On the practice of applying legislation that determines the responsibility for placing a person in trade

Normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 7.

     Warning. Throughout the text"133", "132-1", "270" the numbers are respectively "135", "134", "308" in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

      Warning. Throughout the text, the words "use it", "also use", "special use", "intended use", "other forms of Use", "use of a person", "without the purpose of use", "sexual Use", "forms of Use", "Use of a person", "use of Labor", "further use", "in the course of Use", "Use", "use during Trade", "use it", "use", "use the victim", "consent to use", "use it", "use it", respectively, "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it", "use it " white exploitation", "special exploitation", "intended exploitation", "other forms of exploitation", "human exploitation", "without the purpose of exploitation", "sexual exploitation", "forms of exploitation", "human exploitation", "labor exploitation", "further exploitation", "during exploitation", "exploitation", "exploitation during trade", "its exploitation", "exploitation", "victim exploitation", "consent to exploitation", "her exploitation" of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (first effective from the date of its official publication).

     Plenary Session of the Supreme Court of the Republic of Kazakhstan 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 in connection with human trafficking

     decides:

Draw the attention of the authorities conducting criminal proceedings to the fact that the correct application of the legislation defining liability for trafficking in persons properly ensures the rights and freedoms of a person.

     Warning. Paragraph 1 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 08.12.2021 No. 3 (effective from the date of its first official publication).

The objective side of the crimes provided for in articles 128 and 135 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) is an encroachment on the rights and freedoms of a person and is observed in the commission of other actions for the purpose of buying and selling a person or concluding other transactions in relation to a person, exploiting, seducing, transporting, transferring, hiding, as well as exploiting him.

      To differentiate actions under the first part of Article 128 of the criminal code and the first part of Article 135 of the criminal code, it is sufficient that the fact of the commission of at least one of the actions specified in the disposition of these articles is established.

      According to articles 128, 135 of the criminal code, the existence of a special purpose of exploitation is not required to differentiate the purchase and sale and other transactions in relation to the victim, since the person is not the object of transactions and such transactions are recognized as invalid from the moment of their conclusion.

      A mandatory sign is the purpose of exploitation of a person when seducing, transporting, transferring, hiding, taking the victim, as well as performing other actions provided for in articles 128, 135 of the criminal code. The composition of human trafficking is formal and is considered completed from the moment of conclusion of actual purchases and sales, other transactions in relation to a person.

     The object of a crime related to the trafficking of a person is the freedom of a person, his personal safety, rights and legitimate interests, honor and dignity, the right to free choice of place of residence, type of activity and profession.

      The subjective side of buying and selling a person or concluding other transactions related to him is characterized by direct intent. Therefore, it does not matter for what purpose such transactions are concluded in order to differentiate the action under the first part of Article 128 of the criminal code and under the first part of Article 135 of the criminal code.

      When seducing, transporting, transferring, hiding, receiving a person and committing other actions provided for in articles 128, 135 of the criminal code, the subjective side of the crime is characterized by direct intent, and the purpose of the crime is the exploitation of a person.

     The methods of committing crimes can be the use of force, the threat of its use, theft, the threat of disseminating defamatory information, photos and videos, extortion, bribery, deception, abuse of power, the use of material or other dependence, intentional aggravation of personal, family circumstances, etc.

     Warning. Paragraph 2 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 08.12.2021 No. 3 (effective from the date of its first official publication).

The purchase and sale of a person should be understood as an illegal paid transaction in which one party (seller) transfers a person to another party (buyer) for a certain reward.

      Other transactions that lead to criminal liability under Article 128 of the criminal code or under Article 135 of the criminal code should include donation of a person (free transfer of a person to another person), exchange (exchange of a person to someone else), exchange (exchange of a person to another person), rental (transfer of a person to temporary possession and use for a fee), leaving a person as a guarantee of ensuring the fulfillment of an obligation under a transaction concluded between the parties, use of a person as payment, transfer of a person for the purpose of profit of some non-property nature, etc.

The conclusion of a purchase and sale or other transaction in relation to a person should be considered a crime completed from the moment the person is transferred to other persons. At the same time, the time of remuneration for the sale of a person or the conclusion of other transactions does not matter.

