Commentary on Article 128. Human Trafficking of the Criminal Code of the Republic of Kazakhstan

1. The purchase and sale of a person or the conclusion of other transactions involving a person, as well as the exploitation of a person, or the recruitment, transportation, transfer, harboring, receipt of a person, and the commission of other acts for the purpose of exploitation –

shall be punishable by deprivation of liberty for a term of four to seven years, with confiscation of property.

2. The same acts committed:

1) by a group of persons pursuant to a prior conspiracy;

2) repeatedly;

3) with the use of violence dangerous to life and health, or the threat of such violence;

4) with the use of weapons or objects used as weapons;

5) against a woman whom the perpetrator knowingly knows to be pregnant;

6) against two or more persons;

7) for the purpose of removing the victim's organs or tissues for transplantation or other use;

8) by means of deception or abuse of trust;

9) by a person using their official position;

10) through the use of the victim's material or other dependence;

11) against a person whom the perpetrator knowingly knows to have a mental disorder or to be in a helpless condition;

12) involving the seizure, concealment or destruction of documents identifying the victim –

shall be punishable by deprivation of liberty for a term of seven to nine years, with confiscation of property.

3. The acts provided for in Parts One or Two of this Article, committed for the purpose of exporting a person outside the Republic of Kazakhstan, importing a person into the Republic of Kazakhstan, or transporting a person through the territory of the Republic of Kazakhstan from one foreign state to another, as well as the export of a person outside the Republic of Kazakhstan, the import of a person into the Republic of Kazakhstan, or the transportation of a person through the territory of the Republic of Kazakhstan from one foreign state to another for the purpose of committing such acts –

shall be punishable by deprivation of liberty for a term of nine to twelve years, with confiscation of property.

4. The acts provided for in Parts One, Two or Three of this Article, if they:

1) are committed by a criminal group;

2) negligently result in the death of the victim or other grave consequences –

shall be punishable by deprivation of liberty for a term of twelve to fifteen years, with confiscation of property.

The public danger of this crime lies in the fact that it infringes upon the personal freedom of citizens and the freedom to choose one's occupation, guaranteed by the Constitution of the Republic of Kazakhstan. Everyone has the right to freely choose their type of activity and profession. Pursuant to Paragraph 1 of Article 16 of the Constitution of the Republic of Kazakhstan: “Everyone shall have the right to personal liberty,” and pursuant to Article 17 of the Constitution: “1. Human dignity shall be inviolable. 2. No one shall be subjected to torture, violence, or other cruel or degrading treatment or punishment.”

Paragraph 2 of Clause 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012, “On the Practice of Applying Legislation Establishing Liability for Human Trafficking,” states that criminal offenses related to human trafficking are offenses provided for in Article 116, Subparagraph 2) of Part Three of Article 125, Subparagraph 2) of Part Three of Article 126, and Articles 128, 134, 135, 308 and 309 of the Criminal Code.

Freedom of labor is proclaimed in Paragraph 1 of Article 24 of the Constitution of the Republic of Kazakhstan: “Everyone shall have the right to freedom of labor and the free choice of occupation and profession.” Freedom of labor also means the prohibition of human exploitation, except in cases specifically provided for by law. Therefore, the Constitution of the Republic of Kazakhstan clarifies that forced labor is permitted only pursuant to a court judgment or under conditions of a state of emergency or martial law.

Paragraph 2 of Article 24 of the Constitution provides: “Everyone shall have the right to working conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination, and to social protection against unemployment.”

It should also be noted that the international law provisions form the basis of the criminal prohibition under consideration. The concept of human trafficking is defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of November 15, 2000. Under this Article, trafficking in persons means the recruitment, transportation, transfer, harboring or receipt of persons for the purpose of exploitation, by means of the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, or the giving or receiving of payments or benefits to obtain the consent of a person having control over another person.

The object of a crime related to human trafficking is the freedom of the individual, their personal security, rights and legitimate interests, honor and dignity, and the right to freely choose their place of residence, occupation and profession.

An adult may be a victim of this crime. The victim's consent to trafficking and the subsequent exploitation has no criminal-law significance. This rule is provided for in Article 1 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of December 2, 1949, and Article 3 of the Protocol to Prevent and Suppress Trafficking in Persons of November 15, 2000.

