of December 29, 2012 No. 7
About practice of application of the legislation establishing responsibility for human trafficking
For the purpose of the ensuring the correct and uniform application of the laws of the Republic of Kazakhstan and international treaties ratified by the Republic of Kazakhstan, connected with human trafficking, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Draw the attention of the bodies conducting criminal procedure that the correct application of the legislation establishing responsibility for human trafficking provides proper protection of human rights and freedoms.
2. The objective party of the crimes provided by articles 128 and 135 of the Criminal Code of Kazakhstan (further - UK), consists in infringement of human rights and freedoms and is expressed in purchase and sale or making of other transactions concerning the person, its operation, recruitment, transportation, transfer, concealment, and also in making of other acts for the purpose of operation.
For qualification of act on part one of article 128 UK and on part one of article 135 UK there is enough making factual determination at least of one of these Articles of action specified in disposition.
For qualification under Articles 128, 135 UK purchase and sale and making of other transactions concerning the victim availability of the special purpose of operation is not required as the person is not subject of transactions and such transactions are recognized invalid from the moment of their conclusion.
The purpose of exploitation of the person is obligatory sign in case of recruitment, transportation, transfer, concealment, receipt of the victim, and also in other acts provided by Articles 128, 135 UK. The structure of human trafficking is formal and it is considered ended from the moment of the actual purchase and sale, other transactions concerning the person.
Object of the crime connected with human trafficking are the human freedom, his personal security, the rights and legitimate interests, honor and advantage, the right to the free choice of residence, sort of occupation and profession.
The subjective party of purchase and sale of the person or making concerning it other transactions is characterized by direct intention. Therefore the purpose of making of such transactions for qualification of act on part one of article 128 UK and on part one of article 135 UK does not matter.
In case of the making of recruitment, transportation, transfer, concealment, receipt of the person and other actions provided by Articles 128, 135 UK, the subjective party of crime is characterized by direct intention, and target of a crime is exploitation of the person.
As methods of making of crimes use of violence, threat of its application, stealing, threat of distribution of the damaging evidence, photo, video records, blackmail, bribery, deception, authority misuse, use of material or other dependence, intentional creation of difficult personal, family circumstances and so forth can act.
3. It is necessary to understand the illegal paid transaction in which one party (seller) transfers the person to other party (buyer) for certain remuneration as purchase and sale.
It is necessary to refer donation to other transactions attracting criminal liability under article 128 UK or under article 133 UK (transfer of the person to other person gratuitously), exchange (exchange of the person for something), exchange (replacement of one person by another), lease (transfer of the person for a fee to temporary ownership and use), leaving of the person as ensuring accomplishment of the obligation according to the bargain concluded between the parties, use of the person as payment subject, transfer of the person for the purpose of receipt of any benefits of non-property nature and others.
4. Purchase and sale or making of other transactions concerning the person should be read out completed crime from date of transmission of the person to other persons. At the same time time of receipt of remuneration for sale of the person or for making of other transactions does not matter.
Committing by person along with purchase and sale or the conclusion of other transactions concerning the victim also of involvement in occupation prostitution either procurement with a mercenary motive, or the organizations, contents of brothels for occupation prostitution without the purpose of exploitation of the same victim in other forms (for example, coercion to work, begging, etc.), each act recognized by the court proved is subject to independent qualification on set of the relevant articles: for transaction - under Articles 128, 135 UK, for involvement in occupation prostitution - under Articles 134, 308 UK, for procurement or the organization and content of brothel - under article 309 UK.
5. Recruitment is understood as achievement of consent of the victim to accomplishment of any works or any activities, including illegal if it is connected with the purpose of its operation. Methods of recruitment can be different: promise of remuneration, job offer, deception, arrangements, blackmail, intimidation, threat and others.
Recruitment in case of human trafficking should be differentiated from involvement in occupation prostitution on the termination moment: recruitment is considered ended from the moment of receipt of consent of the hired person to implementation of its operation whereas involvement in occupation prostitution is considered ended from the moment of making of one of the described conducts directed to involvement in occupation by prostitution irrespective of whether it was succeeded to incline this person to the called type of activity or not.
In case of orientation of intention of person in case of recruitment only on involvement in occupation prostitution the deeds are subject to criminal legal treatment under the relevant article 308 or 134 UK as the regulations of the penal statute providing responsibility for recruitment for the purpose of sexual exploitation and involvement in occupation prostitution are in competitive situation, the provided part three of article 12 UK. Involvement in occupation prostitution and procurement with a mercenary motive represent kind of one of operation forms which concerning Articles 128, 135 UK are special regulations.
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