abstract
Topic: "Human trafficking in the Russian Federation" .
Supervisor: Ph.D. in Law, Associate Professor Zakomoldin R.V.
Object of study is “trafficking in human beings” as a legal institution and related public relations, regulated by the norms of criminal law.
Subject of study criminal law norms governing the institution of “trafficking in persons” in criminal law.
This study and understand how this institution functions in criminal law, what role it plays in the life of society, what caused the need for this institution.
To achieve these goals, it is necessary to solve some problems: firstly, to get acquainted with the textbooks of different authors on this topic; see what similarities and differences they have;
Secondly, look through the normative materials, with the help of which it is possible to establish what this institution is, why it was created;
thirdly, to look at publications and articles of authors studying this problem, to compare their opinions.
Combine the above with other sources together and decide what this institution represents, what its essence, goals and objectives are, why it was created by the state, what relations it regulates.
Results in the course of the study of the course work, they answered all the questions posed, helped to determine what role this institution of criminal law plays in the life of society, and what methods of struggle the legislator uses.
Sources This course work is both normative legal acts and special literature.
Introduction………………………………………………………………………p.4
Chapter 1. The concept of “human trafficking”
1.1 The object of the crime……………………………………………p.7
1.2 The subject of the crime………………………………………….page 11
Chapter 2. Types of “trafficking in persons” offenses and their classification
2.1 Qualified composition……………………………………………………………………………………………………………….p.12
2.2Especially qualified composition……………………………p.18
2.3 Persons subject to exemption from criminal liability under Art. 127¹ “human trafficking”………………………………………………..p.21
Chapter 3. The system of Russian law aimed at combating human trafficking and slavery
3.1 Pre-revolutionary period………………………………………p.23
3.2Soviet period………………………………………………p.27
3.3The latest period………………………………………………p.28
Conclusion…………………………………………………………………..page 34
List of used literature…………………………………….... p.35
Introduction
According to part 1 of article 127¹ of the Criminal Code of the Russian Federation, human trafficking is the purchase and sale of a person, other transactions in relation to a person, as well as recruitment, transportation, transfer, harboring or receipt committed for the purpose of his exploitation.
Surely, more than once everyone has come across an advertisement with an invitation to work in leading companies abroad, promising fabulous sums of money to an ordinary worker for a simple job? But, unfortunately, rarely does anyone wonder what kind of mousetrap the cherished piece of cheese lies in ... the risk of being a “goods” for human traffickers, being involved in prostitution, becoming a slave, and much more - this is what threatens to this day day to everyone who responded to this kind of announcement. Yes, and at the beginning of the third millennium, a person did not cease to be a thing, centuries passed, and the echo of the Middle Ages still comes from the depths of time to this day. At present, such dangers can be found in the most harmless at first glance things, for example, in the announcement of vacancies abroad, in brochures advertising cheap shopping tours, in advertisements for marriage agencies. All of the above refers to the means used by both traffickers and related targets to attract victims.
Trafficking in human beings is not a new phenomenon, but on the contrary, having a centuries-old history, which seemed to be a distant forgotten past, has returned to the socio-economic sphere of public life, having acquired a criminal character. According to the UN Convention on Transnational Organized Crime of 11/15/2000, human trafficking is recognized as one of the main areas of international organized crime, the global income from which is estimated at billions of US dollars, which is comparable only with the arms trade and drug trafficking.
It can be seen from the above that human trafficking today, to the deepest regret, occupies one of the leading places in the ranking of latent crime in Russia and abroad.
The relevance of this work lies in the fact that human trafficking today, invisible to the average layman, is increasingly gaining momentum, tearing it out of society bit by bit, threatens to swallow it whole, and without due attention to this problem, Russian society risks being enslaved in the literal sense of the word.
This course work is devoted to the protection of basic constitutional human rights, such as the right to life, health and freedom in all its manifestations. It consists of an introduction, two chapters divided into paragraphs and a conclusion.
The first chapter deals with human trafficking as a legal institution.
The aggravating consequences of the crime of trafficking in human beings are explored in the second chapter of this work.
In the third chapter, we will consider ways to combat human trafficking in the pre-revolutionary Soviet and recent periods.
The purpose of this course work is to study the criminal-legal aspects of human trafficking, analysis of the regulatory framework on this problem and the fight against it.
When writing this course work, the following tasks were set:
First, to analyze the international legal acts of this issue.
Secondly, consider in detail the signs of a crime, provided for in Art. 127¹ (Trafficking in persons).
The main research methods are: historical, demographic, logical, system-structural.
Chapter 1. The concept of “human trafficking”
1.1 Object of the crime
In accordance with Art. 3 of the Protocol of November 15, 2000 to the UN Convention against Transnational Organized Crime "On the Prevention, Suppression and Punishment of Trafficking in Persons, Especially Women and Children", the term "trafficking in persons" means recruitment, transportation, transfer, harboring or receiving people through the threat or use of force or other forms of coercion, kidnapping, fraud, deceit, abuse of power or position of vulnerability, or by bribery, payment or benefit, to obtain the consent of a person in control of another person.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs. By November 2001, the Convention was signed by 100 states, including the Russian Federation.
In Russian criminal law, human trafficking is defined as the sale or purchase of a person or his recruitment, transportation, transfer, harboring or receipt, committed for the purpose of his exploitation (Article 127¹ of the Criminal Code of the Russian Federation) .
As you can see, the interpretation of the term "trafficking in persons" in the Criminal Code of the Russian Federation is close in content to the international definition, but does not cover the whole variety of transactions that can be made in relation to a person. The legislator did not take into account that in relation to a person, in addition to buying and selling, other transactions can be made, namely: donation, exchange, use of the victim as a pledge that ensures the return of a debt, provision of a person for temporary use. This fact should be recognized as a gap in the law, and in order to overcome it, the disposition of Part 1 of Art. 127¹ of the Criminal Code of the Russian Federation, it is necessary, along with the sale and purchase, to include the commission of other transactions in relation to a person as a criminally punishable act.
The Criminal Code of the Russian Federation classifies human trafficking as a crime against a person (art. 127¹). At the same time, it should be noted that such types of human trafficking as involvement in prostitution and organization of prostitution (Articles 240 and 241) are classified in the Criminal Code of the Russian Federation as crimes against public safety and public order.
Meanwhile, the subjective side of both involvement in prostitution and the organization of prostitution lies in the perpetrator of active actions aimed at ensuring that another person involved in prostitution can be used for prostitution. Note 2 to Art. 127 1 of the Criminal Code of the Russian Federation qualifies the use of prostitution by other persons as one of the forms of sexual exploitation. In this sense, from the point of view of the purpose of the actions of the perpetrator, trafficking in persons for the purpose of sexual exploitation and the involvement of another person in prostitution, the organization of prostitution by other persons are homogeneous in nature. In both cases, a person is subjected to sexual exploitation, is involved in sexual slavery.
It is appropriate in this regard to recall that for the first time Art. 240 and 241 of the Criminal Code appeared in the Criminal Code of the Russian Federation in 1996. Their appearance was associated with the desire of Russia to fulfill the international obligations assumed by the USSR contained in the UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. Already from the title of this convention there is a direct link between human trafficking and other crimes related to sexual exploitation. The preamble of the Convention begins with the words: “Prostitution and its attendant evil, which is trafficking in persons for the purpose of prostitution, are incompatible with the dignity and worth of the human person and threaten the well-being of the individual, the family and society.” Articles 1 and 2 of this Convention are treated as homogeneous crimes consisting of inducing or seducing another person into prostitution, even with his consent, maintaining or managing a brothel house, financing or participating in the financing of a brothel house, providing premises for prostitution by third parties on the one hand, and the exploitation of the prostitution of another person, even with that person's consent.
In our opinion, in the Criminal Code of the Russian Federation there is an erroneous division of homogeneous crimes into crimes related to human trafficking and crimes related to the use of a person for prostitution. There is a competition of norms and the difficulties associated with it in qualifying the acts provided for in Art. 127 1, 240 and 241 of the Criminal Code of the Russian Federation, in law enforcement practice.
Thus, according to the analysis of investigative and judicial practice conducted by B.Ya. Gavrilov, A.V. Krasnov and S.V. Charikova, in December 2004. in a criminal case investigated by the investigative department at the Department of Internal Affairs of the Veshnyaki district of Moscow, Osilov and Zakharova were charged with committing crimes related to the recruitment of three underage girls (residents of the Chuvash Republic) and their subsequent transfer to Moscow for prostitution, according to part 2 of Art. 127¹, part 2 of Art. 241 and part 3 of Art. . 240 of the Criminal Code of the Russian Federation. By the verdict of the Perovsky District Court, these persons under Part 2 of Art. 127¹ U K was and was acquitted due to the absence of corpus delicti in their actions. At the same time, there was no argumentation in the verdict for the acquittal of the defendants. As a result, Osipov was found guilty of committing crimes under Part 2 of Art. 241&Z. 240 of the Criminal Code of the Russian Federation, and sentenced to 5 years in prison. Zakharova under Part 1 of Art. 241 of the Criminal Code of the Russian Federation, a conditional sentence with a probationary period of 2 years was imposed. March 2006. the Judicial Collegium for Criminal Cases of the Moscow City Court, this sentence in part of the acquittal of the defendants in the crimes under Part 2 of Art. 127¹ of the UKRF, was canceled and the case was sent for a new trial.
According to most scientists, the direct object of crimes related to human trafficking is the personal freedom of a person. Personal freedom is a rather broad concept. The Criminal Law does not define this concept. In scientific and educational literature, the concept of individual freedom is defined in different ways. At the same time, the emphasis is on the fact that crimes related to human trafficking infringe solely on the physical freedom of a person. Meanwhile, in our opinion, these crimes deprive a person who has become a victim of human trafficking of not only physical, but also economic, legal, spiritual, and political freedom. If he has anything left, it is only freedom of thought, which in this case can hardly be expressed orally or in print.
The philosophical approach to the concept of personal freedom traditionally boils down to the question of whether a person has free will. Regardless of the origin of his goals and intentions, a person has freedom insofar as he retains a real opportunity to choose one or another variant of behavior that objectively corresponds to his personal interests and needs.
In the case of committing any of the crimes related to human trafficking, a person's freedom, in the sense of the freedom to choose one or another option of behavior, is significantly limited, and at the same time, many other human rights and opportunities are limited.
1.2Subject of the crime
The subject of the crime is an individual who has reached the age of 16, who commits any of the actions covered by the concept of "trafficking in persons" contained in Part 1 of Art. 127 1 of the Criminal Code of the Russian Federation, or is an accomplice in the commission of such actions.
