Composition of the crime, qualifying features and types of human trafficking

1. The purchase and sale of a person, other transactions in relation to a person, as well as recruitment, transportation, transfer, concealment or receipt committed for the purpose of his exploitation - are punishable by forced labor for a term of up to five years or imprisonment for a term of up to six years.

2. The same acts committed: a) against two or more persons; b) in relation to a minor; c) by a person using his official position; d) with the movement of the victim across the State Border of the Russian Federation or with his illegal detention abroad; e) using forged documents, as well as with the seizure, concealment or destruction of documents identifying the victim; f) with the use of violence or the threat of its use; g) for the purpose of removing organs or tissues from the victim; h) in relation to a person who is known to the perpetrator to be in a helpless state or in financial or other dependence on the perpetrator; i) in relation to a woman who is known to the perpetrator to be pregnant - punishable by imprisonment for a term of three to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to fifteen years, or without it and with restriction of freedom for a term of up to two years or without it.

3. Acts provided for in parts one or two of this article: a) resulting in death through negligence, causing serious harm to the health of 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 - is punishable by imprisonment for a term of eight to fifteen years, with or without restriction of freedom for a term of up to two years.

Notes. 1. A person who for the first time committed the acts provided for in part one or paragraph “a” of part two of this article, who voluntarily released the victim and contributed to the disclosure of the crime committed, shall be exempt from criminal liability unless his actions contain another crime.

2. In this article, human exploitation means the use of prostitution by other persons and other forms of sexual exploitation, slave labor (services), and servitude.

Commentary to Art. 127.1 of the Criminal Code of the Russian Federation

1. The offense in question is a crime of international character. The commented article reflects the fulfillment by the Russian Federation of international legal obligations on the implementation into domestic criminal legislation of the provisions of the 1926 Slavery Convention (as amended by the 1953 Protocol); Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 1956; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949, with its Final Protocol; Convention on the Rights of the Child 1989; UN Convention against Transnational Organized Crime, 2000 and its Protocols (Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000 and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000) and etc.

2. The crime violates social relations associated with the physical freedom of a person, as well as the freedom of a person to engage in socially useful activities. Additional direct objects are recognized: life and health, rights and legitimate interests of a person; normal activities of organizations, institutions, enterprises, relations to ensure the legal regime of the State Border of the Russian Federation; relations related to the established procedure for document flow, etc. The victim can be any person.

3. The objective side of the crime provided for in Part 1 of the commented article consists of the purchase and sale of a person, other transactions in relation to him or his recruitment, transportation, transfer, concealment or receipt. The forms of human trafficking are comprehensively specified in the law. This trade is considered to have taken place when at least one of the listed alternative actions is completed.

According to Art. 3 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 “trafficking in persons” means the recruitment, transportation, transfer, harboring or receipt of persons by means of the threat or use of force or other forms of coercion for the purpose of exploitation , kidnapping, fraud, deception, abuse of power or position of vulnerability, or by bribery, payments or benefits, to obtain the consent of a person having control over another person.

4. The victim’s consent to the actions taken against her, as well as to her use for exploitation purposes, does not matter. If the victim’s consent regarding the actions being performed is absent, then, under appropriate conditions, the act may constitute a kidnapping or unlawful deprivation of liberty. The rules on the kidnapping of a person, as well as his unlawful deprivation of liberty (Articles 126 and 127 of the Criminal Code) are included as components in the rule on human trafficking.

5. The purchase and sale of a person means that a transaction for compensation is made between the seller and the buyer, according to which the seller transfers the victim, and the buyer takes possession of him. The payment can be any material benefit (cash, property services, debt forgiveness, etc.). Other transactions in relation to a person include, for example, donation.

6. Recruitment is understood as reaching an agreement with the victim about his participation in a certain type of activity for material compensation.

7. Transportation consists of moving the victim from one place in physical space to another by any means of transport by land, sea or air.

8. Transfer and receipt of the victim means its transfer from one participant to another by any means other than purchase and sale, when the possession of the victim of the first participant ceases (transfer) and the possession of the victim of the second participant arises (receipt).

9. Concealment consists of actions to hide the victim from government officials, as well as other persons who, for various reasons, are interested in the fate of the victim (relatives, friends, rival criminal group, etc.).

10. Trafficking in persons is a completed crime when any of these actions are committed, regardless of the occurrence of harmful consequences.

11. From the subjective side, the crime in question is characterized by direct intent. The perpetrator is aware of the social danger of human trafficking and wants to commit it.

12. When committing a crime in the form of recruitment, transportation, transfer, concealment or receipt, a mandatory sign of the subjective side of the crime is the purpose of exploiting a person. The concept of exploitation is given in note 2 to the commented article. According to the note, forms of exploitation are: 1) use of prostitution by other persons; 2) other forms of sexual exploitation; 3) slave labor (services); 4) servitude.

