Commentary on Article 137. Illegal Activities Related to Adoption (Adoption of a Girl) of the Criminal Code of the Republic of Kazakhstan
1. Illegal actions involving the adoption of a child (adoption of a girl), the placement of a child under guardianship (custody), or placement with a foster caregiver —
shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. The same acts committed for mercenary motives or by an official through the use of his or her official position —
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 community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour, while Part 2 constitutes a crime) lies in the fact that illegal activities involving adoption violate the rights of the child and cause suffering, which may lead to conflicts between the minor and the adoptive parent and, in some cases, even to suicide.
The object of the criminal offence under consideration is the child's freedom, rights and legitimate interests. The criminal offence also causes harm to the child's physical and spiritual development.
Pursuant to the Convention on the Rights of the Child of 20 November 1989, which was ratified by the Republic of Kazakhstan by Resolution of the Supreme Council of the Republic of Kazakhstan dated 8 June 1994, a child, for the full and harmonious development of his or her personality, needs to grow up in a family environment, in an atmosphere of happiness, love and understanding.
A child, owing to his or her physical and mental immaturity, requires special protection and care, including appropriate legal protection both before and after birth.
In accordance with Article 20 of the 1989 Convention on the Rights of the Child, a child who is temporarily or permanently deprived of his or her family environment, or who, in his or her own best interests, cannot remain in such an environment, is entitled to special protection and assistance provided by the State. Defining the obligations of States Parties, the Convention, in order to ensure guarantees for the observance of the child's legitimate interests, prescribes the following in Article 21.
“States Parties...:
ensure that the adoption of a child is authorized only by competent authorities, which determine, in accordance with applicable laws and procedures and on the basis of all relevant and reliable information, that adoption is permissible in view of the child's status with respect to his or her parents, relatives and legal guardians and that, where required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
recognize that intercountry adoption may be considered as an alternative means of providing care for a child if the child cannot be placed in a foster family or an adoptive family capable of providing for his or her upbringing, and if the provision of any appropriate care in the child's country of origin is impossible;
ensure that, in the case of adoption of a child in another country, the same safeguards and standards are applied as those applicable to domestic adoption;
take all necessary measures to ensure that, in the case of adoption of a child in another country, the placement of the child does not result in improper financial gain for those involved;
promote, where appropriate, the objectives of this Article by concluding bilateral and multilateral arrangements or agreements and endeavour, on this basis, to ensure that the placement of a child in another country is carried out by competent authorities or bodies.”
The issues of ensuring the rights of children left without a family are addressed by the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, dated 3 December 1986. This document provides for the possibility of placing a child in another family for upbringing or adopting the child where parental care is absent or inadequate (Article 3). When considering matters concerning the placement of a child in the care of persons other than his or her own parents, the primary consideration must be the best interests of the child, the child's need for love and the right to security and permanent care, as emphasized in Article 5 of the 1986 Declaration.
The legislation of the Republic of Kazakhstan is aimed at protecting the rights of children who have been left without parental care. According to Article 27 of the Constitution of the Republic of Kazakhstan, marriage and the family, motherhood, fatherhood and childhood are under the protection of the State (Paragraph 1); caring for children and raising them are the natural right and duty of parents (Paragraph 2). Therefore, the legislation of Kazakhstan provides for the possibility of placing children left without parental care. Such forms of placement include adoption, placement under guardianship (custody), and placement in a foster family. The Code “On Marriage (Matrimony) and Family” devotes separate chapters to the adoption of children, guardianship and custody of children, placement of children in foster families, foster care and guest families.