According to the analysis of investigative practice conducted by B.Ya. Gavrilov, A.V. Krasnov and S.V. Charikova, the largest number of crimes related to human trafficking are committed by men (70% of all accused). As a rule, the perpetrators of these crimes have not been previously convicted (96% of the total number of those prosecuted). In the vast majority of cases, crimes of this type are committed by persons under the age of 40 (about 90%).
Chapter 2. Types of “trafficking in persons” offenses and their classification
2.1 Qualified squad
The system of qualifying and especially qualifying circumstances of trafficking in persons (part 2 of article 127 1 of the Criminal Code of the Russian Federation) generally repeats that for kidnapping (part 2 of article 126 of the Criminal Code of the Russian Federation) and unlawful imprisonment (part 2 of article 127 of the Criminal Code of the Russian Federation) . However, it has specific circumstances provided for in paragraphs “c”, “d”, “e” and “g” of Part 2 of Art. 127 1 of the Criminal Code of the Russian Federation.
Trafficking in persons in respect of two or more persons (clause "a" part 2 of article 127 1 of the Criminal Code of the Russian Federation) involves the commission of actions specified in part 1 of art. 127¹ of the Criminal Code of the Russian Federation, in relation to at least two persons. It does not matter whether these actions were committed at the same time or at different times, whether the perpetrator had a single intent. It is important, however, that none of these cases of trafficking be convicted of a person.
Trafficking in relation to a known minor (clause “b” of part 2 of article 127 1 of the Criminal Code of the Russian Federation) means that the perpetrator knew for certain that the victim was under 18 years old. However, it should be borne in mind that the existence of doubts regarding the true age of the victim does not preclude the initiation of a criminal investigation, including an investigation to establish the age of the victim (paragraph 2 of article 8 of the Optional Protocol No. 2 to the UN Convention on the Rights of the Child on the sale of children , Child Prostitution and Child Pornography, May 25, 2000).
The use of one's official position (clause "c" part 2 of article 127 1 of the Criminal Code of the Russian Federation) involves the commission of actions specified in part 1 of art. 127 1
of the Criminal Code of the Russian Federation, a state or municipal employee, or an official or a person performing managerial functions in a commercial or other organization.
Trade with the movement of the victim across the State Border of the Russian Federation (clause "d" part 2 of article 127¹ of the Criminal Code of the Russian Federation) means its physical crossing by the victim. There are two cases of trade with movement across the State Border of the Russian Federation, if one of those listed in Part 1 of Art. 127 1 of the Criminal Code of the Russian Federation of actions was associated with:
1) with the entry of the victim into the Russian Federation;
2) either with the departure of the victim from the Russian Federation. At the same time, for qualification under paragraph “d”, Part 2, Art. 127¹ of the Criminal Code of the Russian Federation does not have
whether entry or exit was legal. But in the case of illegal entry or exit, additional qualifications are required under Art. 322 or 322 of the Criminal Code of the Russian Federation.
In Protocol No. 2 to the UN Convention against Transnational Organized Crime, “illegal entry” means crossing borders without meeting the necessary requirements for legal entry into the host state (clause “b”, Article 3 of Protocol No. 1 against the smuggling of migrants by land, sea and air supplementing the Convention).
A false entry or exit document or false identity document is any document that:
1) has been forged or altered in any material way by any person or agency other than those legally authorized to make or issue an entry or exit document or identity document on behalf of the state;
2) has been improperly issued or obtained through misrepresentation, corruption, coercion or in any other unlawful manner;
3) or is used by a person who is not its legal owner (paragraph “c” of article 3 of the Protocol No. 1 against the smuggling of migrants by land, sea and air, supplementing the Convention).
Illegal are entry or exit made in violation of the requirements established by the Federal Law of August 15, 1996 No. 114-FZ “On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation”.
Illegal detention of the victim abroad means unlawful deprivation of his opportunity to return to Russia.
The use of forged documents (clause "d" part 2 of article 127 1 of the Criminal Code of the Russian Federation) is understood as their official presentation in order to conceal the ongoing actions of human trafficking. Seizure of documents involves the unlawful deprivation of the victim of his valid documents, and their concealment - illegal retention, storage. The destruction of documents proving the identity of the victim means their actual liquidation, making it impossible to identify a person by them. Seizure, concealment or destruction of identity documents of the victim is considered in judicial practice as one of the dangerous ways of committing human trafficking, which puts the victim "in a dependent position, turns him into a weak-willed subject of trade, deprives him of the opportunity to break the bonded contract, return to the country under to your desire."
Trafficking in persons with the use of violence or the threat of its use (clause “e”, part 2 of article 127¹) means:
1) the actual infliction of grievous bodily harm to the victim, under Part 1 or 2 of Art. 111 of the Criminal Code of the Russian Federation, go moderate, or slight harm to health,
2) violence that did not cause actual harm to health,
3) or the threat of violence.
The concept of "violence" is given in the Report of the Preparatory Commission of the International Criminal Court, in the Explanation to paragraph 1 of Art. 7 of the Rome Statute of the International Criminal Court: “The term “forcibly” is not limited to the use of physical force and may include the threat of force or coercion caused, for example, by fear of violence, gross coercion, detention, psychological pressure or abuse of power against such a person or to persons or another person, or the use of an environment characterized by coercion.”
Violence is always associated with coercion, which can be:
1) physical. In this case, the retention of a person occurs through the use of real violence, the provision of any effect on his body. Bodily harm, beatings, torture may be inflicted.
Impact on the human body is also possible through failure to perform any actions necessary for the normal functioning of a person, for example, food restriction, failure to provide medical care, etc. Such restrictions force a person to perform the actions required of him, since he is deprived of the opportunity to satisfy basic human needs and at the same time experiences physical suffering;
2) with the use of potent drugs. With this type of exposure, a person, against his will (that is, with the use of violence or without the knowledge of the person, when the drug is served with food or under the guise of a medicine), becomes addicted to narcotic drugs and psychotropic substances;
3) mental. Mental coercion can be applied both to the victim and to people close to her, and can be expressed in any form. Depending on the content of the methods of mental influence, one can distinguish:
blackmail, including the threat of dissemination of information discrediting the honor and dignity of the victim or persons close to her.
Trafficking in persons for the purpose of removing organs or tissues from the victim (clause "g" part 2 of article 127 1) assumes that the victim will be used as a donor.
2.2Especially qualified composition
Particularly qualified composition (part 3 of article 127 1 of the Criminal Code of the Russian Federation) is the acts provided for by part 1 or 2 of Art. 127 1 of the Criminal Code of the Russian Federation:
a) negligently causing death, causing grievous bodily harm to the victim or other grave consequences;
b) committed in a way dangerous to the life and health of many people;
c) committed by an organized group.
Under the infliction of death by negligence or grievous bodily harm to the victim are cases when, when the perpetrator commits intentional acts specified in Part 1 or 2 of Art. 127 1 of the Criminal Code of the Russian Federation, as a result of his frivolity or negligence, the death of the victim occurs, or serious harm is caused to his health, or other serious consequences occur.
“Other grave consequences” is an estimated circumstance that must be established and evaluated in each specific case. It seems that the suicide of both the victim and a person close to him can be recognized as other serious consequences, if there is a causal relationship and a negligent form of guilt of the persons who committed the criminal act under Art. 127 1 of the Criminal Code of the Russian Federation. If, for example, crimes such as murder, rape, infection with HIV, sexually transmitted diseases, illegal abortion, incitement to suicide, involvement of a minor in the commission of a crime are committed against the victim, then additional qualifications are required under the relevant article of the Criminal Code of the Russian Federation.
If serious harm is caused during the commission of human trafficking intentionally, then the deed is qualified according to the totality of Part 2 of Art. 127¹ of the Criminal Code of the Russian Federation and Art. 105 or 111 of the Criminal Code of the Russian Federation, respectively.
Human trafficking committed in a way dangerous to the life and health of many people (clause “b” part 3 of article 127 1 of the Criminal Code of the Russian Federation) is characterized by the use by the perpetrator of such a method, which creates a real threat against two or more persons 3 .
The concept of "organized group" is given in Art. 35 of the Criminal Code of the Russian Federation and means a stable group of persons who have previously united to commit one or more crimes.
The United Nations Convention against Transnational Organized Crime of November 15, 2000 defines an organized criminal group as a structured group of three or more persons, existing for a specified period of time and acting in concert for the purpose of committing one or more serious crimes or crimes recognized as such in
in accordance with this Convention in order to obtain, directly or indirectly, financial or other material benefit (paragraph "a" of Article 2). “Serious crime” means a crime punishable by imprisonment for a maximum term of at least four years or a more severe penalty (paragraph “o” of Article 2 of the UN Convention against Transnational Organized Crime).
13. As in the case of ordinary crimes, it is quite difficult to identify all the accomplices in the criminal acts of the category under consideration, because there is a system of conspiracy between the criminals; there are persons directly connected with the commission of a crime, and there are those who contribute to the concealment of its traces, namely employees of embassies, border control authorities, police, carrier companies, customs authorities and many others.
Judicial practice shows that the characteristic features of organized criminal groups that specialize in trafficking in women for the purpose of their sexual exploitation are:
1) a clear distribution of roles;
2) establishing and maintaining transnational criminal ties;
3) disguise of criminal activity under the guise of some legal company (massage room, sauna, marriage agency, travel company, employment agency, etc.);
4) the use of deceit, violence, narcotic or psychotropic substances against victims in order to break their will;
5) the presence of corrupt ties;
6) the use of modern technologies and means of communication, in particular the Internet.
14. Law enforcement officers are aware of the approximate distribution of roles in organized criminal groups.
Firstly, these are people who advertise "great jobs" abroad, usually they belong to the same nationality as the victims. Such “lurers” of a criminal nature work in close connection with the keepers of the brothels, organize and pay for the travel of future victims from their countries abroad.
Secondly, these are “intermediaries”, as a rule, of the same nationality as the victims, acting as carriers, smugglers, manufacturers of fake marriage documents, passports. In addition, we should also mention the persons involved in issuing invitations, obtaining or extending the period of stay of the victim in this country. Carriers escort women to the host country and personally deliver to the owners of clubs and brothels, sometimes they themselves recruit women.
Thirdly, these are buyers, recipients, i.e. those who then exploit the victim.