      The involvement of a person in prostitution in relation to the victim, along with the purchase and sale or other transactions, or the organization, detention of brothels for prostitution without the purpose of exploiting this victim in other forms (for example, coercion to work, engage in begging, etc.), each act recognized by the court as proven, must be independently differentiated according to the set of relevant articles: for the conclusion of a transaction, according to articles 128, 135 of the Criminal Code, according to articles 134, 308 of the Criminal Code for, 309 of the Criminal Code for the organization and maintenance of brothels or brothels.

     Warning. Paragraph 4 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

Seduction of a person is understood as the achievement of the consent of the victim to perform any work or any activity, including illegal, if it is related to the purpose of its exploitation. The methods of seduction can be different: promise of remuneration, offer of work, deception, seduction, extortion, threats, threats, etc.

     It is necessary to distinguish between seduction when a person is engaged in trade from attraction to prostitution by the moment of completion: seduction is considered completed from the moment the seduced person receives his consent to carry out exploitation, attraction to prostitution is considered completed from the moment one of the recorded methods of actions aimed at attracting this person to engage in prostitution, regardless of whether he was able to persuade or not to engage in this type of activity.

      In cases where the intent of a person during seduction is aimed only at engaging in prostitution, The Committed Act is subject to criminal legal assessment under the relevant articles 308 or 134 of the criminal code, since the provisions of the criminal law providing for liability for seducing and engaging in prostitution for the purpose of sexual exploitation are in the conditions of competition provided for in the third part of Article 12 of the criminal code. Involvement in prostitution and profiteering means one of the types of forms of exploitation, which are special norms in relation to articles 128, 135 of the criminal code.

     Warning. Paragraph 5 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 08.12.2021 No. 3 (effective from the date of its first official publication).

Transportation of a person means an act committed intentionally in connection with the transfer of a person from one place to another for the purpose of exploitation, including within the same settlement. At the same time, the type of transport, the time and methods of transporting a person are not important for differentiating an action. Transportation of a person means not only the delivery of the person to be transported by someone, but also the sale of travel documents to the destination of the victim to be transported, and the victim to get there on his own. Delivery is considered completed from the moment it begins to be carried out.

Giving the victim should be understood as giving it directly to the person who exploits it.

      The actions of persons transferred and received by their own or other persons for the purpose of exploitation of a person are subject to differentiation under the corresponding part of Article 128 of the criminal code, and in relation to a minor-under the corresponding part of Article 135 of the criminal code.

     Warning. Paragraph 7 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

Concealment of a person for the purpose of subsequent exploitation should be understood as hiding the victim from law enforcement agencies, relatives and other people before the onset of a favorable moment for transportation, transfer, purchase and sale, conclusion of other transactions (for example, hiding in special premises, preventing free movement, reducing physical or mental activity with medicines). Concealment can be observed in other actions (changes in documents, external images, etc.) that make it difficult to find the victim, as well as hide himself.

     Warning. Item 8 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of its first official publication).

When defining the concept of" human exploitation " in accordance with articles 128, 135 of the criminal code, one should be guided by paragraph 1 of Article 3 of the criminal code.

      When considering cases related to human trafficking, it should be borne in mind that the protocol on the prevention and suppression of trafficking and punishment of persons, especially women and children, supplementing the United Nations Convention Against Transnational Organized Crime, adopted by the United Nations General Assembly on November 15, 2000, was ratified by the law of the Republic of Kazakhstan dated June 4, 2008 No. 37-IV.

      There are various forms of exploitation provided for in Article 128 of the criminal code (sexual exploitation, forced labor, begging, etc.). The CC does not allocate forms of human exploitation, such as labor exploitation or the practice of begging, into a separate special norm. Therefore, in cases of involving the victim in prostitution and the conclusion of purchase and sale or other transactions in relation to the victim for further exploitation through the appropriation of the income received, as well as other forms of exploitation (forced labor, etc.), such actions testify that the guilty person committed actions united by a common intention to achieve one goal-the exploitation of the victim and are qualified as one crime provided for in articles 128 or 135 of the criminal code, without additional differentiation under Articles 308, 134 of the criminal code.