A number of laws and subordinate regulatory legal acts have been adopted to ensure the protection of children's rights during adoption, the establishment of guardianship and custody over them, and their placement in foster families: the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”; the Law of the Republic of Kazakhstan dated 8 August 2002 “On the Rights of the Child in the Republic of Kazakhstan”; Resolutions of the Government of the Republic of Kazakhstan dated 21 September 2010 “On Measures to Ensure the Fulfilment by the Republic of Kazakhstan of Its Obligations Arising from the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”, dated 30 March 2012 “On Approval of the Rules for the Transfer for Adoption of Children Who Are Citizens of the Republic of Kazakhstan”, and dated 10 July 2014 “On Approval of the Rules for the Appointment, Return and Amount of a One-Time Cash Payment in Connection with the Adoption of an Orphan Child and/or a Child Left Without Parental Care” (as amended on 2 July 2015); Orders of the Minister of Education and Science of the Republic of Kazakhstan dated 9 December 2014 “On Approval of the Rules for Accreditation of Adoption Agencies”, dated 29 June 2016 “On Approval of the Rules for Registration of Persons Who Are Citizens of the Republic of Kazakhstan, Permanently Residing in the Territory of the Republic of Kazakhstan, and Wishing to Adopt Orphan Children and Children Left Without Parental Care”, dated 16 January 2015 “On Approval of the Rules for the Activities and Determination of the Composition of the Commission Issuing an Opinion on the Possibility (Impossibility) of Issuing Permission for the Transfer for Adoption of Children Who Are Citizens of the Republic of Kazakhstan”, dated 16 January 2015 “On Approval of the Rules for Organizing the Registration of Orphan Children, Children Left Without Parental Care and Subject to Adoption, and Access to Information About Them”, and dated 16 January 2015 “On Approval of the Regulations on Foster Care”; the Order of the Minister of Healthcare and Social Development of the Republic of Kazakhstan dated 28 August 2015 “On Approval of the List of Diseases in the Presence of Which a Person May Not Adopt a Child, Accept a Child under Guardianship or Custody, or Provide Foster Care”; ... the Order of the Acting Minister of Foreign Affairs of the Republic of Kazakhstan dated 14 June 2016 “On Approval of the Rules for Registration of Persons Who Are Citizens of the Republic of Kazakhstan and Permanently Reside Outside the Republic of Kazakhstan, and Foreigners Wishing to Adopt Orphan Children and Children Left Without Parental Care Who Are Citizens of the Republic of Kazakhstan”, and other regulatory legal acts.
For this purpose, within the framework of the implementation of Paragraph 3 of Article 120 of the said Code, the Government of the Republic of Kazakhstan, by Resolution dated 30 March 2012, approved the Rules for the Exercise of State Functions in the Field of Guardianship and Custody, which define the procedure for the exercise of state functions in relation to minors and adults through local executive bodies. According to Paragraph 3 of these Rules, state functions in the field of guardianship and custody are exercised for the purpose of protecting the rights and interests of minors, including orphan children and children left without parental care who need to be adopted, placed in foster families, placed under guardianship or custody, or placed in foster care, as well as orphan children and children left without parental care who are under guardianship or custody, in foster care, or being raised in institutions for orphan children and children left without parental care.
According to Paragraph 1 of Article 120 of the Code “On Marriage (Matrimony) and Family”, the State exercises its functions in the field of guardianship and custody in relation to minors and adults who have been declared legally incapable or of limited legal capacity through local executive bodies. State functions in the field of guardianship or custody are exercised in accordance with the procedure determined by the Government of the Republic of Kazakhstan.
Guardianship and custody are also established to protect the property and personal non-property rights and interests of adults who have been declared legally incapable or of limited legal capacity.
Local executive bodies of districts, cities, cities of regional and republican significance, and the capital exercise state functions in the field of guardianship and custody in relation to minors through authorized education and healthcare bodies, and in relation to adults through authorized social protection bodies. These bodies organize the registration of orphan children and children left without parental care and, taking into account the specific circumstances in which parental care was lost, as well as the interests of such children, ensure the selection of an appropriate form of placement and subsequent monitoring of their living conditions, upbringing and education.
The protection of the rights and interests of orphan children and children left without parental care is carried out by the relevant body, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, by placing them in a family for upbringing (adoption), under guardianship or custody, in foster care, or in a foster family and, where this is not possible, in institutions of all types for orphan children and children left without parental care.
The objective element of the criminal offence consists of illegal actions involving the adoption of a child, the placement of the child under guardianship (custody), or placement with a foster caregiver.
The disposition of the article under consideration is blanket in nature; therefore, in order to identify the above-mentioned illegal actions, it is necessary to refer to the provisions of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, the Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan”, as well as the Resolution of the Government of the Republic of Kazakhstan dated 30 March 2012 “On Approval of the Rules for the Transfer for Adoption of Children Who Are Citizens of the Republic of Kazakhstan”.