2.3 Persons subject to exemption from criminal liability under Art. 127¹ “human trafficking”
Note 1 to Art. 127¹ of the Criminal Code of the Russian Federation provides for the release from criminal liability of a person who has committed human trafficking for the first time, including trafficking in relation to two or more persons (in the absence of other qualifying signs), if he voluntarily released the victim and contributed to the disclosure of the committed crime, and if his actions do not contain otherwise corpus delicti, Currently, 18 articles of the Criminal Code of the Russian Federation provide for exemption from criminal liability in connection with active repentance. This is due to the fact that most of these crimes are among the acts with a high degree of latency. As a result, it is very difficult to identify them in practice. If they are identified, procedural problems arise in proving the guilt of persons suspected of committing crimes. That is why the criminal law, in order to detect, suppress these crimes and save the lives of victims, allows a compromise with the perpetrators, linking the release from criminal liability with certain types of positive post-criminal behavior, indicating the active repentance of the person. In all such cases, exemption from criminal liability is mandatory for the law enforcement officer and does not depend on his discretion. However, it should be noted that the legislator has narrowed the possibility of applying this note by indicating the commission of trade
people for the first time. According to some scholars, this restriction should be lifted 1 .
The exemption from criminal liability for trafficking in persons provided for in Note 1 to Art. 127" of the Criminal Code of the Russian Federation is considered as a special type of exemption from criminal liability, which is based on the active repentance of the person who committed the crime. To apply it, it is necessary to establish:
1) voluntary release of the victim;
2) contributing to the disclosure of the committed crime. Voluntary release of the victim not only means
the proactive nature of the actions of the perpetrator for the release, but also implies that he had the opportunity to continue the commission of any of those specified in Part 1 of Art. 127¹ of the Criminal Code of the Russian Federation acts. The Supreme Court of the Russian Federation has formulated a legal position in specific cases regarding the understanding of the voluntary nature of release, which is understood as “such a release that followed in a situation where the perpetrator could continue to unlawfully detain a person, but granted him freedom” -. The release of a person after satisfaction of the demand of the perpetrator cannot be recognized as voluntary. The motives for release can be any (pity, fear of exposure and criminal prosecution, the desire to save the victim in case of illness, etc.) and cannot affect the legal recognition of release as voluntary.
Chapter 3 . The system of Russian law aimed at combating human trafficking and slavery
3.1 Pre-revolutionary period
The pre-revolutionary period of history is associated with the appearance in Russia of the first legislative acts that provided for punishment for actions related to human trafficking.
It should be noted that slavery and the slave trade in the classical sense formulated in the 1926 Convention did not exist in Russia. At the same time, for a long period in its history, there were institutions similar to slavery, in particular serfdom, debt bondage. Moreover, it is curious that the struggle for the abolition of serfdom in Russia, which ended with its abolition in the middle of the 19th century, coincides in time with the beginning of the struggle for the abolition of slavery in Europe and the USA.
1. The history of the creation of the system of Russian legislation
The very term "trafficking in human beings" was not used in the Russian legislation of that time. At the same time, Art. 1410 and 1411 The Penal and Correctional Codes established responsibility for the sale into slavery of "Asians or other foreigners" of subjects of Russia or those under the protection of its laws, as well as for the sale of African Negroes. The Code also provided for liability for kidnapping women for the purpose of rape (Art. 1529), seduction (Art. 1530), with a promise to marry (Art. 1531), for the purpose of marrying against her will (Art. 1549), a married woman (Art. 1580), with her consent (Art. 1582).
These provisions were also preserved in the Criminal Code of 1903. Article 500 of the Criminal Code provided for such offenses as selling or transferring into slavery or captivity, and trading in Negroes. For these crimes, punishment in the form of hard labor for a term not exceeding eight years could be imposed. A ship that served for such an illegal trade, as well as adapted or armed for this purpose, was subject to confiscation. The state of slavery or captivity was considered as such a situation in which a person loses the opportunity to dispose of himself, for example, the sale of a woman against her will into a harem fell under this article.
However, these compositions did not fully reflect the essence of the occurring phenomena. For Russia at the end of the 19th century, as well as for other states, the problem of trafficking in women for the purpose of debauchery (prostitution) was very topical. The draft Criminal Code of 1895 provided for punishment for non-compliance with the established rules to prevent indecency, the adoption of a female person under a certain age into the house of debauchery. Lewdness existed in two forms: fornication (a punishable case of natural copulation) and voluptuousness.
There has been a strong public movement against the trafficking of women for the purpose of prostitution, both domestically and internationally. In June 1899, the International Congress on the Traffic in Women was held in London, which, among the provisions adopted by it, expressed the wish that such cases should be introduced into the criminal codes of all countries as punishable acts. Already at that time, its participants stated that, along with the international trade in women, there still exists on a large scale an outrageous trade in women within each state, including in Russia, where “the owners and suppliers of brothels and other dens of debauchery, being forced to succeed in their business, constantly renew the composition of the prostitutes they exploit, are not content with recruiting those who voluntarily and of their own free will indulge in a depraved life, but resort to all sorts of often criminal means to attract and keep women in these houses and brothels. For this purpose, all sorts of deceptions are used, and sometimes violence, and in particular the abuse of the helpless position of women. This last method of forcing women to debauchery cannot but be recognized as criminal, because it consists in enslaving the free will of the victim, forcing her to take such a step, which she would never have decided if she had not felt in a hopeless situation, and, consequently, all signs of moral violence, which, like physical violence, should be punishable by criminal law.
In the draft Criminal Code, prepared by the Special Meeting of the State Council in 1901, the scope of criminal acts was significantly expanded, responsibility was also provided for:
1) inducing a female person to hunt for debauchery, if it is committed through violence, threat, deceit or abuse of power;
2) inducing a woman by all means to leave Russia with the aim of turning her into a trade in debauchery abroad;
3) engaging in the specified criminal acts professionally;
4) the extraction by a male person, also professionally, of property gain, receiving it from a woman who trades in debauchery, who is under his influence or in his dependence (pimping).
The draft Criminal Code, prepared by the Special Presence of the State Council in 1902, added to these acts the recruitment in the form of a profession, with the aim of obtaining property benefits, of females to turn debauchery into a trade.
All these forms of criminal acts were preserved in the final version of the Criminal Code of 1903 (Art. 526-529).
Thus, it can be stated that human trafficking, slavery, forced labor are not something fundamentally new for Russia.
3.2Soviet period
The Soviet period in the history of Russian legislation is associated with the non-recognition of the problem of human trafficking in relation to the USSR. Ratifying international legal acts aimed at combating human trafficking, the USSR each time made special reservations that such a phenomenon does not exist in the country, ratification is carried out only for the purpose of supporting the efforts of other countries. Meanwhile, in the USSR, everything was not so simple. Forced labor beyond what was permitted under ILO Conventions flourished in the USSR. It was thanks to him that the White-Sea-Baltic Canal was built, and many other grandiose construction projects of the century were carried out.
3.3Recent period
The newest period in the history of Russian legislation is associated with the introduction of criminal liability directly for human trafficking. At the same time, there is a steady tendency to expand the list of offenses falling under the concept of human trafficking.
In accordance with the Convention on the Rights of the Child in 1995, Art. 125, which provided for criminal liability for trafficking in persons under the age of majority, i.e. 18 years. This article was retained, but already at number 152, in the 1996 Criminal Code of the Russian Federation. There were also other articles in the Criminal Code of the Russian Federation that provided for criminal liability for acts related or similar to human trafficking, such as kidnapping, unlawful imprisonment. However, these articles did not cover the entire area of human trafficking, because the phenomenon itself is more complex than a simple set of those acts that were defined by the Criminal Code of the Russian Federation before 2003.
The turning point in the fight against human trafficking was the adoption of the Federal Law of December 8, 2003 No. 162-FZ "On Amendments and Additions to the Criminal Code of the Russian Federation", which provided for criminal liability for human trafficking (Article 127-1), involvement in prostitution of minors (Part 3 of Article 240), organization of prostitution (Article 241).
What did the adoption of this federal law give?
1. The concept of "human trafficking" was introduced into the legal circulation of Russia. Trafficking in human beings has been defined as the buying and selling of a person, or the recruitment, transportation, transfer, harboring or receipt of a person for the purpose of exploiting him. Criminal liability for human trafficking has been differentiated. Depending on the severity of the crime (for example, against two or more persons, minors, using one's official position, moving the victim across the State Border, using violence or the threat of its use, etc.), punishment for human trafficking can be up to 15 years in prison.
2. Significantly increased criminal liability for involving minors in prostitution (up to eight years in prison. Previously, part 1 of article 151 of the Criminal Code provided for a maximum punishment of up to four years in prison). And this means a transfer to the category of serious crimes.
3. Expanded criminal liability for actions related to the organization of prostitution. Based on the content of Part 1 of Art. 241, all actions aimed at organizing prostitution by other persons are now subject to criminal liability, including the systematic provision of premises for prostitution (previously, only the maintenance of brothels was prosecuted), etc. Aggravating circumstances include: the use of violence or the threat of it use, the use of knowingly minors, the use of official position, etc.
5. On January 1, 2005, the Federal Law of August 20, 2004 No. 139-FZ “On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings” came into force. Part 2 Art. 2 of this Law provides that "measures of state protection may also be applied before the initiation of a criminal case against the applicant, eyewitness or victim of a crime or other persons contributing to the prevention or detection of a crime." Measures of state protection are understood as security measures and measures of social protection (Article 1). Security measures that can be applied simultaneously include:
1) personal protection, protection of housing and property;
2) issuance of special means of individual protection, communication and danger warning;
3) ensuring the confidentiality of information about the protected person;
4) relocation to another place of residence;
5) replacement of documents;
6) change in appearance; change of place of work (service) or study;
7) temporary placement in a safe place;
8) the application of additional security measures in respect of a protected person who is in custody or in a place of serving a sentence, including transfer from one place of detention or serving a sentence to another;
9) other security measures provided for by the legislation of the Russian Federation
6. It is practically impossible to combat these crimes without granting an appropriate status to a victim of human trafficking. The information collected by the Interdepartmental Working Group in the course of monitoring the provisions of the Criminal Code of the Russian Federation aimed at combating human trafficking and slavery indicates that blackmail, intimidation of the victim, primarily with threats to harm people close to her, is almost a prerequisite for the activities of criminals in this area. Initially, women who have young children, young brothers or sisters, elderly or sick parents are selected as future victims.
7. The legislation in force in Russia does not cover the entire range of problems arising from human trafficking and slavery that need to be addressed. Obviously, it will be necessary to adopt a basic law, the draft of which was developed by the Interdepartmental Working Group established under the State Duma Committee on Legislation in 2002. The history of the creation and activities of this Interdepartmental Working Group today is part of the history of the creation of the Russian legislation system aimed at combating trade people, and certainly deserves attention.