The objective element of the crimes provided for in Article 128 of the Criminal Code consists of an infringement upon human rights and freedoms and is expressed in: 1) purchase and sale; 2) conclusion of other transactions involving a person; 3) exploitation of a person; 4) recruitment of persons; 5) transportation; 6) transfer; 7) harboring; 8) receipt, as well as the commission of other acts for the purpose of exploitation.

For an act to be classified under Part 1 of the Article under consideration, it is sufficient to establish that at least one of the actions specified in the disposition has been committed.

Pursuant to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation Establishing Liability for Human Trafficking,” purchase and sale should be understood as an unlawful transaction for consideration in which one party (the seller) transfers a person to another party (the buyer) in exchange for a certain remuneration. In this case, the buyer may be either a person intending to directly use the “live commodity” or a person acquiring it for the purpose of resale and obtaining financial gain from such resale.

Other transactions entailing criminal liability under Article 128 of the Criminal Code include donation (transferring a person to another individual free of charge), barter (exchanging a person for something), exchange (substituting one person for another), lease (transferring a person for payment into temporary possession and use, or transferring a person by inheritance), leaving a person as security for the performance of an obligation under a transaction concluded between the parties, using a person as a means of payment, transferring a person for the purpose of obtaining any non-property benefits, and other transactions.

The purchase and sale of a person or the conclusion of other transactions involving a person for the purpose of exploitation shall be deemed a completed crime from the moment the person is transferred to other individuals. The time at which remuneration is received for the sale of the person or for the conclusion of other transactions is irrelevant.

Where, in addition to purchasing and selling or concluding other transactions involving the victim, a person also engages the same victim in prostitution or acts as a pimp for profit, or organizes and maintains brothels for prostitution, without intending to exploit that same victim in other forms (for example, by forcing them to work, beg, etc.), each act recognized by the court as proven shall be subject to independent legal classification under the relevant provisions taken together: for concluding a transaction – under Articles 128 and 135; for involving a person in prostitution – under Articles 134 and 308 of the Criminal Code; and for pimping for profit or organizing and maintaining a brothel – under Article 309 of the Criminal Code.

Recruitment shall mean obtaining the victim's consent to perform any work or engage in any activity, including unlawful activity, where this is connected with the purpose of exploiting that person. Recruitment methods may vary: promises of remuneration, job offers, deception, persuasion, blackmail, intimidation, threats, and others. It may take the form of an explicit offer to become “live merchandise.”

Recruitment in human trafficking should be distinguished from involvement in prostitution based on the moment of completion: recruitment is considered completed from the moment the recruited person gives consent to being exploited, whereas involvement in prostitution is considered completed from the moment one of the described methods of conduct aimed at involving a person in prostitution is carried out, regardless of whether the person was successfully persuaded to engage in that activity.

If, during recruitment, the person's intent is directed solely at involving the victim in prostitution, the act is subject to criminal-law assessment under Article 308 or Article 134 of the Criminal Code, since the provisions of criminal law establishing liability for recruitment for the purpose of sexual exploitation and involvement in prostitution are in a state of competition as provided for in Part 3 of Article 12 of the Criminal Code. Involvement in prostitution and pimping for profit constitute a form of exploitation and are special provisions in relation to Articles 128 and 135 of the Criminal Code.

Transportation of a person means intentional actions aimed at moving that person from one place to another for the purpose of exploitation, including within the boundaries of the same populated locality. The type of transport, time and method of transporting the person are irrelevant for the legal classification of the act. Transportation may consist not only of delivering the person being transported accompanied by someone, but also of purchasing travel documents for the person to reach the destination independently. Transportation is considered completed from the moment its implementation begins.

Transfer shall mean the direct transfer of the victim to a person for the purpose of exploitation. Transfer may result from transactions involving a person, such as donation, exchange, use as collateral, lending the person temporarily for exploitation in exchange for repayment of a debt, etc. The moment at which transfer as an independent act is completed does not depend on whether any reciprocal actions involving the acquisition of the person have been performed or completed.

The actions of persons who transfer and receive a person for the purpose of exploiting that person themselves or by other persons shall be classified under the relevant part of Article 128 of the Criminal Code of the Republic of Kazakhstan, and, in the case of a minor, under the relevant part of Article 133 of the Criminal Code, as well as under the element of commission by a group of persons pursuant to a prior conspiracy.

Harboring a person for the purpose of subsequent exploitation shall mean concealing the victim from law enforcement agencies, relatives and other persons until a favorable opportunity arises to transport, transfer, purchase or sell the person, or conclude other transactions for the purpose of avoiding the victim's detection and subsequently exploiting them (for example, concealing them in special premises, preventing them from leaving a particular territory, or suppressing their physical or mental activity through medication). Harboring may consist not only of physically concealing the victim, but also of other actions that make the victim more difficult to detect (changing documents, appearance, etc.).