According to Article 4 of the Law of the Republic of Kazakhstan dated 12 March 2010 “On Ratification of the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”:
“Adoption within the meaning of the Convention shall take place only where the competent authorities of the State of origin:
have established that the child is eligible for adoption;
have determined, after due consideration of the possibilities for placing the child in the State of origin, that intercountry adoption is in the child's best interests;
have ensured that:
the persons, institutions and authorities whose consent is necessary for adoption have been duly counselled and informed of the consequences of their consent, in particular whether or not the adoption will result in the termination of the legal relationship between the child and his or her family of origin;
such persons, institutions and authorities have given their consent freely, in the required legal form, expressed or evidenced in writing;
such consent has not been given in exchange for any remuneration or compensation of any kind and has not been withdrawn; and
where required, the mother's consent has been given only after the birth of the child;
have ensured, taking into account the age and degree of maturity of the child, that:
the child has been counselled and duly informed of the effects of the adoption and of the need for his or her consent to the adoption, where such consent is required;
the wishes and opinions of the child have been taken into consideration;
the child's consent to the adoption, where such consent is required, has been given freely, in the appropriate legal form, expressed or evidenced in writing; and
such consent has not been given in exchange for any remuneration or compensation of any kind.”
First of all, it is necessary to understand the lawful forms of these actions. Adoption is a legal form of transferring a child (children) to a family for upbringing on the basis of a court decision, as a result of which personal non-property and property rights and obligations arise that are equivalent to the rights and obligations of relatives by origin.
Guardianship is a legal form of protecting the rights and legitimate interests of children under the age of fourteen.
Custody is a legal form of protecting the rights and legitimate interests of children between the ages of fourteen and eighteen.
Foster care is a form of upbringing in which a child left without parental care is transferred to a family of citizens for upbringing under an agreement concluded between an authorized state body and a person (foster caregiver) who has expressed a desire to take the child into their care.
In accordance with Article 103 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”:
“Adoption shall be declared invalid in the following cases:
where the court decision on adoption was made on the basis of forged documents;
where adoption was carried out without the consent of the persons specified in Article 93 of this Code;
where a person who is married (in a registered marriage) adopts a child without the written consent of the other spouse;
where the provisions stipulated in Paragraph 2 of Article 91 of this Code have been violated.”
A claim for declaring an adoption invalid may be brought by the parents of the adopted child, the spouse of the adoptive parent, persons whose rights have been violated by the adoption, the prosecutor, or the body exercising guardianship or custody functions.
When accepting an application for adoption, the court is obliged to verify whether the application complies, in form and content, with the requirements imposed on statements of claim by Article 148 of the Civil Procedure Code and with the requirements of Article 311 of the CPC. The court is also obliged to verify whether the application is accompanied by the necessary documents, the list of which is contained in Article 312 of the CPC.
Citizens of the Republic of Kazakhstan permanently residing outside the Republic of Kazakhstan, foreigners, including those holding a residence permit in the Republic of Kazakhstan, who wish to adopt children, must provide written consent from the authorized body in the field of child protection of the Republic of Kazakhstan (the Committee for the Protection of Children's Rights) to commence the adoption procedure.
The application must be signed personally by the adoptive parent (adoptive parents); submission of an application by another person on behalf of the adoptive parents is not permitted.
By virtue of Article 314 of the CPC, cases concerning the adoption of a child must be considered with the mandatory participation of the adoptive parents (adoptive parent), representatives of the body exercising guardianship and custody functions, as well as the prosecutor.
If the court concludes that it is appropriate to question an adopted child who has reached the age of ten during the court hearing in order to ascertain the child's opinion on the matter under consideration, the court must first obtain the opinion of the body exercising guardianship and custody functions so that the child's presence in court does not have an adverse effect on the child. When questioning the child in a court hearing with the participation of a psychologist, it is necessary to establish whether the child's opinion is the result of influence exerted by one of the parents or other interested persons, whether the child understands his or her own interests when expressing that opinion, and how the child justifies it.
If the child has parents, their consent is a mandatory condition for adoption. The parents' consent to the adoption of a child must be expressed in an application notarized or certified by the head of the institution in which the child left without parental care is staying, or by the body exercising guardianship or custody functions at the place where the adoption proceedings are conducted or at the parents' place of residence. Such consent may also be expressed directly before the court during the adoption proceedings.
In accordance with Paragraph 7 of Article 77 of the Code “On Marriage (Matrimony) and Family”, where parents have been deprived of their parental rights, adoption of the child is permitted after six months have elapsed from the date on which the court decision depriving them of parental rights enters into legal force. Adoption of a child whose one parent has been deprived of parental rights is permitted with the consent of the other parent.