8. The draft federal law “On Combating Trafficking in Persons” is aimed at fulfilling Russia’s international obligations in the field of combating human trafficking and slavery and defines the main basic principles for organizing such counteraction, in connection with which it can rightly be called basic.
So this bill:
1) establishes the procedure for coordinating the activities of the federal executive authorities, whose competence includes certain areas of combating human trafficking, as well as public associations and organizations, primarily NGOs involved in combating human trafficking;
2) introduces into legal circulation categories, without defining the concept of which the organization of combating human trafficking is impossible;
3) determines the legal status of persons who have become victims of human trafficking and state guarantees provided to such persons, including measures of social rehabilitation and protection of victims of human trafficking;
4) regulates the procedure for the establishment and operation of special institutions providing assistance to victims of human trafficking, which include shelters for temporary residence of victims of human trafficking, as well as support and assistance centers;
5) provides in a separate chapter a set of amendments to the current federal laws related to the organization of a unified system for combating human trafficking.
With regard to NGOs, the draft law provides for the duty of the state to:
1) include representatives of public associations and NGOs in the coordinating body for combating human trafficking;
2) to include in the system of preventive measures to combat human trafficking issues related to the activities of NGOs;
3) involve NGOs in cooperation, provide them with organizational, material and other assistance;
4) hold an open competition among NGOs for programs of measures to combat human trafficking or the creation of shelters or centers.
9.Opponents of the adoption of the basic law on combating trafficking in persons argue that the basic law does not have an independent subject of legal regulation, and therefore there is no need to adopt it. Meanwhile, it would be a mistake to limit the scope of combating human trafficking only by the norms of criminal law. At least three problems, firstly, the problem of coordinating the efforts of different departments, to some extent competent to deal with issues related to combating human trafficking, secondly, the problem of the status of the asylum and the center for assistance to victims of human trafficking, and, thirdly, the problem of the status of NGOs, the mechanism of their interaction with law enforcement agencies, forms and methods of financial and other assistance from the state, can only be resolved within the framework of a special basic law, the adoption of which, in our opinion, is a matter of the near future.
By the way, the coordination option proposed in the draft law also caused criticism from opponents who regarded the mechanism for creating a federal commission as a serious threat to the growth of the bureaucratic apparatus, not noticing the fact that the commission will operate on a voluntary basis, therefore, ensuring its work will not require significant costs. that without coordination of the activities of various departments, public organizations, NGOs in the field of combating human trafficking, it is impossible to achieve success. It is time to come to terms with the idea that in the age of new technologies, interdepartmental structures are more effective, because they form an atmosphere of trust, which is impossible to do without. And although this draft law has not yet been adopted, some of its provisions and even sections incorporated into the current sectoral legislation have already entered into force. We are talking primarily about amendments to the Criminal Code of the Russian Federation and the federal law on state protection of victims and witnesses.
The market economy in a modern state is an extremely complex system of production and distribution, not regulated by mutual agreements. It embraces millions of conscientious workers and can only function properly if they trust each other, as people do, and know what honesty, decency and truth require of them. There must be at least an elementary degree of mutual trust in society. However, nothing will get you there faster than trust in the rule of law. - trust, based mainly on positive experience and therefore well deserved, i.e. trust in the legal institutions of the state and in the officials responsible for the implementation of the law.
Conclusion
Countering human trafficking is a very urgent problem for Russia today. It concerns, first of all, the issues of ensuring the security of society, which is a direct function of the state. Recently, there have been global changes in the policy of states in relation to the solution of this issue. At the international level, in 2000, the UN Convention on Transnational Organized Crime and the corresponding protocol to it were adopted, and a corresponding article (Art. 1271 of the Criminal Code of the Russian Federation) appeared in the new Russian criminal code, providing for liability for human trafficking. On the whole, in my opinion, these changes are of a positive nature, but nevertheless, the establishment of criminal liability for human trafficking should not be considered as the end of the fight against this most dangerous crime of an international scale.
Based on the content of this course work, we can conclude that the goals and objectives set in the introduction are almost completely achieved, because. having analyzed the materials related to both theory and (virtually non-existent) practice on this issue, nevertheless, it was possible to present several theoretical concepts for overcoming some legal gaps in this subject, limiting the volume of this work, since the issue of human trafficking in criminal law ( both Russian and international) has, in fact, an inexhaustible character.
Human trafficking is a modern form of slavery, revived as a result of socio-economic problems in society, aimed at ensuring the financial well-being of transnational organized crime. The initial stage of the international fight against this phenomenon is almost completed - a system of normative legal acts regulating responsibility for human trafficking (international and national) has been created. How viable it is will be shown by law enforcement practice.
LIST OF SOURCES USED
1. Regulations
1. UN Convention against Transnational Crime Article 3 protocol dated 11/15/2000
2. The Constitution of the Russian Federation. - M.: Prospect, 2009. - 32 p.
3. Criminal Code of the Russian Federation (as of April 1, 2009). - Novosibirsk: Sib. univ. publishing house, 2009.- 160 p.
4. Code of Criminal Procedure of the Russian Federation. - M.: Omega-L publishing house, 2009. - 116 p.
2. Special literature
5. Criminal law of the Russian Federation. Special Part / Ed. L,I. Raroga. S. 369
6. See: Kibalyshk A., Solomenko I .
7. Standard Human Rights Principles for the Treatment of Persons Affected by Trafficking in Persons, Ed. F.L. Sinitssha.
See: Stoker C . Trafficking in Human Beings: Problems of Identification and Investigation. pp. 31-36
8. See: Lebedev D.V. . Trafficking in women for the purpose of their sexual exploitation as a type of organized criminal activity// Citizens' rights, law enforcement and law enforcement activities in Russia and Ukraine: state and development prospects: Proceedings of the international scientific-practical conference of adjuncts, graduate students and masters. Issue. 1. Belgorod, 2003. P. 105.
9. See: Lapunina N.N., Criminal law protection of human freedom: reality and prospects. S. 150
10. Commentary to: The Criminal Code of the Russian Federation / Otv. ed. V.M. Lebedev. S. 352.
11. Fornication is fornication. See: Dal V.I. , Explanatory dictionary of the living Great Russian language: In 4 volumes. T. 2. M., 1999. S. 283.
12. See: Belyaeva L.I. Problems of the criminal-legal assessment of human trafficking // Observance of the rights and freedoms of the individual in the activities of internal affairs bodies; Materials of the scientific-practical seminar (March 19-21, 2001). M., 2001. S. 171.
13. See: Philosophical Encyclopedic Dictionary / Ch. ed. L.F, Ilyich, P.N. Fedoseev, S.M. Kovalev, V.G. Panov. M., 1983. S. 595.
Criminal Code of the Russian Federation (as of April 1, 2009). - Novosibirsk: Sib. univ. publishing house, 2009.- 160 p.
United Nations Convention against Transnational Crime
Criminal Code of the Russian Federation (as of April 1, 2009). - Novosibirsk: Sib. univ. publishing house, 2009.- 160 p.
See: Criminal law of the Russian Federation. Special Part / Ed. L,I. Raroga. S. 369
See: Report on the state of the fight against human trafficking in the Russian Federation (based on the monitoring of criminal legislation conducted by the Interdepartmental Working Group of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation). Moscow, March 16, 2006 / Ed. E.B. Mizulina. M., 2006. S. 69.
See: Kibalyshk A., Solomenko I . New crimes against personal freedom // Russian justice. 2004. No. 4. S. 44; Criminal law of the Russian Federation. Special Part / Ed. A.I. Raroga. S. 68.
Cm. : Evstifeeva E.V. Theoretical problems of criminal liability for human trafficking: Diss. ... cand. legal Sciences. Saratov, 2002, pp. 34-35; Yaapui-on N.N. Criminal legal protection of human freedom: reality and prospects // "Black holes" in Russian legislation, M., 2004. P. 147.
See: Lapunina N.N. . Decree. op. pp. 147-148.
See: Philosophical Encyclopedic Dictionary / Ch. ed. L.F, Ilyich, P.N. Fedoseev, S.M. Kovalev, V.G. Panov. M., 1983. S. 595.
See: Report on the state of the fight against human trafficking in the Russian Federation (based on the monitoring of criminal legislation conducted by the Interdepartmental Working Group of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation) / Ed. E.B. Mizulina. S. 70.
See: A. Kibalnik, I. Solomenko . New crimes against personal freedom // Russian justice. 2004. No. 4. P. 45.
See: Criminal law of the Russian Federation. Special Part / Ed. L II, 1 "aroga. p. 78.
See: Dolgolsko T . Decree. op. S. 25.
SZ RF. 1996. No. 34. Art. 4029; 1998. No. 30. Art. 3606; 1999. No. 26. Art. 3175; Russian newspaper. Jan 14, 2003
See: Criminal law of the Russian Federation. Special Part / Ed. A.I. Raroga. S. 78.
See: ibid. S. 79.
Characteristics of the offense of "trafficking in persons"
Let's analyze the signs of the crime "trafficking in human beings".
The main object of such a crime as “trafficking in human beings” is public relations aimed at ensuring personal freedom and human security.
Optional objects can be human life, health (physical or mental) of a person, his honor and dignity, as well as the right of a minor to a decent (generally accepted, let's say) development and education.
First of all, it is necessary to establish whether the person in respect of whom the transaction was made is the subject of a crime or the victim? In the scientific world there is no single answer to this question. So, A.V. Naumov adheres to the point of view according to which the subject of the crime is "material objects of the external world, which are directly affected by the criminal, carrying out a criminal encroachment on the corresponding object." Y. Tatsiy appeals to the fact that a person can be not only a subject, but also an object of social relations in cases where, for example, a person is kidnapped for ransom and becomes a “thing” that can be sold Punko A. O. Improving criminal legislation on responsibility for kidnapping // "Black holes" in Russian legislation. 2014. No. 1. P. 85-87. V.A. Klimov, studying the problems of combating child abduction, says that the subject of this crime is a child. Thus, it becomes clear that a person, being dependent on offenders (those who encroach on his rights and freedoms), becomes like a thing (commodity) that is sold, bought or other transactions are made in relation to it in the form.
