Comment to Article 133. Trafficking in minors 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 minor, as well as his exploitation or recruitment, transportation, transfer, harboring, as well as the commission of other acts for the purpose of exploitation —
are punishable by imprisonment for a term of five to seven years with or without confiscation of property.
2. The same acts 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 two or more persons;
f) for the purpose of removing organs or tissues of the victim for transplantation or other use;
g) by deception or abuse of trust;
h) a person using his official position;
i) for the purpose of involving a minor in the commission of crimes or other antisocial acts;
k) using the material or other dependence of the victim, -
are punishable by imprisonment for a term of seven to ten 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 exporting from the Republic of Kazakhstan, importing into the Republic of Kazakhstan or transporting a minor through the territory of the Republic of Kazakhstan from one foreign state to another, as well as exporting from the Republic of Kazakhstan, importing into the Republic of Kazakhstan or transporting a minor through the territory of the Republic of Kazakhstan from one from a foreign State to another for the purpose of committing such acts, -
are punishable by imprisonment for a term of ten to twelve 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) committed by an organized group;
b) negligently caused the death of the victim or other grave consequences, —
are punishable by imprisonment for a term of twelve to fifteen years with confiscation of property.
The public danger lies in the fact that as a result of committing such an act, minors become a "thing", a "commodity", which in itself is a deeply cynical phenomenon that violates universal human values, moreover, as a result of the rupture of objectively existing family ties between parents and minors, the normal moral, physical and mental development of a minor is disrupted.
The increase in the illegal export of minors abroad is of serious concern, as Kazakhstan is losing a significant part of its gene pool, our compatriots are being sold to countries near and far abroad, and teenagers are being abducted in order to receive financial rewards.
The immediate object of the crime in question is the personal freedom of the minor. An optional object may be the life and health of a minor, the interests of parents or close relatives in the upbringing of this teenager.
The objective side of this crime is outlined by the legislator in the disposition, which is expressed in the purchase and sale or in other transactions with respect to a minor, as well as his exploitation or recruitment, transportation, transfer, concealment, as well as the commission of other acts for the purpose of exploitation. Therefore, the perpetrator may commit one of the above-mentioned alternative actions.
Trade in the form of purchase and sale should be understood as a transaction in which one party, for a fee, acquires temporary or permanent possession of a minor, and the other sells it. According to the civil legislation of the Republic of Kazakhstan, a purchase and sale is a contract under which one party (the seller) undertakes to transfer an item (goods) to the ownership of the other party (the buyer), and the buyer undertakes to accept this product and pay for it a certain amount of money, which is called the price.
Other transactions involve a mandatory feature – retribution, that is, the transfer of a minor by one person to another for selfish or other antisocial purposes. The payment may be not only money, but also the commission of any civil law transactions in the form of transfer or possession to minors. This is an exchange for another minor, an exchange for some kind of thing, a gift, a pledge, a return on account of "repayment" of a debt, etc. For example, the acquisition of a minor in return for a material service, donation by his parents or legal representatives or relatives to strangers, the exchange of minors between these persons, using them as collateral, lending a minor for a while for some kind of exploitation, for making money illegally – vagrancy, prostitution, sodomy, etc.
The above-mentioned actions may be committed for the purpose of exploiting a minor, or his recruitment, transportation, transfer, harboring, or other actions committed for the purpose of exploiting him.
Exploitation, according to paragraph 2 of the Note to Article 125 of the Criminal 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 of his powers as an owner in relation to a person who, for reasons beyond his control, cannot 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. Recruitment activities are carried out by deception, in order to exploit a minor.
Transportation should be understood as the transportation of a minor from one locality to another (in one district, in one region, or in Kazakhstan as a whole), with the exception of his export abroad, since in such cases the actions of the perpetrator fall under the signs of Part 3 of Article 133 of the Criminal Code.
Transfer refers to the actions of the perpetrator in transferring a minor in a paid or gratuitous form for a certain period of time, committed for the purpose of exploiting him.
Concealment is characterized by active actions, which are expressed in the previously unsolicited concealment of a minor, committed for the purpose of his exploitation. This includes cases of providing them with asylum, means of transportation, providing false documents, assistance in changing their appearance, etc. At the same time, the promised harboring of a minor is considered as complicity in a crime, in the form of complicity (part 5 of art. 28 and part 1 of art. 133 of the Criminal Code).
Other actions committed for the purpose of exploitation should be understood as the use of intellectual or physical labor of the recruited in order to obtain material benefits.
By design, the composition of this crime is formal. The crime is considered completed from the moment of receiving the money or the minor, even if the perpetrator did not have time to use it for his intended purpose or from the moment of any transaction (for example, an employment contract was signed, an employment agreement was signed, the victim's documents were transferred to the employment company), fixed in the disposition of the norm in question, committed against the minor. At the same time, responsibility comes for those who sell a minor, and for those who buy it.
