Commentary on Article 133. Involving a Minor in the Commission of Anti-Social Acts of the Criminal Code of the Republic of Kazakhstan

1. Involving a minor in the use of intoxicating substances or substance abuse, or in the repeated consumption of alcoholic beverages, or in engaging in vagrancy or begging —

shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labor in the same amount, or engagement in community service for a period of up to one thousand hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period.

2. The same act committed by a parent, teacher, or other person upon whom the laws of the Republic of Kazakhstan impose responsibilities for the upbringing of a minor —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or engagement in community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to six years, or imprisonment for the same period, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

3. Acts provided for in Parts One or Two of this Article, committed repeatedly or involving the use of violence or the threat of its use —

shall be punishable by imprisonment for a period of three to seven years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of the crime under consideration lies in the fact that it results in the destruction of the minor's moral values and develops a habit of an anti-social and unlawful lifestyle, which may become the basis for committing criminal offenses. In addition, the consumption of narcotic or intoxicating substances causes serious health disorders, which in some cases result in death.

The object of involving a minor in the commission of anti-social acts is the normal moral and physical development of the minor, while the health of the minor constitutes an additional object.

The objective side is similar in the nature of the act to the objective side of the crime provided for in Article 132 of the Criminal Code, with the exception of the activity into which the minor is involved. This does not concern a criminal offense, but various forms of anti-social behavior expressed in: 1) the use of intoxicating substances or substance abuse, 2) the repeated consumption of alcoholic beverages, 3) engaging in vagrancy, 4) engaging in begging.

The concept of “involvement” was examined in the analysis of the crime provided for in Article 132 of the Criminal Code. Involving a minor in the use of intoxicating substances or substance abuse means committing actions aimed at creating a desire in the minor to consume intoxicating substances or toxic agents. In terms of its degree of public danger, the use of intoxicating substances is considerably closer to inducing a minor to consume narcotic drugs, psychotropic substances, or their analogues (subparagraph 1) of paragraph 3 of Article 299 of the Criminal Code). Both involvement and inducement may be of a one-time nature. Inducement to consume narcotic drugs should be understood as any intentional actions aimed at arousing in other persons a desire to consume them (persuasion, suggestions, advice, etc.). For the purposes of Article 133 of the Criminal Code, intoxicating substances should include substances that are not classified as narcotic drugs or psychotropic substances but are capable of causing intoxication. The degree of the destructive effect of intoxicating substances on the body is no less than that of narcotic drugs, psychotropic substances, and their analogues. According to medical data, even single or occasional sessions of inhaling toxic agents often lead to the development of intellectual disability and other types of illnesses.

Intoxicating substances include: clonidine — an alcohol mixture in any percentage concentration, a mixture of diphenhydramine and alcohol, a barbiturate-alcohol mixture, chloroform, ether, toluene, chloroethyl, nitrous oxide; alcoholic extracts of plants containing alkaloids of the tropane group.

The danger of involving a minor in the repeated consumption of alcoholic beverages lies in the toxic effect of alcohol on the adolescent's immature, developing body. Alcoholism develops much faster in minors than in adults and, as a rule, takes severe forms. Alcohol has a destructive effect on adolescent behavior and often contributes to the commission of crimes. Criminal liability for involving a minor in the consumption of alcoholic beverages arises if the offender has committed these acts two or more times within a certain period of time during the course of one year.

A single occasion of drinking alcohol with a minor cannot be regarded as a crime provided for by the Article under commentary.

Involving a minor in vagrancy means intentionally inducing the minor, by various means, to wander from one populated area to another or within the boundaries of one city (district), etc., or to live on income not derived from labor. Vagrancy is closely associated with drunkenness, prostitution, hooliganism, and theft.

The next type of anti-social acts, involvement in the commission of which constitutes the elements of the crime provided for in Article 133 of the Criminal Code, is begging. Begging presupposes a specific source of obtaining funds for maintaining a parasitic lifestyle. The methods of begging may vary considerably. Begging is expressed in asking strangers for alms (charity) in the form of money, food, clothing, and other material valuables.

By its construction, the composition of the crime under consideration is formal. In accordance with paragraph 25 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Anti-Social Acts,” involving a minor in the commission of anti-social acts is considered completed when, under the influence of an adult, the minor develops an intention to commit such acts.

The subjective side of involving a minor in the commission of anti-social acts is characterized by direct intent on the part of the adult — the adult's awareness of the socially dangerous nature of their actions, foresight of their socially dangerous consequences, and desire for those consequences to occur. In paragraph 23 of the above-mentioned Regulatory Resolution, the Supreme Court of the Republic of Kazakhstan emphasizes that involving a minor in the commission of anti-social acts provided for in Article 133 of the Criminal Code is committed exclusively with direct intent. In this regard, criminal liability arises only on the condition that the offender reliably knew that the person being involved was a minor and that actual signs of such involvement are present.

The motives guiding adults when committing the actions listed in the law are often selfish in nature and have a parasitic or otherwise base character. Motive and purpose are not mandatory elements of this crime; however, establishing them makes it possible to correctly determine the degree of danger of the crime committed.

If a person objectively facilitated the process but had no intention of involving a minor in anti-social activities, the forms of which are listed in Article 133 of the Criminal Code, the elements of the crime provided for in the Article under commentary cannot be discerned in that person's actions. The elements of the crime are also absent in cases where the person was unaware that the individual being involved had not reached the age of majority.

The subject of the crime provided for in Article 133 of the Criminal Code is a sane individual who has reached the age of 18.

Part 2 of Article 133 of the Criminal Code provides for a qualifying feature: commission of this crime by a parent, teacher, or other person upon whom the law imposes responsibilities for the upbringing of a minor. In terms of its content, it coincides with the analogous feature contained in Part 2 of Article 132 of the Criminal Code. The subject of this qualified composition of the crime is a special subject.

Part 3 of Article 133 of the Criminal Code provides for two particularly qualifying features: involving a minor in the commission of anti-social acts repeatedly or through the use of violence or the threat of its use.

Repeated involvement of a minor in anti-social acts should be understood as committing the actions specified in Parts 1 or 2 of the Article under commentary two or more times against one minor, or committing the actions specified in the law against two or more minors. For the concept and features of repeated criminal offenses, see the commentary to Article 12 of the Criminal Code.

Involving a minor in the commission of anti-social acts may be accompanied by the use of physical violence (Part 3 of Article 133 of the Criminal Code). Physical violence may be expressed in the infliction of beatings, other violent acts associated with causing physical pain, and the intentional infliction of minor or moderate bodily harm on a minor. If grievous bodily harm is intentionally caused to the victim (Article 106), or violence is committed in the form of torture under aggravating circumstances (Part 2 of Article 110 of the Criminal Code), or in the form of rape or violent acts of a sexual nature (Articles 120 and 121 of the Criminal Code), the involvement of a minor in the commission of anti-social acts is classified in conjunction with the aforementioned Articles of the Criminal Code.

The act provided for in Part 1 of Article 133 of the Criminal Code belongs to the category of crimes of medium gravity.

The acts provided for in Parts 2 and 3 of Article 133 of the Criminal Code belong to the category of serious crimes.

Commentary of 2021 on 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 reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, and Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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