According to Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 31 March 2016 “On the Practice of Application by Courts of Legislation on the Adoption of Children”:
“When considering cases concerning the adoption of a child who is a citizen of the Republic of Kazakhstan by citizens of the Republic of Kazakhstan permanently residing outside the territory of the Republic of Kazakhstan or by foreign citizens, courts should bear in mind the following:
adoption of children is permitted only where it has not been possible to place such children in families of citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan (adoption, guardianship, custody, foster care, foster family or other forms of placement of children left without parental care provided for by law), or to have them adopted by their relatives, regardless of the place of residence and citizenship of such relatives (Paragraph four of Article 84 of the Code).
In order to establish these circumstances, courts must request from the body exercising guardianship or custody functions documents confirming the impossibility of placing the child in a family of citizens of the Republic of Kazakhstan or having the child adopted by the child's relatives, regardless of their citizenship and place of residence. When examining these documents, it is necessary to verify when the child was registered, whether the three-month period of centralized registration has expired, whether the child was offered for placement or adoption to citizens of the Republic of Kazakhstan or the child's relatives and, if so, for what reasons they refused to accept the child into their family, whether relatives and persons who refused to adopt the child were questioned, and whether they signed statements confirming that they had familiarized themselves with the information about the child and refused adoption or acceptance of the child into their family;
citizens seeking to adopt a child who is a citizen of the Republic of Kazakhstan and registered in accordance with the established procedure through accredited adoption agencies must provide the court with an opinion from the competent authority of the State of which they are citizens or in which they have permanent residence concerning their living conditions and their suitability to become adoptive parents, as well as permission from the competent authority for the adopted child to leave the Republic of Kazakhstan for the receiving State...”.
Citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan who wish to adopt children are required to select the child personally and have direct contact with the child for at least two weeks.
Citizens of the Republic of Kazakhstan permanently residing outside the Republic of Kazakhstan and foreigners seeking to adopt a child must have direct contact with the child for at least four weeks. These periods must be observed by the aforementioned persons before filing an application for adoption with the court.
An application for adoption submitted before the expiry of these periods shall be returned to the applicant pursuant to Subparagraph 1) of Part 1 of Article 152 of the CPC, since the law obliges adoptive parents to become personally acquainted with the child to be adopted within the prescribed periods. During the court hearing, the court must examine the circumstances of the applicants' communication with the child to be adopted and ensure that a relationship has been established between them.
When deciding whether adoption is permissible, courts must, in each particular case, examine and take into account the moral and other personal qualities of the adoptive parent (circumstances characterizing the applicant's conduct at work and in everyday life, the existence, at the time of adoption, of an unexpunged or outstanding conviction for an intentional crime), his or her state of health, age, relationships established within the family, relationships that have developed between the applicant and the child, as well as the material and housing conditions of the prospective adoptive parents.
When adopting a found, abandoned (relinquished) child, the existence of a report or certificate of discovery of the child drawn up by internal affairs bodies or a local executive body is insufficient. When accepting an application for adoption of such a child, the judge verifies whether a copy of the birth record and a birth certificate confirming the registration of the child in accordance with Article 196 of the Code “On Marriage (Matrimony) and Family” are attached to the application.
If, at the time of filing the application for adoption, the found, abandoned (relinquished) child has not been registered in accordance with the procedure provided for in Article 196 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, and it is impossible to remedy this deficiency at the stage of judicial preparation of the case, the court must, in accordance with Subparagraph 3) of Part 1 of Article 152 of the CPC, decide to return the application to the applicant in order to remedy the circumstances preventing the commencement of proceedings.
When adopting a child of minor parents who have not reached the age of sixteen, the consent of their legal representatives is also required. If the minor parents have no legal representatives, or if the child is abandoned by minor parents in a medical institution after birth and no one takes an interest in the child's fate for more than three months, the consent of the body exercising guardianship or custody functions is required.
By Resolution of the Government of the Republic of Kazakhstan dated 30 March 2012, the “Rules for the Transfer for Adoption of Children Who Are Citizens of the Republic of Kazakhstan” were approved. These Rules were developed in accordance with Paragraph 6 of Article 84 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”.