By its objective characteristics, harboring a victim may constitute unlawful deprivation of liberty. In such a case, classification of the act cumulatively under Articles 125 or 126 is not required.

When determining the concept of “exploitation of a person” for the purposes of Articles 128 and 135 of the Criminal Code, Subparagraph 1) of Article 3 of the Criminal Code should be followed.

In accordance with the requirements of the Protocol to Prevent, Suppress and Punish Trafficking in 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, and ratified by Law No. 37-IV of the Republic of Kazakhstan dated June 4, 2008, exploitation of forced labor or services includes: a) forcibly inducing the victim to perform work that they would not perform of their own free will and choice; b) creating a situation in which the victim is compelled to perform work that they are not obliged to perform; c) keeping a person in a condition of servitude for the purpose of debt repayment; d) obtaining work or services through deception, coercion, violence or the threat of violence.

Sexual exploitation shall mean forcing a person to engage in prostitution or other acts of a sexual nature. Forms of sexual exploitation include inducing or forcing a person to engage in any sexual activity, using a person for prostitution or pornography, forced marriage, forced marital cohabitation, forced pregnancy, etc.

Exploitation under Article 128 of the Criminal Code takes various forms (sexual exploitation, forced labor, begging, etc.). The Criminal Code does not establish a separate special provision for such forms of human exploitation as labor exploitation or forcing a person to beg. Therefore, where a victim is purchased or sold, or other transactions involving the victim are concluded, followed by exploitation not only through involvement in prostitution and appropriation of the income received, but also through other forms of exploitation (forced labor, etc.), such actions indicate that the perpetrator has committed acts united by a common intention to achieve a single objective – the exploitation of the victim. They shall be classified as one crime under Article 128 or 135 of the Criminal Code, without additional classification under Articles 308 and 134 of the Criminal Code.

The victim's consent to the planned exploitation shall not be taken into account if any of the means of influence specified in Part 2 of Article 128 of the Criminal Code have been used.

The forced use of a victim to perform acts of a sexual nature (indecent acts, production of pornographic photographs and video clips) is covered by the disposition of Articles 128 and 135 of the Criminal Code and does not require additional classification under Article 134 or Article 308 of the Criminal Code.

Receipt of a person means actions associated with acquiring that person as a result of their transfer, donation, exchange or lending. A person may be received in repayment of a debt or on credit, as a result of a donation or exchange of one person in servitude for another person in servitude or for material valuables. Receipt may be for consideration or free of charge, for a specific period or permanently, subject to certain conditions or without such conditions, etc. Receipt of a person shall be understood as accepting that person as a result of the conclusion of any transaction.

The commission of other acts for the purpose of exploiting a person shall mean the commission of any actions for the purpose of exploiting a person that are not specified in the disposition of Article 128 of the Criminal Code. Such actions may include, for example, adopting a child for the purpose of exploiting the child's labor, finding clients for transactions, and organizing auctions for purchase and sale and other transactions, including through the use of telecommunications networks. The list of actions specified in the disposition of Article 128 of the Criminal Code is exhaustive. Therefore, other socially dangerous acts involving the exploitation of a person, as a result of which the victim is placed in a condition of servitude, deprived of freedom of movement and made subject to transactions involving them, such as kidnapping a person for the purpose of trafficking or unlawful deprivation of liberty for the same purpose, are classified independently under the relevant articles of the Criminal Code.

Unlike criminal offenses related to human trafficking, criminal liability for acts provided for in Articles 152, 153, 156 and 395 of the Criminal Code arises where an employment relationship exists between the employer and the employee and there is no purpose of exploiting the person.

The structure of the corpus delicti is formal. The purchase and sale of a person or the conclusion of other transactions involving a person for the purpose of exploitation shall be considered completed from the moment the person is transferred to other individuals. The time at which remuneration is received for the sale of the person or for the conclusion of other transactions is irrelevant. Transportation is considered completed from the moment its implementation begins. Recruitment is considered completed from the moment the recruited person gives consent to being exploited. Transfer and receipt are considered completed from the moment of transfer and receipt, respectively. Harboring for the purpose of exploitation is considered completed from the moment the victim is concealed from law enforcement agencies, relatives and other persons.