When qualifying any crime, the objective side serves as a prerequisite for the basis for criminal liability, as well as the basis for distinguishing (both in principle and related) elements of crimes. The problems of the objective side of the crime in the Russian criminal law scientific literature have been devoted to many works by such legal scholars as Terakopov A.A., Gaukhman L.D., Kovalev M.I., Kudryavtsev V.N., Kuznetsova N.F., Naumov A.V., Piontkovsky A.A., Rennerberg I., Timeiko G.V., Tsereteli T.V. and many others.
The objective side of the crime is defined as a set of signs specified in the law that characterize the external act of a specific socially dangerous encroachment on an object protected by criminal law Kozaev N. Sh. Kidnapping and hostage-taking: qualification issues / N. Sh. Kozaev, V. G. Byazrov investigator. 2013. No.
Among the signs that characterize the objective side are: an action (or inaction) that encroaches on a particular object; socially dangerous consequences; causal relationship between act and consequences; way, place, time, situation, means and instruments of committing a crime.
In criminal law, the above signs of the objective side are divided into mandatory and optional. The form of commission, namely action or inaction, is an obligatory sign of the objective side of the crime. As well as the causal relationship in crimes with the material composition. The remaining signs that were listed above (method, place, time, tools and means of committing a crime) are optional.
The construction of the objective side of the corpus delicti under Art. 127.1 of the Criminal Code of the Russian Federation is built on the basis of the provisions of international treaties in the field of human trafficking discussed above
The objective side of the analyzed crime is complex and consists in committing one of the actions specified in the disposition of Part 1 of Art. 127.1 of the Criminal Code of the Russian Federation: the sale and purchase of a person or his recruitment, transportation, transfer, harboring or receipt.
One cannot but agree with the opinion of L.L. Kruglikov that, from the point of view of legislative technique, the disposition of Art. 127.1 of the Criminal Code of the Russian Federation is far from perfect, because, firstly, the fact of trafficking in relation to one person (and not “people”, as stated in the title and text of the article) is sufficient for liability, and secondly, human trafficking is determined in the disposition of the article not only as the buying and selling of a person, but also as his recruitment, transportation, transfer, harboring or receiving. Thus, there is a broad interpretation of the generic concept of "trade" Avdeev V. A. Problems of qualifying kidnapping and illegal imprisonment / V. A. Avdeev, E. V. Avdeeva // Russian judge. 2013. No. 4. S. 26-28.
In the explanatory dictionaries of the Russian language, the term "trade" is interpreted as economic activity for the turnover, purchase and sale of goods Ibid; the term "buy" means "acquire ownership", and "sell" - "transfer ownership" Ibid.
The concept of “purchase and sale” is not disclosed in the law, and refers to a civil law institution, for its clarification, one should refer to the norm to Art. 454 of the Civil Code of the Russian Federation, which contains the concept of "purchase and sale": this is an agreement under which one party (the seller) undertakes to transfer the thing (goods) to the ownership of the other party (the buyer), and the buyer undertakes to accept this product and pay a certain amount of money for it amount (price).
Thus, taking into account the provisions of civil law, explaining the blanket content of the disposition of Part 1 of Art. 127.1 of the Criminal Code of the Russian Federation, one can come to the conclusion that when a person is transferred as a result of his purchase and sale from one person (seller) to another person (buyer), the person actually acts as a thing (goods).
An example of trafficking in human beings by sale and purchase is the criminal case of A. on charges of committing a crime under Art. 152 of the Criminal Code of the Russian Federation (currently, paragraph "b" part 2 of article 127.1 of the Criminal Code of the Russian Federation). A. was found guilty of handing over his daughter to Mrs. O. under the pretext of making a transaction - sale and purchase, having received 5,000 US dollars from the latter.
In addition, it can be an exchange for another person or for some thing, the transfer of a person to pay off a debt, fulfill another obligation, etc. Since this crime has as its object social relations that ensure the freedom of a person, and not property relations, material reward is not an obligatory sign of its commission by the specified actions Avdeev V. A. Problems of qualification of kidnapping and illegal imprisonment / V. A. Avdeev, E. V Avdeeva // Russian judge. 2013. No. 4. S. 26-28..
The concept of “trafficking in persons” (other than buying and selling) also includes the recruitment, transportation, transfer, harboring, receiving of a person.
The term "recruit" means recruiting, hiring, recruiting for some work, in some organization. The term "recruitment", used by the legislator also in Art. 359 of the Criminal Code of the Russian Federation (“Mercenary”), is defined as an invitation in any form (calls, agitation, opening of recruiting centers) of certain persons to participate in hostilities on the territory of another state with the promise of reward or other material support Oberemchenko A. D. The object of depraved actions: problems of criminal-legal interpretation // "Black holes" in Russian legislation. 2013. No. 6. P. 139-142., as a recruitment of people for hire with the promise of a certain material reward, ibid. Methods of recruitment can be different: promises, persuasion, blackmail. Recruitment is considered completed at the moment the consent of the recruited person is received, regardless of whether the proposed transaction took place or not.
According to research conducted by L. Erokhina, there are several ways to recruit female representatives for prostitution and the sex industry in foreign countries. The first way is recruitment through newspaper job advertisements offering women and girls from 18 to 30 years of age high-paying and safe work as servants, strippers, dancers in nightclubs and leisure firms, places of "unskilled workers". The second method is called the "carousel", when women or girls who have been trafficked return home to hire others. The third way of recruitment is through public events and competitions. The fourth type of recruitment is explicit job advertisements as an escort and the fifth is "marriage agencies". The most common recruitment method today is a job offer with a full social package and without certain skills. What is most interesting, without being stupid, the fair sex is what is called "led" to such scams.
So, R. from Vladivostok came to visit relatives. Through an ad, she found a company that contracted to send her and a group of other women to Korea to train as a culinary specialist. After 2 months of work, the women's passports were confiscated and an amount of 15,000 US dollars was assigned for the redemption of documents. Of course, women did not have that kind of money. It soon became clear that they had been deceived. One of the girls was forcibly sent to work as a prostitute in Sunfunhe, while others remained in Korea for the same purpose and were forced to serve clients in public places. The girls were repeatedly abused and kept as slaves in isolated rooms with little food and water. Accordingly, it was not possible to get out, to run away.
The transportation of a person consists in moving him (regardless of the method of transportation) from one place to another by any means of transport (land, underground, water, air) and this crime is considered completed from the moment of kidnapping. It can be carried out openly or secretly (with concealment in a vehicle, for example, in the trunk of a car, in the luggage compartment of a railway car, air, water transport). The carriage is considered completed at the moment of its commencement. At the same time, the range and its duration have no legal significance.
So, for example, in 2014, operatives of the Ministry of Internal Affairs of the Russian Federation, together with law enforcement officers of Serbia, identified and eliminated one of the largest channels for transporting women from Russia and the CIS countries from Moscow to prostitution in Serbia and nearby countries. This channel has been operating for more than three years. Members of the group found girls from Russia and the CIS countries, transported them to Moscow, where they issued false travel documents for them. There, the girls had to work in brothels and even become surrogate mothers. After the birth of children, they were sent to brothels.
A. Repetskaya, studying the problems of human trafficking, came to the conclusion that the types of their movement are diverse and several criteria can be used as the basis for their classification: the fact that the victims crossed the state border, the victim's consent to the movement; the legitimacy of the method of movement of such persons. The displacement of the victim for her criminal exploitation can occur both as a result of voluntary consent, and against her will. Movement can be carried out both within national territories and outside them. Criminal exploitation within national borders may be accompanied by the displacement of the victim from his place of permanent residence outside the administrative boundaries of the given districtOberemchenko A.D. Object of indecent acts: problems of criminal legal interpretation // "Black holes" in Russian legislation. 2013. No. 6. P. 139-142. An example of such a movement is the capture by Dagestani slave traders of people from other regions of Russia or inside Dagestan.
When harboring a person, actions are taken that are aimed at hiding his whereabouts (for example: keeping him in a safe house, in a country house). In addition, harboring can take place in cases where third parties (intermediaries) provide services to traffickers or their buyers in transporting victims, in hiding the traces of this crime, or in hiding traffickers or buyers from law enforcement agenciesOberemchenko A. D. Object of indecent acts: problems criminal-legal interpretation // "Black holes" in Russian legislation. 2013. No. 6. P. 139-142. Concealment can be expressed not only in the physical concealment of the victim, but also in other actions that make it difficult to find the victim (deprivation of documents, change in appearance, drug suppression of physical or mental activity) Ibid.
In cases where human trafficking is preceded by kidnapping, liability arises for the totality of crimes under Art. 126 and Art. 127.1 of the Criminal Code of the Russian Federation1.
Considering the subject of human trafficking, we note the following.
1. The subject of the main corpus delicti is general - a sane individual who has reached the age of 16.
2. The subject of the crime under paragraph "c" part 2 of Art. 127.1 of the Criminal Code of the Russian Federation, special - a person holding a state, municipal or other position, as well as any person who has committed a crime using his official position. Officials of the customs authorities, the federal border service, when committing human trafficking with the movement of the victim across the State Border of the Russian Federation, will be liable under paragraphs. "c" and "d" part 2 of Art. 127.1 of the Criminal Code of the Russian Federation.
The organizer of the crimes in question will be the person who organized their commission or supervised their execution, as well as the person who created an organized group or criminal community (criminal organization) or supervised them (Article 33 of the Criminal Code of the Russian Federation). At the same time, human trafficking can be committed by a criminal community only in the case of the commission of crimes under Parts 2 and 3 of Art. 127.1 of the Criminal Code.
An instigator of human trafficking will be a person who persuaded another person to commit a crime by persuasion, bribery, threat or otherwise. An accomplice of trafficking in human beings is a person who facilitated the commission of a crime by giving advice, instructions, providing information, means or instruments for committing a crime, or removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments for committing a crime, traces of a crime, or objects obtained by criminal means, as well as a person who promised in advance to acquire or sell such items (part 5 of article 33 of the Criminal Code).
The subjective side of the crime is the internal mental activity of a person. The composition of the subjective side includes guilt, motive, purpose and emotional state. The subjective side of human trafficking is characterized by direct intent and the specific purpose of human exploitation.
Guilt is the internal subjective side of the crime, the mental attitude of the subject to his socially dangerous act and its consequences, expressed in the crime. In the domestic criminal law, guilt is presented in such forms as intent and negligence.
Human trafficking is a crime committed with direct intent. The content of intent in the commission of this crime includes the awareness of the fact that the perpetrator:
buys, sells, recruits, transports, transfers, harbors or receives a person for the purpose of exploiting him;
is aware of the unlawful nature of his act;
wishes to commit actions that are part of the objective side of human trafficking.
