Commentary on Article 132. Involving a Minor in the Commission of Criminal Offences of the Criminal Code of the Republic of Kazakhstan
1. Involving a minor in the commission of criminal offences by a person who has reached the age of eighteen —
shall be punishable by imprisonment for a term of three to six years.
2. The same act committed by a parent, teacher or another person upon whom the laws of the Republic of Kazakhstan impose duties relating to the upbringing of a minor, or through the use of telecommunication networks, including the Internet —
shall be punishable by imprisonment for a term of four to eight years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
3. Acts provided for in paragraphs one or two of this Article, committed with the use of violence or the threat of its use —
shall be punishable by imprisonment for a term of four to ten years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
4. Acts provided for in paragraphs one, two or three of this Article, involving the inducement of a minor to commit a serious or particularly serious crime —
shall be punishable by imprisonment for a term of five to twelve years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
5. Acts provided for in paragraphs one, two, three or four of this Article, involving the inducement of a minor to participate in the criminal activities of a criminal group —
shall be punishable by imprisonment for a term of ten to fifteen years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
Article 27, paragraph 1, of the Constitution of the Republic of Kazakhstan provides: “Marriage and family, motherhood, fatherhood and childhood shall be under the protection of the state.” Paragraph 2 of the said Article of the Constitution emphasises that caring for children and raising them are the natural right and duty of parents, while paragraph 3 of Article 27 of the Constitution states: “Adult able-bodied children are obliged to take care of their disabled parents.” These fundamental constitutional provisions formed the basis for the criminal-law protection of the interests of the family and minors.
For the purpose of implementing the fundamental rights and legitimate interests of the child guaranteed by the Constitution of the Republic of Kazakhstan, and proceeding from the principles of prioritising the preparation of children for a full-fledged life in society, developing their socially significant and creative activity, fostering high moral qualities, patriotism and civic consciousness in them, and forming national self-awareness on the basis of the social values of world civilisation, the Law of the Republic of Kazakhstan dated 8 August 2002 “On the Rights of the Child in the Republic of Kazakhstan” was adopted. According to subparagraph 2) of Article 1 of the said Law, a child is a person who has not reached the age of eighteen (majority).
According to paragraph 1 of Article 6 of the Law, the objectives of the state policy in the interests of children are: 1) ensuring the rights and legitimate interests of children and preventing their discrimination; 2) strengthening the fundamental guarantees of the rights and legitimate interests of children, as well as restoring their rights in cases of violations; 3) establishing the legal foundations for guaranteeing children's rights and creating the relevant bodies and organisations for protecting the rights and legitimate interests of children; 4) promoting the physical, intellectual, spiritual and moral development of children, fostering patriotism, civic consciousness and peacefulness in them, as well as ensuring the development of the child's personality in the interests of society, the traditions of the peoples of the state, and the achievements of national and world culture; 5) ensuring targeted efforts to develop legal awareness and legal culture in minors; 6) ensuring the protection of children from information harmful to their health and development.
In accordance with paragraph 2 of Article 10 of the Law, the state ensures the personal inviolability of the child and protects the child against physical and (or) psychological violence, cruel, harsh or degrading treatment, sexual acts, involvement in criminal activities and the commission of antisocial acts, as well as other types of activities that infringe upon the human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan.
The public danger of the offence under consideration lies both in the harm caused to the upbringing of minors and in the introduction of adolescents, who are particularly susceptible to outside influence, to the commission of criminal offences.
The object of involving a minor in the commission of criminal offences is the normal moral, intellectual and physical development of minors.
The objective element of involving minors in the commission of criminal offences is disclosed through the characterisation of the actions of the person who induces the minor. In this regard, it should be borne in mind that liability under this Article arises both for involving a minor in the commission of criminal misdemeanours and for involving a minor in the commission of crimes.
The concept of “involve” in the Russian Language Dictionary means “to induce or attract someone to participate in something”. Any involvement of minors in the commission of criminal offences is a process of communication between an adult and a minor. The actions of the person doing the involving are continuously directed towards disrupting the natural, normal development and existence of the adolescent, since arousing a desire or aspiration already presupposes a change in the individual's existing state and status.
Involving a minor in the commission of criminal offences should be understood as actions aimed at arousing in a minor a desire or aspiration to participate in the commission of one or more criminal misdemeanours or a crime. Involvement may take the form of promises, persuasion (regarding the possibility of obtaining certain benefits), intimidation (threats of beatings or disclosure of defamatory information), bribery (providing material remuneration), deception (providing false information), arousing a feeling of revenge (encouraging physical retaliation), arousing envy or other base motives (the desire to obtain a prestigious position), proposing the commission of a criminal offence, promising to purchase or sell stolen property, giving advice on the place and methods of committing a criminal offence or concealing its traces, and so forth.
A promise should be understood as promises of various kinds relating to the performance, by a person in the future, of actions favourable to the minor. For example, transferring money or other property to a minor (including as payment for committing a criminal offence), promising to conceal the minor after the commission of a criminal offence, helping the minor gain admission to an educational institution, and so forth.
