Commentary on Article 126 of the Criminal Code. Kidnapping (Article 126 of the Criminal Code of the Russian Federation)

1. The objective side of the crime is expressed in actions to capture (take possession) and move a person to another place for subsequent retention against his will. These acts may be carried out both covertly and openly, through the use of violence or other means, such as deception. Beating the victim is covered by the abduction and does not require additional qualification under Art. 116 of the Criminal Code.

2. The structure of kidnapping is formal, the crime should be considered completed from the moment of transfer, regardless of the time of detention. An attempt to capture a person, which did not lead to the movement of the victim to another place for his subsequent retention, constitutes an attempt and is subject to qualification under Part 3 of Art. 30 and Art. 126.

3. Moving a person for the purpose of committing another crime, such as murder or rape, does not require independent qualification under Art. 126. Some other cases do not contain corpus delicti:

• 1) moving a person to another place with his consent, about which no one knew;
• 2) possession and transfer of one's own child against the will of another parent (adoptive parent) or other persons with whom he was legally, provided that the person acts in the interests of the child (part 2 of article 14 of the Criminal Code).

4. Kidnapping bears a significant resemblance to hostage-taking (Article 206 of the Criminal Code). In the first case, a person encroaches on the personal (physical) freedom of a person, and in the second - on public safety; when a person is kidnapped, the crime is committed against an individually defined person; when captured, as a rule, the identity of the hostage is not of interest to the perpetrators. When taking a hostage, an obligatory feature is the goal - compelling the state, organization or citizen to take any action or refrain from doing it; for the kidnapping of a person, such a goal is not necessary.

5. The subjective side of the crime is characterized by direct intent. The motives and goals of the crime can be different: hatred, envy, revenge, etc. - with the exception of selfish motives; the legislator attaches the importance of a qualifying feature to them (clause "h" part 2 of article 126).

6. The subject of the crime is a sane person who has reached the age of 14 years.

7. When qualifying the abduction of a person under paragraph "a" part 2 of Art. 126, it is necessary to take into account what is contained in Art. 35 of the Criminal Code defines the concept of a crime committed by a group of persons by prior agreement. Preliminary conspiracy to abduct implies an agreement, expressed in any form, between two or more persons that took place prior to the commencement of actions directly aimed at abduction. At the same time, along with the co-perpetrators of the crime, other members of the criminal group can act as organizers, instigators or accomplices, their actions must be qualified under the relevant part of Art. 33 of the Criminal Code and paragraph "a" part 2 of Art. 126.

8. The use of violence dangerous to life or health (clause "c" part 2 of article 126) involves such violence that caused serious and moderate harm to the health of the victim, as well as the infliction of minor harm to health that caused a short-term health disorder or a slight permanent loss of general ability to work. The threat of violence implies the outwardly expressed intention of a person to cause the victim death or harm to health of any severity. The victim can be both the abducted person and third parties who prevent the commission of the crime. The time of application of physical or mental violence does not matter (it can be either the time of abduction or the time of retention).

9. The use of weapons or items used as weapons (clause "d" part 2 of article 126) means the use of any type of weapon classified as such in accordance with Federal Law of December 13, 1996 N 150-FZ " About weapons"<1>, as well as other items that can harm human health.

The use of unloaded, faulty, unusable weapons (for example, training) or decorative, souvenir weapons, etc. does not give grounds for qualifying the deed under n. "g" h. 2 Article. 126, if the perpetrator did not intend to use them to harm the victim.

10. Minors are understood as persons under the age of 18 years (clause "d" part 2 of article 126).

11. The abduction of a woman who is in a state of pregnancy (paragraph "e" part 2 of article 126) also presupposes the perpetrator's knowledge of this circumstance.

12. In accordance with the provisions of Part 1 of Art. 17 of the Criminal Code, the abduction of two or more persons, committed simultaneously or at different times, does not form a set of crimes and is subject to qualification only under paragraph "g" of Part 2 of Art. 126 of the Criminal Code.

13. According to paragraph "h" part 2 of Art. 126 qualifies kidnapping committed for the purpose of obtaining material benefits for the perpetrator or other persons or getting rid of material costs. If the kidnapping is accompanied by a requirement to transfer money or other property, then the deed should be qualified according to the totality of Art. Art. 126 and 163 of the Criminal Code.

14. About an organized group (clause "a" part 3 of article 126), see the commentary to art. 35 of the Criminal Code. When recognizing a kidnapping committed by an organized group, the actions of all participants, regardless of their role in the crime, should be qualified as complicity without reference to Art. 33 of the Criminal Code.

15. Other grave consequences (clause "c" part 3 of article 126) include the victim's suicide, his mental disorder, etc.

16. The conditions for exemption from criminal liability for the crime in question are:

• 1) voluntary release of the kidnapped;
• 2) the absence in the actions of the kidnapper of a different corpus delicti.

The duration of the forcible retention of the abducted cannot serve as an obstacle to the application of the footnote to the commented article.

