Commentary on Article 125. Kidnapping under the Criminal Code of the Republic of Kazakhstan
1. Kidnapping —
shall be punishable by deprivation of liberty for a term of four to seven years.
2. The same act committed:
1) by a group of persons upon prior conspiracy;
2) repeatedly;
3) with the use of violence dangerous to life or health;
4) with the use of weapons or objects used as weapons;
5) against a person known to be a minor;
6) against a woman known to the perpetrator to be pregnant;
7) against two or more persons;
8) for mercenary motives;
9) by a person using their official position;
10) involving the falsification, concealment or destruction of documents certifying the victim's identity, —
shall be punishable by deprivation of liberty for a term of seven to twelve years, with or without confiscation of property.
3. The acts provided for in Parts One or Two of this Article, if they:
1) are committed by a criminal group;
2) are committed for the purpose of exploiting the kidnapped person;
3) negligently result in the death of the victim or other grave consequences, —
shall be punishable by deprivation of liberty for a term of ten to fifteen years, with or without confiscation of property.
Note. A person who voluntarily releases the kidnapped person shall be exempt from criminal liability if their actions do not contain the elements of another criminal offence.
The public danger of kidnapping lies in the violation of the human right to liberty guaranteed by the Constitution. Kidnapping is often accompanied by threats to inflict grievous bodily harm, rape or other criminal acts, and may pursue various criminal objectives.
The object of the crime is a person's personal liberty. The life and health of the kidnapped person may constitute an additional object.
Any person may be a victim, regardless of age, gender, place of employment, etc.
The objective element of the crime is expressed in actions that result in the deprivation of a person's liberty by seizing and unlawfully moving the victim from their permanent or temporary place of residence to another location against or without their will.
Kidnapping should be understood as unlawful intentional actions aimed at secretly or openly taking possession of a person, or doing so through deception, as well as moving the victim from the place where they are located and holding them in another place against their will.
The place where the victim is located at the time of the kidnapping may be a residence, place of work or study, a vehicle, or other locations.
Seizure means secret or overt active actions involving taking possession of a person, as a result of which the victim is actually deprived of freedom of movement in space; transportation means moving the victim to a new place of stay, either using or not using vehicles, against or without their will; detention means preventing the victim from freely leaving this new place (for example, by locking them up, tying them up, using violence, etc.). The distance over which the victim is moved and the duration of their detention are irrelevant for the purposes of classification.
Persons who did not directly kidnap the individual but hold them against their will shall be liable under the relevant part of Article 126 of the Criminal Code.
Personal liberty means the right to choose one's place of stay, movement and residence.
By its legal construction, the corpus delicti is formal. Kidnapping is deemed completed from the moment the person is seized. The decisive factor is the fact of kidnapping, rather than the period of time during which the victim remained under the control of the perpetrator. A person's voluntary consent to being kidnapped excludes the elements of this crime. Likewise, taking one's own or adopted child against the will of the other parent or close relatives who are interested in the child's fate and with whom the child was living and being raised is not recognized as kidnapping.
Kidnapping classified under Part 1 of Article 125 of the Criminal Code may involve the use of violence against the victim or other persons that is not dangerous to life or health, or a threat to use such violence. In this case, the violence does not require additional classification under the cumulative provisions on crimes.
The subjective element of the crime is characterized by direct intent. The perpetrator is aware that they are unlawfully seizing and moving another person to a different place against that person's will and desires to do so. The motives and purposes of kidnapping may vary (revenge, hooligan motives, jealousy, hostile relations) and do not affect the legal assessment of the act.
The subject of the crime is a sane individual who has reached the age of 14.
The aggravated forms of the crime under consideration are provided for in Part 2 of Article 125 of the Criminal Code: 1) by a group of persons upon prior conspiracy; 2) repeatedly; 3) with the use of violence dangerous to life or health; 4) with the use of weapons or objects used as weapons; 5) against a person known to be a minor; 6) against a woman known to the perpetrator to be pregnant; 7) against two or more persons; 8) for mercenary motives; 9) by a person using their official position; 10) involving the falsification, concealment or destruction of documents certifying the victim's identity.