The subjective element of the purchase and sale of a person or the conclusion of other transactions involving that person is characterized by direct intent. Therefore, the purpose of concluding such transactions is irrelevant for classifying the act under Part 1 of Article 128 of the Criminal Code.

When a person is recruited, transported, transferred or harbored, the subjective element of the crime is characterized by direct intent, and the purpose of the crime is the exploitation of the person.

When establishing the purpose of a criminal act, it should be taken into account that exploitation of a person is expressed in the use of forced labor with payment provided only in the form of food or other essential items, keeping a person in a condition of servitude, forcing a person to engage in prostitution, or compelling them to provide sexual and other services.

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

The qualified elements of crimes contained in Part 2 of Article 128 of the Criminal Code establish criminal liability for the acts provided for in Part 1 of Article 128 of the Criminal Code when committed: 1) by a group of persons pursuant to a prior conspiracy; 2) repeatedly; 3) with the use of violence dangerous to life and health, or the threat of such violence; 4) with the use of weapons or objects used as weapons; 5) against a woman whom the perpetrator knowingly knows to be pregnant; 6) against two or more persons; 7) for the purpose of removing the victim's organs or tissues for transplantation or other use; 8) by means of deception or abuse of trust; 9) by a person using their official position; 10) through the use of the victim's material or other dependence; 11) against a person whom the perpetrator knowingly knows to have a mental disorder or to be in a helpless condition; 12) involving the seizure, concealment or destruction of documents identifying the victim.

The elements of the specified qualified offenses are explained in the commentaries to Articles 99, 125, 126 and 127 of the Criminal Code.

We shall comment only on certain of the listed elements. Human trafficking against two or more persons (Subparagraph 6) of Part 2 of Article 128 of the Criminal Code) may be committed simultaneously or at different times pursuant to a single intent. When classifying the perpetrator's actions on the grounds of repeated offenses or commission of an act against two or more persons, the direction of their intent, the nature of the specific actions, the time interval between the offenses and other circumstances of the crime should be taken into account.

Actions against several victims committed at different times and not covered by a single intent shall not be classified under Subparagraph 2) of Part 2 of Article 128 of the Criminal Code. The actions of a perpetrator committed against two or more persons pursuant to a single intent shall be classified under Subparagraph 6) of Part 2 of Article 128 of the Criminal Code.

The actions of a person who has committed a completed crime related to human trafficking, preparation for such a crime and attempted commission of such a crime constitute an aggregate of criminal offenses.

When classifying human trafficking on the ground of repetition, the provisions of Article 12 of the Criminal Code must be taken into account, according to which repetition of criminal offenses means the commission of two or more acts provided for by the same Article or the same Part of an Article of the Special Part of the Criminal Code. In this regard, crimes committed against an adult and a minor do not constitute repetition and are subject to classification under the aggregate of Articles 128 and 135 of the Criminal Code.

Human trafficking committed against two victims pursuant to a single intent, one of whom is a minor and the other an adult, shall be classified under Subparagraph 6) of Part 2 of Article 128 of the Criminal Code and the relevant part of Article 135 of the Criminal Code.

When classifying an act under Subparagraphs 3) and 4) of Part 2 of Article 128 of the Criminal Code and Subparagraphs 3) and 4) of Part 2 of Article 135 of the Criminal Code, the explanations contained in Paragraphs 21 and 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2007, “On Judicial Practice in Cases of Theft,” should be followed. When classifying an act under Subparagraph 5) of Part 2 of Article 128 of the Criminal Code and Subparagraph 11) of Part 2 of Article 135 of the Criminal Code, the explanations set out in Paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On the Classification of Certain Criminal Offenses Against Human Life and Health,” should be followed.

For the purpose of classifying the perpetrator's actions under Subparagraph 7) of Part 2 of Article 128 of the Criminal Code, it must be established that the human trafficking was committed for the purpose of removing the victim's organs or tissues for transplantation or other use, regardless of whether the person's organs and tissues were actually removed and used.

Actions involving coercion to remove or the unlawful removal of organs and tissues from a living person, in the absence of the elements of an act provided for in Article 128 of the Criminal Code, shall be independently classified under the special provision of criminal law – the relevant part of Article 116 of the Criminal Code.

Murder committed for the purpose of using human organs and tissues shall be classified as an aggregate of crimes under Subparagraph 7) of Part 2 of Article 128 of the Criminal Code and Subparagraph 12) of Part 2 of Article 99 of the Criminal Code, regardless of whether the person's organs and tissues were actually removed and used.