Deception consists in communicating knowingly false information to a minor, which determines the minor's decision to commit a criminal offence. For example, convincing a minor that, due to their age, they will not be held criminally liable for what they have done.
A threat should be understood as warning a minor that various adverse consequences will occur to the minor or their relatives if the minor refuses to commit a criminal offence. A threat may consist of destroying or damaging property, disclosing disgraceful information, and so forth.
According to the clarification provided in paragraph 24 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002 “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts”, involving a minor in the commission of criminal offences should be understood as the deliberate actions of the person doing the involving aimed at forming in the minor a desire (intention, aspiration) and readiness to participate in the commission of criminal offences. At the same time, the actions of the adult must be active in nature and may be accompanied by the use of psychological or physical influence (beatings, persuasion, threats and intimidation, bribery, arousing feelings of revenge, envy and other base motives, assurances of impunity, advice on the place and method of committing criminal offences or concealing their traces, promises of payment for the actions performed or assistance in disposing of stolen property, and other actions). The bodies conducting pre-trial investigations and the courts are obliged to specify which particular actions were committed by the adult for the purpose of involving the minor in the commission of criminal offences or other antisocial acts. An adult's mere proposal to commit a criminal offence, made to a minor without exerting psychological or physical influence upon them, cannot be regarded as involving the minor in the commission of criminal offences.
The actions of an adult who has involved a minor in the commission of a criminal offence and participated in that offence are subject to qualification under the aggregate of Articles of the Criminal Code providing for liability both for committing the specific criminal offence in complicity with the adolescent and for involving the minor in the commission of criminal offences. At the same time, a criminal offence committed jointly with a person who has not reached the age at which criminal liability arises cannot be classified as an offence committed by a group of persons. In such cases, in accordance with paragraph 2 of Article 28 of the Criminal Code, the adult who involved the minor in the commission of the criminal offence should be recognised as the perpetrator of the criminal offence.
The offence provided for in Article 132 of the Criminal Code exists if there is at least one instance of intentional involvement of a minor in the commission of a criminal offence. The elements of the offence under consideration are very broad in content, since they include not only preparation for it but also training in criminal behaviour.
For the purposes of establishing the elements of the offence provided for in Article 132 of the Criminal Code, the behaviour of the minor prior to their involvement in the commission of a criminal offence by an adult is irrelevant. This is due to a number of circumstances. Firstly, an adult organiser or instigator does not always possess reliable information about the minor's previous antisocial experience. Secondly, the criminal actions of the adult are aimed at strengthening the minor's antisocial orientation, that is, involving the minor in an antisocial way of life. Thirdly, the commission of criminal offences is often explained by the individual age-related psychological characteristics of the minor's personality, the desire to learn about and experience something new, and sometimes by purely childish motives, and so forth.
By its construction, the offence provided for in Article 132 of the Criminal Code is a formal offence. The offence is deemed completed from the moment the minor is induced to commit a criminal offence, when, under the influence of the adult, the minor develops the intent to commit it.
The subjective element of involving a minor in the commission of criminal offences presupposes the establishment of intent in the actions of the adult — the adult's awareness of the socially dangerous nature of their actions and foresight of their socially dangerous consequences.
Paragraph 23 of the aforementioned Regulatory Resolution states that the criminal offence provided for in Article 132 of the Criminal Code is committed only with direct intent. At the same time, criminal liability arises provided that the perpetrator had reliable knowledge that the person being involved was a minor.
The motives for committing the offence may vary and must be taken into account when imposing punishment.
The subject of involving a minor in the commission of criminal offences is a sane individual who has reached the age of eighteen (paragraph 1 of Article 132 of the Criminal Code). Article 132 of the Criminal Code provides for qualifying and particularly qualifying circumstances.
Paragraph 2 of Article 132 of the Criminal Code establishes increased liability for involving a minor in the commission of criminal offences where such involvement is committed by a parent, teacher or another person upon whom the law imposes duties relating to the upbringing of a minor, or through the use of telecommunication networks, including the Internet. It appears that expanding the range of persons subject to liability for involving adolescents in criminal activities is entirely justified, since in such cases the greatest harm is caused to the normal moral, spiritual, physical and sexual development and health of persons of adolescent age. Other persons upon whom duties to care for a minor are imposed include, for example, educators at boarding schools, coaches of sports teams, and so forth.
According to Article 70 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, parents are obliged to care for the health of their child. Parents raising a child are responsible for ensuring the conditions necessary for the child's physical, mental, moral and spiritual development. According to Article 72 of the said Code, when exercising parental rights, parents are not entitled to cause harm to the physical and mental health of the child or to their moral development. Methods of raising a child must exclude neglectful, cruel, harsh or degrading treatment, insults or exploitation of the child.
If parents treat a child cruelly, including by subjecting the child to physical or psychological violence, encroaching upon the child's sexual inviolability, or if parents commit an intentional criminal offence against the life or health of their own child, they shall be deprived of parental rights (Article 75 of the Code) (see also, on this issue, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 29 November 2018 “On the Application by Courts of Legislation in Resolving Disputes Related to the Upbringing of Children”).