      If any of the means of influence specified in the second part of Article 128 of the Criminal Code are used, the consent of the victim to the planned exploitation is not taken into account.

      The consent of the minor victim to the planned exploitation for bringing to criminal responsibility under Article 135 of the criminal code is not taken into account.

     Warning. Paragraph 9 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 08.12.2021 No. 3 (effective from the date of its first official publication).

     9-1.Organization of trading for the search for customers, conclusion of purchase and sale, exchange agreements and other transactions, including with the use of telecommunications networks and the like, should be understood as other actions for the purpose of human exploitation.

     Warning. Item 9-1 is supplemented by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of its first official publication).

      9-2.in contrast to criminal offenses related to human trafficking, criminal liability for actions provided for in articles 152, 153, 156, 395 of the criminal code arises when there is a labor law relationship between the employer and the employee and there is no purpose of human exploitation.

     Warning. Item 9-2 is supplemented by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of its first official publication).

The compulsory use of the victim for committing acts of a sexual nature (immoral acts, pornographic shootings, video clips) is covered by the disposition of articles 128, 135 of the criminal code and does not require additional differentiation under Article 134 of the criminal code or Article 308 of the criminal code.

      In the competition of general and special norms, there is no set of crimes in accordance with the third part of Article 13 of the Criminal Code, and the actions must be classified according to the relevant special norm, therefore, in the presence of special norms relating to acts of sexual exploitation in human trafficking provided for in the dispositions of Article 128 or 135 of the Criminal Code of involvement in prostitution and self-serving purposes, without additional differentiation under Articles 128, 135 of the criminal code, the corresponding 134, 308 of the criminal code or should be differentiated under Articles 309.

      It should be borne in mind that the courts, provided for in Article 309 of the criminal code, the organization of a brothel, the maintenance of a brothel and a sleeve for selfish purposes are an independent act and constitute an individual corpus delicti. It can be the organization of a brothel for prostitution without maintaining it, or the maintenance of such a brothel without engaging in prostitution, or a brothel for selfish purposes without organizing and maintaining a brothel.

     Collusion is carried out on the basis of making a profit by promoting prostitution and reaching an agreement with a person who provides sexual services.

     Warning. Paragraph 10 as amended by normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 08.12.2021 No. 3 (effective from the date of its first official publication).

Victims should be recognized as persons for whom at least one of the actions specified in articles 128, 135 of the criminal code was committed directly in relation to them. The bodies conducting criminal proceedings have the right to involve persons with special education when it is necessary to establish the harm caused to the person in respect of whom the above actions were committed.

      In order to ensure the safety of victims, the bodies conducting criminal proceedings are obliged to take measures provided for in articles 47, 96, 97 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), as well as in Article 98 of the Criminal Procedure Code of the Republic of Kazakhstan.

      According to Article 47 of the CPC, the bodies conducting criminal proceedings are obliged to ensure the confidentiality of information related to the internal circumstances and personal life of the victim.

      In the event of victims as objects of human trafficking or, as a result, for committing acts constituting criminal and administrative offenses, the Criminal Code of the Republic of Kazakhstan 23, 32, 33, 34, 36, 37-if there are grounds provided for in articles and subparagraph 11) of part one of Article 741 of the code of administrative offenses of the Republic of Kazakhstan (for example, illegal migration, deliberate crossing of the state border of the Republic of Kazakhstan, failure to comply with the decision on expulsion from the country, violation of the rules of stay in the country, use of fake documents, for illegal implementation of labor activity and the like).

     Warning. Paragraph 11 as amended by normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 08.12.2021 No. 3 (effective from the date of its first official publication).

Trading a person can be done simultaneously or at different times in relation to two or more people. When differentiating the actions of the guilty person by the signs of repeated repetition of crimes or the commission of crimes against two or more persons, it is advisable to take as a basis the direction of his intentions, the nature of specific actions, the time between crimes and other circumstances of the committed crime.

      Actions that are not covered by a single intention in relation to several victims at different times are subject to differentiation under Paragraph 2 of the second part of Article 128 of the criminal code and under Paragraph 2 of the second part of Article 135 of the criminal code.

