Commentary on Article 153. Violation of the Labour Legislation of the Republic of Kazakhstan in Relation to Minors of the Criminal Code of the Republic of Kazakhstan
1. Violation by an employer or an official of the labour legislation of the Republic of Kazakhstan with regard to the engagement of minors in work in which the employment of workers under the age of eighteen is prohibited —
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, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. The same act committed:
1) by a group of persons pursuant to a prior conspiracy;
2) repeatedly;
3) in relation to two or more persons;
4) through deception or abuse of trust;
5) in relation to a minor who, as knowingly understood by the perpetrator, suffers from a mental disorder or is in a helpless condition, —
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of two to five years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
The public danger of the act consists in violating the prohibitions and restrictions established by labour legislation on the use of the labour of workers under the age of eighteen in work in which their employment is prohibited.
One of the specific features of the regulation of the labour of this category of workers is the provision that workers under the age of eighteen are equal in rights to adult workers in employment relationships, while in the areas of occupational safety and health, working hours, rest periods and other working conditions, they enjoy additional guarantees established by the Labour Code of the Republic of Kazakhstan.
The object of the crime is social relations ensuring the labour rights of minor workers in terms of the guarantees and restrictions established by labour legislation to prevent the employment of workers under the age of eighteen in arduous work, work involving harmful (particularly harmful) and (or) dangerous working conditions, as well as work whose performance may cause harm to their health and moral development.
The health of children constitutes an additional object.
The objective aspect is expressed in the violation of the prohibitions established by labour legislation on engaging minors in work in which the employment of workers under the age of eighteen is prohibited.
Labour legislation prohibits the conclusion of an employment contract with citizens under the age of eighteen for arduous work, work involving harmful (particularly harmful) and (or) dangerous working conditions, as well as for positions and work providing for the employee's full financial liability for failure to ensure the safekeeping of the employer's property and other valuables (subparagraph 2) of paragraph 1 of Article 26 of the Labour Code of the Republic of Kazakhstan).
In accordance with subparagraph 6) of paragraph 1 of Article 182 of the Labour Code, the employer is obliged not to allow workers under the age of eighteen to carry or move loads exceeding the maximum limits established for them.
By Order No. 944 of the Minister of Healthcare and Social Development of the Republic of Kazakhstan dated 8 December 2015, “On Approval of the List of Work in Which the Employment of Workers Under the Age of Eighteen Is Prohibited, the Maximum Limits for Carrying and Moving Loads by Workers Under the Age of Eighteen, and the List of Work in Which the Employment of Women Is Restricted, and the Maximum Limits for Manually Lifting and Moving Loads by Women”, the list of work in which the employment of workers under the age of eighteen is prohibited, as well as the maximum limits for carrying and moving loads by workers under the age of eighteen, was approved.
The list includes 103 types of industries and general categories of work in which the employment of workers under the age of eighteen is prohibited. This list is exhaustive. The employment of this category of minors is prohibited only in the specified types of work, and only such employment falls within the scope of the commented article.
The aforementioned Order of the Minister of Healthcare and Social Development of the Republic of Kazakhstan also approved the maximum limits for carrying and moving loads by workers under the age of eighteen, according to which workers (persons) under the age of eighteen (hereinafter referred to as adolescents) shall not be assigned to work consisting exclusively of carrying or moving loads weighing more than 4.1 kg.
Adolescents of both sexes may carry and move loads within the limits specified below only where such activities are directly related to the performance of the adolescent's regular professional work and take up no more than one-third of their working time.
The permissible load-carrying limits for male adolescents aged 16 to 18 are 16.4 kg, and for female adolescents — 8.2 kg. The permissible limits for moving loads on rail-mounted trolleys for male adolescents aged 16 to 18 are 492 kg, and for female adolescents — 328 kg. In this case, the weight of the container, packaging and equipment is included in the weight of the load being carried or moved.
It is also prohibited to conclude an employment contract with citizens under the age of eighteen for positions and work providing for the employee's full financial liability for failure to ensure the safekeeping of the employer's property and other valuables (subparagraph 2) of paragraph 1 of Article 26 of the Labour Code of the Republic of Kazakhstan).