Adoptive parents are also obliged to raise the child and care for the child's health and physical, mental, moral and spiritual development (Article 86 of the Code). In the cases specified in Article 106 of the Code “On Marriage (Matrimony) and Family”, the adoption is annulled (see also, on this issue, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 31 March 2016 “On the Practice of Applying Legislation on the Adoption of Children by Courts”, and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 29 November 2018 “On the Application by Courts of Legislation in Resolving Disputes Related to the Upbringing of Children”).
Paragraph 3 of Article 132 of the Criminal Code provides for a particularly qualifying circumstance: involving a minor in the commission of criminal offences through the use of violence or the threat of its use. According to the clarifications contained in the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002, violence in the course of involving a minor in the commission of criminal offences or other antisocial acts, as provided for in paragraph 3 of Article 132 of the Criminal Code, should be understood as inflicting beatings, other violent acts associated with causing physical pain, and causing minor or moderate harm to the health of the minor.
If the involvement of a minor in the commission of criminal offences was accompanied by the infliction of grievous harm to their health or by other acts constituting an independent criminal offence, the Supreme Court considers that the conduct should be classified under the aggregate of criminal offences (paragraph 26 of the Regulatory Resolution).
I consider such clarification by the Supreme Court to be erroneous and inconsistent with the current criminal legislation. Involving a minor in the commission of criminal offences may be accompanied by the use of physical violence (paragraph 3 of Article 132 of the Criminal Code). In such cases, violence within the meaning of paragraph 3 of the commented Article also encompasses the infliction of grievous harm to health, and additional qualification under Article 106 of the Criminal Code is not required. Violence within the meaning of paragraph 3 of Article 132 of the Criminal Code also encompasses torture under aggravating circumstances (paragraph 2 of Article 110 of the Criminal Code).
The act should be classified under the aggregate of crimes if the violence takes the form of rape or violent acts of a sexual nature committed under aggravating circumstances (Articles 120 and 121 of the Criminal Code).
Psychological violence means a threat of immediately causing harm to health if the minor refuses to participate in the criminal offence.
As previously noted, according to the Supreme Court's clarification, involvement within the meaning of paragraph 1 of Article 132 of the Criminal Code includes beatings and threats. The Supreme Court uses these same elements when explaining the concept of violence in the course of involving a minor in criminal activity, which is provided for in paragraph 3 of Article 132 of the Criminal Code as a particularly qualifying circumstance. This inconsistent approach of the Supreme Court of the Republic of Kazakhstan causes, and will undoubtedly continue to cause, difficulties in the qualification of the offence under consideration. Taking advantage of this gap in the Supreme Court's clarification, law enforcement authorities will, in some cases, classify “beatings” and “threats” under paragraph 1, and in other cases under paragraph 3 of Article 132 of the Criminal Code of the Republic of Kazakhstan. In my firm conviction, inflicting beatings while involving minors in the commission of criminal offences should be regarded as the use of violence provided for in paragraph 3 of Article 132 of the Criminal Code. Moreover, one should not forget the nature of the offence itself and the fact that beatings or other violent acts are used against minors.
Paragraph I of Article 132 of the Criminal Code concerns non-violent methods of physical and psychological influence. The Supreme Court underestimates the degree of public danger posed by psychological violence against the personality of a minor as a method of committing an offence. It cannot be ruled out that emotional suffering, including the development of a mental disorder as a consequence of pressure exerted on the minor's psyche, may be no less dangerous and significant in terms of severity than bodily injuries and, in some cases, even more so. The foregoing substantiates the need to exclude “beatings” and “threats” from the clarification of the concept of “involvement” (paragraph 1 of Article 132 of the Criminal Code) in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts”. In this way, these concepts will characterise “violence” under paragraph 3 of the commented Article.
Methods of non-violent psychological influence include persuasion, suggestion, bribery, intimidation, arousing feelings of envy and revenge, promises to cause trouble, and others. Physical influence may be expressed through patting a person's body, nodding one's head in approval, and other actions that exclude violence. This approach is used in criminal legislation in Article 124 as a means that excludes the use of violence in the commission of indecent acts.
Paragraph 4 of Article 132 of the Criminal Code regulates the liability of an adult for involving a minor in the commission of a serious or particularly serious crime. Serious crimes are intentional acts for which the maximum punishment prescribed by the Criminal Code does not exceed twelve years of imprisonment (paragraph 4 of Article 11 of the Criminal Code). Particularly serious crimes are intentional acts for which the Criminal Code provides for punishment in the form of imprisonment for a term exceeding twelve years, life imprisonment or the death penalty (paragraph 5 of Article 11 of the Criminal Code).
Paragraph 5 of Article 132 of the Criminal Code regulates liability for involving a minor in the criminal activities of a criminal group. The concept of a criminal group is defined in the commentary to subparagraph 15) of paragraph 2 of Article 99 of the Criminal Code.
The acts provided for in paragraphs 1, 2, 3 and 4 of Article 132 of the Criminal Code are classified as serious crimes.
The act provided for in paragraph 5 of Article 132 of the Criminal Code is classified as a particularly serious crime.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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