Seizing the freedom of a citizen against his will, followed by moving from one place to another for the purpose of retention, is a criminal act, the sanctions for which are prescribed in Art. 126 of the Criminal Code of the Russian Federation. Kidnapping is considered a crime against the person. The object of this act is the freedom of a person, because it is precisely on it that the attacker encroaches. More details about this will be written in this article.

The main thing

Kidnapping is an unlawful act aimed at seizing the freedom of another person. It can be carried out for the purpose of demanding a ransom or other selfish motives. The victim in this case can be any person, regardless of gender and social status.

If a citizen voluntarily agreed to go to a certain place with intruders, then in this case the composition of the act, the punishment for which is enshrined in Art. 126 of the Criminal Code of the Russian Federation. The abduction of a person will be considered a completed crime from the moment when the person was captured by the guilty person and moved to another room, house, apartment.

What is important to know

An intruder is released from liability if he voluntarily released the kidnapped person and did not commit other atrocities against the latter. Although in practice this rarely happens. As a rule, most people are kidnapped for the purpose of demanding a ransom, as well as for other selfish purposes. If the criminals do not receive the desired amount, they get rid of their victim and hide the traces of their deed. Therefore, even if the victim was released, it is not a fact that no harm was done to him.

Composition

In the event that malefactors deliberately seize the freedom of another person and move him from one place to another, then this is considered a criminal act, the sanctions for which are specified in Art. 126 of the Criminal Code of the Russian Federation. Kidnapping has the following characteristics:

• the subject is a sane person who is fourteen years old;
• the object is directly the freedom of the victim himself;
• the subjective side is expressed in the form of only direct intent (as a rule, attackers always plan the kidnapping very carefully);
• the objective side of this act affects social relations, i.e., the perpetrator, by his actions, creates a danger to others, harms the freedom of the individual.

Thus, the seizure of a person's freedom and the movement of the victim from one place to another are always committed by the criminal consciously. In addition, the latter understands that he is committing an atrocity, the punishment for which is contained in Art. 126 of the Criminal Code of the Russian Federation. The corpus delicti is excluded here only if the person voluntarily agreed to go or travel with the criminal from one place to another.

What is the punishment

Seizure of the freedom of another person is an atrocity, the sanctions for which can be up to five years in isolation from society. In addition, under the first part of Art. 126 of the Criminal Code of the Russian Federation, kidnapping is punishable by forced labor for a period of up to 5 years. In this case, sanctions against the perpetrator are of an alternative nature.

A more severe punishment is provided for in the second part of article 126 of the crime code, which is applied if the kidnapping is committed:

• a group of people who agreed in advance to commit this atrocity against another person;
• with the use of weapons or any items that replace them;
• under the threat of violence of the victim;
• in relation to a woman who is in a position and expecting a baby; or a child; as well as several people;
• because of self-interest (for example, for the purpose of demanding a ransom).

Here the sanctions will be from five to 12 years, it is also possible to apply restrictions on freedom for a period of up to 2 years.

In the event that the atrocities provided for by paragraph 2 of this article were committed by an organized group, and also led to the death of the injured person, then the punishment reaches from 6 to 12 years in places of isolation from society. It is also possible to apply additional sanctions in the form of restriction of freedom of the perpetrators for a period of up to two years.

A comment

Responsibility for committing a kidnapping is prescribed in Art. 126 of the Criminal Code of the Russian Federation. One cannot but agree with the comments. After all, in this case we are talking about committing an atrocity against the freedom of the individual and violating his rights. The kidnapping is considered completed at the moment when the perpetrator has already captured the person and, holding, leads or transports the latter from one place to another. In this case, all the actions of the attacker must be committed against the will of the victim.

The most severe punishment awaits the person who committed the abduction of children. Indeed, in this case, the deed will be classified as serious crimes, respectively, the sanctions here will be more severe.

If the perpetrator independently releases the victim, then he will not be held liable for the kidnapping, but only in that situation if the attacker did not cause physical harm to his victim.

Differences

Many citizens believe that illegal imprisonment and kidnapping are one and the same atrocity, which is committed by the guilty according to a premeditated plan. However, this is not true. Unlawful confinement is a criminal act in which a person is not transferred from one place to another. Because everything happens in the room in which the victim of his own free will came with his offender, where subsequently the guilty person closed the victim.

During the abduction, things are completely different. Because the offender seizes the freedom of the victim and, holding him, moves the latter from one place to another.

One example from practice

The child left the school and went to his house. At that moment, a man attacked him from behind and, holding the latter by force, dragged him into his car and took him away. The abduction of a minor was committed in order to demand a ransom from his father, because he was a very wealthy man. However, the culprit's plan failed because he was detained by the police. The child returned home to his parents.

Illegal deprivation of liberty is not connected with the forcible transfer of the victim to another building, apartment, house.

Example

A woman came to visit a man because the latter invited her to drink tea. Then the perpetrator closed the lady in the room and left the room. The latter spent a whole day there without food and water. The man explained what he had done by saying that he wanted to teach his work colleague a lesson in this way, since she took his position. The culprit was brought to justice.