Under Subparagraph 8) of Part 2 of Article 128 of the Criminal Code, liability arises in cases of deception or abuse of the victim's trust. As a result, the victim, unaware that the perpetrator intends to sell them, conclude other transactions involving them or perform actions aimed at their exploitation, finds themselves in a condition of servitude.

Under Subparagraph 9) of Part 2 of the Article under consideration, human trafficking committed by a perpetrator using their official position may be attributed only to a special subject.

Persons who use their official position when committing a crime include: a) persons authorized to perform state functions; b) officials; c) civil servants and employees of local self-government bodies who are not classified as officials; d) persons performing managerial functions in commercial or other organizations. In this case, the use of one's position to commit human trafficking should be understood not only as the intentional use of one's official powers, but also as exerting influence, based on the significance and authority of the position held, over a subordinate person in order to induce that person to perform certain actions aimed at recruiting, transporting, harboring or concluding a transaction involving a person. Where the subjects of the crime are persons authorized to perform state functions, officials or persons performing managerial functions in commercial or other organizations, the resulting conflict between the qualified offense of human trafficking and the crimes specified in Articles 361 and 250 of the Criminal Code must be resolved in favor of Article 128 of the Criminal Code.

Under Subparagraph 10) of Part 2 of the Article under consideration, acts committed against a victim who is materially or otherwise dependent on the perpetrator are classified.

The victim's material dependence may be expressed in their being fully or partially maintained by the perpetrator or residing in a residential premises owned by the perpetrator. Other dependence should be understood as any non-material dependence of the victim on the perpetrator (for example, family relationships, dependence of a subordinate on a manager, or a student's dependence on a teacher).

Human trafficking against a person whom the perpetrator knowingly knows to have a mental disorder or to be in a helpless condition (Subparagraph 11) of Part 2 of Article 128 of the Criminal Code) is characterized by the principal characteristics of the victim of the crime. The perpetrator reliably knows that the victim has a mental disorder. For the concept of a helpless condition, see the commentary to Subparagraph 3) of Part 2 of Article 99 of the Criminal Code.

Under Subparagraph 12) of Part 2 of Article 128 of the Criminal Code, the perpetrator's actions are classified where, intentionally and for the purpose of exploiting the victim, the perpetrator seizes, conceals or destroys documents identifying the victim, thereby creating conditions for establishing the victim's dependence on the perpetrator.

The seizure, concealment or destruction of identity documents places the victim in a dependent position and thereby facilitates the conclusion of transactions involving the victim, their transportation, detention abroad, etc. The seizure of an identity document (secretly or openly, by force or without force), or taking it away from the victim through deception – these actions of the perpetrator are covered by the qualified composition of human trafficking and do not require additional classification under Article 384 of the Criminal Code.

Concealment of documents implies hiding, retaining and storing them by the perpetrator or third parties in such a way as to prevent the victim from using the document. Destruction of an identity document means rendering it unusable (for example, by burning it). For an additional description of this qualifying element, see the commentary to Subparagraph 9) of Part 2 of Article 125 of the Criminal Code.

Part 3 of Article 128 of the Criminal Code establishes criminal liability for acts provided for in Parts 1 or 2 of this Article when committed for the purpose of exporting a person outside the Republic of Kazakhstan, importing a person into the Republic of Kazakhstan, or transporting a person through the territory of the Republic of Kazakhstan from one foreign state to another, as well as for exporting a person outside the Republic of Kazakhstan, importing a person into the Republic of Kazakhstan, or transporting a person through the territory of the Republic of Kazakhstan from one foreign state to another for the purpose of committing such acts.

Exporting people outside the Republic of Kazakhstan should be understood as sending citizens of the Republic outside the territory of Kazakhstan.

Transportation of people through the territory of the Republic of Kazakhstan who are traveling from one foreign state to another (transit) for the purpose of exploitation should be understood as the movement of foreign citizens from one state to another through the territory of the Republic of Kazakhstan.

A proper legal assessment must be given to cases of illegal crossing of the border by the victims of human trafficking themselves and by the perpetrators.

In accordance with Article 7 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of November 15, 2000, the State in whose territory a victim of human trafficking is present shall consider, taking into account humanitarian considerations and showing compassion, the possibility of adopting measures allowing victims of human trafficking to remain in its territory on a temporary or permanent basis.

