Commentary on Article 141. Improper Performance of Duties to Ensure the Safety of the Life and Health of Children of the Criminal Code of the Republic of Kazakhstan

1. Improper performance of duties to ensure the safety of the life and health of a minor by a person upon whom such duties have been imposed by virtue of their official position, or by a person performing these duties pursuant to a special assignment or having voluntarily assumed such duties, if this negligently results in the infliction of serious or moderate bodily harm on the minor, —

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 engagement in 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 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.

2. The same act, if it negligently results in the death of a minor, —

shall be punishable by restriction of liberty for a period of up to five years or imprisonment for the same period, 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.

The public danger of the crime under commentary lies in the fact that, as a result of an irresponsible attitude towards one's duties to ensure the life and health of a minor, bodily harm is inflicted upon the latter or the minor dies.

The object of the crime is the public relations ensuring the normal physical and moral development of a minor. An additional object is the life and health of children. The victim is a person under the age of 14.

The objective aspect is expressed in the improper performance of duties to ensure the safety of the life and health of children. Improper performance of duties consists of a negligent, dishonest or untimely attitude towards the performance of one's duties, resulting in the failure to ensure the safety of the life and health of a minor and negligently causing serious or moderate bodily harm. In order to hold a person criminally liable for an omission, it is necessary to establish which specific action required by their official duties, a special assignment or a voluntarily assumed obligation the person failed to perform, whether such action fell within the scope of their duties, and whether the guilty person had the actual opportunity to perform those duties.

If, as a result of the improper performance of duties to ensure the safety of the life and health of a minor, the consequences specified in the disposition of Article 141 of the Criminal Code do not occur, criminal liability is excluded. In such cases, the matter may constitute a disciplinary offence or a violation of family and marriage legislation.

The negligent infliction of serious or moderate bodily harm on a minor must be causally connected with the guilty person's improper performance of their duties to ensure the safety of the life and health of the minor child. The absence of such a causal connection excludes criminal liability under Article 141 of the Criminal Code.

It should be noted that, pursuant to paragraph 1 of Article 82 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, in the event of an immediate threat to the life or health of a child, the body exercising guardianship or trusteeship functions has the right to immediately remove the child from their parents or other persons in whose care the child is placed. The immediate removal of a child is carried out by the body exercising guardianship and trusteeship functions on the basis of an act of the local executive body of cities of republican significance, the capital, a district or a city of regional significance, prior to the adoption of a court decision.

By its structure, the corpus delicti is material. The crime under Part 1 of Article 141 of the Criminal Code is considered completed from the moment serious or moderate bodily harm is negligently inflicted on a minor. For the definitions of serious bodily harm and moderate bodily harm, see the commentary to subparagraphs 11) and 12) of Article 3 of the Criminal Code, and Articles 106 and 107 of the Criminal Code.

The subjective aspect of the crime is characterized by intent or negligence with regard to the act — the improper performance of duties to ensure the safety of the life and health of children — and by negligence in the form of criminal self-confidence or criminal negligence with regard to the consequences of one's act — the infliction of serious or moderate bodily harm or the death of a child. The commission of this crime is associated with indiscipline, carelessness, an inattentive attitude towards the life and health of a minor, and a dismissive attitude towards the performance of one's professional, official or other duties.

The subject of the criminal offence may be the following categories of persons.

The first category includes persons upon whom duties to ensure the safety of the life and health of a minor have been imposed by virtue of their official position. These are primarily teachers or other employees of educational, upbringing, medical or other institutions who are obliged to ensure the safety of the life and health of minors (a schoolteacher, educator, etc.). The second category includes persons performing these duties pursuant to a special assignment: guardians, trustees and foster caregivers. The third category includes persons who have voluntarily assumed such duties. These may include all other persons who have reached the age of majority, with the exception of parents, adoptive parents and the aforementioned special subjects.

Part Two of Article 141 of the Criminal Code provides for increased criminal liability in cases where the improper performance by a guilty person of their duties to ensure the safety of the life and health of a minor negligently results in the death of the minor. In this regard, the death of the minor must be in a direct causal relationship with the act of the guilty person and must be a natural consequence thereof.

The act provided for in Part 1 of Article 141 of the Criminal Code is classified as a minor offence.

The act provided for in Part 2 of Article 141 of the Criminal Code is classified as an offence of medium 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 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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