Criminalize human trafficking by ensuring proper protection of human rights and freedoms
In order to ensure the correct and uniform application of the laws of the Republic of Kazakhstan and international treaties ratified by the Republic of Kazakhstan related to human trafficking, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
Criminalize human trafficking by ensuring proper protection of human rights and freedoms
To draw the attention of the authorities conducting criminal proceedings to the fact that the proper application of legislation establishing responsibility for human trafficking ensures the proper protection of human rights and freedoms.
The objective side of the crimes provided for in Articles 128 and 133 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) is encroachment on human rights and freedoms and is expressed in the purchase and sale or other transactions with respect to a person, his exploitation, recruitment, transportation, transfer, concealment, as well as in the commission of other acts in order to operation. To qualify an act under part one of Article 128 of the Criminal Code and part one of Article 133 of the Criminal Code, it is sufficient to establish the fact of at least one of the actions specified in the disposition of these articles. The object of a crime related to human trafficking is human freedom, personal safety, rights and legitimate interests, honor and dignity, the right to freely choose one's place of residence, occupation and profession. The subjective side of buying and selling a person or making other transactions in relation to him is characterized by direct intent. Therefore, the purpose of making such transactions does not matter for the qualification of an act under part one of Article 128 of the Criminal Code and part one of Article 133 of the Criminal Code. When recruiting, transporting, transferring, and harboring a person, the subjective side of the crime is characterized by direct intent, and the purpose of the crime is human exploitation.
Purchase and sale should be understood as an illegal retaliatory transaction in which one party (the seller) transfers a person to the other party (the buyer) for a certain fee. Other transactions that entail criminal liability under Article 128 of the Criminal Code or Article 133 of the Criminal Code should include donation (transfer of a person to another person for free), barter (exchange of a person for something), exchange (replacement of one person for another), lease (transfer of a person for a fee for temporary possession and use), leaving a person as security for fulfilling an obligation under a transaction concluded between the parties, using a person as an object of payment, transferring a person in order to obtain any non-property benefits, and others.
Buying and selling or making other transactions with a person for the purpose of exploitation should be considered a completed crime from the moment the person is transferred to other persons. At the same time, the time of receiving remuneration for the sale of a person or for making other transactions does not matter.
Recruitment is defined as obtaining the victim's consent to perform any work or activity, including illegal activities, if this is related to the purpose of his exploitation. The methods of recruitment can be different: the promise of remuneration, job offers, deception, persuasion, blackmail, intimidation, threats, and others.
Transportation of a person means intentional acts committed for the purpose of exploiting a person to move him from one place to another, including within the same locality. At the same time, the type of transport, time and method of transportation of a person do not matter for the qualification of the act. Transportation can be expressed not only in the delivery of the transported person accompanied by someone, but also in the purchase of travel documents for the transported person to the destination, where the victim gets on his own. Transportation is considered completed from the moment it begins.
Transfer should be understood as the direct transfer of the victim to a person for his exploitation. The actions of persons who have transferred and received a person for the purpose of exploiting him by themselves or others are subject to qualification under the relevant part of Article 128 of the Criminal Code, and in relation to a minor – under the relevant part of Article 133 of the Criminal Code, as well as on the basis of a group of persons by prior agreement.
Hiding a person for the purpose of subsequent exploitation should be understood as hiding the victim from law enforcement agencies, relatives and others (for example, hiding in special rooms, preventing access to a particular territory, drug suppression of physical or mental activity). Concealment can be expressed not only in the physical concealment of the victim, but also in other actions that make it difficult to detect the victim (changing documents, appearance, and so on).
When defining the concept of "human exploitation" in relation to articles 128, 133 of the Criminal Code, one should be guided by the note of Article 125 of the Criminal Code.
The forced use of a victim to commit acts of a sexual nature (indecent acts, the creation of pornographic images, video clips) is covered by the disposition of articles 128, 133 of the Criminal Code and additional qualifications under Article 132-1 or Article 270 of the Criminal Code are not required.
Victims should be recognized as persons against whom at least one of the actions specified in articles 128, 133 of the Criminal Code has been directly committed. If it is necessary to clarify the harm caused to the person in respect of whom the above actions were committed, the courts have the right to involve persons with special knowledge. In order to ensure the safety of victims, the authorities conducting criminal proceedings are obliged, during the preliminary investigation, to take measures provided for in articles 99-100 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and in court proceedings - article 101 of the CPC. In accordance with article 53 of the CPC, they are required to ensure the confidentiality of information concerning intimate circumstances and the private life of the victim. Victims are not liable for illegal migration, intentional illegal crossing of the state border of the Republic of Kazakhstan, failure to comply with the decision on expulsion, violation of the rules of stay in the country, use of forged documents, illegal employment, if these acts were committed by victims in connection with their trade.
Human trafficking against two or more persons can be committed simultaneously or at different times. When qualifying the actions of the perpetrator on the grounds of repeated crimes or the commission of an act against two or more persons, one should proceed from the direction of his intent, the nature of specific actions, the time interval between the crimes and other circumstances of the crime committed. Actions not covered by a single intent against several victims at different times are subject to qualification under paragraph b) of the second part of Article 128 of the Criminal Code and paragraph b) of the second part of Article 133 of the Criminal Code. The actions of the perpetrator against two or more persons committed with a single intent are subject to qualification under paragraph (e) of the second part of Article 128 of the Criminal Code and paragraph (e) of the second part of Article 133 of the Criminal Code. The actions of a person who has committed a completed crime related to human trafficking, preparation for it and an attempt on it form a set of crimes.
To qualify the actions of the perpetrator under paragraph g) of the second part of Article 128 of the Criminal Code and paragraph e) of the second part of Article 133 of the Criminal Code, it is necessary to establish that human trafficking was committed for the purpose of removing organs or tissues of the victim for transplantation or other use.Actions related to coercion to the removal or illegal removal of human organs and tissues are subject to independent qualification under the relevant part of Article 113 of the Criminal Code.
According to paragraph h) of the second part of Article 128 of the Criminal Code of the Republic of Kazakhstan, paragraph g) of the second part of Article 133 of the Criminal Code, responsibility for human trafficking occurs in cases of deception or abuse of the victim's trust. As a result, the victim, not assuming that the perpetrator is acting with intent to sell it, commit other transactions and actions aimed at its exploitation, finds himself in a state of servitude.
According to paragraph i) of the second part of Article 128 of the Criminal Code and paragraph h) of the second part of Article 133 of the Criminal Code, the actions of an official who committed crimes using his official position while working in state or non-state organizations should be qualified. Human trafficking committed by an official is a qualifying feature of this crime and no additional qualification is required under article 307 of the Criminal Code.
According to paragraph k) of the second part of Article 128 of the Criminal Code and paragraph k) of the second part of Article 133 of the Criminal Code, acts committed against a victim who is financially or otherwise dependent on the perpetrator are qualified. The financial dependence of the victim, for example, can be expressed by finding him fully or partially dependent on the perpetrator, living in the perpetrator's living quarters. Other dependence should be understood as any non-material dependence of the victim on the perpetrator (for example, family relations, dependence of a subordinate on a supervisor, a student on a teacher).
The third parts of Articles 128 and 133 of the Criminal Code provide for liability for human trafficking committed for the purpose of export (dispatch) outside the Republic of Kazakhstan, import into the Republic of Kazakhstan or transportation (transit) of a person through the territory of the Republic of Kazakhstan from one foreign state to another, as well as export outside the Republic of Kazakhstan, import into the Republic of Kazakhstan or transportation persons through the territory of the Republic of Kazakhstan from one foreign State to another state for the purpose of committing such acts.
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