Commentary on Article 140. Failure to Fulfil the Duties of Raising a Minor under the Criminal Code of the Republic of Kazakhstan

1. Repealed by Law of the Republic of Kazakhstan dated 1 April 2019 No. 240-VI.

2. Failure to fulfil or improper fulfilment of the duties of raising a minor by a parent or another person entrusted with such duties, as well as by a teacher or another employee of an educational, upbringing, medical or other institution obliged to supervise a minor, where such conduct is accompanied by cruel treatment of the minor, —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labour 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 deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

In general, the prohibition of the use of violence and cruel or degrading treatment is enshrined in the Universal Declaration of Human Rights (Article 5) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3), according to which no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

This prohibition is specified with regard to children in the 1966 International Covenant on Civil and Political Rights (Article 24), which establishes that “every child shall have, without any discrimination, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the State”.

In the World Declaration on the Survival, Protection and Development of Children (30 September 1990, New York), the international community declared its commitment to alleviating the plight of millions of children living in particularly difficult circumstances, such as children subjected to cruel treatment, living in adverse social conditions and subjected to exploitation.

The Declaration of the Rights of the Child (adopted by the UN General Assembly on 20 November 1959) proclaimed that “the child shall be protected against all forms of neglect, cruelty and exploitation (Principle 9)”.

The 1989 UN Convention on the Rights of the Child enshrined the child's right to protection against all forms of improper treatment:

against all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment (Article 19(1));

against all forms of exploitation prejudicial to any aspect of the child's welfare (Article 36), including the social exploitation of children (Article 34), the use of children in the illicit production of and trafficking in narcotic drugs and psychotropic substances (Article 33), and the use of children in any other unlawful activities (Article 36);

against torture or other cruel, inhuman or degrading treatment or punishment (Article 37);

against the sale of or trafficking in children for any purpose or in any form (Article 35).

The following obligations of States Parties established by the UN Convention on the Rights of the Child correspond to this right of the child:

to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child (Article 19(1));

to recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous to the child's health or to interfere with the child's education, or to be harmful to the child's health and physical, mental, spiritual, moral or social development (Article 32(1));

to protect the child from all forms of sexual exploitation and sexual abuse, including: (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; (c) the exploitative use of children in pornography and pornographic materials (Article 34);

to protect the child from all other forms of exploitation prejudicial to any aspect of the child's welfare (Article 36);

to ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37).

The UN 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 (adopted by UN General Assembly Resolution 41/95 of 3 December 1986), established that where parents fail to care for their child or such care is inadequate, consideration should be given to care by relatives of the child's parents, placement of the child in another family for upbringing, adoption or, where necessary, placement in a special institution (Article 4).

The UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) (approved by the UN General Assembly Resolution of 14 December 1990) require the adoption and enforcement of legislation prohibiting the maltreatment and exploitation of children and young people, as well as their use as instruments in criminal activities (Principle 53), and proclaim that no child shall be subjected to harsh or degrading punishment at home, in school or in other institutions (Principle 54).

The care and upbringing of children constitute a constitutional right and duty of parents, who have a preferential right to raise their children over all other persons. Paragraph 2 of Article 27 of the Constitution provides that “the care and upbringing of children shall be a natural right and duty of parents”.

The Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” (Articles 68–74) obliges parents and other persons entrusted with such duties to care for the health and physical, mental, spiritual and moral development of children.

At the same time, it establishes that, when exercising parental rights, parents and other persons entrusted with the duty of raising children must not cause harm to children's physical and mental health or their moral development. Methods of raising children must exclude neglectful, cruel, rough or degrading treatment, insults or exploitation of children.

The Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan” regulates relations arising in connection with the exercise of the fundamental rights and legitimate interests guaranteed by the Constitution of the Republic of Kazakhstan, based on the principles of prioritising the preparation of children for a full-fledged life in society, developing socially significant and creative activity in them, instilling moral qualities, patriotism and civic responsibility, and forming national self-awareness on the basis of the universal values of world civilisation.

Every child has the right to a standard of living and conditions necessary for full physical, mental, moral and spiritual development. The State ensures the creation of such conditions through a system of social and economic measures (Article 12 of the Law).

Parents or other legal representatives are obliged to create living conditions necessary for the comprehensive development of the child. Parents are obliged to raise the child, provide care, maintain the child financially, look after the child's well-being and provide housing (Article 24 of the Law).

