Comment to article 131. Involvement of a minor in criminal activity of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Involvement of a minor in criminal activity by a person over the age of eighteen, —      

is punishable by imprisonment for a term of up to five years.      

2. The same act committed by a parent, teacher, or other person who is legally responsible for the upbringing of a minor, —    

is punishable by imprisonment for a term of up to six years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.      

3. The acts provided for in the first or second parts of this Article, committed with the use of violence or with the threat of its use, —      

are punishable by imprisonment for a term of two to seven years.      

4. The acts provided for in the first, second or third parts of this Article related to the involvement of a minor in the commission of a grave or especially grave crime, —      

are punishable by imprisonment for a term of five to eight years.      

Article 27 of the Constitution of the Republic of Kazakhstan stipulates that marriage and family, motherhood, fatherhood and childhood are protected by the State. Taking care of children and their upbringing is the natural right and responsibility of parents. Adult able-bodied children are required to take care of their parents who are unable to work. These fundamental constitutional provisions formed the basis for the criminal law protection of the interests of the family and minors.       The public danger of the crime in question lies both in harming the upbringing of minors and in involving adolescents who are most susceptible to outside influence in criminal activities.      

The direct object of a minor's involvement in criminal activity is the normal moral, mental and physical development of minors.      

The objective side of involving minors in criminal activity is revealed by characterizing the actions of the person involved. The term "involve" in the dictionary of the Russian language means "to encourage, to involve in something."      

Any involvement of minors in criminal activity is a process of communication between an adult and a minor. The actions of the recruiter are continuously aimed at disrupting the natural, normal development and existence of a teenager, because arousing desire and aspiration already presupposes a change in the existing state and status of the individual.      

The involvement of a minor in criminal activity should be understood as actions aimed at arousing the desire of a minor to participate in the commission of one or more crimes. Involvement involves all types of physical violence and mental influence, for example: persuasion (about the possibility of obtaining certain benefits), intimidation (threat of beating, disclosure of defamatory information), bribery (giving material rewards), deception (presentation of false information), arousing feelings of revenge (stimulation of physical violence), arousing envy or other base motives (the desire to occupy a prestigious position), an offer to commit a crime, a promise to purchase or sell stolen goods, giving advice on the place and methods of committing or concealing traces of a crime, etc.      

According to the explanation given in paragraph 24 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 "On judicial practice in cases of juvenile delinquency and their involvement in criminal and other antisocial activities," the involvement of a minor in criminal activity should be understood as purposeful actions by the person involved to form the minor's desire (intention, aspiration) and willingness to participate in the commission of a crime. At the same time, the actions of an adult should be active and may be accompanied by the use of mental or physical influence (beatings, persuasion, threats and intimidation, bribery, deception, arousing feelings of revenge, envy and other base motives, assurances of impunity, giving advice on the place and method of committing or concealing traces of a crime, promising payment for the actions committed or assistance in the sale of stolen goods, etc.). Criminal prosecution authorities and courts are required to indicate which specific actions were committed by an adult in order to involve a minor in criminal or other antisocial activities. By itself, the suggestion of an adult to commit a crime made to a minor, without exerting mental or physical influence on him, cannot be regarded as involving a minor in criminal activity.      

According to Part 1 of Article 131 of the Criminal Code, the threat must be nonviolent (for example, intimidation, a promise to cause trouble). If a threat of violence is used, then such actions should be qualified under Part 3 of this article.      

In paragraph 27 of the aforementioned Regulatory Resolution, the Supreme Court of the Republic of Kazakhstan clarifies that the actions of an adult who has involved a minor in committing a crime and participated in it are subject to qualification under a set of articles of the Criminal Code, which provide for liability both for committing a specific crime in complicity with a teenager and for involving him in criminal activity. At the same time, a crime committed jointly with a person who has not reached the age from which criminal responsibility begins cannot be qualified as committed by a group of persons. In such cases, in accordance with Part 2 of Article 28 of the Criminal Code, an adult who has involved a minor in criminal activity should be recognized as the perpetrator of the crime.      

A crime under Article 131 of the Criminal Code occurs if there is at least one fact of intentional involvement of a minor in the commission of a crime. The content of the crime in question is very extensive, because it includes not only preparation for it, but also training in their criminal and antisocial behavior.      