Violation of the statutory prohibition on concluding an agreement on full financial liability with workers under the age of eighteen constitutes the objective aspect of the crime provided for in Article 153 of the Criminal Code.
By its legal structure, the corpus delicti is formal. The crime is deemed completed from the moment a minor under the age of eighteen is engaged in work prohibited by labour legislation for this category of workers.
From the subjective perspective, the act is characterised by guilt in the form of direct or indirect intent, meaning that the person is aware that they are violating the prohibitions established by labour legislation on engaging minors in work in which the employment of workers under the age of eighteen is prohibited, foresees that negative consequences may or will inevitably arise as a result of their actions, and desires their occurrence; or foresees the possibility of negative consequences occurring, does not desire them, but consciously allows them to occur or remains indifferent to their occurrence.
The subject is special — an employer or an official.
An employer is a natural or legal person with whom an employee is in an employment relationship (subparagraph 39) of paragraph 1 of Article 1 of the Labour Code).
An official is a person who permanently, temporarily or under special authority performs the functions of a representative of authority or carries out organisational and administrative or administrative and economic functions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan (paragraph 26) of Article 3 of the Criminal Code).
The powers of the subject are determined by their competence established by the Labour Code and other regulatory legal acts governing the rights and obligations of a person holding a particular position or temporarily performing the duties of that position or performing them under special authority.
Part 2 of Article 153 of the Criminal Code establishes criminal liability for the commission of the same acts: 1) by a group of persons pursuant to a prior conspiracy; 2) repeatedly; 3) in relation to two or more persons; 4) through deception or abuse of trust; 5) in relation to a minor who, as knowingly understood by the perpetrator, suffers from a mental disorder or is in a helpless condition.
A violation of labour legislation in relation to the engagement of minors in work in which the employment of workers under the age of eighteen is prohibited shall be recognised as having been committed by a group of persons pursuant to a prior conspiracy if persons who had previously agreed to jointly commit the crime in question participated in it.
A violation of labour legislation in relation to minors shall be recognised as repeated if it has been committed two or more times and the person has not been convicted or released from criminal liability in respect of any of those acts on the grounds established by law.
Liability under the element of involving two or more persons arises where, in violation of the prohibitions established by labour legislation, two or more minors under the age of eighteen are engaged in work in which the employment of minors is prohibited. In this case, it does not matter whether such engagement took place simultaneously or at different times. The main requirement is to establish that relevant employment contracts were concluded with at least two minors under the age of eighteen in violation of the prohibitions established by labour legislation.
The act is committed through deception where one set of employment conditions and types of work is agreed upon with the minor, but the minor is actually engaged in other types of work prohibited for them.
Abuse of trust is established where a relationship of trust has developed between the subject of the crime and the minor, as a result of which the minor does not realise that unlawful acts are being committed against them, even though the law prohibits the use of their labour in such work.
Where the same acts are committed against a minor who, as knowingly understood by the perpetrator, suffers from a mental disorder, or where the helpless condition of the victim is exploited, the latter, due to their physical or mental condition, does not understand the nature of the actions being committed against them.
Physical helplessness is understood as a condition in which a minor is deprived of the ability to refuse such work due to certain physical disabilities.
Mental helplessness is обусловлено by a particular mental condition in which the minor does not realise that they are being engaged in work prohibited by labour legislation for minors. Such conditions may include infantilism, narcotic or alcohol intoxication, intellectual disability, or a diseased or unconscious state.
Alcohol intoxication is officially recognised by law as a helpless condition only where the state of intoxication deprives the person of the ability to realistically assess the circumstances and conditions of employment. In this case, it does not matter whether the perpetrator brought the minor into such a condition or whether the onset of the minor's helpless condition was unrelated to the perpetrator's actions.
The act provided for in Part 1 of Article 153 of the Criminal Code belongs to the category of minor offences.
The act provided for in Part 2 of Article 153 of the Criminal Code belongs to the category of offences of medium gravity.
Commentary of 2021 to 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 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.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Standards Note Rules Programme Charter Statute Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Messages