According to Article 49 of the Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan”, when exercising parental rights, parents and other legal representatives are not entitled to cause harm to the child's physical and mental health or moral development. The Law also states that methods of raising a child must exclude neglectful, cruel, rough or degrading treatment, insults or exploitation of the child.

For the purpose of ensuring guarantees of children's rights and legitimate interests, as well as restoring their violated rights and freedoms through cooperation with state and public institutions, the institution of the Commissioner for Children's Rights was established.

By Order of the Minister of Education and Science of the Republic of Kazakhstan dated 16 January 2015, the “Regulation on Foster Care” was approved, according to which a child (children) who is not under guardianship or trusteeship may be placed in foster care, with the exception of a child suspected of committing a criminal offence.

A foster caregiver is a person to whom a child (children) has been transferred for upbringing by the body exercising guardianship or trusteeship functions, including a child residing in an educational, medical or other organisation, and a child suspected of committing a crime, on the basis of an agreement on the transfer of the child (children) into foster care.

The public danger of the criminal misdemeanour lies in the fact that the commission of the acts specified in the disposition of the Article under commentary may lead to deterioration of the child's health and disruption of the normal mental development and formation of the child's personality.

The object is the social relations established by the State for the protection of the interests of an individual minor with regard to the minor's healthy physical and mental upbringing.

The objective element is expressed both through action and omission and consists of failure to fulfil or improper fulfilment of the duties of raising a minor by a parent (adoptive parents) or another person entrusted with such duties, as well as by a teacher or another employee of an educational, upbringing, medical or other institution obliged to supervise a minor, where such conduct is accompanied by cruel treatment of the minor.

Failure to fulfil duties entails liability only where two criteria are present: an objective criterion — the person is obliged to act; and a subjective criterion — the person had the ability to act. Children should primarily be raised by their parents (including adoptive parents); in the event of their absence or inability to perform their duties (the subjective criterion), other relatives, guardians or trustees should assume this responsibility.

The duties of raising minors and supervising them are also imposed on teachers and other employees of educational, upbringing, medical or other institutions.

Failure to fulfil or improper fulfilment of the duties of raising a minor consists of failure to perform or negligent performance of duties imposed on such persons by law, including subordinate departmental regulatory legal acts and, in institutions or establishments, internal regulations. Failure to fulfil the specified duties occurs where these persons had a real opportunity to perform them but demonstrated complete inaction.

It should be noted that the process of raising children and adolescents in the family remains consistently important, since it is precisely the irresponsibility of parents that generates aggression, a sense of revenge and contempt in the souls of young citizens due to the lack of affection, care and attention. Constant drinking in dysfunctional families consumes their material resources and practically deprives family members, including children, of the opportunity to dress properly and eat adequately, not to mention the desire to own prestigious items. The combination of poor upbringing and the desire not to appear inferior to their peers pushes such minors towards a criminal path: “By any means necessary, I will have what I want...” — that is, in defiance of the law.

Evasion by parents of their duties to raise children may be expressed in the absence of care for their moral and physical development, education and preparation for socially useful work.

According to paragraph 12 (sixth and seventh paragraphs) of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application by Courts of Legislation in Resolving Disputes Related to the Upbringing of Children”, abuse of parental rights means the use of such rights to the detriment of the interests of children, for example, creating obstacles to education, inducing children to beg, steal, engage in prostitution, consume alcoholic beverages or narcotic drugs, psychotropic substances and/or their analogues, etc.

Cruel treatment of children may be manifested not only in the infliction of physical or mental violence upon them by their parents or in attempts against their sexual inviolability, but also in the application of impermissible methods of upbringing (rough, neglectful or degrading treatment of children, insults or exploitation of children).

Cruel treatment of a minor should be understood to include: deprivation of food, water or clothing; deprivation of sleep and rest; failure to comply with a doctor's recommendations and prescriptions concerning disease prevention and treatment of the child; refusal or evasion of providing the child with necessary medical assistance; placement in a place knowingly unsuitable for living; and other similar conduct.

Active actions involving a gross violation of the fundamental duties of a person engaged in raising a child, consisting of the application of methods of upbringing and treatment that are impermissible from a legal and moral perspective and encompassing all forms of psychological, physical and sexual violence against children, should be recognised as cruel treatment.

Abuse of parental rights, within the meaning of Article 140 of the Criminal Code, may be regarded as the most dangerous form of improper fulfilment by parents (or persons replacing them) of their duties to raise a minor and, in certain situations, may be classified as cruel treatment of minors.

It should be noted that failure to fulfil the duties of raising a minor constitutes a criminal offence only where it is accompanied by cruel treatment of the minor.