13. Prostitution is the systematic entry of a person into sexual relations with an indefinite number of partners for material compensation. Other forms of sexual exploitation include transferring a person against his will to enter into sexual relations with another person, using the victim to produce pornographic images, corrupting the victim, etc.

14. On the concept of slave labor, see Art. 127.2 of the Criminal Code and commentary. To her.

15. The concept of servitude is given in the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 1956. Servitude is recognized as:

1) debt bondage, i.e. a situation or condition arising as a result of the debtor pledging his personal labor or the labor of a person dependent on him as security for a debt, if the properly determined value of the work performed is not counted towards the repayment of the debt or if the duration of this work is not limited and its nature is not determined;

2) serfdom, i.e. that use of land in which the user is bound by law, custom or convention to live and work on land belonging to another person, and to do certain work for such other person, either with or without compensation, and cannot change his condition;

3) any institution or custom by virtue of which: a) a woman is promised or given in marriage without the right of refusal on her part, by her parents, guardian, family or any other person or group of persons for consideration in money or kind; b) the woman's husband, his family or his clan has the right to transfer her to another person for compensation or otherwise; c) upon the death of her husband, a woman is inherited by another person; d) any institution or custom by virtue of which a child or young person under 18 years of age is handed over by one or both of his parents or his guardian to another person, with or without compensation, for the purpose of exploiting that child or young person or his labor (art. 1 and 7 of the 1956 Supplementary Convention).

16. These forms of human exploitation are not included in the objective side of the crime provided for in the commented article. The latter stipulates that human trafficking is carried out for the purpose of exploiting the victim. In this regard, the actual implementation of exploitation by the perpetrator must be additionally qualified under the relevant articles of the Criminal Code: for involvement in prostitution (Article 240), organization of prostitution (Article 241); illegal distribution of pornographic materials or objects (Article 242); production and circulation of materials or objects with pornographic images of minors (Article 242.1); use of slave labor (Article 127.2).

17. The subject of the crime is a person who has reached the age of 16 years.

18. Part 2 of the commented article provides for the qualifying elements of a crime. Their content is revealed in the same way as in the crime provided for in Art. 126 of the Criminal Code.

19. Under paragraph “c” of Part 2 of Art. 127.1 of the Criminal Code are responsible: an official; state or municipal employee; a person performing management functions in commercial and non-profit organizations. Trafficking in persons by an official is a special case of abuse of official powers (Article 286 of the Criminal Code), therefore the totality of crimes is excluded.

20. The movement of a victim across the State Border of the Russian Federation (clause “d”, part 2 of Article 127.1 of the Criminal Code) means both legal and illegal crossing of the border by the victim. This interpretation of the movement is based on the fact that paragraph “d”, in relation to the detention of the victim abroad, emphasizes its illegal nature, which is not indicated in relation to the movement of the victim across the State Border of the Russian Federation. The provision on the illegal crossing of the State Border by the victim (Article 322 of the Criminal Code) as a part norm is covered by the whole norm on human trafficking, therefore qualification for the totality of crimes is not required.

When disclosing the content of the movement of the victim across the State Border of the Russian Federation, it is also necessary to use the provisions of Art. 3 of the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime.

21. On the use of counterfeit documents, as well as the seizure, concealment or destruction of documents identifying the victim, see commentary. to Art. Art. 325 and 327.

The rule on trafficking in persons covers the use of a forged document (Article 327 of the Criminal Code), as well as the theft, concealment or destruction of documents (Article 325 of the Criminal Code), and therefore these acts do not form a set of crimes. However, the element of trafficking in persons does not cover the falsification of a document for the purpose of its use, therefore, when falsifying a document, the perpetrator must be brought to justice additionally under Part 1 of Art. 327 CC.

22. The use of violence or the threat of its use (clause “e” of Part 2 of Article 127.1 of the Criminal Code) should be understood as any violence or the threat of its use, ranging from binding, imprisonment, blows, restraint, including causing moderate harm to a person’s health , as well as violence that did not cause real harm to the health of the victim, but at the time of its use was dangerous to the life or health of the person.

23. The qualifying feature - for the purpose of removing organs or tissues from the victim (clause “g”, Part 2 of Article 127.1 of the Criminal Code) - characterizes the subjective side.

On the concept of removal of organs or tissues from the victim, see commentary. to Art. 120 CC. However, in Art. 127.1 of the Criminal Code, the content of this seizure is broader in comparison with the seizure of organs or tissues from the victim, provided for in Art. 120 CC. The latter establishes an exemption for transplantation, which is not mentioned in the article on human trafficking. Therefore, in the rule on trafficking in persons for the purpose of removing organs or tissues from the victim, this removal should be understood not only for transplantation, but also for other cases: for conducting experiments, scientific experiments, performing ritual rites, etc.