      Actions committed by the guilty person in relation to two or more persons with a single intention are subject to differentiation under Paragraph 6 of the second part of Article 128 of the criminal code and under Paragraph 5 of the second part of Article 135 of the criminal code.

     The actions of a person who committed a completed crime related to human trafficking, prepared and charged with committing a crime constitute the totality of crimes.

     When differentiating human trafficking under the sign of repeated commission, it is necessary to take into account the provisions of Article 12 of the criminal code, in which the commission of two or more acts provided for in the same article or part of the article of the special part of the criminal code is recognized as repeated Commission of criminal offenses. In this regard, crimes committed against an adult and a minor do not constitute a multiple Commission and are subject to differentiation according to the totality of articles 128 and 135 of the criminal code.

     Human trafficking committed by the same intent in relation to two victims, including one minor, and the other adult, must be differentiated according to paragraph 6) of the second part of Article 128 of the criminal code and the corresponding part of Article 135 of the criminal code.

     Warning. Paragraph 12 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication); dated 11.12.2020 No. 6 (effective from the date of its first official publication).

     12-1. When differentiating an action by paragraphs 3) and 4) of the second part of Article 128 of the Criminal Code and paragraphs 3) and 4) of the second part of Article 135 of the Criminal Code, the courts shall provide explanations contained in paragraphs 21 and 23 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8 "on judicial practice in cases of theft, and when qualifying under Paragraph 5) of the second part of Article 128 of the criminal code and under paragraph 11) of the second part of Article 135 of the criminal code, one should be guided by the explanations given in paragraph 9) of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1 "on qualifying certain criminal offenses against human life and health".

     Warning. The normative resolution was supplemented by paragraph 12-1 - by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

To differentiate the actions of the perpetrator under Paragraph 7) of the second part of Article 128 of the criminal code and paragraph 6) of the second part of Article 135 of the criminal code, regardless of whether human organs and tissues were actually taken and used, it is necessary to establish whether human trafficking was committed for the purpose of obtaining organs or tissues of the victim for transplantation or other use.

     Actions related to coercion or illegal seizure of organs and tissues of a living person are subject to independent differentiation in the absence of signs of action provided for in Article 128 or 135 of the criminal code in accordance with the relevant part of Article 116 of the criminal law-a special norm.

     Murder committed for the purpose of using organs and tissues of a person, regardless of whether his organs and tissues were actually taken and used or not, shall be differentiated as a summary by paragraph 7) of the second part of Article 128 of the criminal code or by paragraph 6) of the second part of Article 135 of the criminal code and paragraph 12) of the second part of Article 99 of the criminal code.

     Warning. Item 13 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

Responsibility for the trafficking of a person under Paragraph 8 of the second part of Article 128 of the criminal code, paragraph 7 of the second part of Article 135 of the criminal code arises in cases of deception of the victim or abuse of his trust. As a result of this, the victim becomes involuntarily unaware that the guilty person is acting with the intention of selling it, performing other transactions and actions aimed at its exploitation.

     Warning. Paragraph 14 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

The actions of an official who committed a crime using his official position while working in state or non-state organizations should be classified according to paragraph 9 of the second part of Article 128 of the criminal code and Paragraph 8 of the second part of Article 135 of the criminal code. The trafficking of persons by an official is a qualifying sign of this crime and does not require additional qualification under Article 361 of the criminal code.

     Warning. Paragraph 15 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

     15-1.the sale of a minor for the purpose of involving him in the commission of crimes or other antisocial actions is differentiated under paragraph 9) of part two of Article 135 of the criminal code, regardless of the actual achievement of this goal. If the goal is achieved and a minor is involved in the commission of criminal offenses, then the Committed Act is subject to qualification according to the totality of crimes provided for by paragraph 9) of the second part of Article 135 of the criminal code and the corresponding part of Article 132 of the criminal code.

     Warning. The normative resolution was supplemented by paragraph 15-1 - by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

Actions in relation to the victim, who is in material or other dependence on the guilty person, are differentiated under Paragraph 10 of the second part of Article 128 of the criminal code and paragraph 10 of the second part of Article 135 of the criminal code.

