Commentary on Article 142. Abuse of the Rights of a Guardian or Trustee of the Criminal Code of the Republic of Kazakhstan

The use of guardianship or trusteeship for mercenary or other base purposes to the detriment of the person under guardianship (ward), or the intentional abandonment of the person under guardianship (ward) without supervision or necessary assistance, resulting in a substantial infringement of the rights and legitimate interests of the person under guardianship (ward), —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

The public danger of the crime provided for in Article 142 of the Criminal Code lies in the violation of the procedure for guardianship and trusteeship established by law, as a result of which the interests of the person under care suffer.

The principle of the responsibility of guardians (trustees) for the upbringing and development of a child is enshrined in the norms of international law; accordingly, the best interests of the child must be the subject of their primary concern (Article 18 of the Convention on the Rights of the Child). This provision is also enshrined in Article 126 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, which establishes the rights and obligations of a guardian or trustee to raise a child under guardianship or trusteeship and to care for the child's health and physical, mental, spiritual and moral development.

The object of the crime is the legitimate interests and rights of the person under guardianship (ward).

For the purpose of protecting the rights and interests of children in the event of the death of their parents, deprivation of their parental rights, restriction of their parental rights, recognition of their parents as legally incapable, illness of their parents, prolonged absence of their parents, evasion by their parents of their duties to raise children or protect their rights and interests, including where parents refuse to collect their children from inpatient, medical and other similar institutions, as well as in other cases where parental care is absent, guardianship or trusteeship is established.

According to subparagraph 19) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, trusteeship is a legal form of protection of the rights and interests of children aged fourteen to eighteen years, as well as adults whose legal capacity has been limited by a court due to the abuse of alcoholic beverages or narcotic drugs. Guardianship is a legal form of protection of the rights and interests of children under the age of fourteen and persons recognised by a court as legally incapable (subparagraph 21) of paragraph 1 of Article 1 of the Code).

Guardianship or trusteeship is established over orphaned children and children left without parental care for the purpose of their maintenance, upbringing and education, as well as the protection of their property and personal non-property rights and interests (paragraph 1 of Article 119 of the Code).

Guardianship or trusteeship is also established for the protection of the property and personal non-property rights and interests of adults who are legally incapable or have limited legal capacity (paragraph 2 of Article 119 of the Code).

According to paragraph 3 of Article 129 of the Code “On Marriage (Matrimony) and Family” and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Application by Courts of Legislation in Resolving Disputes Related to the Upbringing of Children”, improper performance by a guardian or trustee of their duties is prohibited, including the use of guardianship or trusteeship for mercenary purposes or leaving a ward without supervision and necessary assistance. The body exercising guardianship or trusteeship functions is obliged to remove the guardian or trustee from performing these duties and take the necessary measures.

From the objective side, abuse of guardianship and trusteeship rights is expressed in:

the use of guardianship and trusteeship for mercenary or other base purposes to the detriment of the person under guardianship (ward);

the intentional abandonment of the person under guardianship (ward) without supervision or necessary assistance, resulting in a substantial infringement of the rights and legitimate interests of the person under guardianship (ward).

The use of guardianship and trusteeship for mercenary or other base purposes to the detriment of the person under guardianship (ward) may be expressed in occupying residential premises, using property left after the death of the parents, appropriating items belonging to the person under guardianship or trusteeship, misappropriating valuables, concluding transactions that are disadvantageous to the victim and provide the perpetrator with certain benefits, and the like.

For example, paragraph 2 of Article 128 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” prohibits guardians, without the prior permission of the body exercising guardianship or trusteeship functions, from carrying out, and trustees from consenting to, transactions involving the alienation, including the exchange or donation, of the ward's property, or concluding a surety agreement on the ward's behalf, leasing the ward's property (renting it out), transferring it for gratuitous use or pledging it, entering into transactions resulting in the waiver of the ward's rights to inheritance by law or under a will, dividing the ward's property or allocating a share from it, as well as any other transactions resulting in a reduction of the ward's property. The body exercising guardianship or trusteeship functions determines how the funds received by the guardian as a result of the specified transactions must be spent.