These Rules determine the procedure for:
transferring orphan children and children left without parental care who are citizens of the Republic of Kazakhstan for adoption by relatives, regardless of their citizenship and place of residence;
transferring children for adoption by citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan;
transferring children registered in the Republican Database of Orphan Children and Children Left Without Parental Care, and Persons Wishing to Accept Children into Their Families, for adoption by citizens of the Republic of Kazakhstan permanently residing outside the Republic of Kazakhstan and by foreigners (Paragraph 1 of the Rules).
According to Paragraph 2 of the said Rules and Article 84 of the Code “On Marriage (Matrimony) and Family”, adoption is permitted in respect of minor children whose births have been registered in accordance with the procedure established by the Code, and only in their interests, taking into account the possibilities of ensuring the child's full physical, psychological, spiritual and moral development, upbringing and education.
In doing so, the child's age, degree of maturity and consent to adoption are taken into account.
Children whose sole parent or both parents:
- have died; 2) have abandoned the child; 3) have been deprived of parental rights and have not had those rights restored; 4) have given consent to the adoption of the child by relatives or by persons married to the mother or father of the child (children) to be adopted; 5) have been declared legally incapable, missing or deceased by a court; 6) are unknown, are subject to adoption.
Adoption of a found (abandoned) child whose parents are unknown is carried out in accordance with the procedure established by the Code “On Marriage (Matrimony) and Family”, provided that there is a report or certificate issued by internal affairs bodies or bodies exercising guardianship and custody functions, the child's birth certificate, and a copy of the birth record confirming registration of the child's birth in accordance with Article 196 of the said Code.
Adoption of a child left in a maternity hospital (department) or another medical institution is carried out in accordance with the procedure established by the aforementioned Code, provided that the relevant certificate drawn up by the administration of the institution in which the child was left is available.
Adoption of brothers and sisters who were raised in the same family by different persons is not permitted, except where such adoption is in the interests of the children and the children are unaware of their relationship, have not lived together and have not been raised together.
Adoption within the territory of the Republic of Kazakhstan by foreigners married to citizens of the Republic of Kazakhstan of a child who is a citizen of the Republic of Kazakhstan shall be carried out in accordance with the procedure established by the said Code for foreigners (Paragraph 3 of the Rules).
The age difference between the adoptive parent and the adopted child must be at least sixteen years. For reasons recognized by the court as valid, the age difference may be reduced. No age difference is required where the child is adopted by a stepfather or stepmother.
According to Paragraph 2 of Article 91 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” and Paragraph 4 of the Rules, adults may be adoptive parents, except for:
persons declared legally incapable or of limited legal capacity by a court;
spouses where one of them has been declared legally incapable or of limited legal capacity by a court;
persons deprived of parental rights or restricted in parental rights by a court;
persons removed from the duties of a guardian or custodian for improper performance of the duties imposed on them regarding the care and maintenance of their wards, provision of care and treatment, and protection of their rights and interests;
former adoptive parents where the adoption was cancelled by a court through their fault;
persons who, due to their state of health, are unable to exercise parental rights. The list of diseases that prevent a person from adopting a child, accepting a child under guardianship or custody, or providing foster care shall be established by the authorized body in the field of healthcare;
persons who do not have a permanent place of residence;
persons adhering to a non-traditional sexual orientation;
persons who have an unexpunged or outstanding conviction for committing an intentional crime at the time of adoption, as well as persons specified in Subparagraph 14) of this Paragraph;
stateless persons;
male persons who are not in a registered marriage (matrimony), except in cases where they have actually raised the child for at least three years due to the death of the mother or her deprivation of parental rights;
persons who, at the time of adoption, do not have income sufficient to provide the adopted child with the subsistence minimum established by the legislation of the Republic of Kazakhstan;
persons registered with narcological or psychoneurological dispensaries;
persons who have or have had a criminal record, or who are or have been subject to criminal prosecution (except for persons whose criminal prosecution was terminated on the grounds specified in Subparagraphs 1) and 2) of Part 1 of Article 35 of the CPC of the Republic of Kazakhstan) for criminal offences involving murder, intentional infliction of bodily harm, offences against public health and morality, sexual inviolability, extremist or terrorist crimes, or human trafficking;
citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan who have not undergone psychological training in accordance with the procedure established by Paragraph 4 of Article 91 of the said Code (except for close relatives of the child).
Persons who are not married to each other may not jointly adopt the same child.
