Commentary to article 125. Kidnapping of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Kidnapping –
is punishable by imprisonment for a term of four to seven years.
2. The same act committed by:
a) a group of persons by prior agreement;
b) repeatedly;
c) with the use of violence dangerous to life or health;
d) using weapons or objects used as weapons;
e) in relation to a known minor;
f) in relation to a woman who is obviously pregnant for the perpetrator.;
g) in relation to two or more persons;
h) for selfish reasons, -
is punishable by imprisonment for a term of seven to twelve years with or without confiscation of property.
3. The acts provided for in the first or second parts of this Article if they are: a) an organized group;
b) committed for the purpose of exploiting the abducted person;
c) negligently caused the death of the victim or other grave consequences, -
are punishable by imprisonment for a term of ten to fifteen years with or without confiscation of property.
Note.
1. A person who has voluntarily released an abducted person shall be released from criminal liability if his actions do not contain elements of another crime.
2. The exploitation of a person in this Article and Articles 126, 128, 133 of this Code means the use of forced labor, prostitution by another person or other services provided by him in order to appropriate the proceeds to the perpetrators, as well as the exercise of the powers of the owner in relation to a person who, for reasons beyond his control, cannot refuse to perform work. or services.
Abduction of a person should be understood as unlawful intentional actions aimed at secretly or openly, or by deception, taking possession of him, as well as moving the victim from his place of residence and keeping him in another place against his will. Personal freedom means the right to choose one's place of residence, movement, and residence.
The object of the crime is a person's personal freedom. An additional (optional) object may be the life and health of the abducted person. Any person can be a victim, regardless of age, gender, place of work, etc.
The objective side of the crime is expressed in actions that lead to the deprivation of liberty of a person by capturing and illegally transferring the victim from his permanent or temporary location to another place against or against his will.
The abduction is considered completed from the moment the person is captured. The main thing is the fact of the abduction, not the period of time during which the victim was at the disposal of the perpetrator. The voluntary consent of a person to be abducted excludes the composition of this crime. It is also not recognized as abduction to take possession of one's own or adopted child against the will of another parent or close relatives interested in his fate, with whom he was raised.
Kidnapping is often accompanied by threats of serious harm to health, rape or other criminal acts, and may have various criminal purposes.
The subjective side of the crime is characterized by direct intent. The perpetrator is aware that he is illegally seizing and moving another person against his will to another place, and desires this. The motives and goals of the abduction may be different (revenge, hooligan motives, jealousy, hostile relations), they do not affect the legal assessment of the deed.
The motive of the crime in question is most often self-interest. If the abduction of a person is completely self-serving, then such acts form a qualified component of the crime in question, provided for in paragraph "h" of part 2 of Article 125 of the Criminal Code.
The subject of the crime is a sane individual who has reached the age of 14.
Qualified types of the composition of the crime in question are provided for in Part 2 of Article 125 of the Criminal Code, which refers to kidnapping.:
a) a group of persons by prior agreement;
b) repeatedly;
c) with the use of violence dangerous to life or health;
d) using weapons or objects used as weapons;
e) in relation to a known minor;
f) in relation to a woman who is obviously pregnant for the perpetrator.;
g) in relation to two or more persons;
h) for selfish reasons.
Kidnapping is considered to have been committed by a group of persons by prior agreement if it involved persons who had previously agreed to commit a crime together (Part 2 of Article 31 of the Criminal Code). Each of the co-executors must be directly involved in the abduction.
The actions of persons who were not directly involved in the kidnapping, but who organized or provided assistance to the perpetrator(s), should not be considered as a crime committed by a group of persons by prior agreement. Their actions must be qualified under Articles 28 of the Criminal Code and 125 of the Criminal Code.
Kidnapping, committed repeatedly (paragraph "b" of Part 2), involves the commission of this crime a second time or more. This qualifying feature will take place regardless of whether a person has been convicted of a first offense or not. The main thing is that the criminal record for the first such crime should not be cancelled or removed. If a person has not been convicted of a previous crime, it must be established that the statute of limitations provided for in articles 69 and 85 of the Criminal Code has not expired.
Abduction of a person is considered to have been committed with the use of violence dangerous to life or health (paragraph "c" of Part 2) if, during the abduction, the perpetrator uses physical violence, which resulted in causing serious, moderate, or minor harm to the victim's health.
In cases of injury to the health of the victim, the culprit's actions should be qualified in accordance with the totality of 125 of the Criminal Code without additional qualification for causing harm to health, since this is covered by the concept of violence.
