Commentary on Article 116. Coercion to the Removal or Illegal Removal of Human Organs and Tissues of the Criminal Code of the Republic of Kazakhstan

• 1. Coercion to the removal or illegal removal of organs and tissues of a living person for transplantation or other use, as well as the commission of illegal transactions involving the organs and tissues of a living person —
• shall be punishable by imprisonment for a term of up to five 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.
• 2. The same acts committed:
• 1) against a person who is knowingly in a helpless state, as known to the perpetrator;
• 2) against a person who is knowingly a minor;
• 3) against two or more persons;
• 4) by a group of persons or a group of persons acting by prior conspiracy;
• 5) repeatedly;
• 6) with the use of weapons or objects used as weapons;
• 7) against a woman who is knowingly pregnant, as known to the perpetrator;
• 8) by means of deception or abuse of trust;
• 9) by a person using their official position;
• 10) through the use of the victim's material or other dependence, —
• shall be punishable by imprisonment for a term of six to ten years, with confiscation of property and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to six years.
• 3. The acts provided for in Parts One or Two of this Article, which negligently result in the death of the victim or other grave consequences, or are committed by a criminal group, —
• shall be punishable by imprisonment for a term of eight to twelve years, with confiscation of property and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years.

The public danger of the crime under consideration is обусловлена by the fact that the current level of medical development and new technologies lead not only to the emergence of increasingly advanced types of medical services and treatment methods, but also to an expansion of the opportunities for abuse in this field, expressed in impermissible attempts to save one person's life at the expense of causing harm to another.

The object of the crime is human life and health. The subject matter of the crime consists of any organs or tissues. An organ is a part of the body comprising several tissues and constituting a separate structural unit that performs specific functions in the organism. Such organs include, for example, the heart, kidneys, liver, etc. A tissue is an aggregate of cells and intercellular substance having the same structure, functions and origin.

The International Covenant on Civil and Political Rights of 16 December 1966 establishes: “No one shall be subjected without his free consent to medical or scientific experimentation” (Article 7). This provision was further developed in the Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, the Convention on Human Rights and Biomedicine (4 April 1997), and the Additional Protocol to that Convention concerning Transplantation of Organs and Tissues of Human Origin (24 January 2002). These documents confirm that the removal of organs or tissues for transplantation may be carried out only after the donor has given prior, expressly stated, voluntary, informed and specific consent.

Transplantation means “the entire process of removal of an organ or tissue from one person and implantation of that organ or tissue into another person, including all procedures for preparation, preservation and storage” (Article 2 of the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin of 24 January 2002).

In accordance with subparagraph 259) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, transplantation means the transfer of organs (part of an organ) and/or tissues (part of a tissue) to another location within the body or into another organism.

The objective element of the crime is characterized by coercion to the removal or illegal removal of organs or tissues of a living person for transplantation or other use, as well as the commission of illegal transactions involving the organs and tissues of a living person.

Coercion means inducing a person to perform an act that is undesirable to them. According to S.I. Ozhegov's Dictionary of the Russian Language, the word “coerce” means to force someone to do something. Coercion consists of active, intentional, violent influence upon a person, intended to alter their expression of will or conduct. In this case, the means of coercion is physical violence or the threat of physical violence, that is, psychological violence. Taking into account the sanction provided for in Part 1 of Article 116 of the Criminal Code, the scope of physical violence includes beatings, other violent acts causing physical pain, and the infliction of minor or moderate harm to health; these acts, when committed as a means of coercion, do not require an additional independent criminal-law assessment.

In cases where grievous bodily harm or death is caused to the alleged “donor”, the acts shall be classified under subparagraph 9) of Part 2 of Article 106 of the Criminal Code of the Republic of Kazakhstan or subparagraph 12) of Part 2 of Article 99 of the Criminal Code, provided that the relevant intent is established.

It should be noted that psychological violence in the composition of the crime under consideration consists exclusively of the threat of using violence. In this regard, a threat to kill or to inflict grievous bodily harm, when used as a means of coercion, does not require separate classification under Article 115 of the Criminal Code. The content of the threat as a form of psychological influence is limited by the legislator exclusively to the use of physical force against the human body. Therefore, if a victim is coerced into becoming a donor through threats to disclose disgraceful information (blackmail), destroy or seize property, or commit other harmful acts, Article 116 of the Criminal Code cannot be applied. The threat must be real, meaning that the victim must have grounds to fear its implementation.

Legal literature has expressed the opinion that deception may also serve as a means of coercion. Such a position may be correct only where deception, by its content, constitutes a threat. For example, a person is informed that they have a serious illness, while the possibility of receiving treatment is made conditional upon their consent to transplantation.

It should be borne in mind that the crime under consideration may be committed for the purpose of using the victim's organs and tissues not only for transplantation. Other uses of human organs and tissues may include cannibalism, sadism, sexual fetishism, etc. Human organs and tissues may also be used for industrial purposes. The main point is that the coercion is committed for the purpose of using the victim's organs and tissues; the nature of such use may vary.

Illegal transactions involving human organs and tissues should include the purchase and sale of human organs and tissues, donation (the gratuitous transfer of organs and tissues to another person), barter (the exchange of organs and tissues for something), exchange (the replacement of one person's organs and tissues with the organs and tissues of another person), leaving human organs and tissues as security for the performance of an obligation under a transaction concluded between the parties, using human organs and tissues as a means of payment, transferring human organs and tissues for the purpose of obtaining any non-property benefits, and other such transactions.