Therefore, the significant difference between Art. 126 of 127 of the Criminal Code of the Russian Federation are manifested in the fact that during the abduction, the attacker unlawfully seizes the freedom of another person and moves the victim from one location to another, where he forcibly holds the victim. With unlawful deprivation of liberty, this does not happen, because the criminal only temporarily closes the citizen in a certain room, thereby imposing a ban on the movement of a person.

With violence

This means that at the time of the abduction, the perpetrators intimidated their victim, and by their actions could cause some harm to the victim's health. The use of violence can be expressed in such actions as strangulation of the victim, striking the vital organs, dropping from a height. At the same time, mental violence against a person will not matter when qualifying the composition of this act. At the time of the use of violence or under the threat of its implementation, the victim has every reason to fear for his life.

For children

In this case, little citizens who are under the age of eighteen are subjected to abduction. Children are much more painful than adults are experiencing all the changes taking place in their lives, and therefore the commission of an atrocity aimed at seizing the freedom of minors has its own qualifying composition. Kidnapping of children is not uncommon nowadays, as a rule, only those minors whose parents have a lot of money become victims of malefactors. Also, criminals in the commission of such an act most often have their own selfish interest.

Pregnant kidnapping

If the atrocity was committed against a woman who was in a position, and the offender knew about it, then in this case the act is subject to qualification under the second part of Article 126 of the Code. The particular danger of the deed is manifested in the fact that not only a pregnant woman, but also her unborn child, may die.

Judicial practice under Art. 126 of the Criminal Code of the Russian Federation

The citizen decided to kidnap the child of the director of a commercial firm. This was necessary for him in order to get a solid ransom from a former partner and leave the country. The man was waiting for the child at the school. After the boy left the institution, the attacker threw a bag over his head, dragged him into his car and took him to an abandoned warehouse, where he kept the teenager for two weeks. Parents, not waiting for their son home, turned to the police. After the kidnapper called the father of the child and demanded a very large amount of money as a ransom, law enforcement officers opened a criminal case under Art. 126 of the Criminal Code of the Russian Federation. An active search for the culprit began.

After the attacker called the child's parents again and set up a meeting for a ransom, the police were able to locate the place where the perpetrator was holding the boy. The criminal was caught. The child was saved, because he almost died of hunger and hypothermia.

The court sentenced the attacker under Art. 126 of the Criminal Code of the Russian Federation and sentenced the guilty person to isolation from society for a period of ten years.

Next case study

The man decided to take revenge on his ex-wife, because she left him for another person. In addition, the citizen knew that she was expecting a baby, and really wanted her to have a miscarriage. For this, the man decided to kidnap. At that moment, when the woman left the consultation, the ex-husband grabbed her and dragged her by force to the basement, located nearby, where he kept her for two days. The victim's husband was forced to contact the police. Responsibility for the kidnapping of a person, and especially a pregnant woman, is prescribed in the code of atrocities and reaches twelve years in isolation from society. Nevertheless, the punishment of the attacker did not stop. But two days later, the man voluntarily released his victim and came to the police. By law, the citizen was released from punishment.

Immediate main object this crime is personal (physical) freedom of a person, understood as the ability of an individual to determine his location himself, to move in any direction, which excludes any external coercive influence on him. As additional object may speak human life and health.

Victims of a crime is any person, regardless of gender, age, nationality, physical and mental health. In some cases, the legislator recognizes certain characteristic features of a person as circumstances aggravating the responsibility of the perpetrator, for example, pregnancy or minority.

objective side a crime is characterized by actions consisting in illegal, as a rule, forcible seizure (capture) of a person, secret or open, and moving him from the place where he was at the time of seizure (apartment, institution, street, etc.) to another place followed by detention against the will of the kidnapped. In some cases, capture as such may not occur when a person, as a result of deceit, abuse of his trust, voluntarily goes with the kidnapper to a designated place, where he will subsequently be forcibly detained or transferred to another place of detention.

The main elements of the crime (Part 1 Art. 126 UK) as violence involves beating, hitting, threatening to commit the listed actions, as well as acts of an offensive nature.

Corpus delicti - formal: it is considered completed from the moment the person is removed and placed in a room intended for further stay.

An attempt to capture a person, which was unsuccessful for reasons beyond the control of the abductor, and did not lead to the transfer of the victim to another place for subsequent retention in it, forms assassination attempt and is subject to qualification Part 3 Art. 30 and Art. 126 UK. There are other points of view in the literature, according to which the very fact of taking possession of a person forms the completed corpus delicti. Such an argument seems to be debatable. Judicial practice proceeds from the fact that kidnapping as a criminal act is formed by the unity of three actions: secret or open capture (capture) of a living person, moving to another place, followed by keeping him in captivity. The staging of the kidnapping, when the victim gives his consent to it, for example, in order to obtain a ransom, which is distributed between the “victim” and the kidnapper, does not constitute the analyzed crime. Abduction and forcible taking of a child by one of the parents (or other close relative) against the will of the other parent, if such an act is committed in the interests of the child, does not constitute elements of abduction.

At the same time, the actions of even a stranger to the child cannot be considered as abduction, if they protect the child from possible danger, and also if he was left unattended.