In cases where parents or other legal representatives of minors fail to fulfil or improperly fulfil their duties relating to the maintenance, upbringing, education and protection of the rights and interests of minors, in the absence of signs of cruel treatment, criminal liability under the Article under commentary is excluded, and the offender in such cases is subject to administrative liability under Article 127 of the Code of Administrative Offences of the Republic of Kazakhstan.

The term “cruel (harsh)” in the Russian language is interpreted as “extremely severe, merciless, ruthless” (Ozhegov S. I. Dictionary of the Russian Language, Moscow, 1989, p. 166). In the criminal legislation of the Republic of Kazakhstan, the term “cruel treatment” is used in Articles 105 “Incitement to Suicide”, 140 “Failure to Fulfil the Duties of Raising a Minor”, Article 163(1) “Use of Prohibited Means and Methods of Warfare”, and Article 316 “Cruelty to Animals”.

Alongside the concept of “cruel treatment”, the criminal legislation of Kazakhstan also uses the related concept of “particular cruelty” as a qualifying element of crimes: murder (subparagraph 5) of part 2 of Article 99 of the Criminal Code); intentional infliction of grievous bodily harm (subparagraph 4) of part 2 of Article 106 of the Criminal Code); intentional infliction of bodily harm of medium gravity (subparagraph 3) of part 2 of Article 107 of the Criminal Code); rape (subparagraph 2) of part 2 of Article 120 of the Criminal Code); and violent acts of a sexual nature (subparagraph 2) of part 2 of Article 121 of the Criminal Code). Commission of a crime with particular cruelty is recognised as an aggravating circumstance in criminal liability and punishment (subparagraph 9) of part 1 of Article 54 of the Criminal Code).

Cruel treatment of minors by parents and other persons specified in the law must include three types of violence: physical, psychological and sexual. As a rule, instances of cruelty become noticeable to others. These may include the child's emaciated or sickly appearance, general neglect, signs of beatings, fearfulness, nervousness, and so forth.

In cases where the method of committing the criminal offence provided for by Article 140 of the Criminal Code itself constitutes an independent corpus delicti (torture, for example, systematic beatings or prolonged deprivation of water, food and sleep, pulling out hair, etc. — subparagraph 1) of part 2 of Article 110 of the Criminal Code; leaving a person in danger — Article 119 of the Criminal Code; failure to provide assistance to a sick person — Article 320 of the Criminal Code; causing bodily harm — Articles 106 and 107 of the Criminal Code; crimes against the sexual inviolability of minors — Articles 120–124, 134 and 144, parts 2 and 3 of Article 312 of the Criminal Code), the act must be classified under the cumulative offences rule. Additional classification is also required under subparagraph 50) of part 2 of Article 125, subparagraph 5) of part 2 of Article 126, Article 135, subparagraphs 3) and 2) of Article 309, and others.

At the same time, murder committed with particular cruelty, for example by leaving a child without water and food, does not constitute a cumulative set of criminal offences, since in such cases cruel treatment is covered by subparagraph 5) of part 2 of Article 99 of the Criminal Code. Driving a minor to suicide or attempted suicide through cruel treatment entails criminal liability under part 3 of Article 105 of the Criminal Code.

The corpus delicti of the criminal misdemeanour is formal. The criminal misdemeanour is deemed completed from the moment the acts or omissions specified in part 2 of the Article under commentary are committed.

From the subjective perspective, the criminal offence is characterised by direct intent. The perpetrator is aware that they are violating a legal duty to raise a minor and that they are treating the victim cruelly: they wish to commit such acts and deliberately fail to fulfil their duties to raise the minor. With regard to the harmful consequences for the child's health, guilt may take the form of negligence.

The subject of the criminal misdemeanour is special. Only legally competent natural persons expressly specified in the disposition of the Article under commentary may be subjects (parents or adoptive parents, or other persons entrusted with such duties, guardians and trustees, foster parents, stepfathers and stepmothers, brothers and sisters, grandfathers and grandmothers, as well as teachers or other employees of educational, upbringing, medical or other institutions obliged to supervise a minor).

Teachers and employees of educational, upbringing (preschool childcare institutions, educational boarding schools and upbringing institutions for difficult children and adolescents), medical or other institutions primarily include teachers, educators and doctors who are obliged to exercise appropriate supervision over minors by virtue of their official duties and professional obligations.