The intentional abandonment of a person under guardianship (ward) without supervision and without necessary assistance, resulting in a substantial infringement of the rights and legitimate interests of the person under guardianship (ward), consists in the inaction of the perpetrator, where the guardian or trustee fails to ensure supervision of children, fails to care for their health and safety, fails to provide financial maintenance, evades caring for a seriously ill person, providing treatment, and so forth. If grave consequences and other necessary elements of the offence occur, criminal liability may arise not only under Article 142 but also under the relevant part of the corresponding Articles of the Criminal Code.

According to Article 126 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, guardians or trustees of minors are obliged to live together with their wards, except in cases where the wards are being raised or receiving treatment in an educational organisation or a medical organisation. Separate residence of a trustee from a ward who has reached the age of sixteen is permitted with the authorisation of the body exercising guardianship or trusteeship functions, provided that this does not adversely affect the upbringing and protection of the rights and interests of the ward. Guardians or trustees are obliged to notify the bodies exercising guardianship or trusteeship functions of any change of their place of residence.

By its legal construction, the elements of the crime are material. The crime is considered completed from the moment the actions to the detriment of the person under guardianship (ward) are committed, resulting in a substantial infringement of the rights and legitimate interests of the person under guardianship (ward).

From the subjective side, the use of guardianship and trusteeship to the detriment of the person under guardianship (ward) may be committed only with direct intent and for mercenary or other base purposes.

Abandonment of a person under guardianship (ward) without supervision and necessary assistance may be committed with either direct or indirect intent. In this case, the guardian (trustee) desires and consciously permits a substantial infringement of the rights and legitimate interests of the person under guardianship (ward).

The subject of the crime is special. Only guardians or trustees, being sane individuals who have reached the age established by law, may be such subjects. According to subparagraph 22) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, a guardian or trustee is a person appointed in accordance with the procedure established by the legislation of the Republic of Kazakhstan to perform guardianship or trusteeship functions. In accordance with paragraph 1 of Article 122 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”: “Only adults may be appointed as guardians and trustees, with the exception of:

persons recognised by a court as legally incapable or having limited legal capacity;

persons deprived by a court of parental rights or whose parental rights have been restricted by a court;

persons removed from the duties of a guardian or trustee for improper performance of the duties imposed on them by the legislation of the Republic of Kazakhstan;

former adoptive parents, if the adoption was cancelled by a court due to their fault;

persons who, due to their state of health, are unable to perform the duties of a guardian or trustee;

persons who do not have a permanent place of residence;

persons who have an unexpunged or unspent criminal record for committing an intentional crime at the time guardianship (trusteeship) is established, as well as persons specified in subparagraph 12) of this paragraph;

stateless persons;

male persons who are not in a registered marriage (matrimony), except in cases where they have actually raised the child for at least three years due to the death of the mother or her deprivation of parental rights;

persons who, at the time guardianship or trusteeship is established, do not have income sufficient to provide the ward with the subsistence minimum established by the legislation of the Republic of Kazakhstan;

persons registered with narcological or psychoneurological dispensaries;

persons who have or have had a criminal record, or who are or have been subject to criminal prosecution (with the exception of persons in respect of whom criminal prosecution has been terminated on the grounds provided for in subparagraphs 1) and 2) of part one of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan) for criminal offences involving murder, intentional infliction of harm to health, offences against public health and morality, sexual inviolability, extremist or terrorist crimes, and human trafficking;

citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan who have not undergone psychological training in accordance with the procedure established by paragraph 4 of Article 91 of this Code (with the exception of close relatives of the child).”

The act provided for in Article 142 of the Criminal Code is classified as a minor offence.

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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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