Kidnapping is recognized as having been committed by a group of persons upon prior conspiracy if it involved persons who had agreed in advance to commit the crime jointly (Part 2 of Article 31 of the Criminal Code). Each co-perpetrator must participate directly in the kidnapping.
The actions of persons who did not directly participate in the kidnapping but organized it or provided assistance or support to the perpetrator(s) should not be regarded as the commission of a crime by a group of persons upon prior conspiracy. Their actions must be classified under Articles 28 and 125 of the Criminal Code.
Repeated kidnapping (subparagraph 2) of Part 2 of Article 125 of the Criminal Code) means that this crime has been committed for the second or subsequent time. Kidnapping is not considered repeated if the person was convicted of a previous kidnapping or was released from criminal liability on grounds established by law.
Kidnapping is recognized as having been committed with the use of violence dangerous to life or health (subparagraph 3) of Part 2 of Article 125 of the Criminal Code) if, in the course of the kidnapping, the perpetrator uses physical violence that results in grievous, medium-gravity or minor harm to the victim's health.
Kidnapping involving the use of violence dangerous to life or health (subparagraph 3) of Part 2 of Article 125 of the Criminal Code) presupposes that, in the course of committing the crime (during seizure, transportation or detention), such violence was used against the person being kidnapped or other persons (for the purpose of ensuring the kidnapping) as resulted in grievous or medium-gravity harm to health. In this case, additional classification under Articles 106 and 107 of the Criminal Code, which establish liability for crimes against health, is not required.
In cases of murder committed during the commission of the crime, the perpetrator's actions shall be classified under the cumulative provisions of subparagraph 3) of Part 2 of Article 125 and subparagraph 3) of Part 2 of Article 99 of the Criminal Code.
Violence dangerous to the life or health of the victim, used by the perpetrator not at the time of the kidnapping but subsequently for another purpose, cannot be considered an aggravating circumstance under subparagraph 3) of Part 2 of Article 125 of the Criminal Code.
Kidnapping committed with the use of weapons or objects used as weapons (subparagraph 4) of Part 2 of Article 125 of the Criminal Code) presupposes the use, during the commission of this crime, of any firearm, bladed weapon, gas weapon, as well as other objects (an axe, metal pipe, stone, etc.). The mere fact that the perpetrator possesses a weapon or other objects is insufficient for classification under the relevant subparagraph; they must have been used in the course of the kidnapping, that is, a shot must have been fired or blows struck against either the victim or other persons who obstructed the kidnapping. The use of objects that imitate weapons cannot be classified under subparagraph 4) of Part 2 of Article 125 of the Criminal Code.
When classifying the perpetrator's actions under subparagraph 4) of Part 2 of Article 125 of the Criminal Code, it is necessary, in accordance with the Law of the Republic of Kazakhstan dated December 30, 1998, “On State Control over the Circulation of Certain Types of Weapons,” and on the basis of an expert opinion, to establish whether the object or device used during the attack constitutes a weapon structurally designed to inflict damage on a living or other target. Where there are grounds for doing so, the actions of persons who use weapons during kidnapping must additionally be classified under Article 287 of the Criminal Code. In this regard, the perpetrator must be aware that they are using a weapon.
“The use of firearms, gas weapons, knives, brass knuckles and other bladed weapons, or other objects specially adapted to cause harm to health shall be understood,” as stated in Paragraph 18 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009, “On Judicial Practice in Cases of Hooliganism,” “to include both actions aimed at using them for their intended purpose to cause harm to health (firing shots, delivering stabbing and cutting blows, and other actions), and their intentional use as a means of psychological violence. That is, the basis for classifying such actions under Part Three of Article 293 of the Criminal Code is not only the infliction or attempted infliction of harm to the victim's health using the specified objects, but also other conduct by the perpetrator in the course of hooligan actions involving the use of such objects, which posed a real danger to the victim's life and health.”
Kidnapping a person known to be a minor (subparagraph 5) of Part 2 of Article 125 of the Criminal Code) means that, before the kidnapping began, the perpetrator had reliable knowledge that the victim was a minor.