Analysis of criminal cases conducted by L.I. Belyaeva and N.G. Kulakova, shows that the intent in human trafficking (in particular, minors) is mostly premeditated. A sudden intent takes place if a person brings his intention into execution under the influence of external factors. Yes, May 19, 1996. Sh. and B., being in a state of alcoholic intoxication, sold their young daughter to gypsies who came to them. The preliminary investigation established that Sh. and B. cohabited and had 7 common children. In 1986, they were deprived of parental rights for their first two children. They did not raise children, they constantly drank. On May 19, 1996, Gypsies came to the house where Sh. and B. lived and asked to sell one of the girls to them. Sh. and B. agreed. With the 100,000 rubles received for the child, Sh. and B. purchased alcoholic beverages. Obviously, the perpetrators did not plan in advance to sell their children and did not look for buyers, but only took the opportunity to get rid of their child when such an opportunity arose.
As indicated in the literature, sudden intent is not typical for trafficking in minors. Let us add that, in general, human trafficking is a crime, usually committed with premeditated intent. The nature of the acts committed, the features of their objective side allow us to conclude that in most cases the details of the crime and its planning, the distribution of the roles of accomplices, are deeply and thoroughly worked out. These circumstances significantly increase the social danger of both the crime and the perpetrators.
In the literature, the purpose of a crime is understood as an ideal image of the desired future result, which the criminal strives for when committing a crime. As a mandatory subjective sign of human trafficking, the legislator has established the purpose of exploiting the victim. As a constructive sign of the corpus delicti, provided for in paragraph “g”, part 2 of Art. 127.1 of the Criminal Code of the Russian Federation provides for the purpose of seizing the organs or tissues of the victim. Rogova N. N. Criminal liability for crimes of a terrorist nature // Bulletin of the National Anti-Terrorist Committee. 2013. No. 2. S. 103-109.
In accordance with the note to article 127.1 of the Criminal Code of the Russian Federation, exploitation is understood as the use of prostitution by other persons and other forms of sexual exploitation (including involvement in prostitution, participation in porn films3), slave labor (services), servitude.
It seems that the purpose of the crime will take place regardless of whether the guilty intent was to use slave labor, servitude of the victim in his own interests or in the interests of other persons.
As the results of criminological studies show, victims are mostly victims of human trafficking precisely for the purpose of being involved in prostitution or other sexual exploitation. And most often minors are involved in prostitution.
A feature of the subjective side of the crime, provided for in paragraph "a" of part 3 of Article 127.1 of the Criminal Code, is the presence of a double form of guilt. A person intentionally commits one of the acts listed in the disposition of part 1 of this article, which by negligence entails death, serious bodily harm to the victim or other grave consequences.
Turning to the consideration of the problem of the motive of the analyzed crime, it should be noted that in psychology, the motive, as a rule, is understood as that which determines the desire of a person for this, and not for any goal.
According to A.I. Milevsky, the motive for trafficking in minors is internal motives determined by the needs and interests that caused the perpetrator to decide to sell, buy or make other transactions in relation to children in the form of their transfer and possession of them "Rogova N. N. Criminal liability for crimes of a terrorist nature // Bulletin of the National Anti-Terrorism Committee. 2013. No. 2. P. 103-109.. I.Ya. Kozachenko believes that the specificity of motives for trafficking in minors lies either in self-interest, or in the desire to have children, as well as in the desire to get rid of material costs for the maintenance of a child Sharutenko V.N. On the issue of signs of a terrorist act Russia. - Belgorod, 2013. - S. 162-166 .. These motives also include the motive of revenge, a sense of compassion.
At the same time, the illegal transfer of a child to close relatives in the event of a dispute over the right to bring him up does not constitute trafficking in minors.
During the preliminary investigation, the motive for trafficking in persons, although not a mandatory subjective sign of a crime, must be established, since the court can take it into account when sentencing. As a rule, the motive of the crime is mercenary.
Note that the motives and goals of the seller and the buyer in a human trafficking transaction may not coincide. So, the buyer may not have the goal of exploiting the victim, but proceed from other motives and goals, even rehabilitating (for example, acquisition in order to provide freedom, etc.). Also, the seller in this case may not pursue the purpose of transfer for exploitation. However, these circumstances, which exclude the presence of a composition for one party to the transaction, do not exclude the criminal liability of the other party. Krupnov I.V. embezzlement, extortion and illicit trafficking in weapons, ammunition, explosives and explosive devices” // Criminal Law. 2014. No. 2. S. 42-45.
TRAFFICKING
SUBJECT OF THE CRIME OF TRAFFICKING IN PERSONS
Rakhimov M.S., competitor
Institute of State and Law of the Academy of Sciences of the Republic of Tajikistan Go to the Main MENU Back to the CONTENTS
The subject of the crime is one of the necessary elements of the crime. In the Republic of Tajikistan, the subject of a crime is an individual who has committed an act prohibited by the Criminal Code and is capable of bearing criminal liability for its commission. In order for an individual to bear criminal responsibility, that is, to be the subject of a crime, he must have certain characteristics. The obligatory features of any subject of a crime are age and sanity.
The subject is a sane individual who has reached the age of sixteen years. The use by an official or employee of his official position is one of the qualifying signs of a crime1. Thus, the subject of the crime is a sane individual who has reached the age established by the Criminal Code of the Republic of Tajikistan (Article 22). In relation to the compositions under consideration, the subject is a sane individual who has reached the age of 16 (Article 23 of the Criminal Code of the Republic of Tajikistan)2. As subjects of a crime under Art. 130 note 1 of the Criminal Code of the Republic of Tajikistan “Trafficking in persons”, parents of the victim, other relatives, guardians (trustees) can also act.
The problems of the subject of a crime in criminal law were developed in the works of such famous legal scholars as G. S. Tagantsev, P. S. Dagel, V. S. Orlov, G. Orimbaev, V. A. Vladimirov, G. I. Vetrov, Yu. G. Antonyan, R, I. Mikheev, A. V. Naumov, A. S. Nikiforov, V. V. Ustimenko, Yu. V. Golik, S. V. Borodin, S. G. Kelina, V. G. Pavlov and others.
The signs that characterize the subject are inextricably linked with all other elements of the crime, since it is by their socially dangerous actions that the subject harms the object of criminal law protection, while acting with a certain form of guilt - intentionally or out of negligence. “The subject of a crime is not an abstract legal
1 Criminal law of Russia. Textbook edited by
B.S. Komissarov. 2nd edition.- M. 2007.-S.172.
2Criminal Code of the Republic of Tajikistan. Dushanbe - 2004.
the notion that there is still time and space. The subject of a crime is a person who lives and carries out criminal acts in the society of other people.
Prior to the adoption of the current Criminal Code of the Republic of Tajikistan, the concept of the subject of a crime was not legally defined. In this regard, scientists gave different definitions for the form and content of this individual element of the corpus delicti. V. S. Orlov argues that only a person who has two main qualities can be recognized as the subject of a crime, namely:
Sanity at the time of the crime;
The age within which, in accordance with the law, she can bear criminal responsibility4.
R. Orimbaev wrote that the general concept of a subject (including a special subject) of a crime can be defined as a sane person who has reached a certain age and possesses the features that are established by certain norms of the Special Part of the Criminal Code5.
Only a sane natural person who has reached the age established by this Code6 (Article 22) is subject to criminal liability.
Thus, the legislator highlights the following features of the subject of the crime:
Individual;
Sanity or limited sanity of a person;
The attainment by a person of a certain age, from which, in accordance with the criminal law, liability arises.
Regarding the first sign - the physical nature of the subject of the crime, this means that it can only be a person. In the science of criminal law, there is a discussion regarding the criminal liability of legal entities. This problem is one of the most controversial for both domestic and criminal law in many other countries, and requires independent scientific research. It should only be noted that this institution is widely known not only to the countries of common criminal law (USA, England, etc.), but also to the states of continental Europe. In France-
3Vladimirov V.S., Levitsky G.A. The subject of the crime in Soviet criminal law: Lectures. -M.: Higher. School MOOP RSFSR, 1964.-p.6
4 Orlov V.S. The subject of the crime according to Soviet criminal law. M.: State. publishing house of legal literature - 1958. - from 29.
5 Orymbaev R. Special subject of crime. -Alma-Ata: Science, 1977.- 25 p.
6 Criminal Code of the Republic of Tajikistan. Dushanbe-
In the Czech "Code" in 1670, a special article provided for liability and punishment for crimes that are provided for by communities and corporations, that is, legal entities7. However, this institution has more objections than positives. First of all, recognition as the subject of a crime is based on such fundamental principles of criminal law as the principle of personal (personal) responsibility and the principle of guilt. In addition, other signs of the subject of a crime about a criminal record and reaching a certain age, in the opinion of the author, are associated only with an individual. One should agree with the point of view of V. G. Pavlov, who, supporting other scientists, argues that “on guilt regarding legal entities, as she understands in criminal law, it is generally impossible, since such guilt does not exist for legal entities”8.
Based on this, in cases where human trafficking is committed using legal entities (modeling agencies, employment agencies, travel companies, marriage agencies and other legal entities). With the help of those who issue passports, obtain visas, look for persons for their sale and potential buyers, it is necessary to establish the guilt of individuals, that is, employees of these institutions, enterprises and organizations that committed this crime.
In the commission of a purchase and sale of a person, both the seller and the buyer are the subject of the crime, in the case of a donation, the donor and the donee, use as collateral - the pledgor and the pledgee, lease - the landlord and the tenant, that is, in all cases, there must be two parties. Therefore, the following statement can be cited: “This statement follows, in particular, from the fact that the disposition of this article begins with the words “purchase and sale”, meaning that not only the “seller”, but also the “buyer” is guilty. Foreign citizens or stateless persons can also act as accomplices in the commission of human trafficking alongside citizens of the Republic of Tajikistan. Moreover, as a rule, citizens of the Republic of Tatarstan act as “sellers”, and foreign citizens act as “buyers”. In cases where the crime was started, extended, completed or stopped on the territory of the Republic of Tajikistan, or when at least one of the accomplices acted on the territory of the Republic of Tajikistan, all accomplices in the crime are subject to liability under the Criminal Code of the Republic of Tajikistan in accordance with the territorial
7 Piontkovsky A.A. The doctrine of crime. - M .: Gosjurizdat. -1961.-250-251 p.
8 Pavlov V.G. The subject of the crime. -SPb.: Publishing house "Jurid. Center Press”, 2001.-265 p.
9 See: Criminal Law of the Russian Federation. Special part: Textbook / Ed. Zdravomyslova B.V. M., .2000.S.125.
the principle of operation of the criminal law in space (Article 14 of the Criminal Code of the Republic of Tajikistan). Citizens of the Republic of Tajikistan and stateless persons permanently residing in the territory of the Republic of Tajikistan may be held criminally liable under the Criminal Code of the Republic of Tajikistan in other (except for the above) cases of human trafficking abroad, in accordance with the principle of citizenship (Article 15 of the Criminal Code of the Republic of Tajikistan) 10.