By its legal structure, the corpus delicti is formal and is considered completed from the moment actions aimed at coercing a person into the removal of organs and tissues of a living person for transplantation or other use commence, or from the moment the actual illegal removal of such organs and tissues begins, as well as from the moment illegal transactions involving the organs and tissues of a living person are committed.

The subjective element is characterized by guilt in the form of direct intent. The perpetrator is aware that they are coercing the victim into having their organs or tissues removed and desires this outcome. The motive may be the desire to help a close person at the expense of another person's health, as well as mercenary motives. The purpose is to obtain the victim's organs or tissues for transplantation or other use.

The subject of the crime is a sane natural person who has reached the age of 16.

Part 2 of Article 116 of the Criminal Code provides for an aggravated form of the crime under consideration — the same acts committed:

against a person who is knowingly in a helpless state, as known to the perpetrator. A helpless state means that, due to certain physiological or other circumstances (young age, old age, illness, physical disabilities such as blindness, deafness, absence of arms or legs, etc.), the victim is unable to offer effective resistance to the offender. For the purposes of subparagraph 1) of Part 2 of Article 116 of the Criminal Code, this may include a state of sleep or severe intoxication, as well as loss of consciousness for other reasons. In this case, the victim's helpless state must be known to the perpetrator;

against a person who is knowingly a minor. Under subparagraph 2) of Part 2 of Article 116 of the Criminal Code, liability arises where the perpetrator knew that the victim had not reached the age of 18;

against two or more persons. The commission of the acts specified in Part 1 of Article 116 of the Criminal Code against two or more persons means that the perpetrator's intent encompasses coercion to the removal or illegal removal of organs or tissues for transplantation or other use, as well as the commission of illegal transactions involving the organs and tissues of two or more persons;

commission of the acts specified in Part 1 of Article 116 of the Criminal Code by a group of persons or a group of persons acting by prior conspiracy — in cases where at least two persons participate in coercion to the removal or illegal removal of human organs or tissues for transplantation or other use, as well as in the commission of illegal transactions involving human organs and tissues, without prior agreement (a group of persons), or where the persons have agreed in advance to commit the crime jointly (a group of persons acting by prior conspiracy);

repeatedly. Repeated commission of the acts means that the specified actions are committed two or more times, either against the same person or against different persons. In this case, it must be established that the perpetrator's intent to commit the acts provided for in Part 1 of Article 116 of the Criminal Code arose anew on each occasion;

with the use of weapons or objects used as weapons. Use means the actual employment of weapons or objects used as weapons in accordance with their specific purpose, namely, to cause harm to human life and health.

According to the Law of the Republic of Kazakhstan dated 30 December 1998 “On State Control over the Circulation of Certain Types of Weapons”, weapons are devices and objects structurally designed to defeat a living or other target, as well as to give signals. For the purposes of this subparagraph, weapons include both firearms and cold weapons.

Cold weapons are weapons in which the means of directly striking a target is activated by the muscular strength of a person.

Any objects capable of causing grievous bodily harm to a person may constitute other objects used as weapons;

against a woman who is knowingly pregnant, as known to the perpetrator. A mandatory condition for classifying the crime under this subparagraph is the perpetrator's awareness of the victim's pregnancy. The perpetrator's awareness may be based on the victim's external appearance or her statement, as well as on examination of medical records. In any event, information concerning the state of pregnancy must be reliable. A person who was unaware of the victim's pregnancy shall not incur criminal liability under this subparagraph. Whether or not the fetus died as a result of the encroachment upon the life of the pregnant woman is also of no legal significance for classification under this subparagraph;

by means of deception or abuse of trust. A necessary condition for holding a person liable under this subparagraph is establishing the fact of deception or abuse of trust;

by a person using their official position. The commission of the acts specified in Part 1 of Article 116 of the Criminal Code by a person using their official position occurs where a person participates in coercion to the removal or illegal removal of human organs or tissues for transplantation or other use, or in the commission of illegal transactions involving human organs and tissues, while using their official powers contrary to the interests of the service;

through the use of the victim's material or other dependence. Coercion to the removal or illegal removal of human organs and tissues for transplantation or other use, as well as the commission of illegal transactions involving human organs and tissues through the use of the victim's material or other dependence, shall exist only where the perpetrator threatens to take certain actions against a person who is materially, professionally or otherwise dependent on them, or unlawfully takes such actions, which will result in the removal of human organs and tissues. The victim's material dependence on the perpetrator may arise from full or partial maintenance, residence in the perpetrator's living premises, or a situation in which the improvement or deterioration of the victim's financial position depends on the perpetrator, etc. Relations between a debtor and a creditor, or between an heir and a testator, may also constitute a state of material dependence.

Part 3 of Article 116 of the Criminal Code establishes liability for the acts provided for in Parts 1 and 2 of this Article where such acts negligently result in the death of the victim or other grave consequences, or are committed by a criminal group.

In accordance with subparagraph 4) of Article 3 of the Criminal Code, other grave consequences include the infliction of grievous bodily harm, the infection or poisoning of people, deterioration in health, and other consequences.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*

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