Kidnapping a woman known to the perpetrator to be pregnant (subparagraph 6) of Part 2 of Article 125 of the Criminal Code) occurs where the fact of pregnancy was encompassed by the perpetrator's intent.
Kidnapping two or more persons (subparagraph 7) of Part 2 of Article 125 of the Criminal Code) presupposes the simultaneous or successive taking possession of (seizure of) and transportation of at least two persons, where this is encompassed by the perpetrator's single intent. Kidnappings committed at different times but united by a single intent also constitute the crime provided for in this same subparagraph. If, however, the perpetrator intended to kidnap one person but negligently seized two persons and continues to detain them, the act should be classified as the kidnapping of one victim and the unlawful deprivation of liberty of the other (Article 126 of the Criminal Code).
Kidnapping committed for mercenary motives (subparagraph 8) of Part 2) means that the perpetrator seeks to obtain an unlawful material benefit for themselves or other persons (for example, demanding money as ransom, etc.).
The aggravating circumstances provided for in subparagraphs 5), 6), 7) and 8) of Part 2 of Article 125 of the Criminal Code are similar to the corresponding circumstances set out in Part 2 of Article 99 of the Criminal Code (see the commentary to Article 99 of the Criminal Code).
Subparagraph 9) of Part 2 of Article 125 of the Criminal Code provides for liability for committing the specified act by a special subject — a person using their official position. The concept of using one's official position is not limited to the status of an official; it means any employment or service status in a state or non-state institution, enterprise or organization, provided that the rights and opportunities associated with that status were used in committing the acts prohibited by law and covered by the concept of “kidnapping.”
It should be noted that there is no consensus among legal scholars in the theory of criminal law regarding the concept of “using one's official position.” Unfortunately, it must also be noted that the Supreme Court of the Republic of Kazakhstan does not provide clear criteria defining the concept of “using one's official position” in its regulatory resolutions, which gives rise to errors in law enforcement practice when classifying criminal offences.
The subjects of this aggravating circumstance may be persons specified in subparagraphs 19) and 26) of Article 3 of the Criminal Code, that is, persons who exercise powers granted by law or a subordinate regulatory legal act. It cannot be ruled out that a person holding an employment position established by an employment agreement may also be the subject of the crime under consideration. In this regard, kidnapping is always committed: 1) through the use of official powers or by virtue of the person's official position, that is, when committing the crime, the perpetrator uses opportunities actually available to them due to the position they hold; 2) contrary to the interests of the service. The essence of this lies in the fact that the perpetrator uses their official position not in the interests of the service but contrary to them. At the same time, the use of official authority remains within the scope of subparagraph 9) of Part 2 of Article 125 of the Criminal Code and does not require additional classification under Articles 361 and 362 of the Criminal Code.
Subparagraph 10) of Part 2 of Article 125 of the Criminal Code provides for liability for committing the specified act involving the falsification, concealment or destruction of documents certifying the victim's identity. Falsification means various manipulations carried out by the perpetrator in relation to documents certifying the victim's identity. A falsified document should be understood as a document forged or materially altered by any person (false information has been entered or changes have been made).
A document certifying the victim's identity is a type of official document containing personal data, that is, any information relating to an identified or identifiable individual on the basis of such information, including their surname, first name, patronymic, year, month, date and place of birth, address, family, social and property status, education, profession, income and other information.
Concealment of a document means hiding it, unlawfully retaining it and keeping it in the possession of the perpetrator or third parties (or in hiding places or other locations), thereby preventing the victim from using the document.
Destruction of documents certifying the victim's identity means their physical elimination, making it impossible to identify the person by means of those documents.
Unlike a document certifying the victim's identity, subparagraph 28-1) of Article 3 of the Criminal Code refers to an official document, which is understood as a document created by an individual or legal entity, drawn up and certified in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
Part 3 of Article 125 of the Criminal Code provides for the especially aggravated forms of kidnapping.
Kidnapping committed by a criminal group (subparagraph 1) of Part 3 of Article 125 of the Criminal Code) means that the crime was committed by an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation.