In cases of murder in the process of committing the crime in question, the perpetrator's act is classified according to the totality of crimes under paragraph "b" of part 2 of Article 125 and Article 96 of the Criminal Code.
Violence dangerous to the life or health of the victim, used by the perpetrator not at the time of the abduction, but afterwards for another purpose, cannot be considered a qualifying feature (paragraph "h" of part 2 of Article 125 of the Criminal Code).
Kidnapping committed with the use of weapons or objects used as weapons (paragraph "d" Part 2), involves the use of any firearms, cold steel, gas weapons, as well as other objects (axe, metal pipe, stone, etc.) in the commission of this crime. Only the fact that the perpetrator has weapons or other There are not enough items to qualify for the item under consideration, it is necessary that they be used in the abduction process, i.e. a shot was fired, blows were struck, both against the victim and other persons who prevented the abduction. I do not share the position of those authors who, by using weapons or objects used as weapons, understand their demonstration with the aim of threatening to use them against the victim and others. Items imitating weapons should not be qualified under paragraph "d" of Part 2 of Article 125 of the Criminal Code.
In order to qualify the committed act on this basis, it is necessary that the weapon or objects used as weapons must be used by the perpetrator at the time of the abduction.
The abduction of a known minor (paragraph "d" of Part 2) means that the perpetrator was reliably aware of the victim's minor prior to the abduction.
The abduction of a woman who is obviously pregnant for the perpetrator (paragraph "e" of Part 2) takes place when the fact of pregnancy was covered by the intention of the perpetrator.
The abduction of two or more persons (paragraph "g" of Part 2) involves the simultaneous capture (capture) and displacement of at least two persons, and this is covered by a single intent of the perpetrator. Abduction at different times, but combined with a single intent, constitutes a crime under the same paragraph. If the perpetrator intended to kidnap one person, but inadvertently captured two and continues to hold them, the act should be qualified as the abduction of one victim and the unlawful imprisonment of another (Article 126 of the Criminal Code).
Kidnapping, committed for selfish reasons, means the perpetrator's desire to extract illegal material benefits for himself or others (for example, money for ransom, etc.)
Part 3 of Article 125 of the Criminal Code provides for particularly qualifying elements of kidnapping:
An abduction committed by an organized group (paragraph "a" of Part 3) means that this crime was committed by a stable and cohesive group of persons who had previously united to kidnap people (or to commit other crimes).
Abduction for the purpose of exploitation (paragraph "b" of Part 3) is understood as the actions of the perpetrator with the intention of extracting any benefit as a result of the victim performing various kinds of work.
The exploitation of a person in this Article and Articles 126, 128, 133 of this Code means the use of forced labor, prostitution by another person or other services provided by him in order to appropriate the proceeds to the perpetrators, as well as the exercise of the powers of the owner in relation to a person who, for reasons beyond his control, cannot refuse to perform work or services. (note. 125 of the Criminal Code).
Kidnapping, which negligently resulted in the death of the victim (paragraph "c" of Part 3) or other grave consequences, is characterized subjectively by two forms of guilt: kidnapping is committed with direct intent, and negligent infliction of death or other grave consequences is negligent. A causal relationship must be established between the criminal act and the specified consequences.
Other serious consequences include serious illness or suicide of the victim, death and mental disorder of loved ones, large-scale damage due to a failed transaction, disruption of a state event, etc. Receiving serious harm to health and death of the victim as a result of his independent active actions to release (for example, jumped out of a car taking him away) should be qualified under Part 3 of Article 125 of the Criminal Code.
According to the note to this article, "a person who voluntarily released an abducted person is exempt from criminal liability if his actions do not contain elements of another crime." Voluntary release is recognized as cases when the perpetrator could continue to unlawfully detain the victim, but granted him freedom. The initiative for the voluntary release of the abducted person can come from the perpetrator himself, his relatives or relatives, as well as from law enforcement officials, acquaintances of the victim and other persons or organizations. The motives for voluntary release may be of a different nature, fear of criminal liability, remorse, pity for the victim, etc. The second reason for exempting the perpetrator from criminal liability is the absence of elements of another crime in his actions, not any other crime, namely related to kidnapping (for example, carrying a weapon, harming the victim's health, stealing a car for the purpose of kidnapping, etc.). The legislator, introducing this circumstance in the note, proceeded from humane ways of influencing the perpetrators of kidnapping, without resorting to forcible release of the abducted person and providing the abductor with an additional opportunity to voluntarily release the victim.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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