In cases where the forcible possession of a person is a way of committing another crime, the deed cannot be considered as kidnapping, since the perpetrator is guided by other motives. For example, a person is forcibly placed in a car in order to steal material values ​​that are with him, or transported to another place to commit a murder. If the intent of the person was aimed at kidnapping a person, and subsequently the offender, taking advantage of the dependent position of the victim, commits a violent sexual intercourse with her, the deed forms totality of crimes provided for Art. 126 and 131 of the Criminal Code.

The kidnapping of a person should be distinguished from the taking of a hostage (Article 206 of the Criminal Code), when committing which a person pursues the goal of creating a turbulent situation in society, panic, fear, in order to force the relevant state bodies or other organizations, as well as their representatives, to comply with the openly expressed requirements put forward by the criminals, as a condition for the release of a hostage whose personality does not have for the criminal values. When committing a crime under Art. 126 of the Criminal Code, the fact of the kidnapping is not advertised, outsiders are not privy to the essence of the stated requirements.

Subjective side crime is characterized direct intent. The perpetrator realizes that he illegally takes possession of another person, moves him against his will to another place, thereby limiting the freedom of movement of the latter, and desires to perform the listed actions.

Subject the crime in question sane person who has reached the age of 14.

IN part 2 art. 126 UK the following qualifying signs, the presence of which increases the degree of public danger of the deed and entails a more severe punishment.

Kidnapping by a group of persons by prior agreement(paragraph “a” of part 2 of article 126 of the Criminal Code) is understood in the same way as the commission of a murder by such a group.

Use of violence dangerous to life and health(Clause 2, Article 126 of the Criminal Code) implies either the direct infliction of any severity of harm to human health (from mild to severe) in the process of abduction, or the commission of violent acts that create a real possibility of inflicting it (for example, squeezing the throat of the victim ). Threat of violence dangerous to life and health, consists in such statements addressed to the victim, which contain the intention to cause the kidnapped death or any harm to health.

Use of weapons or items used as weapons(Clause “d” of part 2 of article 126 of the Criminal Code) means not only the actual infliction of this or that harm to health with their help, but also their demonstration in order to frighten a person in the process of abduction, as a means of breaking his resistance. Weapons in accordance with the Federal Law of December 13, 1996 No. 150-FZ "On Weapons" include any firearms, gas or edged weapons. Other items should be understood as household utensils (table knives, axes, etc.), as well as any other items that can be used to strike, damage, for example, a piece of pipe or a stone found by a criminal in the place where capturing or holding a person.

Demonstration of a faulty weapon or objects imitating it cannot be qualified under the specified paragraph. At the same time, such items have a mental effect on the victim and are regarded by him as a threat to life and health, especially in cases where the offender with their help reinforces his intentions to harm the health of the victim if he does not obey him. In the presence of such circumstances, the deed falls under the signs of a crime under paragraph “c” of Part 2 of Art. 126 of the Criminal Code.

Kidnapping of a Minor(Clause “d” Part 2 Article 126 of the Criminal Code) means that the person was aware of the fact that the victim had not reached the age of 18 and wished to kidnap him.

Abduction of a woman who is known to the perpetrator to be in a state of pregnancy(Clause "e" Part 2 Article 126 of the Criminal Code), requires the establishment of reliable knowledge about this circumstance on the part of the subject of the crime.

Abduction of two or more persons(Clause “g”, Part 2, Article 126 of the Criminal Code) as a qualifying feature covers not only those cases where the intent of the perpetrator was aimed at the simultaneous capture and retention of several persons, but also kidnappings committed at different times with independent intent, if while the statute of limitations for previous acts has not expired. In the latter case, one should be guided by the provision of Part 1 of Art. 17 of the Criminal Code, according to which there is no totality of crimes, if the norm of the criminal law provides for the commission of two or more crimes as an aggravating circumstance.

kidnapping for selfish reasons(clause “h” of part 2 of article 126 of the Criminal Code) takes place when, as a result of a crime committed, the subject intends to obtain material benefits for himself or third parties, for example, demand a ransom from the kidnapped person himself or hide him in a secluded place, in order to delay the payment of the debt. In cases where the demand for the transfer of property or money is addressed to relatives or friends of the abducted person as a condition for his release, the deed constitutes combination with extortion (Article 163 of the Criminal Code), since the offender encroaches on another object - the property of other persons.

Among the qualifying signs of kidnapping, there is no such sign contained in other offenses against a person, such as commission of a crime for hire. The presence of such a motive in the kidnapper should be considered as selfish motives and, in this regard, qualify the deed under paragraph “h” of Part 2 of Art. 126 of the Criminal Code. The person who persuaded the subject to commit such a crime is subject to liability depending on the nature of the actions committed by him - as the organizer or instigator of the kidnapping with reference to the relevant part of Art. 33 of the Criminal Code.

IN parts 3 art. 126 UK assigned responsibility for specially qualified compositions kidnappings committed by an organized group and negligently resulting in the death of the victim or other grave consequences.

concept organized group given in part 3 of Art. 35 of the Criminal Code.