If an official of an educational, upbringing, medical or other institution who is obliged to supervise a minor, while performing organisational and administrative functions related, for example, to the imposition of disciplinary sanctions, gives an order to deprive a minor of water and food, etc., the act should be classified as abuse of power or official authority under Article 362 of the Criminal Code, provided that substantial harm is caused to the rights and legitimate interests of the minor.

If cruel treatment of a minor is committed by an official while performing professional duties unrelated to the exercise of official powers (for example, where an official teaches an academic subject, conducts an extracurricular club, etc.), the act should be classified under Article 140 of the Criminal Code.

The act provided for in part 2 of Article 140 of the Criminal Code is classified as a criminal misdemeanour.

In conclusion of the examination of the Article under commentary, I would like to note that the legislator has underestimated the degree of public danger of this act by classifying it as a criminal misdemeanour. After all, marriage and the family, motherhood, fatherhood and childhood are under the protection of the State (paragraph 1 of Article 27 of the Constitution). Many international instruments prohibit the use of violence against minors (they have been cited above).

Despite the fact that a special Law “On the Rights of the Child in the Republic of Kazakhstan” has been adopted in the country, cruel treatment adversely affects the physical and mental health of a minor, as well as the child's physical, mental, moral, spiritual, intellectual and social development, and disrupts subsequent social adaptation in adult personal and family life. It should not be overlooked that the perpetrators are close relatives. The harm caused by them is enormous.

In this regard, I believe that the legislator should consider strengthening liability for this act by transferring it from the category of criminal misdemeanours to the category of crimes.

Evasion by parents of their duties to raise children may be expressed in the absence of care for their moral and physical development, education and preparation for socially useful work.

According to paragraph 12 (sixth and seventh paragraphs) of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application by Courts of Legislation in Resolving Disputes Related to the Upbringing of Children”, abuse of parental rights means the use of such rights to the detriment of the interests of children, for example, creating obstacles to education, inducing children to beg, steal, engage in prostitution, consume alcoholic beverages or narcotic drugs, psychotropic substances and/or their analogues, etc.

Cruel treatment of children may be manifested not only in the infliction of physical or mental violence upon them by their parents or in attempts against their sexual inviolability, but also in the application of impermissible methods of upbringing (rough, neglectful or degrading treatment of children, insults or exploitation of children).

Cruel treatment of a minor should be understood to include: deprivation of food, water or clothing; deprivation of sleep and rest; failure to comply with a doctor's recommendations and prescriptions concerning disease prevention and treatment of the child; refusal or evasion of providing the child with necessary medical assistance; placement in a place knowingly unsuitable for living; and other similar conduct.

Active actions involving a gross violation of the fundamental duties of a person engaged in raising a child, consisting of the application of methods of upbringing and treatment that are impermissible from a legal and moral perspective and encompassing all forms of psychological, physical and sexual violence against children, should be recognised as cruel treatment.

Abuse of parental rights, within the meaning of Article 140 of the Criminal Code, may be regarded as the most dangerous form of improper fulfilment by parents (or persons replacing them) of their duties to raise a minor and, in certain situations, may be classified as cruel treatment of minors.

It should be noted that failure to fulfil the duties of raising a minor constitutes a criminal offence only where it is accompanied by cruel treatment of the minor.

In cases where parents or other legal representatives of minors fail to fulfil or improperly fulfil their duties relating to the maintenance, upbringing, education and protection of the rights and interests of minors, in the absence of signs of cruel treatment, criminal liability under the Article under commentary is excluded, and the offender in such cases is subject to administrative liability under Article 127 of the Code of Administrative Offences of the Republic of Kazakhstan.

The term “cruel (harsh)” in the Russian language is interpreted as “extremely severe, merciless, ruthless” (Ozhegov S. I. Dictionary of the Russian Language, Moscow, 1989, p. 166). In the criminal legislation of the Republic of Kazakhstan, the term “cruel treatment” is used in Articles 105 “Incitement to Suicide”, 140 “Failure to Fulfil the Duties of Raising a Minor”, Article 163(1) “Use of Prohibited Means and Methods of Warfare”, and Article 316 “Cruelty to Animals”.

Alongside the concept of “cruel treatment”, the criminal legislation of Kazakhstan also uses the related concept of “particular cruelty” as a qualifying element of crimes: murder (subparagraph 5) of part 2 of Article 99 of the Criminal Code); intentional infliction of grievous bodily harm (subparagraph 4) of part 2 of Article 106 of the Criminal Code); intentional infliction of bodily harm of medium gravity (subparagraph 3) of part 2 of Article 107 of the Criminal Code); rape (subparagraph 2) of part 2 of Article 120 of the Criminal Code); and violent acts of a sexual nature (subparagraph 2) of part 2 of Article 121 of the Criminal Code). Commission of a crime with particular cruelty is recognised as an aggravating circumstance in criminal liability and punishment (subparagraph 9) of part 1 of Article 54 of the Criminal Code).