Victims of human trafficking shall not be subject to criminal liability for criminal offenses committed by them during or as a result of their status as objects of human trafficking, where the grounds provided for in Articles 23, 32, 33, 34, 36 and 37 of the Criminal Code are present, for example, for illegal crossing of the State Border of the Republic of Kazakhstan (Article 392 of the Criminal Code).

Criminal liability under Article 392 of the Criminal Code for illegal crossing of the State Border of the Republic of Kazakhstan is not excluded if the victim of trafficking voluntarily consented to being trafficked and to illegally leaving the territory of the Republic of Kazakhstan or entering the territory of the Republic of Kazakhstan, provided that they were not subjected to coercion and did not act under conditions of extreme necessity.

If a person engaged in human trafficking who moves the victim across the State Border of the Republic of Kazakhstan has themselves illegally crossed the State Border of the Republic of Kazakhstan, their actions, where sufficient grounds exist, must also be classified under Article 392 of the Criminal Code.

The movement of victims of human trafficking may be connected with the organization of illegal migration (Article 394 of the Criminal Code). In cases where a person organizing the entry into the territory of the Republic of Kazakhstan or transit passage through the territory of the Republic of Kazakhstan of victims of human trafficking who are foreign citizens or stateless persons was unaware of the legal status of these persons, that person shall be liable under Article 394 of the Criminal Code. If that person knew the legal status of these persons but did not participate in their physical transportation, they shall be liable for aiding and abetting human trafficking involving the movement of victims across the State Border of the Republic of Kazakhstan.

Human trafficking should be distinguished from the organization of illegal migration (Article 394 of the Criminal Code).

The purpose of the illegal entry of migrants is the unlawful movement of people or an individual across a border in exchange for property-related remuneration, whereas the purpose of human trafficking is the exploitation of a person. Human trafficking is not necessarily connected with crossing a state border. It may be carried out within a single state. The transaction between the person organizing the illegal movement of other persons across a state border and the individual being moved terminates once the objective has been achieved. Human trafficking, however, is connected with the loss of the victim's personal freedom and their subordination. Such a transaction is generally based on deception or misleading the victim and does not terminate upon the victim's arrival at the destination, where the exploitation of the person begins.

The specified acts do not require additional classification under Article 392 of the Criminal Code if, during the import, export or transit of a person, the crossing of the State Border of the Republic of Kazakhstan was carried out through border crossing points without violating the established procedure and without using forged documents or fraudulently using valid documents belonging to third parties.

Part 4 of Article 128 of the Criminal Code establishes criminal liability for acts provided for in Parts 1, 2 or 3 of this Article if they:

are committed by a criminal group (see the commentary to Subparagraph 1) of Part 3 of Article 125 of the Criminal Code);

negligently result in the death of the victim or other grave consequences.

Human trafficking resulting in the death of the victim or other grave consequences through negligence presupposes the commission of a crime with two forms of guilt. The acts specified in Article 128 of the Criminal Code that result in the death of the victim or other grave consequences through negligence do not require additional classification.

According to Paragraph 2 of Clause 19 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Legislation Establishing Liability for Human Trafficking,” other grave consequences may include mental disorders and other serious illnesses. If other intentional crimes are committed against the victim during their exploitation (for example, murder, rape, infection with HIV or sexually transmitted diseases, illegal abortion, etc.), the acts shall be classified as an aggregate of crimes. Kidnapping or unlawful deprivation of liberty for the purpose of exploiting the victim, followed by other criminal acts related to human trafficking, shall be classified as an aggregate of crimes under Subparagraph 2) of Part 3 of Article 125 or Subparagraph 2) of Part 3 of Article 126 of the Criminal Code and the relevant parts of Article 128 of the Criminal Code.

Kidnapping a victim for the purpose of exploitation through deception, followed by transportation without elements of seizure and forcible movement in space, constitutes recruitment and transportation of a person for the purpose of exploitation in human trafficking. The act as a whole should be classified only under the relevant part of Article 128 of the Criminal Code, without applying the criminal-law provision contained in Subparagraph 2) of Part 3 of Article 125 of the Criminal Code (Paragraph 20 of the Regulatory Resolution of the Supreme Court).

The acts provided for in Parts 1, 2 and 3 of Article 128 of the Criminal Code are classified as serious crimes.

The act provided for in Part 4 of Article 128 of the Criminal Code is classified as an especially 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.

Constitution Law Code Regulatory Act Decree Order Decision Resolution Attorney Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Charter Article Commentary Resolution Regulation Protocol Draft Program Rules Messages