The use of violence against a victim for the purpose of removing organs or tissues for transplantation is covered by the law on trafficking in persons.

24. A feature of the qualified personnel under consideration is the presence of two goals. The purpose of human exploitation (any of its four types) must be mandatory. The absence of the latter, if there is a goal of extracting organs or tissues of the victim, means that there is no element of trafficking in persons, not only qualified, but also basic.

25. On the characteristics of a person who is known to the perpetrator to be in a helpless state or in financial or other dependence on the perpetrator (item “h”), and a woman who is known to the perpetrator to be pregnant (item “i”), see item 11 comments to Art. 105 and paragraph 10 comment. to Art. 117 CC.

26. Particularly qualified elements of crime are enshrined in Part 3 of Art. 127.1 CC. The content of specially qualifying features: those resulting through negligence in the death of the victim or other grave consequences (clause “a”), as well as those committed by an organized group (clause “c”) - are disclosed in the same way as in relation to the elements of kidnapping (Article 126 UK).

27. In paragraph “a” of Part 3 of Art. 127.1 of the Criminal Code, the infliction of grievous harm to the health of the victim is understood as both intentional and careless infliction. There is another opinion that guilt for this sign can only be careless.

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See: Criminal law. General and Special Parts / Ed. M.P. Zhuravleva, S.I. Nikulina. M., 2007. P. 371.

28. A method that is dangerous to the life and health of many people (clause “b” of Part 3 of Article 127.1 of the Criminal Code) means a method that the perpetrator knows to pose a danger to the life or health of not only the victim, but at least one other person (for example, by explosion, arson, firing shots in crowded places, poisoning water and food that other people besides the victim use).

29. In accordance with Note 1 to the commented article, a person is exempt from criminal liability for trafficking in persons containing the elements of the main crime under Part 1 of the article, or trafficking in relation to two or more persons (clause “a” of Part 2 of Art. 127.1 of the Criminal Code) in the presence of the following conditions: 1) the offender commits the above types of trafficking in persons for the first time (both actually and legally); 2) the release of the victim is carried out voluntarily; 3) the person contributed to the disclosure of the crime committed.

Exemption of a person from criminal liability for trafficking in persons does not exclude the possibility of bringing him to criminal liability for another crime, the elements of which are present in the committed act of trafficking in persons (for example, for illegal imprisonment).

Kinds

An act of violence against a person is classified depending on its type. By “type” we mean a certain order of actions of attackers that led to specific results. There are several varieties of this crime:

1. Forced labor. This type accounts for the largest share of atrocities, which are often defined as “forced servitude.” The most vulnerable category in this regard are immigrants, women and children.
2. Sexual exploitation. Victims are lured into prostitution through deception, physical or mental coercion. All participants are considered guilty of committing an offense, regardless of what functions they performed. The important thing is that even if a person initially consents, he is considered a victim if there has been deception, manipulation or coercion. The criminal law of the Russian Federation provides for severe punishment for this type of slavery.

3. Working for debts. The use of debt or obligation is a form of coercion. Often, the debtor’s relatives “pay off” the debt.
4. Working for migrants' debts. Debt slavery is a fairly common phenomenon in Russia, as it is extremely profitable for employers.
5. Forced housework. The consequences of forced exploitation can be sexual exploitation and serious harm to health.
6. Forced labor of children. In judicial practice, there are cases where a child’s guardians or trustees forced him to do backbreaking work and held him by force. Child trafficking is also often carried out by people who are responsible for minors: managers of shelters, boarding schools and orphanages.
7. Child soldiers. One of the manifestations of child trafficking is the illegal use of minors as combatants. The means may be deception, coercion, or the use of physical force. Children may be subject to sexual or labor exploitation while in the armed forces.
8. Exploitation of children sexually.
9. Sexual exploitation of adults.

Punishment

The penalties provided for trafficking in persons are determined in accordance with Articles 127.1, 127.2, 126 of the Criminal Code of Russia. When choosing the penalties provided for by law, the following factors are taken into account:

• methods used;
• goals pursued;
• the severity of the act committed.

As a preventive measure, the court may choose:

• imprisonment for a term of 3–10 years;
• prohibition of activity for up to 15 years;
• corrective labor for up to 5 years;
• restriction of freedom for a period of 1–2 years;
• imprisonment from 8 to 15 years.

It is possible to mitigate the 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 convicted on charges of violence;
• actively assisted law enforcement agencies;
• there is no other corpus delicti.

Atrocities of this kind violate the fundamental human right - the right to freedom. The court chooses punishment for such crimes in accordance with Russian legislation, taking into account the elements of the offense, qualifying characteristics, etc. It should be noted that society has an extremely negative attitude towards persons who have committed such crimes.