The composition of the abduction of a person contained in paragraph “c” of Part 3 of Art. 126 of the Criminal Code, is material, since, as a consequence, the legislator pointed to causing death to the victim through negligence or the onset of other grave consequences. A prerequisite for liability is the establishment of a causal relationship between the committed act and the consequences that have occurred. From the subjective side, this crime is characterized by two forms of guilt: a person deliberately relates directly to the kidnapping of a person and, through negligence, to the onset of his death. For example, when pushing a stolen person into the trunk of a car or keeping him in a cold basement in winter, a person foresees that as a result of such treatment, the death of the victim or a serious illness (acute form of pneumonia) may occur, but without sufficient grounds, presumptuously counts on preventing such consequences. , or does not foresee, but based on the situation, with the necessary care and foresight, he should and could have foreseen them. In general, such a crime in accordance with Art. 25 of the Criminal Code is recognized as committed intentionally. TO other serious consequences include suicide, mental disorder or drug addiction if the victim was injected with narcotic substances, etc. Intentional infliction of death to the victim, for example, in the case when the subject realized that he would not receive a ransom for him, and also in order to hide the crime committed, is additionally qualified according to paragraph . "in" part 2 of Art. 105 UK on the basis of "associated with the abduction of a person." In accordance with the explanation given in paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” (as amended by the resolution of the Plenum of the Supreme Court of the Russian Federation of January 6 February 2007, No. 7), under this paragraph, responsibility arises not only for the deliberate infliction of death on the abducted person himself, but also for the murder of other persons committed by the perpetrator in connection with the abduction of a person, for example, the murder of a person who tried to free the victim.

In a note to Art. 126 UK contains the conditions for the release of the perpetrator from criminal liability: this is the voluntary release of the kidnapped person and the absence of corpus delicti in the actions of the person of another crime.

In the decision in the case of F. and Sh., the court pointed out that since they voluntarily released T., who was kidnapped by them, they are subject to criminal liability only for causing harm to his health. The motives for release can be very different: fear of punishment, repentance, etc., except in cases where the conditions set by the kidnapper are not met, or further detention of the victim becomes impossible, since he managed to inform other persons about his imprisonment, and law enforcement authorities are preparing his release.

3. Illegal deprivation of a person's freedom (Article 127 of the Criminal Code).

As additional object may speak human life and health.

objective side The crime consists in the commission of unlawful actions aimed at keeping the victim against his will in a room or other place where the person ended up for one reason or another: he arrived on his own, at the invitation of the perpetrator or under the influence of deception. In the disposition of Art. 127 of the Criminal Code emphasizes that the unlawful deprivation of liberty of a person is not connected with his abduction, i.e. possession, movement and retention in any place. The place of stay of a person is not limited to the premises; it can be an island, a park, if a person is tied to a tree, depriving him of the opportunity to leave such territory on his own.

The detention of a person may be open, or it may be secret for him, when the attacker locks the door of the room in which the victim is located. When a person is openly held in the objective direction of the main offense (part 1 of article 127 of the Criminal Code), such actions as beatings, separate blows, tying hands, sticking his mouth so that the victim could not call for help, call by phone can be included. The objective side can also include a threat to cause harm that is not dangerous to life and health, to deprive a person of material assistance, work, if he is financially or otherwise dependent on the criminal.

If illegal deprivation of liberty is a way to commit another crime that encroaches on another object, then it is covered by the constructive features of its composition and additional qualification under Art. 127 of the Criminal Code does not require. For example, locking a person in a pantry in the process of robbery or robbery, since the intent of the person is aimed at stealing someone else's property, for which the guilty person neutralizes the owner of the property, preventing him from reporting the crime committed.

Corpus delicti - formal: it is over from the moment the person is actually deprived of the opportunity to independently leave the place of his detention, regardless of the duration of the deprivation of liberty.

Subjective side crime is characterized direct intent.

Subject- sane person who has reached the age of 16 years.

Qualifying(part 2 of article 127 of the Criminal Code) and especially qualifying signs(Part 3, Article 127 of the Criminal Code) are similar to the relevant signs that form qualified and especially qualified elements of kidnapping, and have identical content, with the following exceptions. In part 2 of Art. 127 UK there is no sign of "for selfish motives", and when understanding such a sign as the use of violence dangerous to life and health (clause "c" part 2 of article 127 of the Criminal Code), it should be assumed that covers physical violence that caused only minor and moderate bodily harm. Causing grievous bodily harm is subject to self-qualification under Art. 111 of the Criminal Code. The threat of violence, as well as mental impact on a person, is covered by the main corpus delicti (part 1 of article 127 of the Criminal Code).

Deprivation of liberty of a person with his consent, with the necessary defense, extreme necessity does not form the corpus delicti of this crime. Criminal liability is also excluded in the case when the parents of minor children, exercising educational functions, do not allow them to leave the dwelling at a certain time of the day, prevent attendance at undesirable events.