Illegal actions involving adoption are expressed in:
adopting children in respect of whom this form of placement is impermissible;
carrying out such actions by persons who are not appropriate subjects;
violating the regulatory provisions established by law and subordinate regulatory legal acts;
acting as intermediaries in the adoption of children.
See Articles 115–132 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” in this regard.
Guardianship or custody is established over children left without parental care for the purpose of their maintenance, upbringing and education, as well as for the protection of their rights and interests. Illegal guardianship (custody) may be expressed in the following actions:
exercising guardianship (custody) over a child in respect of whom such guardianship (custody) is impermissible;
establishing guardianship (custody) in favour of persons who are not appropriate subjects;
establishing guardianship (custody) in violation of the procedure prescribed by law.
See Articles 133–137 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” in this regard.
Illegal transfer of a child to foster care, as with other forms of placement of children left without parental care, may be expressed in:
transferring a child who is not eligible for placement in foster care;
transferring a child to persons who are not entitled to act as foster parents;
violating the transfer procedure.
See Articles 84–110 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” in this regard.
The consent of one party's parents to adoption does not exclude the elements of this criminal offence. Adoption of a child by mutual agreement between the parents of both parties does not constitute a criminal offence, since in fact this involves relinquishment of one's own child. The actions of the perpetrator will contain the elements of this provision even in cases where a child is adopted and the infant's parents are absent, for example, where the mother has died and there is no father or other relatives.
By its structure, the offence is formal. The criminal offence is considered completed from the moment illegal actions involving the adoption of a child, the transfer of the child under guardianship (custody), or placement in foster care are committed.
From the subjective perspective, the criminal offence under consideration can be committed only with direct intent. The perpetrator is aware that he or she is unlawfully carrying out actions involving adoption or the transfer of a child under guardianship (custody) or into foster care, and desires to commit these actions. In Part 2 of the article under consideration, the subjective element of the crime includes a mandatory characteristic (motive) — mercenary motives.
The subjects of illegal adoption activities may include employees of maternity hospitals and children's homes, as well as employees of guardianship and custody bodies or foster care services, or any legally responsible individual who has reached the age of sixteen.
At the same time, under Part 2 of the article under consideration, the subject of the crime is special: an official who uses his or her official position.
For a crime committed for mercenary motives, the general subject is a legally responsible individual who has reached the age of sixteen.
The aforementioned actions may be accompanied by the falsification of documents on the basis of which adoption is carried out or guardianship (custody) or foster care is established. In such cases, criminal liability arises for the aggregate of criminal offences: under Article 137 of the Criminal Code and the relevant part of Article 385 of the Criminal Code. If the falsified documents served as evidence in a civil case, liability also arises under Part 1 of Article 416 of the Criminal Code.
Cases of illegal adoption that constitute a concealed form of trafficking in minors must be classified under the aggregate of Article 137 and the relevant part of Article 135 of the Criminal Code.
Where illegal adoption is accompanied by the insertion into official documents of knowingly false information or corrections distorting their actual content, or by the issuance of knowingly false or forged documents, by a person authorized to perform state functions, a person equivalent to such a person, or an official, and where such actions are committed for the purpose of obtaining benefits and advantages for themselves or other persons or organizations, or causing harm to other persons or organizations, liability also arises under Article 369 of the Criminal Code.
Cases concerning the adoption of a child fall within the jurisdiction of specialized interdistrict courts for juvenile cases (Part 3 of Article 27 of the CPC). If the subject of the crime is a judge who intentionally renders a knowingly unjust court decision on adoption, liability also arises under Article 418 of the Criminal Code.
Part 2 of the article under consideration provides for liability for acts committed for mercenary motives or by an official through the use of his or her official position.
The characteristics of the concept of “mercenary motives” are provided in the commentary to Subparagraph 8) of Part 2 of Article 99 of the Criminal Code and Part 2 of Article 136 of the Criminal Code.
The concept and characteristics of an official are provided in the commentary to Subparagraph 26) of Article 3 of the Criminal Code and Subparagraph 9) of Part 2 of Article 125 of the Criminal Code; Subparagraph 9) of Part 2 of Article 128 of the Criminal Code; and Subparagraph 8) of Part 2 of Article 135 of the Criminal Code.
The act provided for in Part 1 of Article 137 of the Criminal Code constitutes a criminal misdemeanour.
The act provided for in Part 2 of Article 137 of the Criminal Code constitutes a crime of minor gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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