Commentary on Article 315. Unlawful Removal of Human Organs and Tissues from a Corpse of the Criminal Code of the Republic of Kazakhstan

1. The unlawful removal of organs or tissues from a human corpse for transplantation or other use, as well as the conclusion of transactions involving organs or tissues from a human corpse —

shall be punishable by imprisonment for a term of up to three 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, if committed:

1) by a group of persons, a group of persons by prior conspiracy, or a criminal group;

2) repeatedly;

3) by a person using their official position, — shall be punishable by imprisonment for a term of three to six 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.

The social danger of the crime lies in the fact that the commission of the act in question violates the moral foundations of society and causes moral harm to the relatives of the deceased.

The object of the crime is public morality.

The subject matter of the crime is organs and tissues suitable for transplantation.

An organ is a part of the body consisting of several tissues and forming a separate structural unit that performs a specific function (or functions) in the organism, for example, the heart, kidneys, and liver.

A tissue is a collection of cells and intercellular substance having the same structure, functions, and origin (subparagraph 263) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”).

The objective aspect of the crime is characterized by the following actions:

the unlawful removal of organs and tissues from a human corpse for transplantation or other use;

the conclusion of transactions involving organs and tissues from a human corpse.

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.

Transplantation of organs (parts of organs) and (or) tissues (parts of tissues) is performed from a donor to a recipient and consists of the following stages: removal, preservation, storage, transportation, and transplantation of organs (parts of organs) and (or) tissues (parts of tissues) (paragraph 1 of Article 209 of the Code).

The removal, preservation, storage, transportation, and conveyance of organs (parts of organs) and (or) tissues (parts of tissues) are carried out in state medical organizations holding a license to provide medical services for organ and tissue transplantation, in accordance with the relevant medical specialty (paragraph 2 of Article 209 of the Code).

Removal for the purpose of subsequent transplantation into a human being (potential recipient) is performed from a living person (living donor) or a deceased person (posthumous donor) (paragraph 3 of Article 209 of the Code).

According to subparagraph 100) of paragraph 1 of Article 1 of the Code, a donor is a person, a human corpse, or an animal from whom donor blood, its components, or other donor material (including sperm, eggs, tissues of reproductive organs, germ cells, and embryos) is collected, as well as organs (parts of organs) and (or) tissues (parts of tissues) are removed for transplantation into a recipient.

A recipient is a patient who has received a transfusion of donor blood or components and (or) preparations separated from it, the introduction of male or female donor material (sperm, egg cells, embryos), or transplantation of organs (part of an organ) and (or) tissues (part of a tissue) from a donor, as well as artificial organs (parts of organs) (subparagraph 222) of paragraph 1 of Article 1 of the Code).

According to paragraph 4 of Article 209 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System,” the following are prohibited in the transplantation of organs (part of an organ) and (or) tissues (part of a tissue):

the forced removal of organs (part of an organ) and (or) tissues (part of a tissue) from a person;

coercing a person to provide their organ (part of an organ) and (or) tissues (part of a tissue);

the purchase and sale of human organs (part of an organ) and (or) tissues (part of a tissue);

the removal of organs (part of an organ) and (or) tissues (part of a tissue) from a living donor or posthumous donor who is a minor or legally incapacitated person;

the removal of organs (part of an organ) and (or) tissues (part of a tissue) from a posthumous donor for transplantation into foreign nationals and stateless persons;

the removal of organs (part of an organ) and (or) tissues (part of a tissue) from persons who, due to their state of health, age, or other reasons, were unable to provide information about their identity and whose identity had not been established at the time of the determination of death.

The removal of organs (part of an organ) and (or) tissues (part of a tissue) from an infected living donor or posthumous donor for transplantation into a recipient is prohibited.

The list of infectious diseases in cases of which transplantation of organs (part of an organ) and (or) tissues (part of a tissue) from a donor is permitted shall be approved by the authorized body (paragraph 5 of Article 209 of the Code).

The unlawful removal of organs or tissues from a human corpse for transplantation or other use is recognized as the removal of organs or tissues from a human corpse in violation of the established procedure, for example, the unauthorized removal of organs or tissues from a human corpse without the permission of the relatives or close family members of the deceased, or the performance of transplantation in non-governmental healthcare organizations.

Other use shall be understood to include, for example, the consumption of organs and tissues from a human corpse as food during rituals conducted by religious sects, etc.

The conclusion of transactions involving organs and tissues from a human corpse shall be understood to mean their purchase and sale, transfer in settlement of a debt, exchange, etc.

The crime shall be considered completed from the moment the actions specified in the disposition of Article 315 of the Criminal Code are committed.

The subjective aspect of the crime is characterized by direct intent. The perpetrator is aware that they are unlawfully removing organs or tissues from a human corpse for transplantation or other use, or are concluding transactions involving organs and tissues from a human corpse that are prohibited by the legislation of the Republic of Kazakhstan, and desires to commit such acts.

The subject of the crime is a physically sane individual who has reached the age of 16.

Unlawful removal of organs and tissues from a human corpse entails increased criminal liability if it is committed:

by a group of persons, a group of persons by prior conspiracy, or a criminal group;

repeatedly;

by a person using their official position.

If two or more perpetrators jointly participated in the unlawful removal of organs and tissues from a human corpse without prior conspiracy, the actions of the guilty persons shall be classified under subparagraph 1) of paragraph 2 of Article 315 of the Criminal Code. The elements of a group of persons by prior conspiracy or a criminal group are explained in the commentary to paragraphs 3 and 4 of Article 297 of the Criminal Code.

Unlawful removal of organs and tissues from a human corpse by a person using their official position shall be understood to mean the commission of the specified actions by a person employed by a state body, a state or non-state institution, regardless of its form of ownership, who uses their official powers and the opportunities associated with them to commit this crime or facilitate its commission, for example, the head of a hospital department, the chief physician, the head of a hospital pathology department, or the head of a morgue.

This crime is similar to the crime provided for in Article 116 of the Criminal Code, “Coercion to the Removal of Human Organs and Tissues or Their Unlawful Removal.” The distinction should be made based on the objective aspect (the actions): when committing the crime under consideration, the perpetrator unlawfully removes organs or tissues from a human corpse for transplantation or other use, as well as concludes transactions involving organs and tissues from a human corpse; under Article 116 of the Criminal Code, liability arises not only for the unlawful removal of organs and tissues from a living person, but also for coercion to remove organs and tissues from a living person for transplantation or other use, as well as for concluding unlawful transactions involving the organs and tissues of a living person, that is, even where the removal of organs and tissues from a living person has not taken place.

These crimes also differ in terms of the object of the infringement. The object of Article 315 of the Criminal Code is public morality, whereas the object of Article 116 of the Criminal Code is life and health.

The act provided for in paragraph 1 of Article 315 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in paragraph 2 of Article 315 of the Criminal Code is classified as a serious crime.

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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