On the subjective side, the analyzed crime is committed only with direct intent, that is, the perpetrator is aware of a civil transaction, the "subject" of which is a minor, foresaw that as a result of his actions (for example, on the part of the seller - the transfer of the minor, on the part of the buyer – the transfer of the agreed amount to the seller) the transaction will take place and desired, to make a purchase and sale or other transaction take place. The motive for the crime of a person selling a minor is always selfish (for example, the desire to sell a minor for a certain fee to a brothel, or to use him as a donor for organ or tissue transplantation, etc.). The motive may also be altruistic, which means the desire in this way to save a minor living in an unfavorable family where he is not given due attention. attention from parents, caregivers, etc. At the same time, to bring the guilty person to criminal responsibility, it is sufficient to establish direct intent and commit the actions described in the disposition of this article. Consequently, the motive does not affect the qualification of the crime, but its establishment is necessary for individualizing the punishment.
The subject of this crime can be both the seller and the buyer of a minor. In relation to a minor, the seller is parents, guardians, guardians, and other persons: for example, close relatives with whom the minor is legally located. In addition, they can also be foster parents (adoptive parents, adoptive parents). The buyer can be any person, with the exception of the minor's parents.
The legislator has provided the following list of aggravating circumstances as qualifying grounds for this crime.:
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 two or more persons;
f) for the purpose of removing organs or tissues of the victim for transplantation or other use;
g) by deception or abuse of trust;
h) using his official position;
i) for the purpose of involving a minor in the commission of crimes or other antisocial acts;
j) using the material or other dependence of the victim.
In accordance with Part 2 of Article 31 of the Criminal Code, which regulates the forms of complicity, trafficking in minors is recognized as committed by a group of persons by prior agreement (paragraph "a" of Part 2 of Article 133 of the Criminal Code) if two or more persons participated in the transaction with respect to a minor who had previously agreed on the joint commission of such a transaction. According to Article 11 of the Criminal Code of the Republic of Kazakhstan, repeated purchase and sale or other transactions with respect to a minor in the form of his transfer or possession will take place when the fact of the commission by the same person of two or more acts provided for in Article 133 of the Criminal Code or one of the parts of this article is established, while the intent to commit the second crimes (trafficking of a minor) are formed anew each time (paragraph "b" of Part 2 of Article 133 of the Criminal Code).
Trafficking in minors is recognized as committed with the use of violence dangerous to life and health, or the threat of its use (paragraph "b" of part 2 of Article 133 of the Criminal Code), if in the process of purchase and sale or other transactions against a minor, the perpetrator uses physical violence dangerous to the life and health of the victim or threatens to use such violence, that is, at the time of trafficking, the actions of the perpetrator create a real danger to the life and health of a minor (choking off breathing, blows to vital organs, an attempt to use weapons, etc.). In cases of harm to the health of a minor, the actions of the perpetrator should be qualified only under paragraph "b" of Part 2 of Article 133 of the Criminal Code, without additional qualification for harm to the health of the victim, since this is covered by the concept of violence dangerous to life and health. The concept of violence dangerous to life and health is provided for in the "Rules for the organization and conduct of forensic medical examination" dated December 20, 2004. In cases of murder in the process of committing the crime in question, the perpetrator's act is classified according to the totality of crimes under paragraph "b" of Part 2 of art. 133 of the Criminal Code and under Article 96 of the Criminal Code.
Trafficking in minors committed with the use of mental violence, as well as with the threat of violence dangerous to life and health, also entails qualification under paragraph "b" of Part 2 of Article 133 of the Criminal Code.
The purchase and sale or commission of other transactions with respect to a minor, committed with the use of weapons or objects used as weapons, should be qualified under paragraph "d" of Part 2 of Article 133 of the Criminal Code. The use is understood as the actual use of weapons for their intended purpose or objects used as weapons to harm human life and health.
According to The Law of the Republic of Kazakhstan "On State Control over the turnover of certain types of weapons" dated December 30, 1998 (as last amended and supplemented) Weapons are devices and objects that are structurally designed to hit a live or other target, as well as to send signals. Weapons in this paragraph should be understood as both firearms and edged weapons.
A firearm is a weapon in which a bullet, projectile, or grenade is ejected from the barrel as a result of the energy of a powder or other charge.
A cold weapon is a weapon in which the means of direct destruction of a target is activated with the help of human muscular strength.
Other objects used as weapons can be any objects that can cause serious harm to human health (pitchfork, axe, stone, etc.).
Trafficking in minors against two or more minors will take place in cases where at least two minors have become victims of this act (paragraph "d" of Part 2 of Article 133 of the Criminal Code). This qualifying feature is imputed only if the perpetrator's intent was initially formed to make transactions with respect to two or more minors.
If the perpetrator's intent did not cover the commission of a transaction against two or more persons and each crime was committed independently, the actions of the perpetrator should be qualified under paragraph "b" of Part 2 of Article 133 of the Criminal Code as trafficking in minors committed on the basis of "repeatedly."
