Age is a relatively unexplored topic in international criminal law. A number of countries believe that children do not deserve punishment. After all, they are only children and do not have the same level of intellectual and mental development as adults. However, in international criminal law the issue of minors as subjects to criminal responsibility has not been clearly defined. In particular, there arises a question in respect to the minimum age of criminal responsibility. That question at present remains one of the most controversial and complicated issues in international criminal law. Fixing a particular age worldwide as the minimum age of criminal responsibility is a major issue. The authors suggest to have a brief overview of some key issues of the respective topic.
Key element of criminal responsibility
Generally speaking, criminal responsibility can be regarded as a country’s/state’s reaction to offences and wrongdoings. Criminal responsibility can only be imposed by law. There is no criminal responsibility unless a law is adopted to impose it.
From a national law perspective of most countries, civil responsibility can arise provided there are three key elements. These are:
— conduct or action;
— harm or legal consequences;
— causal link between such conduct and harm.
These three elements are enough for imposing civil responsibility in most countries. However, these elements are not enough for imposing criminal responsibility.
Apart from these three elements there has to be another key mental element called ‘criminal intent’ for a criminal responsibility to be imposed in most countries. There arises a main question as to from what age people attain that mental element. As the below given table regarding different national standards indicates some countries believe that a person aged 6 attain that element, while others believe that such element can be attained from an age of 18 years of old. This indicates that countries take different approaches to the minimum age of criminal responsibility.
Setting the minimum age of criminal responsibility
Basically, a minor is a child under the age of criminal responsibility, which has no capacity to commit a crime. This means that they are immune from criminal prosecution and such a doctrine in international criminal law called ‘presumption of irresponsibility’. In other words:
— they cannot be formally charged by the authority with an offence;
— they cannot be subjected to any criminal law procedures and measures.
A person above the age of criminal responsibility under national regulations of most countries:
— can be arrested;
— can be detained;
— can be imprisoned.
There are still many discussions in an international arena as to who are ‘minors’ and what should be the most appropriate age of criminal responsibility worldwide. The short answer to that is there are no categorical and universally recognized and binding international standards in this regard.
The key idea behind the notion called ‘the minimum age of criminal responsibility’ is that a person can be held responsible for her or his actions when he or she has attained emotional, mental and intellectual maturity. Most of the countries worldwide have a threshold for criminal responsibility under their national laws, below which minors, that is children, are said to be irresponsible. Such a doctrine can be considered as the presumption of irresponsibility.
There is the UN Convention on the Rights of the Child dated November 30, 1989(‘CRC’). As of today, 196 countries are party to it and the Republic of Kazakhstan ratified the CRC on February 16th, 1994.
The United Nations recommends that the minimum age of criminal responsibility should not be lower than 12 years. Again, it appears to be no more than just recommendation. The United Nations believes that young people under the age of 12 years old have not yet reached:
— emotional maturity;
— mental maturity;
— intellectual maturity.
National standards of some countries
The minimum age of criminal responsibility set by different countries varies from as low as 6 to 18 years of age. However, an average age of criminal responsibility in a number of countries is 12. That average age is not universally recognized though. The minimum age of criminal responsibility looks as follows in some countries.
|the USA (North Carolina states)||6|
|Bangladesh, Cyprus, Ghana, Hong Kong, India, Ireland, Nigeria, Pakistan, Singapore, South Africa, Sudan, Tanzania Thailand, the USA (Maryland, Massachusetts and New York states)||7|
|Greece, Indonesia, Kenya, Scotland, Sri Lanka, Zambia||8|
|Iran, the Philippines||9|
|England, Malaysia, New Zealand, Switzerland, Ukraine, the USA (Arkansas, Colorado, Kansas, Louisiana, Minnesota, Mississippi, Pennsylvania, South Dakota states)||10|
|Brazil, Canada, Colombia, Jamaica, Korea (the Republic) Morocco, the Netherlands, Portugal, Turkey||12|
|France, Israel, Uzbekistan||13|
|Albania, Austria, Bulgaria, China, Croatia, Estonia, Germany, Hungary, Kazakhstan, Italy, Japan, Latvia, Lithuania, Russia, Spain, Vietnam||14|
|Denmark, Egypt, Finland, Iceland, Norway. Sweden||15|
|Argentina Belgium Cuba||16|
Views for raising and lowering the minimum age
Over the last few decades there have been debates as to whether the minimum age of criminal responsibility should be raised or lowered.
It is still argued that most countries worldwide should set as high a minimum age of criminal responsibility as possible keeping in mind the emotional, mental and intellectual maturity. There are countries which strongly believe and support that the age has to be raised for the following key reasons:
— depriving children of their liberty can lead to long term psychological and physical damage;
— poor conditions at detention centers can threaten children’s development and well being;
— minors cannot protect themselves effectively in trial proceedings;
— minors can give false testimonies in court as instructed by adults, including the police.
On the other hand, those countries supporting to lower the age believe that there are the following key reasons to do so:
— there might be a risk that children being immune from any responsibility can be used by adults for criminal activities;
— children’s immunity may cause an increase in juvenile violence. In fact, many minors may take advantages of the their immunity and commit crimes even though they clearly understand and know that they are breaking the law and in conflict with the law;
— children today grow faster, stronger and get mature earlier than before. They now have access to more information. The 12 year old is no longer a child who knows nothing.
Measures taken for minors
A number of countries acknowledge that children above the minimum age of criminal responsibility are in special group with regard to their treatment and measures taken for them.
Under the CRC, counties should develop separate justice systems for children under the age of 18 that do not focus on punishment but focus of children’s rehabilitation. The CRC also encourages governments to establish a separate justice system for children. Such system should consist of separate authorities, institutions, separate units within police stations and separate specialized juvenile courts.
Many countries establish administrative authorities to apply disciplinary measures to minors under the age of criminal responsibility which include inter alia placing minors in special educational institutions, educational measures or supervision by social workers, handing-over to probation authorities, prohibition to go in certain places, medical treatment and etc.
Kazakhstan laws are mainly adopted and amended in compliance with the international standards and principles. The issue with respect to minors is mainly regulated by chapter 6 of the Kazakhstan Criminal Code, which says that a juvenile is regarded as a person aged from 14 to 18.
In general, the minimum age of criminal responsibility in Kazakhstan is 16. However, there is an exhaustive list of crimes, for which a person can be held liable from the age of 14 (such as murder, rape, stealing, robbery and etc). It is noted that the fact that a person is under the age of 18 can be regarded as a mitigating circumstance in Kazakhstan courts.
In Kazakhstan young people under the age of 18, if convicted, cannot get more than 10 years of imprisonment and in particular circumstances not more that 12 years. There is no capital punishment and life imprisonment for minors in Kazakhstan.
While penal policies and measures that can be imposed upon minors vary widely from one country to another, there is an increased concern about the threat of youth crime.
In general, the problems raised by the question of the minors’ criminal responsibility in domestic as well as in international law are quite complex.
The key recommendation is not to punish minors severely, but rather
— to enhance psychological and sex education for minors from an early age;
— to teach minors to respect life and each other.
Mr Nazkhanov Tair
Mr Kassymzhanov Abzal