In the event that a citizen of a foreign state commits a crime outside the Republic of Tajikistan, in accordance with (Article 15 of the Criminal Code of the Republic of Tajikistan), he can be held criminally liable in two cases:
If they have committed a crime stipulated by the norms of international law, recognized by the Republic of Tajikistan or interstate treaties and agreements;
If they have committed a particularly grave or grave crime against the citizens of Tajikistan or the interests of the Republic of Tajikistan.
Thus, a citizen of a foreign state will be liable for the actions provided for in Art. 130 note 1 of the Criminal Code of the Republic of Tajikistan, if there is an indication of this in international agreements on human trafficking. Since, in accordance with Article 18 of the Criminal Code of the Republic of Tajikistan, the actions provided for in parts 2 and 3 of Art. 130 note 1 are grave and especially grave crimes, then a foreigner must also be held liable under the criminal legislation of the Republic of Tajikistan11.
The next sign of the subject of the crime is his sanity, that is, the ability of a person during the commission of a crime to be aware of his actions and manage them. It is impossible to talk about morality and law without touching on the question of the so-called free will, the sanity of a person, the relationship between necessity and will12 pointed out by F. Engels. The action of the criminal lies not only in the fact that he objectively acts in a socially dangerous way, but also in the fact that he acts with knowledge of the matter.
Previously, the criminal law did not give a definition of the concept of "conviction", therefore, when characterizing it, they left the legislative definition of insanity, opposing them to each other. The current Criminal Code of the Republic of Tajikistan in Part 1 of Art. 25 for the first time gave a definition of sanity - “A sane person who, at the time of the commission of a crime due to a mental disorder, could not fully realize the actual nature and social danger
10Criminal Code of the Republic of Tajikistan. Dushanbe-
11 Ibid. S.214, 267-268.
12 Engels F. Anti-Dühring. - M.1933.-S. 106.
13 Karpushin M.P., Kurlyandsky V.I. Criminal liability and corpus delicti.-M.:Yurid.lit., 1974.-S.265.
the nature of their actions (inaction) or to manage them is subject to criminal liability”14.
The limited sanity of a person, which is understood in science, does not exclude criminal liability. “The mental state of a person at the time of the commission of a crime, in which the ability of a person to realize his act or manage it. Were largely limited as a result of the presence of a mental anomaly "15.
“The mental state of a person, which does not exclude criminal liability and punishment, in which, during the commission of a crime, the ability to be aware of one’s actions or control them was limited as a result of mental disorders”16.
Criminal Code of the Republic of Tajikistan in Part 2 of Art. 25 stated that "The state of limited sanity is taken into account when sentencing and may serve as a basis for imposing a compulsory measure of a medical nature"17. The age of criminal responsibility for human trafficking in Part 1 of Art. 23 of the Criminal Code is established from the age of 1618.
In the light of the proclaimed humanization of the criminal policy towards minors, it is hardly justified to reduce the age limits in this situation and indicate a minor as a subject, which “obviously contradicts the humanistic orientation of such generally accepted international documents as the UN Convention on the Rights of the Child, the Beijing rules..."19.
Article 4.1 of the UN Standard Minimum Rules concerns the administration of juvenile justice. Points out that “in legal systems in which there is criminal responsibility for minors, the lower limit of such an age should not be set at too low a secular level, taking into account aspects of emotional, full and intellectual maturity”20.
The legislator entirely justifiably did not classify trafficking in persons as one of those crimes, the criminal liability for which comes
14 Criminal Code of the Republic of Tajikistan.- Dushan-be.2004.S.218.
15 Miroshnichenko N.A., Orlovskaya N.A. The problem of intermediary judiciary: Navch.posibnik.- Odessa: Jurid. Let, 2001.-p.27.
16 Antonyan Yu.M., Borodin S.V. Crime and mental anomalies.-M.: Science, 1987.-S.165.
17 Criminal Code of the Republic of Tajikistan.- Dushan-be.2004.S.219.
18 Ibid., p.217.
19 See: Borodin S.V., Noskova N.A. On the issue of improving the legislation on criminal liability of minors.//Modern trends in the development of criminal policy and criminal law/ Ed. coll. Borodin S.V., Kriger G.P., Naumov A.V., Noskova N.A., Polubinskaya S.V. Moscow: Institute of State and Law of the Russian Academy of Sciences. 1994.S.58.
20 International Human Rights Acts: Sat. documents.-
from the age of fourteen. When establishing the age of criminal responsibility, the legislator comes out of the relevant historical conditions for the development of society and the criminal law policy of the state at the appropriate stage of its development. This necessarily takes into account the data of such sciences as medicine, psychology, physiology and pedagogy21. Committing human trafficking is not typical for persons between 14 and 16 years of age. For this, the guilty person must have certain life experience, knowledge, and the ability to gain confidence and convince the person. Not all people of mature age are endowed with such qualities, and therefore it is difficult to imagine a person under the age of 16 who is guilty of human trafficking. Quite often, persons who have a higher education are accused of committing this crime22.
The signs of the subject of the crime are traditionally referred to as mandatory. In the literature, a subject who has these characteristics is called a general subject of a crime.
Meanwhile, there are also optional (additional) signs. These are circumstances that contain other than the mandatory characteristics of the subject of the crime. They characterize the person, his legal status or features of the professional activity of the subject. These signs are directly indicated in the articles of the Special Part of the Criminal Code, or their obligatoriness follows from the content of these articles. Compositions of crimes that provide for the responsibility of such persons are called compositions with a special subject23.
Such features of the subject in the qualified composition of human trafficking (Part 2 of Article 130 note 1 of the Criminal Code) are: the official position of the subject of the crime and the material or other dependence of the victim on the subject of the crime.
The use of an official position means that the subject of the crime in this case is an official, the definition of which is given in Art. 314 of the Criminal Code RT24. Illegal use of official position lies in the fact that it is contrary to the interests of the service. Carries out an act that is included in the circle of his official duties. Exercises influence on other officials with the help of official connections or using the authority of the position held. Requires certain actions to be taken
21 Mikhailova V.A. To the question of the age of criminal responsibility //Bulletin of the Lugansk Institute of Internal Affairs.-2001.Vip.1.-P.73.
22 Ovcharenko O. Girls for out-of-town brothels were picked up by a head of a teacher // By the name of the law.-1999.-8zhovt.S.14. 23Miroshnichenko N.A. Composition of the crime: Text of lectures. - Odessa: Legal literature - 2003. - P. 54.
24 Criminal Code of the Republic of Tajikistan.- Dushan-be.2004.S.356.
citizens or organizations for their own benefit or the benefit of other persons 25. Thus, next to the main direct object of this crime, in this case, relations related to the established procedure for the exercise of their powers by officials also suffer.
One should agree with the statement of M.I. Korzhansky that “an official is recognized as such only when she uses the official powers granted to her. When she does not use them, she cannot be recognized as such. Therefore, it is important for the qualification of the acts of officials to establish the intent of a person to commit human trafficking. If a person who, by his actions, objectively contributed to the commission of a crime under Article 130 note 1 of the Criminal Code, was aware of his role in the commission of human trafficking and used his official position. She is responsible for trafficking in persons using her official position (part 2 of article 130 note 1 of the Criminal Code). In this case, the official position is a mandatory feature of the subject of the crime. In the absence of awareness of their role in the commission of human trafficking, an official, in the presence of other signs of an official crime, can be held liable only for an official crime (Articles 314,316,322 of the Criminal Code)27.
As noted, a very dangerous aspect of the development of organized crime in the Republic of Tajikistan, of which human trafficking is a part, is the fact that officials of state authorities and administration are increasingly involved in the activities of criminal groups, both as participants and even as leaders of these criminal gangs. Such a tandem constitutes a significantly higher public danger and is able to more effectively resist the activities of law enforcement agencies28.
Part 2 Art. 130 note 1 of the Criminal Code also contains one more additional sign of the subject of the crime - material or other dependence of the victim on the subject of the crime. Thus, the subject in this case is not any person, but only the one from which the person suffered, is in material or other dependence.
25 Revyakin M.N. Issues of criminalization of socially dangerous acts of officials //Jurist - Pravoved.-2004.-№2 (9).-S.64
26Korzhansky M.J. Appointed to be understood by the Criminal Code of Ukraine//Pravo Ukrainy.-2002.-№10.-
27 Criminal Code of the Republic of Tajikistan.- Dushanbe.2004
28 Yermak O. Problems of qualification of a service individual, related
for them from the creations, kerіvnitstvom and I take part in evil
organization // Enterprise, government and law.-2003.-
Material dependence means that material assistance from the perpetrator of the crime is the only, main or essential source of the victim’s livelihood, and the deprivation of such assistance can put a woman or a man in a difficult situation29, in particular, the victim’s being dependent on the criminal or living in the latter’s living space. Another addiction is any other addiction to the perpetrator by which he can influence the person; service dependence, marital dependence, the dependence of the ward on the guardian, the patient on the doctor, etc.
In view of the foregoing, it can be concluded that the subject of human trafficking is a natural, sane person who has reached the age of 16.
The subject of a crime under Part 2 of Article 130 note 1 of the Criminal Code of the Republic of Tajikistan, an official or representative of authority using his official position, or another person performing managerial functions in a commercial or other organization and with the movement of the victim across the state border of the Republic of Tajikistan will be liable according to paragraphs "e" and "ё" part 2 of article 130 note 1 of the Criminal Code of the Republic of Tajikistan.
At the theoretical and legislative level, the individual has been and remains the subject of legal relations. The organizer, instigator and accomplice are recognized as the subjects of the crime of trafficking in human beings as accomplices with the perpetrator. The organizer of the crimes in question will be the person who organized their commission or supervised their execution, as well as the person who created an organized group or criminal community (criminal organization) or supervised them (part 3 of article 36 of the Criminal Code of the Republic of Tajikistan)30. At the same time, human trafficking can be committed by a criminal community only in case of committing crimes under Parts 2 and 3 of Article 130.1 of the Criminal Code of the Republic of Tajikistan31.