A qualified trafficking in minors is the commission of an act for the purpose of removing organs or tissues for transplantation or other use (paragraph "e" of part 2 of Article 133 of the Criminal Code). According to paragraph 19 of Article 1 of the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006, transplantation is the transplantation, engraftment of tissues and (or) organs (parts of organs) to another place in the body or into another organism. Transplantation is a medical operation in which a diseased part of the human body is replaced by a healthy part taken from the same or another organism. From the very beginning, such operations are associated with the right to introduce them into medical practice. The legal problems of transplantation are not only numerous, but also differentiated by its types. The figure of the donor-transplant is important for criminal law. It can be an animal or a human. K090000193_
The purpose of removing organs or tissues from a minor for transplantation can only be attributed to the party to the transaction who was directly guided by it when committing the crime.
The problem of determining the legality of the removal of organs and tissues from living donors is difficult today. Justified occupational risk is possible if the removal of organs and tissues from living donors is allowed only when it is aimed at achieving a socially useful goal – saving the patient's life (art. 35 of the Criminal Code). The risk will be recognized as justified only if the medical professional has taken possible and sufficient measures to prevent harm to the life and health of the donor, based on modern medical knowledge and experience. In this case, the written consent of the recipient is a prerequisite.
To bring to justice, it is enough to establish the fact of trafficking in minors.
If the transplantation of organs or tissues of a minor has taken place, then the culprit should be brought under paragraphs "g" of part 2 of Article 133 and paragraph "b" of part 2 of Article 113 of the Criminal Code "Coercion to removal or illegal removal of human organs or tissues" and under the relevant article of the Criminal Code, providing for liability for harm to health.
When making a purchase or sale or making other transactions with respect to a minor by deception or abuse of trust, liability arises under paragraph "g" of Part 2 of Article 133 of the Criminal Code of the Republic of Kazakhstan. A necessary condition for bringing a person to justice under this paragraph is to establish the fact of deception or abuse of trust, the concepts of which are given in the analysis of the crime provided for in Article 177 of the Criminal Code "Fraud". At the same time, deception can be expressed in a deliberate false statement about facts that knowingly do not exist, or in concealment of facts that, according to the circumstances of the case, should have been reported to the owner of the minor. In case of abuse of trust, the perpetrator uses special powers or his personal trusting relationship that has arisen between him and the legal owner of the minor to illegally take possession of the minor, or misleads the victim.
As trafficking in minors committed by a person using his official position (paragraph "h" of Part 2 of Article 133 of the Criminal Code), it is necessary to qualify the commission of transactions specified in the disposition of the article, which was conditioned by the position held by the perpetrator, and it was this position that greatly facilitated the implementation of the intended crime.
The commission of purchase and sale or other transactions against minors in order to involve the latter in committing crimes or other antisocial acts (paragraphs "i" of Part 2 of Article 133 of the Criminal Code) is considered by the legislator as a qualified composition due to the fact that the goal pursued by the perpetrator significantly increases the degree of public danger of the act, since the perpetrator seeks to consolidate in the consciousness of the minor the desire to engage in criminal and other antisocial activities. For the concept of involving minors in committing crimes or other antisocial acts, see the commentary to Articles 131 and 132 of the Criminal Code.
In the case of purchase and sale or other transactions involving a minor using the victim's material or other dependence, the actions of the perpetrator fall under the signs of a crime provided for in paragraph "k" of Part 2 of Article 133 of the Criminal Code. At the same time, it should be borne in mind that the actions of the perpetrator will be evident only if the perpetrator threatens to commit certain actions or unlawfully commits against a person financially, in his service or otherwise dependent on him, which will lead to his trade. The financial dependence of the victim on the guilty person or the guilty person may be due in whole or in part to dependence, living in the living space of the guilty person, or when the improvement or deterioration of the financial situation of the victim depends on it, etc. The state of financial dependence may form the relationship of the debtor and the creditor, the heir and the testator.
Part 3 of Article 133 of the Criminal Code states: "the acts provided for in parts one or two of this Article committed for the purpose of exporting from the Republic of Kazakhstan, importing into the Republic of Kazakhstan or transporting a minor through the territory of the Republic of Kazakhstan from one foreign state to another, as well as exporting from the Republic of Kazakhstan, importing into the Republic of Kazakhstan or transporting a minor through the territory of the Republic of Kazakhstan from one foreign State to another for the purpose of committing such acts."
Trafficking of minors involving illegal export or import into the Republic of Kazakhstan is considered by the legislator due to the fact that actions are being taken against minors that lead to the severance of not only kinship ties, but also ties with the Republic.
Particularly aggravating circumstances of a crime provided for in Part 4 of Article 133 of the Criminal Code are the commission of an act provided for in parts one, two or three of this article, if they:
a) committed by an organized group;
b) negligently caused the death of the victim or other grave consequences.
An organized group presupposes the existence of a stable group of people who have previously joined together to commit the act in question against minors. Criminal statistics and legal press materials confirm that there are more and more such cases nowadays, and criminals commit them in more sophisticated ways.
If the result of a transaction committed against a minor was his death or other grave consequences (causing serious harm to his health, for example, mental disorder or suicide), the occurrence of which the perpetrator did not foresee, although he could and should have foreseen, then the perpetrator will be liable under Part 4 of art. 133 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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