Kidnapping for the purpose of exploitation (subparagraph 2) of Part 3 of Article 125 of the Criminal Code) means the perpetrator's actions aimed at obtaining some form of benefit as a result of the victim performing various types of work.
Exploitation of a person means the use by the perpetrator of forced labour, that is, any work or service required from a person through the use of violence or the threat thereof, for which that person has not voluntarily offered their services, except for cases provided for by the laws of the Republic of Kazakhstan; the use by the perpetrator of another person's engagement in prostitution or other services provided by that person for the purpose of appropriating the income received, as well as compelling a person to provide services of a sexual nature without the perpetrator pursuing this purpose; compelling a person to engage in begging, that is, to commit an antisocial act involving soliciting money and (or) other property from other persons; and other actions related to the perpetrator exercising the powers of an owner in relation to a person who, for reasons beyond their control, is unable to refuse to perform work and (or) services for the perpetrator and (or) another person (subparagraph 1) of Article 3 of the Criminal Code).
Kidnapping resulting in the negligent death of the victim (subparagraph 3) of Part 3 of Article 125 of the Criminal Code) or other grave consequences is characterized, from the subjective side, by two forms of guilt: the kidnapping is committed with direct intent, while the negligent causing of death or other grave consequences occurs through negligence. A causal link must be established between the criminal act and the specified consequences.
Other grave consequences may include a serious illness or suicide of the victim, the death or mental disorder of the victim's relatives, damage in a large amount due to a failed transaction, disruption of a state event, etc. The infliction of grievous bodily harm or the death of the victim as a result of the victim's independent active actions while attempting to free themselves (for example, jumping out of a moving vehicle in which they are being transported) should be classified under Part 3 of Article 125 of the Criminal Code.
The negligent causing of the victim's death does not require additional independent classification under Article 104 of the Criminal Code. The negligent causing of death or other grave consequences must be causally linked to the perpetrator's actions in kidnapping the person. The absence of a causal link excludes classification of the act under subparagraph 3) of Part 3 of the Article under consideration.
Kidnapping must be distinguished from unlawful deprivation of liberty (Article 126 of the Criminal Code) and hostage-taking (Article 261 of the Criminal Code).
Unlike unlawful deprivation of liberty, kidnapping necessarily involves the seizure and movement of the victim in space, removing them from their familiar living environment.
Kidnapping differs from hostage-taking in a number of respects, in particular: in kidnapping, the perpetrator's intent is directed at committing a crime against a specific, particular victim whose identity is not irrelevant to the perpetrator; in kidnapping, the perpetrator generally does not make their actions public; kidnapping is not always associated with the presentation of demands as a condition for the victim's release.
In accordance with the Note to this Article, a person who voluntarily releases the kidnapped person shall be exempt from criminal liability if their actions do not contain the elements of another criminal offence. Voluntary release is recognized in cases where the perpetrator could have continued to unlawfully detain the victim but instead granted them freedom. The initiative to voluntarily release the kidnapped person may come from the perpetrator themselves, their relatives or close associates, as well as law enforcement officers, the victim's acquaintances and other persons or organizations. The motives for voluntary release may vary: fear of criminal liability, remorse, pity for the victim, etc. This provision is mandatory. Law enforcement authorities are obliged to exempt the perpetrator from criminal liability for kidnapping if the perpetrator has voluntarily released the victim.
The second ground for exempting the perpetrator from criminal liability is the absence in their actions of the elements of another crime, not just any other crime, but specifically one connected with the kidnapping (for example, carrying a weapon, causing harm to the victim's health, stealing a vehicle for the purpose of kidnapping a person, etc.). By introducing this circumstance into the Note, the legislator proceeded from the intention to use humane methods of influencing persons who commit kidnapping, without resorting to the forcible release of the kidnapped person and by providing the kidnapper with an additional opportunity to release the victim voluntarily.
The acts provided for in Parts 1 and 2 of Article 125 of the Criminal Code are classified as serious crimes.
The act provided for in Part 3 of Article 125 of the Criminal Code is classified as an especially serious crime.
Commentary on the Criminal Code of the Republic of Kazakhstan (2021) by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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