As noted earlier, when analyzing the objective side of this crime, a significant drawback formulated in Part 1 of Art. 130 note 1 of the Criminal Code of the Republic of Tajikistan of the norm is that in the first two forms, only the actions of a person who transfers a person for a certain fee are criminal. The action of the person who receives the person, these forms do not cover. Criminal liability for the latter can occur only as an accomplice in a crime (organizer, instigator, helper). With the perpetrator of the crime that is being investigated, without performing actions to transfer a person, he cannot be.
29 Scientific and practical commentary on the Criminal Code of Ukraine dated April 5, 2001 / Ed. M. Melnik, Khavronyuk.-K.: Canon, A.S.K., 2001.-S.367.
30 Criminal Code of the Republic of Tajikistan.- Dushan-be.2004.S.222.
31 Ibid. S.267-268.
Thus, only the “seller” can act as a subject of human trafficking, when selling a person or other paid transfer of it. That is, a person who transfers, for monetary or other material reward, the victim to the “buyer”.
In the third form of this crime, the making of any other unlawful agreement with respect to a person. Associated with legal or illegal movement with her consent or without her consent across the state border of the Republic of Tajikistan for subsequent sale or other transfer to another person (persons) take part and, accordingly. Both the person who transfers the person and the person who takes possession of it must bear responsibility. They act as accomplices of the crime. Consequently, they are subjects of human trafficking in this form.
After the analysis of the signs of the subject of the crime under Art. 130 note 1 of the Criminal Code of the Republic of Tajikistan, we can draw the following conclusions:
1) The subject of this crime is a natural, sane or partially sane person who has reached the age of 16.
2) Part 2 of Art. 130 note 1 of the Criminal Code of the Republic of Tajikistan provides for the commission of this crime by a special subject - an official, by using his official position, as well as by a person on whom the victim is financially or otherwise dependent.
3) In the first two forms of committing a crime, its subject is only a person who transfers a person for a certain fee. In the third form - the person who transfers the person, and the person who takes possession of it.
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In judicial practice, there are offenses, the cynicism of which is shocking. One such crime is human trafficking. Contrary to the opinion of a large part of civilized society, such atrocities are far from uncommon. In recent years, human trafficking has become a very common criminal act in the world and in Russia, and, despite the fact that Russian legislation provides for strict measures to prevent such atrocities, their number is growing. In the Criminal Code of the Russian Federation, the measure of restraint is chosen in accordance with Article 127.1. The crime has different types.
Human trafficking in Russia is a criminal offense.Definition
Human trafficking can be defined as a modern form of slavery, the obligatory condition of which is the violation of human rights, as one of the forms of violence against a person. Criminals not only violate human rights, including the main one, but also interfere in the field of international family law. Such actions are crimes against humanity.
You can also define this concept as a kind of illegal business that uses migration flows for profit. Huge physical and psychological harm is caused to the victims of illegal business, the psyche of people and their health are destroyed. The main factors, the presence of which makes the violation of human freedom possible in a civilized society:
- lack of equal opportunities for representatives of society;
- gender inequality;
- corruption;
- imperfection and inadequacy of law enforcement and judicial systems;
- economic inequality;
- civil instability;
- non-fulfillment by the state of the functions of providing and protecting citizens.
The number of applicants for cheap labor and for paid sexual services explains in no small part why human trafficking flourishes in Russia.
Definition
The concept of “purchase and sale” is not disclosed in the criminal law, therefore, for an explanation, one will have to resort to the Civil Code of the Russian Federation (Article 454), in which this act is defined as an agreement according to which the seller transfers the goods for a certain fee to the buyer. In the “human trafficking” variant, the commodity is a person. In addition to direct sale for a certain amount, the specified concept can define actions when:
- exchange one person for another;
- exchange a person for a thing;
- a person is transferred;
- carry out any agreements.
Mandatory feature this crime (introducing the victim into a state of slavery) is not material reward.
Peculiarities
For many centuries, people were sold into slavery for the sake of getting a profit, including in special slave markets. Currently, the slave trade is prohibited in all countries of the world, without exception. But the criminal business is still flourishing today, constantly reaching a different level: the organization of large groups, the establishment of routes for the transportation of "goods", etc. The concepts of human dignity and the right to freedom for villains simply do not exist.
Complex schemes are being developed to enable people to be kidnapped for the purpose of turning them into "living goods" and then selling them. The attention of the victims is attracted by the opportunity to make good money in a highly paid job, have free rest, etc. Regardless of the reason, the victim in most cases makes contact on his own. Those who earn thanks to free labor are interested in the sale of a living commodity. At best, the victims are paid minimally for their work, at worst, money and documents are taken from them, which makes it impossible for them to avoid the fate of a free slave.
Classification
The object of the crime (Article 127.1 of the Criminal Code of the Russian Federation) is the personal freedom of a person. In the process of human trafficking, the following facts may take place:
- purchase and sale;
- recruitment;
- transportation;
- harboring.
In determining the measure of restraint, the corpus delicti plays an important role.
The objective side of the atrocity delimits the composition of crimes, since it indicates the signs that characterize the external act of encroachment on a specific object:
- time, place, situation;
- method, tools and means of committing;
- action or inaction;
- consequences dangerous for society;
- causal relationship between an act and the result of acts.
The use of slave labor is subject to punishment in accordance with article 127.2 of the Criminal Code of the Russian Federation. The objective side consists in the fact that the labor of a person who is in slavery is used. At the same time, the powers that are inherent in the right of ownership are applied to it.
The subject is a general, capable person over 16 years of age.
The subjective side is:
- the goal is the exploitation of man;
- direct intent.
In criminal law, there is a division of the signs of the objective side into optional and mandatory:
- action, inaction and form of implementation are mandatory;
- means, tools, time and place are optional.
The subjective side is the fault of the attackers, the attitude of offenders to their actions. Responsibility comes when the offender acts with intent: he understands the essence of his actions, knows the consequences of these crimes, and at the same time wants to commit them without fear of punishment under Article 127.1 of the Criminal Code of the Russian Federation. That is, knowingly and intentionally violates the law.
Qualifying features
For the elements of these offenses there are general qualifying and especially qualifying features. General qualifying signs of the composition of the offense:
- the health of the victim was harmed;
- the death of the victim has taken place;
- official position was used;
- documents were destroyed, hidden or confiscated;
- violence or threats were used;
- the victim is under 16 years of age;
- two or more persons were injured.
Article 127.1 of the Criminal Code of the Russian Federation provides for the following compositions:
Article 127.2 of the Criminal Code of the Russian Federation determines the measure of restraint for atrocities (selling people). Russian legislation determines criminal liability in accordance with the composition of the illegal action.
Kinds
An act of violence against a person is qualified depending on its type. The “type” is understood as a certain order of actions of malefactors, which led to specific results. There are several varieties of this atrocity:
Punishment
The penalties for human trafficking are determined in accordance with articles 127.1, 127.2, 126 of the Russian Criminal Code. The following factors are taken into account when choosing punishments prescribed by law:
- methods used;
- goals pursued;
- the gravity of the act.
As a preventive measure, the court may choose:
It is possible to mitigate punishment, in accordance with the requirements provided for by law. An offender can avoid criminal liability or receive mitigation if he:
- acted alone;
- accused for the first time;
- voluntarily released the victims;
- was not judged under articles of violence;
- actively assisted law enforcement agencies;
- there is no other crime.
Atrocities of this kind violate the basic human right - the right to freedom. The court chooses the punishment for such crimes in accordance with Russian legislation, taking into account the composition of the offense, qualifying signs, etc. It should be noted that society has an extremely negative attitude towards persons who have committed such crimes.
The direct object of this crime is the freedom of man, his personal rights. An additional object may be the life or health of the victim.
The objective side of the considered crime includes such actions as: 1) buying and selling of a person; 2) his recruitment, transportation, transfer, harboring or receipt.
Buying and selling a person means transferring him into the ownership of another person for a certain amount of money or other material values.
When concluding such a transaction, one party is held criminally liable for buying a person, and the other for selling him.
The legislator links the recruitment, transportation, transfer, harboring or receipt of a person with a special purpose - his exploitation. According to Note 2 to Article 127.1. Under the Criminal Code of the Russian Federation, exploitation of a person is understood as the use of prostitution by other persons and other forms of sexual exploitation, slave labor (services), servitude, as well as the removal of his organs or tissues.
The composition of this crime is formal. The crime is considered completed from the moment of the transaction or specified in the disposition of Part 1 of Art. 127.1. Actions of the Criminal Code of the Russian Federation.
The subjective side of the crime is characterized only by direct intent and a special purpose - the exploitation of a person. The perpetrator is aware that he is making an illegal deal in relation to the victim, his recruitment, transportation, transfer, harboring or receiving a person and desires this, while pursuing his own selfish goals, as well as his personal base interests.
The subject of a crime can be any sane person who has reached the age of 16.
In part 2 of Art. 127.1. of the Criminal Code of the Russian Federation specifies the qualifying signs of human trafficking:
1) in relation to two or more persons; 2) in respect of a known minor; 3) by a person using his official position; 4) with the movement of the victim across the State Border of the Russian Federation: 5) with the use of forged documents, as well as with the seizure, concealment or destruction of documents proving the identity of the victim; 6) with the use of violence or with the threat of its use; 7) for the purpose of removing organs or tissues from the victim.
In part 3 of Art. 127.1. of the Criminal Code, especially qualifying signs of a crime are established, which significantly increase the responsibility for its commission. These include the acts provided for in Parts 1 and 2 of this Article, namely: 1) negligently causing death, causing grievous bodily harm to the victim, or other grave consequences; 2) committed in a way dangerous to the life and health of many people; 3) committed by an organized group.
According to Note 1 to Article 127.1. of the Criminal Code of the Russian Federation, a person who for the first time committed an act provided for in part 1 or paragraph “a” of part 2 of this article, who voluntarily released the victim and contributed to the disclosure of the committed crime, is exempt from criminal liability, unless his actions contain a different corpus delicti.
More on the topic Human trafficking (Article 127.1. of the Criminal Code of the Russian Federation):
- Pornography, illegal trade, violence against women and censorship
- THE CONCEPT, SIGNS AND CLASSIFICATION OF SPECIAL GROUNDS FOR EXEMPTION FROM CRIMINAL LIABILITY
- "Mixed" grounds for exemption from criminal liability
- 1. Retrospective analysis of domestic legislation on liability for trafficking in minors
- 3. International legal norms on trafficking in children. Foreign criminal legislation on combating child trafficking
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