Commentary on Article 143. Illegal Removal of a Minor Outside the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

1. Illegal removal of a minor outside the Republic of Kazakhstan —

shall be punishable by a fine in the amount of up to three thousand monthly calculation indices, or correctional labour in the same amount, or engagement in community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or deprivation of liberty for the same period.

2. The same act, committed for mercenary or other base motives, or by a group of persons acting in prior conspiracy, —

shall be punishable by a fine in the amount of up to eight thousand monthly calculation indices, or correctional labour in the same amount, or restriction of liberty for a period of up to six years, or deprivation of liberty for the same period, with or without confiscation of property.

3. The acts provided for in parts one or two of this Article, committed by a criminal group, —

shall be punishable by deprivation of liberty for a period of three to eight years, with confiscation of property.

The public danger of the crime provided for in Article 143 of the Criminal Code lies in the fact that, as a result of the commission of such an act, minors become a “thing” or a “commodity”, which in itself is a deeply cynical phenomenon that tramples upon universal human values. Such actions may subsequently lead not only to the severance of family ties but also to the severance of ties with the Republic.

The object of the crime is the personal liberty of a minor. Additional objects may include the health of the minor, the sexual freedom and sexual inviolability of the adolescent, as well as the interests of the parents or close relatives in raising that adolescent.

The objective element is expressed in the illegal removal of a minor outside the Republic of Kazakhstan.

The illegal removal of a minor outside the Republic of Kazakhstan entails taking a minor across the State Border of the Republic of Kazakhstan or unlawfully detaining the minor abroad.

The illegal removal of a minor outside the Republic of Kazakhstan may be carried out both by means of the unlawful removal of a sold child, for example, using forged documents, and by means of formalising an adoption in accordance with the established procedure.

In accordance with the 1989 Convention on the Rights of the Child, States Parties:

take measures to combat the illicit transfer of children abroad and their non-return from abroad. To this end, States Parties promote the conclusion of bilateral and multilateral agreements or accession to existing agreements (Article 11 of the Convention);

take all necessary measures at the national, bilateral and multilateral levels to prevent the abduction of children, trafficking in children or their smuggling for any purpose and in any form (Article 35 of the Convention).

In accordance with Article 41-1 of the Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan”, the Republic of Kazakhstan takes measures to prevent and suppress the illegal transfer and abduction of children and trafficking in children, regardless of the purposes, forms and methods of execution, as well as to return them to their country of permanent residence.

The illegal removal of minors outside the Republic of Kazakhstan means the removal of a minor outside the country in violation of the migration legislation of the Republic of Kazakhstan. Article 55 of the Law of the Republic of Kazakhstan dated 22 July 2011 “On Population Migration” establishes the conditions and procedure for citizens of the Republic of Kazakhstan to leave the country:

Everyone has the right to leave the Republic of Kazakhstan. Citizens of the Republic of Kazakhstan have the right to return to the Republic of Kazakhstan without hindrance;

Departure from the Republic of Kazakhstan for permanent residence is carried out after the relevant departure documents have been processed by the internal affairs authorities;

Applications for departure outside the Republic of Kazakhstan for permanent residence shall be submitted to the internal affairs authorities:

by a legally capable citizen — personally;

on behalf of children and citizens declared legally incapacitated by a court — by their legal representatives.

According to the Resolution of the Government of the Republic of Kazakhstan dated 28 March 2012 “On Approval of the Rules for Processing Documents for Departure Outside the Republic of Kazakhstan for Permanent Residence”, citizens of the Republic of Kazakhstan leave the Republic of Kazakhstan and return to the Republic of Kazakhstan without hindrance.

Departure and return are carried out using a passport of a citizen of the Republic of Kazakhstan.

According to Article 56 of the Law of the Republic of Kazakhstan “On Population Migration”, the grounds for refusing to grant a citizen of the Republic of Kazakhstan permission to leave the country for permanent residence include cases where the citizen:

possesses information constituting state secrets or other secrets protected by law and has not notified the relevant authorised bodies of the fact of their departure outside the Republic of Kazakhstan — until the circumstances in question cease to apply;

has been detained on suspicion of committing a criminal offence or has been involved as a suspect or accused, or a resolution on the qualification of the act of the suspect has been issued in respect of them — until a decision is made in the case or the court verdict enters into legal force;

has been convicted of committing a crime — until the sentence has been served or the person has been released from punishment;

evades the fulfilment of obligations imposed on them by a court — until such obligations cease;

is undergoing compulsory military service — until the completion of such service or release from it in accordance with the Law of the Republic of Kazakhstan “On Military Service and the Status of Military Personnel”;

has knowingly provided false information about themselves when processing documents for departure from the Republic of Kazakhstan — until the reasons that served as grounds for refusal have been eliminated and accurate information has been provided;

is a defendant in civil proceedings — until the court decision enters into legal force.

A citizen of the Republic of Kazakhstan shall be refused departure outside the Republic of Kazakhstan for permanent residence if they have outstanding tax arrears.

By its legal construction, the composition of the crime is formal. The crime is considered completed from the moment the minor is taken outside the Republic of Kazakhstan.

From the subjective aspect, the crime is committed only with direct intent, that is, the perpetrator is aware, foresees and desires that the illegal removal of the minor outside the Republic of Kazakhstan will take place.

The motive does not affect the legal classification of the crime; however, its establishment is necessary for the individualisation of punishment.

The subject of the crime may be a sane natural person who has reached the age of 18.

The qualifying elements under Part 2 of the commented Article are the commission of the crime for mercenary or other base motives, or by a group of persons acting in prior conspiracy. Thus, Part 2 of the commented Article establishes a mandatory element of the subjective aspect of the crime (motive) — mercenary or base motives, meaning that, when illegally removing a minor outside the Republic of Kazakhstan, the perpetrator is guided by the prospect of material remuneration. Base motives are manifested in revenge, envy, meanness and other base motives incompatible with the moral values of our society.

In accordance with Part 2 of Article 31 of the Criminal Code, the illegal removal of a minor outside the Republic of Kazakhstan is recognised as having been committed by a group of persons acting in prior conspiracy (Part 2 of Article 143 of the Criminal Code) if persons who had previously agreed to jointly carry out the removal participated in its execution.

Establishing the fact of the illegal removal of a minor is sufficient to bring a person to criminal liability.

The particularly aggravating qualifying element under Part 3 of Article 143 of the Criminal Code is the commission, by a criminal group, of an act provided for in Parts 1 or 2 of Article 143 of the Criminal Code. For the concept of a criminal group, see the commentary to Subparagraph 24) of Article 3 and Subparagraph 15) of Part 2 of Article 99 of the Criminal Code.

The act provided for in Part 1 of Article 143 of the Criminal Code belongs to the category of crimes of minor gravity.

The acts provided for in Parts 2 and 3 of Article 143 of the Criminal Code belong to the category of serious crimes.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 the 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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