The analyzed act should be distinguished from unlawful arrest, detention or detention (Article 301 of the Criminal Code), the subject of which is special - an employee of the bodies of inquiry or investigative bodies, as well as a judge. Other officials who use their official position to illegally deprive a person of a person’s freedom are subject to criminal liability under Art. 286 of the Criminal Code (abuse of power).

4. Human trafficking (Art. 127.1 CC).

Criminal liability for the commission of this crime was introduced by the Federal Law of December 8, 2003 No. 162-FZ and is largely determined by the provisions set forth in a number of international legal documents aimed at suppressing slavery and the slave trade. Among them - the Slavery Convention of 1926 as amended by the Protocol of 1953; 1949 United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others and its Final Protocol; United Nations Convention against Transnational Organized Crime and its supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000

main immediate object crime is human freedom, which should be understood as a natural state in which he can freely, at his own discretion, move in space, choose his location, as well as the sphere of application of labor, creative and other aspirations (interests), which excludes exploitation and any servitude. As additional object may speak human life and health, normal development and upbringing of a minor; the established procedure for crossing the state border, document flow; regulated procedure and normal activities of officials and other persons who use their official position to carry out human trafficking.

Victims can be any person. The consent of a person to the transfer (sale) of him to other persons does not exclude the qualification of the deed under Art. 127.1 of the Criminal Code.

objective side The crime consists in the commission of one or more alternative acts listed in the disposition of the criminal law norm.

Purchase involves the acquisition of a person for money or other material values ​​(movable and immovable property, food, alcoholic beverages, etc.). The provision of services of a property nature should also be considered a means of payment, since the purchase and sale is based on the compensation of the actions performed.

When qualifying the deed in the above form under Art. 127.1 of the Criminal Code, two persons are always subject to criminal liability: the first - for the sale and the second - for the purchase.

If the subject promised to sell a person and transfer him after receiving the money, but initially his intent was aimed at taking possession of material values, and he was not going to fulfill the terms of the agreement, his actions are subject to qualification according to Art. 159 of the Criminal Code as fraud, and the actions of the buyer - as an attempt on human trafficking in the form of a purchase (part 3 of article 30 and part 1 of article 127.1 of the Criminal Code).

Recruitment includes the activity of searching, hiring, recruiting, attracting persons to engage in any type of activity (including illegal ones) with the aim of exploiting them. Recruitment can be expressed in persuasion, blackmail, deceit, with the help of which a person obtains the consent of the victim to exploit him. Usually people are recruited under the pretext of studies, employment, etc. If during the recruitment process any physical or mental violence was used against the victim, the deed constitutes a qualified corpus delicti (clause “e”, part 2, article 1271 of the Criminal Code). Recruitment must be distinguished from complicity, when a person only looks for a potential victim for the recruiter, at his request, and introduces them.

Shipping a person consists in transportation, delivery from his location to the point where the sale and purchase transaction should take place directly or his transfer by other persons, or to the area where it is supposed to use the victim for the purpose of exploitation. There are no territorial restrictions, transportation can be carried out both within the same city (settlement), and with travel outside the Russian Federation.

Broadcast a person, as well as his transportation, in certain situations represents an intermediary action, thanks to which the seller alienates the person being sold, and the buyer acquires him. The transfer of a person may be preceded by his transportation or delivery to a specified place on foot; finally, one person can bring a person to the destination, and directly transfers it to another person. In the latter case, each person involved in human trafficking should be responsible only for his own act.

As an independent crime, the transfer of a person consists in providing the victim to another person free of charge, for temporary use on any conditions, in exchange for another person, the intended services or as a way of paying for already received.

Getting a person means its acquisition on the terms typical for the transfer: donation, for temporary use free of charge or on account of a debt, etc. At the same time, a person can be received from the seller for further transfer to the buyer, for his transportation or harboring.

Harboring represents actions aimed at hiding the victim in any place or room, both intended for human habitation and not (dugout in the forest, underground in the house, etc.), so that outsiders could not see him, find those interested in finding him individuals and law enforcement agencies. Concealment can be both covert and overt, when the subject passes off the victim as his relative or acquaintance, while applying a threat to him.

Concealment should be distinguished from hiding a person, which takes place after the completion of the sale or transfer transaction, when its direct operation is carried out. In this case, the cover-up is done so that outsiders do not become aware that a person is being used for prostitution, other forms of sexual exploitation, or slave labor or other servitude. In the above case, concealment is covered by the composition of the use of slave labor (Article 127.2 of the Criminal Code).

Composition - formal: the crime is considered completed from the moment of completion of the transaction of sale, transfer or receipt of a person, or the commission of another act provided for by criminal law.

The subjective side of the crime is characterized by direct intent and a special purpose - the exploitation of a person, which, in accordance with Note 2 to Art. 127.1 CC includes the use of prostitution by other persons, other forms of sexual exploitation (participation in pornographic performances, in the production of pornographic products, etc.), slave labor (services) and servitude.

The subject is a sane person who has reached the age of 16, or a person using his official position (clause “c” of part 2 of article 127.1 of the Criminal Code).

In part 2 of Art. 127.1 of the Criminal Code provides for the following qualifying signs.

