Commentary on Article 136. Substitution of a Child of the Criminal Code of the Republic of Kazakhstan
1. Intentional substitution of a child –
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to two years, or imprisonment for the same term.
2. The same act committed for mercenary or other base motives –
shall be punishable by imprisonment for a term of three to seven years.
The public danger of substituting a child consists in violating the child's right to be raised in his or her own family, as well as the parents' right to raise their own child themselves. Family ties between children and parents are severed, and deep and irreparable psychological trauma is inflicted on the child and the parents. Where there is a mercenary motive, the perpetrators obtain an unlawful source of enrichment.
Article 9 of the Convention on the Rights of the Child of November 20, 2009, states: “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities, subject to judicial review, determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such a determination may be necessary in a particular case, such as when the parents are abusing or neglecting the child, or when the parents are living separately and a decision must be made as to the child's place of residence.”
The object of the crime under consideration is the child's liberty, rights and legitimate interests, as well as the legitimate interests and rights of the child's parents. The crime also causes harm to the child's physical and spiritual development. The victim of the crime provided for in Article 136 of the Criminal Code is recognized as the child. In accordance with Article 1 of the 1989 UN Convention on the Rights of the Child and subparagraph 8) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family,” a child is a person who has not reached the age of eighteen (the age of majority). The nature of the crime being analyzed does not allow the identity of the victim to be defined so broadly.
In the science of criminal law, there is no unity of views among scholars regarding the age of the child. Some believe that substitution is possible in respect of any person under the age of 18 who is unaware of his or her origin, provided that the parents were also not informed of it; others propose, for the purpose of uniform interpretation of the concept of “child,” introducing a note to the article specifying the age of the child in respect of whom substitution is possible, for example, two years; a third group proposes using the child's legal capacity as the basis for determining the child's age; a fourth group believes that the child's age is not what matters for the legal classification of the act, but rather the subjective perception of the parents or one of them. It seems that, within the meaning of Article 136 of the Criminal Code, the provision concerns only the substitution of a newborn child, before the mother or legal representatives have remembered the child's individual characteristics, that is, as a rule, before the first feeding. There are cases when, due to the health condition of the child or the mother, or in connection with the mother's death, contact between the newborn and the parents or legal representatives is postponed. In such cases, the secret substitution of the child may be carried out throughout the entire period during which the parents have no direct contact with the child.
Thus, substitution as such is practically possible only in respect of a newborn child. If the legislator had considered the substitution of a child in the proper legal sense of this concept (a child as a human being under the age of eighteen), it would have expressly stated: substitution of a person who is knowingly a minor.
According to certain scholars, the concept of “child” may refer only to a newborn child (i.e., a child under the age of 1 month). It should be noted that the Latvian legislator, in Article 167 of the Criminal Code of Latvia, specified that substitution is carried out in respect of a newborn child. The legislator of our Republic should study the legislation of Latvia and other countries, especially since Article 100 of the Criminal Code uses the concept of “newborn child.”
In the criminal-law sense, victims should be recognized not only as the children who have been substituted, but also as the families whose children have been subjected to substitution.
The objective side of the crime consists in replacing one newborn child with another in a maternity hospital or another medical institution immediately after childbirth or during the first days following childbirth. As a rule, such a crime is committed when the child does not yet possess individually identifiable characteristics. Substitution is committed through active actions and takes place in secrecy, when the child's parents, legal representatives, or employees of the institution where the child is kept cannot perceive what is happening. Substitution of a child also occurs when one's own child is replaced with someone else's child, since the interests of the other child's family are disregarded. Substitution of someone else's child with another child belonging to someone else is also classified under Article 136 of the Criminal Code. A mandatory condition for imputing the crime provided for in the commented article is the absence of consent from at least one parent of at least one of the children being substituted. If the exchange of children is carried out with the mutual consent of the parents, liability under Article 136 of the Criminal Code is excluded (for example, where there is a desire to have a child of the opposite sex). Raising an abandoned child also does not constitute the elements of a crime. However, it should be noted that there is no complete unanimity among scholars and practitioners on this issue.
For the elements of the crime under Article 136 of the Criminal Code to be present, the mere fact of taking a child away from the parents is insufficient; the child must be replaced with another child. If a person merely takes a child away, the act constitutes kidnapping (subparagraph 5) of part 2 of Article 125 of the Criminal Code). Where the kidnapping of a child preceded the child's substitution, the act must be classified as an aggregate of crimes under subparagraph 5) of part 2 of Article 125 of the Criminal Code and Article 136 of the Criminal Code, depending on the qualifying circumstances.
The place where the child is substituted does not affect the legal classification. It may be a maternity hospital, a children's home or another institution, a residential premises, or a street.
By its structure, the corpus delicti is formal. The crime is considered completed from the moment the child is substituted.
From the subjective side, the crime under analysis can only be committed with direct intent. The perpetrator is aware that he or she is substituting a child, foresees the occurrence of socially dangerous consequences, and desires their occurrence.
The subjects of child substitution may include employees of maternity hospitals and children's homes, as well as persons providing assistance during childbirth or caring for a newborn outside a medical institution, or any physically sane individual who has reached the age of 16. Along with medical workers, the subject may be the newborn child's mother or other relatives.
If such actions are committed by an official, for example, the head of a maternity hospital, these actions must be classified as an aggregate of crimes provided for in the commented article and Article 362 of the Criminal Code. In the event of accidental substitution of a child in a maternity hospital or children's home, the perpetrators possessing the characteristics of an official may be held liable for negligence (Article 371 of the Criminal Code) or disciplinary liability.
The qualified corpus delicti of child substitution (part 2 of Article 136 of the Criminal Code) is structured by the legislator in such a way that its subjective side is expressed through mercenary or other base motives. Mercenary motives may be expressed, for example, in receiving material remuneration from persons interested in the substitution of the child or in the desire to avoid certain material expenses (for example, in the event of the birth of a child with physical disabilities). Manifestations of other base motives may include revenge, envy toward the parents of someone else's child, and sometimes hooligan motives. Other base motives are aspirations characterized by pronounced immorality, incompatibility with universal human values, and a desire to cause harm.
If the substitution of a child is accompanied by the subsequent presentation of property-related demands as a condition for the child's return, then, under the relevant circumstances, the act constitutes an aggregate of crimes provided for in Articles 194 and 136 of the Criminal Code.
The substitution of a child should be distinguished from the kidnapping of a child committed for mercenary motives. The similarity between these crimes lies in the fact that the child is seized or taken away and deprived of the opportunity to remain with the parents. The moment of completion of the crimes under analysis coincides: the actual seizure of the child and removal of the child from the familiar environment (from the family, from the parents, from a kindergarten or a medical institution). The subjective elements may also coincide (mercenary motives, other personal interest). The differences between these crimes are as follows: in the case of child substitution, the victim is a child who does not perceive his or her liberty as a personal value. That is, both the victim and the objects of these crimes are different. In the case of kidnapping a child, the perpetrators do not replace the child with another child, which is what occurs in the case of child substitution. Moreover, in the case of child substitution, the characteristics of the substituted child are important to the perpetrators: healthy rather than sick, a boy rather than a girl, and so forth. For kidnappers, what matters is the very fact of having the victim in their possession.
The act provided for in part 1 of Article 136 of the Criminal Code belongs to the category of minor crimes.
The act provided for in part 2 of Article 136 of the Criminal Code belongs to the category of serious crimes.
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 the 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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