131 of the Criminal Code, the behavior of a minor does not matter until he is involved in a crime by an adult. This is due to a number of circumstances. Firstly, the adult organizer or instigator does not always have reliable information about the minor's previous antisocial experience. Secondly, the criminal actions of an adult are aimed at strengthening the antisocial orientation of minors, that is, introducing them to an antisocial lifestyle. Thirdly, the commission of crimes is often explained by the individual age-related psychological characteristics of the personality of minors, the desire to learn and experience something new, and sometimes purely childish motives, etc.      By design, the composition of the crime provided for in Article 131 of the Criminal Code is formal, that is, the act is considered completed from the moment the minor is involved in criminal activity, regardless of whether the perpetrator succeeded in persuading the minor to engage in criminal activity. In the Regulatory Decree of April 11, 2002 in paragraph 25 It is noted that the crimes provided for in Articles 131 and 132 of the Criminal Code are considered completed from the moment a minor is induced to commit a crime or other antisocial acts when, under the influence of an adult, he has the intention to commit them.      

The subject of involving a minor in criminal activity is a sane individual who has reached the age of 18 (Part 1 of Article 131 of the Criminal Code). The subjective side of involving a minor in criminal activity presupposes the establishment of intent in the actions of an adult - the latter's awareness of the socially dangerous nature of his actions and the anticipation of its socially dangerous consequences.      

In the aforementioned Regulatory Decree of April 11, 2002, paragraph 23 clarifies that the crimes provided for in Articles 131 and 132 of the Criminal Code are committed only with direct intent. At the same time, it should be assumed that criminal liability occurs provided that the perpetrator reliably knew about the minor age of the person involved.      

Thus, all of these actions, both in content and in focus, and in some cases in form, are antisocial in nature: accordingly, the person committing these actions is aware of their socially dangerous nature, performs them at will, while desiring the onset of certain consequences. Consequently, criminal acts involving minors in criminal activities are always committed only with direct intent. The motives of crimes can be different. They are taken into account when individualizing punishment.      

Article 131 of the Criminal Code provides for qualifying and especially qualifying signs of this crime.      

Part 2 of Article 131 of the Criminal Code provides for increased responsibility for the involvement of a minor in criminal activity committed by a parent, teacher or other person who is legally responsible for the upbringing of a minor. It seems that the expansion of the circle of persons liable for the involvement of adolescents in criminal activities is fully justified, since in such cases the greatest harm is caused to the normal moral, spiritual, physical and sexual development and health of adolescents. Other persons charged with caring for minors include, for example, boarding school teachers, sports team coaches, etc.      

Part 2 of Article 131 of the Criminal Code provides for increased responsibility for the involvement of a minor in criminal activity committed by a parent, teacher or other person who is legally responsible for the upbringing of a minor. It seems that the expansion of the circle of persons liable for the involvement of adolescents in criminal activities is fully justified, since in such cases the greatest harm is caused to the normal moral, spiritual, physical and sexual development and health of adolescents. Other persons charged with caring for minors include, for example, boarding school teachers, sports team coaches, etc.      

Part 3 of Article 131 of the Criminal Code provides for a particularly qualifying feature: involvement committed with the use of violence or with the threat of its use. According to the explanations of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, paragraph 26 clarifies that violence when involving a minor in criminal or other antisocial activities, provided for in Part 3 of Articles 131 and 132 of the Criminal Code, should be understood as beatings, other violent acts related to causing physical pain, causing mild or moderate harm. the health of a minor. If the involvement was associated with causing serious harm to his health or other actions forming an independent corpus delicti, the deed should be classified according to the totality of crimes.    

Mental violence means the threat of immediate harm to health or beatings if a minor refuses to participate in a crime.      

In our opinion, the Supreme Court of the Republic of Kazakhstan unsuccessfully interprets the concept of "involvement" in the sense of Part 1 of Article 131 of the Criminal Code and the concept of "violence" as a qualified type of this crime (Part 3 of this Article). In paragraphs 24 and 27, explaining these concepts, the Supreme Court of the Republic of Kazakhstan in both cases refers to "beatings", as characterizing these concepts. This ambivalent approach of the Supreme Court of the Republic of Kazakhstan causes and will certainly cause difficulty in qualifying the crime in question.

Using this gap of the Supreme Court of the Republic of Kazakhstan, law enforcement agencies in some cases will qualify "beatings" under Part 1, and in others - under Part 3 of Article 131 of the Criminal Code. And this is a direct path to corruption. It is necessary to eliminate these contradictions.      

Part 4 of Article 131 of the Criminal Code regulates the responsibility of an adult for involving a minor in the commission of a grave or especially grave crime. Serious crimes are intentional acts for which the maximum penalty provided for in the Criminal Code of the Republic of Kazakhstan does not exceed twelve years in prison (Part 4 of Article 10 of the Criminal Code). Intentional acts are recognized as particularly serious crimes, for which the Criminal Code of the Republic of Kazakhstan provides for punishment in the form of imprisonment for a term of more than twelve years or the death penalty (Part 5 of Article 10 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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus

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