Comment to Article 128. Human trafficking of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The purchase and sale or commission of other transactions with respect to a person, as well as his exploitation or recruitment, transportation, transfer, concealment, as well as the commission of other acts for the purpose of exploitation -
is punishable by imprisonment for a term of up to five years with or without confiscation of property.
2. The same acts committed:
a) a group of persons by prior agreement;
b) repeatedly;
c) with the use of violence dangerous to life and health, or the threat of its use;
d) using weapons or objects used as weapons;
e) in relation to a woman who is obviously pregnant for the perpetrator.;
f) in relation to two or more persons;
g) for the purpose of removing organs or tissues of the victim for transplantation or other use;
h) by deception or abuse of trust;
i) by a person using his official position;
k) using the material or other dependence of the victim, -
is punishable by imprisonment for a term of five to seven years with or without confiscation of property.
3. The acts provided for in the first or second parts of this Article committed for the purpose of export from the Republic of Kazakhstan, import into the Republic of Kazakhstan or transportation of a person through the territory of the Republic of Kazakhstan from one state to another, as well as export from the Republic of Kazakhstan, import into the Republic of Kazakhstan or transportation of a person through the territory of the Republic of Kazakhstan from one foreign state from one State to another State for the purpose of committing such acts, -
are punishable by imprisonment for a term of seven to ten years with or without confiscation of property.
4. The acts provided for in the first, second or third parts of this Article, if they:
a) perfect by an organized group;
b) negligently caused the death of the victim or other grave consequences, -
is punishable by imprisonment for a term of seven to fifteen years with confiscation of property.
This crime infringes on the personal freedom of citizens and the freedom to choose their occupation, guaranteed by the Constitution of the Republic of Kazakhstan. Everyone has the right to freely choose their occupation and profession. Freedom of work also means the right of everyone not to engage in any kind of activity. Therefore, the Constitution of the Republic of Kazakhstan clarifies that forced labor is allowed only by a court verdict or under a state of emergency or martial law. Freedom of work proclaims paragraph 1 of Article 24 of the Constitution in accordance with the International Covenant on Economic, Social and Cultural Rights. The object of the crime is the personal freedom of citizens and the freedom to choose the type of activity.
The objective side of the crime is expressed in the purchase and sale or commission of other transactions with respect to a person, as well as his exploitation or recruitment, transportation, transfer, concealment, as well as the commission of other acts for the purpose of exploitation.
The purchase and sale of a person is understood as a transaction in which one party acquires permanent possession of a person for a fee, and the other sells. The payment can be not only money, but also property.
Making other transactions with respect to a person is understood as any other method of arranging the transfer of a person by one person to another for a selfish or other antisocial purpose.
According to the notes to Article 125 of the Criminal Code, the exploitation of a person in this Article and Articles 126, 128, 133 of this Code refers to the use of forced labor, prostitution by another person or other services provided by him in order to appropriate the proceeds to the perpetrators, as well as the exercise by him of the powers of the owner in relation to a person who, for reasons beyond his control, may refuse to perform work or services.
Recruitment should be understood as the search, invitation, attraction, hiring of people for certain activities. In this case, the victim is misled about the nature of work, working conditions, wages, etc., that is, recruitment activities are committed through deception.
Transportation of a person intended for exploitation covers his movement in space in any way. If the transportation was carried out with the movement of the victim through the territory of the Republic of Kazakhstan, then the actions of the perpetrators should be classified as one of the types of human trafficking under Part 3 of Article 128 of the Criminal Code. Transportation of the victim can be carried out both by the seller himself and by other persons.
Transfer in this article should be understood as the direct transfer of the victim to a person for his exploitation.
Concealment should be understood as the commission of actions aimed at concealing the victim.
Other exploitative acts should be understood as the use of a person's intellectual or physical labor in order to obtain some kind of profit.
The crime is considered completed from the moment of the actual purchase and sale of a person or from the moment of committing other prohibited acts.
The subjective side of the crime is characterized by direct intent and a special purpose – the desire to exploit a person.
The subject of the crime is a sane individual who has reached the age of 16.
The qualified elements of crimes provided for in Part 2 of Article 128 of the Criminal Code establish criminal liability for actions provided for in Part 1 of Article 128 of the Criminal Code committed by: a) a group of persons by prior agreement;
b) repeatedly;
c) with the use of violence dangerous to life and health, or the threat of its use;
d) using weapons or objects used as weapons;
e) in relation to a woman who is obviously pregnant for the perpetrator.;
f) in relation to two or more persons;
g) for the purpose of removing organs or tissues of the victim for transplantation or other use;
h) by deception or abuse of trust;
i) by a person using his official position;
j) using the material or other dependence of the victim. These signs were previously considered when analyzing Article 125 of the Criminal Code, therefore, they do not need to be re-highlighted.
Part 3 of Article 128 of the Criminal Code provides for a particularly qualifying feature. It includes the acts provided for in the first or second parts of this article committed for the purpose of exporting outside the Republic of Kazakhstan, importing into the Republic of Kazakhstan, or transporting a person through the territory of the Republic of Kazakhstan from one state to another, as well as exporting outside the Republic of Kazakhstan, importing into the Republic of Kazakhstan, or transporting a person through the territory of the Republic of Kazakhstan from one foreign state to another state in for the purpose of committing such acts.
The export of people outside the Republic of Kazakhstan should be understood as the sending of citizens of the Republic of Kazakhstan outside the Republic of Kazakhstan.
Transportation through the territory of the Republic of Kazakhstan of people traveling from one foreign state to another (transit) for exploitation should be understood as the movement of foreign citizens from one state to another through the territory of the Republic of Kazakhstan. Part 4 of Article 128 of the Criminal Code provides for responsibility for the commission of acts provided for in parts one, two or three if they are: a) committed by an organized group;
b) negligently caused the death of the victim or other grave consequences (see: commentary on Part 3 of Article 125 of the Criminal Code).
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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