Trafficking in respect of two or more persons(clause "a" part 2 article 127.1 of the Criminal Code) and against a known minor(Clause “b” of Part 2 of Article 127.1 of the Criminal Code) are similar in content to similar features contained in Part 2 of Art. 127 of the Criminal Code.

Human trafficking by a person using his official position(clause “c” of part 2 of article 127.1 of the Criminal Code) implies the commission of the specified crime by an official, a person exercising managerial functions in a commercial or other organization, or by another person using his official functions in order to facilitate the commission of any of the acts listed in criminal law.

Human trafficking with the movement of the victim across the state border of the Russian Federation or with his illegal detention abroad(clause “d” part 2 article 127.1 of the Criminal Code) means that the subject, contrary to the established rules for crossing the State Border, transports or otherwise transports a person acquired through a sale and purchase transaction outside the Russian Federation, as well as on its territory or contrary to desires of a person keeps him in the territory of a foreign state.

Human trafficking with the use of forged documents, as well as with the seizure, concealment or destruction of documents proving the identity of the victim(Clause “e” Part 2 Article 127.1 of the Criminal Code). Forgery (production) of false documents by the subject of trafficking in persons is covered by the corpus delicti of the specified crime and additional qualification under Art. 327 of the Criminal Code does not require.

The use of violence or the threat of its use(clause "e" part 2 article 127.1 of the Criminal Code) is disclosed similar to this feature in Art. 126 of the Criminal Code.

Human trafficking for the purpose of removing organs or tissues from the victim(clause “g”, part 2, article 127.1 of the Criminal Code) is considered completed when the goal itself is established and any of the acts listed in the disposition of the criminal law is committed for this. Actual rejection of organs or tissues requires additional qualifications under articles on crimes against health or life, if it ended in death. Forcing an acquired person to remove organs or tissues is additionally qualified under Art. 120 of the Criminal Code.

Special qualifying features provided for in paragraphs "a" and "c" h. 3 Article. 127.1 of the Criminal Code, in their content do not differ from similar signs specified in Part 3 of Art. 127 of the Criminal Code. But paragraph "a" part 3 of Art. 127.1 of the Criminal Code also includes the infliction of grievous bodily harm by negligence.

Human trafficking, committed in a way dangerous to the life and health of many people(clause “b” part 3 of article 1271 of the Criminal Code), i.e. two or more persons, covers such cases when the victims, for example, are transported in cramped containers, kept without food, water, in a limited room, drugs are used.

Note 1 to Art. 127.1 CC exemption from criminal liability. It is possible only if the person: 1) committed for the first time an act qualified under part 1 or paragraph “a” of part 2 of Art. 127.1 of the Criminal Code; 2) voluntarily released the victim; 3) contributed to the disclosure of the crime; 4) his actions do not contain any other corpus delicti.

For kidnapping, Article 126 of the Criminal Code of the Russian Federation provides for a sanction and liability up to 15 years LS - imprisonment.

The article provides for 3 parts, each of which provides for punishment in accordance with the public danger of the committed act.

Let's analyze each part of the article "on the shelves."

Kidnapping of a person under Part 1 of Art. 126 of the Criminal Code of the Russian Federation: general composition

In the first part, he indicates that responsibility for the abduction of a person may come in the form of:

1. Forced labor for up to 5 years.
2. Imprisonment for up to 5 years.

Kidnapping of a person under Part 2 of Art. 126 of the Criminal Code of the Russian Federation and the qualifying corpus delicti

Part 2 of the article specifies the punishment for socially dangerous acts that are committed:

Criminal liability for kidnapping under 2.h Art. 126 of the Criminal Code of the Russian Federation provides for: imprisonment (LS) for 5-12 years with restriction of freedom for up to 2 years or without restriction of freedom.

Particularly qualified composition under Part 3 of Art. 126 of the Criminal Code of the Russian Federation

From this part of the criminal article, you will find out how much you can get for kidnapping. In part 3 of Art. 126 of the Criminal Code of the Russian Federation, the legislator points to 2 qualifying signs:

The punishment for such acts is severe: imprisonment for a period of 6-15 years with restriction of freedom for up to 2 years or without it.

Now you know what article is for kidnapping, what punishments are provided. Now it remains to sort out the elements of the crime.

Kidnapping: elements of a crime under article 126

The subject of the crime under article 126	Object of crime under article 126	The subjective side of the crime under Article 126	The objective side of the crime under Article 126
A person over the age of 14 (the general age of criminal responsibility has been lowered).	Social relations that ensure the physical freedom of a person. Additionally, the life, honor, property, dignity of the victim act as a direct object; as well as the normal activities of enterprises, public institutions and others.	Exceptionally direct intent: a person is aware of the social danger of an act, foresees the onset of socially dangerous consequences as a result of an unlawful act + desires their occurrence.	Capture + movement (important in order to distinguish from an assassination!) + retention.

Attempted kidnapping and attempted kidnapping under Art. 126 of the Criminal Code of the Russian Federation

What is meant by attempted crime? What will be the responsibility for committing such a socially dangerous illegal act?