Cruel treatment of minors by parents and other persons specified in the law must include three types of violence: physical, psychological and sexual. As a rule, instances of cruelty become noticeable to others. These may include the child's emaciated or sickly appearance, general neglect, signs of beatings, fearfulness, nervousness, and so forth.

In cases where the method of committing the criminal offence provided for by Article 140 of the Criminal Code itself constitutes an independent corpus delicti (torture, for example, systematic beatings or prolonged deprivation of water, food and sleep, pulling out hair, etc. — subparagraph 1) of part 2 of Article 110 of the Criminal Code; leaving a person in danger — Article 119 of the Criminal Code; failure to provide assistance to a sick person — Article 320 of the Criminal Code; causing bodily harm — Articles 106 and 107 of the Criminal Code; crimes against the sexual inviolability of minors — Articles 120–124, 134 and 144, parts 2 and 3 of Article 312 of the Criminal Code), the act must be classified under the cumulative offences rule. Additional classification is also required under subparagraph 50) of part 2 of Article 125, subparagraph 5) of part 2 of Article 126, Article 135, subparagraphs 3) and 2) of Article 309, and others.

At the same time, murder committed with particular cruelty, for example by leaving a child without water and food, does not constitute a cumulative set of criminal offences, since in such cases cruel treatment is covered by subparagraph 5) of part 2 of Article 99 of the Criminal Code. Driving a minor to suicide or attempted suicide through cruel treatment entails criminal liability under part 3 of Article 105 of the Criminal Code.

The corpus delicti of the criminal misdemeanour is formal. The criminal misdemeanour is deemed completed from the moment the acts or omissions specified in part 2 of the Article under commentary are committed.

From the subjective perspective, the criminal offence is characterised by direct intent. The perpetrator is aware that they are violating a legal duty to raise a minor and that they are treating the victim cruelly: they wish to commit such acts and deliberately fail to fulfil their duties to raise the minor. With regard to the harmful consequences for the child's health, guilt may take the form of negligence.

The subject of the criminal misdemeanour is special. Only legally competent natural persons expressly specified in the disposition of the Article under commentary may be subjects (parents or adoptive parents, or other persons entrusted with such duties, guardians and trustees, foster parents, stepfathers and stepmothers, brothers and sisters, grandfathers and grandmothers, as well as teachers or other employees of educational, upbringing, medical or other institutions obliged to supervise a minor).

Teachers and employees of educational, upbringing (preschool childcare institutions, educational boarding schools and upbringing institutions for difficult children and adolescents), medical or other institutions primarily include teachers, educators and doctors who are obliged to exercise appropriate supervision over minors by virtue of their official duties and professional obligations.

If an official of an educational, upbringing, medical or other institution who is obliged to supervise a minor, while performing organisational and administrative functions related, for example, to the imposition of disciplinary sanctions, gives an order to deprive a minor of water and food, etc., the act should be classified as abuse of power or official authority under Article 362 of the Criminal Code, provided that substantial harm is caused to the rights and legitimate interests of the minor.

If cruel treatment of a minor is committed by an official while performing professional duties unrelated to the exercise of official powers (for example, where an official teaches an academic subject, conducts an extracurricular club, etc.), the act should be classified under Article 140 of the Criminal Code.

The act provided for in part 2 of Article 140 of the Criminal Code is classified as a criminal misdemeanour.

In conclusion of the examination of the Article under commentary, I would like to note that the legislator has underestimated the degree of public danger of this act by classifying it as a criminal misdemeanour. After all, marriage and the family, motherhood, fatherhood and childhood are under the protection of the State (paragraph 1 of Article 27 of the Constitution). Many international instruments prohibit the use of violence against minors (they have been cited above).

Despite the fact that a special Law “On the Rights of the Child in the Republic of Kazakhstan” has been adopted in the country, cruel treatment adversely affects the physical and mental health of a minor, as well as the child's physical, mental, moral, spiritual, intellectual and social development, and disrupts subsequent social adaptation in adult personal and family life. It should not be overlooked that the perpetrators are close relatives. The harm caused by them is enormous.

In this regard, I believe that the legislator should consider strengthening liability for this act by transferring it from the category of criminal misdemeanours to the category of crimes.

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 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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