Commentary on Article 134. Involving a Minor in Prostitution under the Criminal Code of the Republic of Kazakhstan

1. Involving a minor in prostitution —

shall be punishable by imprisonment for a term of three to six years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

2. Involving a minor in prostitution through the use of violence or the threat of its use, exploitation of a dependent position, blackmail, destruction of or damage to property, or by means of deception —

shall be punishable by imprisonment for a term of five to eight years, with confiscation of property and 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:

1) by a group of persons upon prior conspiracy;

1-1) through the use of telecommunications networks, including the Internet;

2) repeatedly, —

shall be punishable by imprisonment for a term of six to ten years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

4. Acts provided for in parts one, two or three of this Article, committed:

1) by a criminal group;

2) by a parent, teacher or other person upon whom the laws of the Republic of Kazakhstan impose duties relating to the upbringing of a minor, —

shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of the crime provided for in Article 134 of the Criminal Code lies in the fact that a corrupting influence is exerted on the immature psyche of minors, their normal spiritual and moral development is disrupted, and distorted value orientations are instilled in them. Minors are the most unprotected and vulnerable part of society, and their moral and physical health is particularly susceptible to destruction as a result of criminal acts.

The Constitution of the Republic of Kazakhstan emphasizes that childhood and the family are under the protection of the State (Article 27). This constitutional provision develops international legal standards in the field of protecting the family and minors (the 1948 Universal Declaration of Human Rights, the 1959 Declaration of the Rights of the Child, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1986 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children).

The object of the crime is the normal moral and physical development of a minor, while the health of the minor constitutes an additional object.

The objective aspect is similar, in terms of the nature of the act, to the objective aspect 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 concerns not a criminal offence, but a form of antisocial behaviour in the form of engaging in prostitution.

Engaging in prostitution means repeatedly entering into sexual relations with various partners for payment, without such relations being based on personal affection or attraction. Sexual relations may mean sexual intercourse in its natural form, as well as anal and oral sex, and also any acts intended to satisfy the sexual needs of another person in exchange for remuneration.

Involving a minor in prostitution should be understood as purposeful actions by the person doing the involving aimed at developing in the minor a desire and willingness to enter into sexual relations with various partners for payment. At the same time, the perpetrator's actions must be active in nature and may be accompanied by psychological influence (persuasion, bribery, promises of payment, etc.). For criminal liability under Part 1 of Article 134 of the Criminal Code to arise, the influence must be exerted without violence, blackmail or deception.

For liability under Article 134 of the Criminal Code, the minor's previous behaviour, including immoral behaviour, is irrelevant.

By its legal structure, the corpus delicti is formal. The crime should be considered completed from the moment the minor is induced to engage in prostitution, when, under the influence of an adult, the minor develops the intent to repeatedly enter into sexual relations with various partners for payment. The Supreme Court also points this out. Thus, paragraph 25 of the Regulatory Resolution “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts” provides an explanation that involving a minor in prostitution, as provided for in Article 134 of the Criminal Code, should be considered completed when, under the influence of an adult, the minor develops the intent to commit such acts. If, despite the influence exerted, the person being involved did not engage in prostitution and had no such desire, the actions of the person doing the involving should be classified as an attempt to involve a minor in prostitution (Part 3 of Article 24 of the Criminal Code and the relevant part of Article 134 of the Criminal Code).

The subjective aspect of involving a minor in prostitution is expressed in direct intent. The perpetrator is aware of the socially dangerous nature of their actions, foresees the occurrence of socially dangerous consequences and desires their occurrence. At the same time, criminal liability arises only on condition that the perpetrator reliably knew that the person being involved was a minor and that the actual characteristics of such involvement are present. Where, however, a person involving another person in prostitution was honestly mistaken, believing that the victim had already reached the age of majority (appeared older than their actual age), the elements of this crime will not be present. In such cases, criminal liability under Article 308 of the Criminal Code, “Involvement in Prostitution”, is not excluded.

The motives for the crime are irrelevant to its legal classification, but they should be established, since they may be taken into account when imposing punishment.

