perform certain work, school arrest from 1 to 6 part-time days). Adolescents over the age of 15 may be given an arrest of up to 14 days, a fine and imprisonment from 1 day to 1 year.
The system of penalties for minors in England, more than in other European countries, is focused on the correction of adolescents. The legislation provides for such punishments as the provision of free services to society, a guardianship order, the duty of legal representatives to ensure the correct behavior of a minor, a fine, damages or legal costs, sending to special closed educational centers for minors (replacement of imprisonment); probation, deprivation of the right to drive a car, to engage in a certain activity, community service for a specific period.
A juvenile (young) criminal in accordance with English law may be sentenced to life restraint. The application of such a measure is justified by the need to protect society, as well as the seriousness of the crime.
In Germany, the issue of sentencing juvenile offenders is not governed by the Criminal Code, but by the Law on the Youth Court, adopted in 1990. This Law is like a mini-criminal code for adolescents who have committed crimes. It consists of such sections as “The scope of the law”, “Minors”, “Educational measures”, “Punishment for minors”, etc. The difference of the German criminal legislation is that the court has the right to pass convictions with an indefinite sentence, Further, the sentence is already determined by the administration of the places of deprivation of liberty
In France, the appointment of criminal punishment to adolescents who have committed crimes is regulated by a special act by the Ordinance of February 2, 1945 No. 45-174 “On Offenses of Minors”. It establishes the peculiarities of applying special measures of protection, assistance, supervision and education to minors. According to E.D. Kankishev, deserves the attention of the Russian legislator, such a measure of influence as the transfer of a teenager under the supervision of parents, guardians or other persons trustworthy (Article 8 of the Ordinance). In this case, the persons supervising him are warned about the objectives and content of such a regime, as well as the duties that it assumes. The judge has the right to impose a fine on these adults if they violate the conditions of supervision.
The specifics of sentencing minors in Japan are established by the Juvenile Act. The age of criminal responsibility in Japan is 14 years old. According to Art. 41 of the Criminal Code of Japan, for a crime committed by a teenager under the age of 14 years, criminal liability does not occur. Cases initiated against minors from the age of 14 to 20 years are transferred to family courts, which examine in detail the identity of the minor offender, his family, and relations with others. After a thorough analysis of all the circumstances, the family court decides whether to apply criminal law measures to the adolescent. In this case, the case is transferred back to the criminal court.
The procedure for the consideration of the case in the family court of Japan is different from the criminal court. So, the prosecutor does not participate in the consideration of the case, the meeting is held closed, and last, the legal representative of the minor must be present.
In Canada, the Law on Juvenile Offenders also applies to minors since 1984. However, it should be noted that this recently adopted law to a certain extent departed from the protective tendency towards juvenile offenders, since in some norms the main criterion in differentiating responsibility and imposing punishment on a minor is the severity of the offense. At the same time, the fact of minority continues to be a mitigating circumstance.
Canadian law in 1984, in contrast to the laws of other foreign countries, gives priority to the protection of society from juvenile offenders. As an example, the provision of the Law of 1984 on the principle that society should learn to protect itself from the criminal encroachments of minors and to a greater extent take measures to prevent juvenile delinquency. For these purposes, the Law provides for punishment in the form of imprisonment with serving it in a colony for juveniles if they have committed a serious or especially serious crime.
In conclusion, it should be noted that foreign experience of sentencing minors is very ambiguous, cannot serve as a model for blind copying, borrowing must be adapted to the Russian system, since the procedure for sentencing is designed to significantly reduce the negative consequences and effectively counteract the recidivism of crimes.
Thus, the study of foreign legislation on criminal liability and the punishment of minors contributes to the improvement and humanization of domestic criminal law in the context of juvenile delinquency.
1. Convention on the Rights of the Child [approved by the UN General Assembly on 11/20/1989, entered into force for the USSR 09/15/1990] // Collection of international treaties of the USSR. Release XLVI. 1993.
2. International Covenant on Civil and Political Rights [Adopted 12/16/1966 by Resolution 2200 (XXI) at the 1496th plenary meeting of the UN General Assembly] // Bulletin of the Supreme Court of the Russian Federation. 1994. № 12.
3. Criminal Code of the Republic of Armenia. http: // www. parliament.am/legislation.php?ID=1349&sel=show&lang=eng
4. Criminal Code of Ukraine. [Electronic resource]. Access mode: http: // meget.kiev.ua/kodeks/ugolovniy-kodeks/, free.
5. Zyryanov V.N., Dolgopolov K.A. Comparative legal study of the appointment of punishment to minors in foreign criminal law // Legal culture. 2013. № 2 (15).
6. Kankishev E.D. Features of criminal liability and punishment of minors under the laws of Russia and foreign countries // Penal law. 2014. № 2 (18).
7. Kolpakova L.A. General approaches to juvenile legal proceedings in Russia and Germany // Bulletin of the Institute: crime, punishment, correction. 2011. № 1 (13).
8. Oloventsova S.Yu., Primachenok A.A. Features of the criminal liability of minors under foreign law // International Penitentiary Journal. 2015. № 2.
9. Predeina L.V. Institute of criminal punishment of minors in Russia // Legality. 2011. № 12.
10. Rudenko A.S. Some features of the criminal responsibility of minors under foreign law // Penal law: legal theory and law enforcement practice. 2016. № 2 (8).
11. Tarmaeva V.I., Tarmaev B.P. On the issue of the regulation of sentencing minors in England // Bulletin of the Siberian Law Institute of the Ministry of Internal Affairs of Russia. 2018. No. 1 (30).