The objective side of the crime under Art. 126 of the Criminal Code of the Russian Federation, indicates the presence of 2 active actions:

1. Face capture. Unlawful establishment of power over the subject, often associated with the restriction of his physical freedom. To capture a criminal, he can use methods of violence (for example, tying his hands and feet, pushing him into a car, beating him, blindfolding his eyes and mouth), methods of deception (a phone call, an appointment to meet, and others). The seizure can be carried out both secretly and in the presence of other people, in front of their eyes.
2. Moving a person to another place. As soon as the offender was able to move the victim from one place to another (for example, transportation to the dacha / to the barn / out of town / to the utility room) for further retention, then the crime is considered completed.

If the offender only captured the person, but could not transport him (was detained), then the crime is not over! We need to talk about an attempted kidnapping or an attempted kidnapping.

What is the punishment for attempted kidnapping?

In Art. 66 of the Criminal Code of the Russian Federation contains features of sentencing for an unfinished crime:

1. The court must take into account all the circumstances due to which the criminal did not manage to bring his plan to its logical conclusion.
2. The term/amount of punishment for an attempt is no more than ¾ of the maximum term or the most severe type of punishment under the article provided for a completed crime.

For example, according to Part 3 of Art. 126 of the Criminal Code of the Russian Federation provides for punishment up to up to 15 years in prison. So for an attempt on such a crime, the punishment is no more than 11 years and 3 months.

Neither life imprisonment nor the death penalty is imposed for attempted murder.

How is kidnapping different from hostage taking?

Criteria for comparing elements of crime	Art. 126 of the Criminal Code of the Russian Federation (or “Kidnapping”)	Art. 206 of the Criminal Code of the Russian Federation (or "Hostage taking")
An object	The offender encroaches on social relations in the field of physical freedom of a person (an additional object may be	The offender encroaches on public safety (therefore, the crime is a threat, often accompanied by destabilization of the situation, sowing panic and fear).
Subjective side	But the criminal does not have a goal through the kidnapping of a person to force other persons to comply with his requirements.	The goal of criminals is to force the authorities or relevant persons to comply with certain requirements: the provision of vehicles, the transfer of money, the conclusion of a transaction, the rejection of a decision, and others.
objective side	Capture + movement + subsequent retention against the will of the victim	Capture or hold (no movement required).

What is the term for kidnapping if the perpetrator releases the kidnapped?

In a note to Art. 126 indicates a special basis for exemption from criminal liability. If a person voluntarily releases an abducted person, then he will not be liable under Art. 126.

In a note to Art. 126 of the Criminal Code of the Russian Federation contains exemption from criminal liability only for kidnapping!

For example, if property damage was caused during the crime, the offender will have to compensate for it. If serious harm to health is caused, liability arises under the relevant article of the Criminal Code of the Russian Federation.

If in the course of the abduction a vehicle was stolen, rape or other crimes were committed, then criminal liability will occur in accordance with the articles of the Criminal Code.

The motives for releasing a kidnapped person can be different: repentance, pity, calculation, fear of criminal liability, and others (they do not matter for criminal law).

How to understand the voluntary release of the abducted? Is it always possible to avoid criminal liability?

No not always. The law provided that cannot refer to the concept of "voluntary" situations in which:

1. The criminal realized that he would be caught; therefore releases the victim in order to avoid liability.
2. The offender cannot physically hold the kidnapped person (for example, there is no room, no people, and so on).
3. The kidnapped man fled from the perpetrator.
4. The offender got what he wanted (for example, he broke the deal, led the enterprise to bankruptcy, and others), it makes no sense to keep the victim anymore.

The release must be carried out in such conditions when the offender has the opportunity to continue to keep the kidnapped (the purpose of the criminal unlawful act has not been achieved).

What features do you need to know about the crime of kidnapping under Article 126 of the Criminal Code of the Russian Federation?

There is no penalty if the person consented to the "sham kidnapping".

For example, there is a conspiracy between the “victim” and the “criminal”, and their act would allow them to receive the amount of material resources, simulate a kidnapping, and achieve other intended goals.

But Liability may arise in other ways.(for example, for causing material harm, for stealing vehicles, extortion, and others).

Punishment according to Art. 126 of the Criminal Code of the Russian Federation does not occur if the kidnapping was committed for the purpose of murder (in this case, this socially dangerous act is covered by the article of the Criminal Code of the Russian Federation for murder.

There is no penalty if a legal representative (for example, a parent) “kidnaps” a child from another. The only important thing is that such actions are carried out in favor and in the interests of the child (even if the interests were misunderstood).

Liability under Art. 126 of the Criminal Code of the Russian Federation for kidnapping in this case does not occur.

The motives for committing a crime (as well as the motives for refusing it) are outside the scope of the criminal law field. But it can be hatred, revenge, envy and others.

When stealing additional qualifications according to the requirements of Art. 127 of the Criminal Code for unlawful imprisonment is not required.

The crime is considered completed from the moment the person is moved. But the actual ending is connected with the release of the kidnapped, the detention of the criminal.

TOP-7 facts and summary of the material