The subject of the crime provided for in Article 134 of the Criminal Code is a sane natural person who has reached the age of 16. To be fair, it should be noted that the subject of the crime under commentary is a person who has reached the age of 18. This conclusion follows from a logical and literal interpretation of the Article under commentary.

Part 2 of Article 134 of the Criminal Code provides for involving a minor in prostitution through the use of: a) violence or the threat of its use; b) exploitation of a dependent position; c) blackmail; d) destruction of or damage to property; or e) deception.

Physical violence in involving a minor in prostitution should be understood as beating, committing violent acts associated with causing physical pain, and causing minor, moderate or serious harm to the health of the minor. In this case, additional classification under Articles 106 and 107 of the Criminal Code is not required.

Psychological violence in involving a minor in prostitution should be understood as a threat to use physical violence, for example, a threat to kill, cause harm to health, etc. In this case, additional classification under Article 115 of the Criminal Code is not required.

Exploitation of a dependent position is expressed in material dependence, which is characterized by the fact that one of the sources of the minor's livelihood is substantial material assistance provided by the perpetrator, the minor being maintained by the perpetrator, as well as dependence arising from the fact of residing in the perpetrator's living space, the dependence of a ward on a guardian, involving the minor in debt bondage, which entails placing the minor in a position of complete dependence on a person to whom the minor is obliged to repay or work off a certain sum of money, and so forth.

Blackmail is a threat to disclose or disseminate information that discredits the minor (for example, information about unlawful acts). Moreover, a threat to disclose both truthful and false information may be recognized as blackmail. Disclosure means communicating information in any form to at least one person.

Destruction of necessary property entails rendering it unusable in such a condition that it permanently loses its economic and commercial value and cannot be restored, as a result of which it cannot be used for its intended purpose.

Damage to property means causing such harm to another person's property that substantially reduces its economic and commercial value, and the property can no longer be used for its intended purpose without restoration or repair. At the same time, where the necessary labour and financial costs are incurred for the repair and restoration of property damaged by the perpetrator, such property is capable of regaining the useful qualities and characteristics that it had temporarily or partially lost, thereby allowing it to be used for its direct functional purpose with a certain degree of efficiency.

Deception involves misleading the minor regarding the purposes of entering into sexual relations, i.e. the perpetrator conceals the fact that payment for the services is involved.

Part 3 of Article 134 of the Criminal Code provides for the following particularly aggravating circumstances of the commission of this act: 1) by a group of persons upon prior conspiracy; 2) repeatedly.

In accordance with Part 3 of Article 31 of the Criminal Code, involving a minor in prostitution committed by a group of persons upon prior conspiracy is recognized as such where the joint efforts of two or more persons are combined in its commission, and the actions of each accomplice constitute a necessary condition for the actions of the other accomplices, in accordance with the prior distribution of roles, and are causally connected with the common criminal result arising from the activities of all accomplices. In such cases, the participation of two or more perpetrators in the crime is not mandatory; one perpetrator is sufficient, provided that there are other types of accomplices.

For the characteristics of the element “repeatedly”, see the commentary on Part 3 of Article 133 of the Criminal Code and Article 12 of the Criminal Code.

Part 4 of Article 134 of the Criminal Code provides for the following particularly aggravating circumstances of the commission of this act: 1) by a criminal group; 2) by a parent, teacher or other person upon whom the laws of the Republic of Kazakhstan impose duties relating to the upbringing of a minor.

Involving a minor in prostitution committed by a criminal group, pursuant to subparagraph 1) of Part 4 of Article 134 of the Criminal Code, presupposes the existence of 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, which have united in advance to commit the act in question against minors (for more details on criminal groups, see the commentary on subparagraph 15) of Part 2 of Article 99 of the Criminal Code).

The particularly aggravating circumstance “by a parent, teacher or other person upon whom the laws of the Republic of Kazakhstan impose duties relating to the upbringing of a minor” is examined in the analysis of Part 2 of Article 132 of the Criminal Code.

The acts provided for in Parts 1, 2, 3 and 4 of Article 134 of the Criminal Code are classified as serious crimes.

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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