     The presence of the victim in material dependence can be observed, for example, in the fact that he is completely or partially dependent on the guilty person, living in the residential premises of the guilty person. Any non-material dependence of the victim on the guilty person (for example, family relationships, dependence of a subordinate on a manager, student on a teacher) should be understood as another dependence.

     Warning. Paragraph 16 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

For actions committed for the purpose of export (shipment) of a person outside the Republic of Kazakhstan, import into the Republic of Kazakhstan or transport (transit) from one foreign state through the territory of the Republic of Kazakhstan to another state, as well as for attempts to export a person outside the Republic of Kazakhstan, import into the Republic of Kazakhstan or transport a person through the territory of the Republic of Kazakhstan from one foreign state to another state, the third parts of articles 128 and 135 of the Criminal Code provide for liability.

     If the crossing of the state border of the Republic of Kazakhstan during import or export, transit of a person is carried out through checkpoints without violating the established procedure and without the use of fake documents or fraudulent use of valid documents of third parties, these actions do not require additional differentiation under Article 392 of the criminal code.

     Warning. Paragraph 17 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

      17-1. human trafficking should be distinguished from the composition of the organization of illegal migration provided for in Article 394 of the criminal code.

     The purpose of organizing illegal migration is the illegal trafficking of people or an individual, and the purpose of human trafficking is the exploitation of a person.

     Human trafficking is not necessarily associated with crossing the state border. It can be carried out within one state.

     When organizing illegal migration, the transaction between the person carrying out the illegal movement of other persons across the state border and the individual being carried out is terminated after achieving its goal. And human trafficking is associated with the deprivation of personal freedom of the victim of trade, its subjugation. Such a transaction is not terminated even upon arrival at the destination, where human trafficking begins.

     Warning. Item 17-1 is supplemented by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of its first official publication).

Criminal group-the trafficking of a person committed by an organized group, criminal organization, criminal society, transnational organized group, transnational criminal organization, transnational criminal society, terrorist group, extremist group, gang, illegal paramilitary structure in accordance with the interpretation of Paragraph 3 of Article 24 of the criminal code is differentiated under Paragraph 1 of part four of Article 128 of the criminal code and Paragraph 1 of part four of Article 135 of the criminal code.

     Warning. Paragraph 18 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

It should be borne in mind that the trafficking of a person who, by negligence, led to the death of the victim or other serious consequences, involves the commission of a crime with two forms of guilt. The commission of actions that caused the death of the victim by negligence or other serious consequences, provided for in Article 128 of the criminal code or Article 135 of the criminal code, does not require additional qualification.

     Other serious consequences can be recognized as mental stress and other serious illnesses. If, during the exploitation of the victim, other intentional crimes were committed against him (for example: murder, rape, infection with HIV/AIDS, venereal diseases, illegal abortion, etc.), then the Committed Act is subject to qualification according to the set of crimes.

Kidnapping for the purpose of exploitation of a person or illegal deprivation of liberty and subsequent criminal acts related to human trafficking are subject to qualification under Paragraph 2 of the third part of Article 125 of the criminal code or paragraph 2 of the third part of Article 126 of the criminal code and the corresponding parts of articles 128 or 135 of the criminal code for a set of crimes.

      Deception, further transportation of a victim without elements of seizure and spatial rape for the purpose of exploitation - seduction and transportation of a person for the purpose of exploitation in the process of trafficking in a person, and in general, the Committed Act should be classified only under the relevant part of Article 128 of the criminal law, without applying the criminal law norm provided for in Paragraph 2 of the third part of Article 125 of the criminal code.

     Warning. Paragraph 20 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of its first official publication).

In accordance with Article 4 of the Constitution of the Republic of Kazakhstan, this normative resolution is included in the composition of the current law, and is also universally binding and entered into force from the date of its official publication.

The Republic Of Kazakhstan

Chairman Of The Supreme Court

B. Beknazarov

The Republic Of Kazakhstan

Judge of the Supreme Court,

Secretary of the plenary session

D. Nuralin

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases