Torture, ill-treatment, trafficking in persons: methods of protection

Criminal Code of the Russian Federation in the latest edition:

Article 127.1 of the Criminal Code of the Russian Federation. Human trafficking

1. 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 -

shall be 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) in relation to 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 -

shall be punishable by imprisonment for a term of three to ten years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to fifteen years 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 through negligence in death, causing serious harm to the health of the victim or other serious consequences;

b) committed in a way dangerous to the life and health of many people;

c) committed by an organized group, -

shall be 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.

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Comments on Article 127.1 of the Criminal Code of the Russian Federation

The basis of the criminal law prohibition under consideration is the norms of international law. The concept of human trafficking is revealed in Art. 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 15 November 2000, according to which “trafficking in persons” means recruitment, transportation, transferring, harboring or receiving persons by the threat or use of force or other forms of coercion, kidnapping, fraud, deception, abuse of power or position of vulnerability, or by bribery of payments or benefits to obtain the consent of a person having control over another person.

Object of crime . The immediate object of the crime is the personal freedom of the victim.

An additional object of qualified types may be the safety of life and health of the victim.

Any person can be a victim The victim’s consent to trafficking and subsequent exploitation has no criminal legal significance and does not affect the qualification of these actions as human trafficking.

The objective side of the crime is expressed in the commission of one or more alternative actions specified in the law - 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.

In paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 24, 2019 N 58 “On judicial practice in cases of kidnapping, illegal imprisonment and human trafficking”, definitions are given of the actions that constitute the objective side of the crime of “human trafficking”:

The purchase and sale of a person is understood as the commission of actions consisting of the transfer of a person by one person to another person (persons) for a monetary reward, and other transactions in relation to a person - other illegal actions leading to the transfer of the victim from one person to another person (for example, gratuitous transfer , exchange for any material assets).

Recruitment is the search, selection and hiring of persons to perform in the interests of the employer or other persons any work, provision of services or implementation of other activities, including on the territory of a foreign state, carried out for the purpose of further exploitation of the person being recruited. To obtain the consent of the victim, for example, promises of reward, blackmail, deception or abuse of trust (in particular, under the pretext of providing a job or training opportunity in a particular profession) can be used.

Transportation refers to the movement of a person by any type of transport from one place to another, including within the same locality, for further exploitation of the victim.

The transfer of a person consists of providing the victim to another person, including for transportation, concealment, and exploitation of the victim, and receiving is the acceptance of the victim from the person transferring him, in particular, for transportation or concealment, as well as for his exploitation.

Concealing a person consists of hiding the victim when committing actions related to human trafficking from authorities, relatives, interested parties, for example, by reporting knowingly false information about the identity or location of the victim.

The corpus delicti is formal and is considered completed from the moment of commission of at least one of the actions specified in the law - actual purchase and sale, other transaction with a person or his recruitment, transportation, transfer, concealment or receipt.

In paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 24, 2019 N 58, the moment of the end of the crime is specified depending on the method of its commission:

• when carrying out the purchase and sale of a person or other transactions in relation to the victim, the crime is completed from the moment of the actual transfer and receipt of the victim;
• when recruiting a person, the crime is completed from the moment the victim’s consent is obtained to carry out the activity for which he was recruited;
• when committing other actions that constitute human trafficking, the crime is completed upon the transfer or receipt of a person or from the moment he begins to be transported or harbored for the purpose of exploitation.

Assassination attempt . If, for reasons beyond the control of the counterparties, even after performing all the actions they do not achieve the desired result, the act must be qualified as an attempted trafficking in persons.

In the same way as an attempt, the situation should be regarded when, after the actions of one of the parties, the other party to the transaction refuses to fulfill its obligations without returning to the other party what it has performed under the transaction. If in this situation the refusal was accompanied by the return of the person or money, the act should receive a criminal legal assessment as a voluntary renunciation of the crime at the stage of the attempt.

Qualification of human trafficking, kidnapping and unlawful imprisonment

In cases where the purchase and sale of a person or the commission of other actions related to human trafficking with him was preceded by the abduction of this person, the act constitutes a set of crimes provided for in the relevant parts of Article 126 and Article 127.1 of the Criminal Code of the Russian Federation. The illegal deprivation of a person’s freedom for the purpose of carrying out actions related to human trafficking in relation to him, as well as the illegal restriction of the freedom of the victim in the process of committing these actions, are covered by the relevant part of Article 127.1 of the Criminal Code of the Russian Federation and do not require additional qualification under Article 127 of the Criminal Code of the Russian Federation (clause 15 of the Resolution Plenum of the Supreme Court of the Russian Federation dated December 24, 2019 N 58).

The subjective side of the purchase and sale of a person or other transaction is characterized by guilt in the form of intent. When carrying out actions aimed at human trafficking, the subject is always aware of their social danger.

The motives and purposes of transactions do not affect the qualifications of the act. Trade can be carried out both for the purpose of subsequent exploitation of a person, and for other purposes, for example, for the subsequent illegal adoption of an acquired child.

The subjective side of recruitment, transportation, concealment, transfer and receipt is characterized by guilt in the form of intent.

An obligatory subjective feature of these actions is the goal - the subsequent exploitation of a person.

The concept of exploitation is disclosed in Note 2 to Art. 127.1 of the Criminal Code of the Russian Federation, according to which exploitation means the use of prostitution by other persons and other forms of sexual exploitation, slave labor (services), and servitude.

Use of child labor

We found out that treating a person as a thing is strictly prohibited by international law, as well as at the level of each state. One of the most dangerous types of exploitation of people is forcing children to work and using their labor. Worldwide, according to the International Labor Organization, 250 million children are employed. Their maximum age reaches 15 years.

When we talk about such work, we need to understand that the conditions are extremely difficult and harmful, work hours are not regulated, children work until the last minute. Many die because they cannot withstand the working conditions. Of course, we are not talking about any salary. This kind of labor is used under duress. In Russia, according to unofficial data, 6 million minors and teenagers who are not yet 16 work.

Often, children are exploited openly, for example, they clean the territory or trade, but at the same time they have long working hours, a load disproportionate to their body and difficult conditions.

The concept of “human exploitation”

The use of prostitution (in international law - exploitation of prostitution) means deriving income (material or otherwise) from the prostitution of third parties, i.e. from the systematic entry of female or male persons into extramarital sexual relations for payment.

Sexual exploitation includes the exploitation of prostitution, but may not be related to it, for example, using the victim to commit acts of a sexual nature, to commit indecent acts against him, using him to create pornographic objects or materials, etc.; in some cases, sexual exploitation may be carried out against a person in slavery .

Slavery is understood as the position or condition of a person in respect of whom some or all of the powers inherent in the right of property are exercised (Article 1 of the Slavery Convention of September 25, 1926). Consequently, slave labor is defined as the work of a person in slavery if the person, for reasons beyond his control, cannot refuse to perform certain works or services.

Servitude according to Art. Art. 1, 7 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, of September 7, 1956, means the state or position of a person created as a result of:

a) 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 to secure the 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;

b) serfdom , i.e. such use of land in which the user is obliged by law, custom or agreement 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;

c) any institution or custom by virtue of which:

• 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;
• the woman's husband, his family or his clan have the right to transfer her to another person for compensation or otherwise;
• upon the death of her husband, a woman is inherited by another person;
• a child or young person under eighteen years of age is given 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.

The subject of a crime under Article 127.1 of the Criminal Code of the Russian Federation is a sane person who has reached the age of 16.

Other crimes

Let's consider two more elements of the crime that include the possibility of exploitation. The first and most common is prostitution. There is a criminal act called engaging in such activity. The objective side does not indicate the attitude of the victim to his occupation, so exploitation may well occur. In addition, coercion to continue providing sexual services is a separate action. This will also include involving the child in work. The legislator has developed several offenses relating to prostitution.

Among the criminal attacks associated with the exploitation of a person, and specifically a child, is the use of a person to make pornography. The legislator also associates several crimes with the creation of pornographic content. The essence of using a child for filming is to photograph or create a pornographic film using a minor. A child, due to his immaturity, may not be aware of what is happening to him and what activities he is engaged in, so we can talk about exploitation. Please note that these compositions are indirect and do not directly indicate, unlike the previous ones, about exploitation.

Qualified offenses of human trafficking (Part 2 of Article 127.1 of the Criminal Code of the Russian Federation)

Trafficking in relation to two or more persons (clause “a”, part 2, article 127.1 of the Criminal Code of the Russian Federation) requires a minimum of two victims, both simultaneously and over a period of time.

Trafficking in relation to a minor (clause “b” of Part 2 of Article 127.1 of the Criminal Code of the Russian Federation) means that the guilty person realizes or admits that the victim has not reached the age of 18.

Trafficking in persons by a person using his official position (clause “c” of Part 2 of Article 127.1 of the Criminal Code of the Russian Federation) can only be imputed to a special subject. Persons who use their official position to commit a crime include:

• officials;
• civil servants and employees of local government bodies who are not classified as officials;
• persons who permanently, temporarily or by special authority perform organizational, administrative or administrative responsibilities in a commercial organization, regardless of the form of ownership, or in a non-profit organization that is not a state or municipal institution.

At the same time, the use of one’s official position to commit human trafficking should be understood not only as a person’s deliberate use of his official powers, but also as exerting influence, based on the significance and authority of the position he holds, on a person subordinate to him, in order for him to perform certain actions aimed at recruitment, transportation, harboring or transactions in relation to a person.

Trafficking in persons with the movement of the victim across the state border of the Russian Federation or with the illegal detention of him abroad (clause “d”, part 2 of article 127.1 of the Criminal Code of the Russian Federation) involves several possible situations:

• the victim, legally or illegally located on the territory of the Russian Federation, leaves the territory of Russia as a result of trafficking;
• legally or illegally located in the territory of another state, the victim as a result of trafficking arrives in the territory of the Russian Federation;
• A victim who is legally or illegally located outside the Russian Federation, permanently or temporarily residing on the territory of the Russian Federation before committing a crime, is kept abroad as a result of trafficking and is deprived of the physical opportunity to return to the Russian Federation.

In itself, the movement of a victim across the State Border of the Russian Federation may be legal or illegal.

A victim of human trafficking should not be subject to criminal liability for illegally crossing the State Border of the Russian Federation under Art. 322 of the Criminal Code of the Russian Federation. Only if the victim of trafficking has given voluntary consent to the trafficking itself, to the subsequent exploitation and to illegal departure from the territory of the Russian Federation or entry into the territory of the Russian Federation, if she was not subjected to coercion and did not act in a state of extreme necessity, it is possible to liability under Art. 322 of the Criminal Code of the Russian Federation.

A person who carries out human trafficking with the movement of the victim across the State Border of the Russian Federation or keeping him abroad is liable under paragraph “g” of Part 2 of Art. 127.1 of the Criminal Code of the Russian Federation; Moreover, if it itself illegally crossed the State Border of the Russian Federation, its actions, if there are grounds for this, require additional qualification under Art. 322 of the Criminal Code of the Russian Federation.

Trafficking in persons using forged documents, as well as with the seizure, concealment or destruction of documents identifying the victim (clause “d”, part 2 of article 127.1 of the Criminal Code of the Russian Federation). The use of counterfeit documents refers to their official presentation in order to conceal the ongoing activities of human trafficking. Seizure of documents involves the illegal deprivation of the victim of his valid documents, and their concealment implies illegal retention or storage. The destruction of documents identifying the victim means their actual destruction, making it impossible to identify a person using them. Additional qualifications under Art. 327 of the Criminal Code of the Russian Federation is not required.

Trafficking in persons with the use of violence or the threat of its use (clause “e” of Part 2 of Article 127.1 of the Criminal Code of the Russian Federation) presupposes that in the process of transferring, receiving, recruiting, transporting, or harboring the victim, physical violence in the form of beatings was deliberately applied to him, other violent actions causing physical pain or restricting his freedom, causing minor, moderate, or serious harm to health (under the circumstances specified in Part 1 and Part 2 of Article 111 of the Criminal Code of the Russian Federation), torture, as well as mental violence in the form of threats use of violence, including threats of murder or serious harm to health. All of these types of violence are covered by the crime provided for in paragraph “e” of Part 2 of Art. 127.1 of the Criminal Code of the Russian Federation, and do not require additional qualifications in the aggregate. Violence or the threat of its use may be directed at persons other than the victim in order to influence the behavior of the victim, facilitate or conceal the fact of trafficking.

If, in the process of human trafficking, violence was applied to the victim under the circumstances specified in Part 3 or Part 4 of Art. 111 of the Criminal Code of the Russian Federation, the deed forms a set of crimes.

Trafficking in persons for the purpose of removing organs or tissues from the victim (clause “g”, Part 2, Article 127.1 of the Criminal Code of the Russian Federation). The purpose of removing organs or tissue from a victim assumes that the victim will be used as a donor. The actual forcible removal of organs or tissues from a victim for transplantation, depending on the consequences that have occurred, requires additional qualification under the relevant articles on crimes against life and health, and coercion of a person acquired through trafficking to remove organs or tissues for transplantation - additionally under Art. 120 of the Criminal Code of the Russian Federation.

Trade committed in relation to a person who is known to the perpetrator to be in a helpless state or in material or other dependence on the perpetrator (clause “h”, part 2, article 127.1 of the Criminal Code of the Russian Federation). Helplessness is the inability of the victim to defend himself due to a physical or mental condition. Judicial practice includes such persons as seriously ill people, the elderly, young children, and people suffering from mental disorders that deprive them of the ability to correctly perceive what is happening. The term “awareness” used by the legislator indicates the awareness by the perpetrator that the victim is in such a state. The financial dependence of the victim presupposes his being fully or partially dependent on the guilty person, and other dependence of the victim on the guilty person can be based on kinship, marriage, family relationships, on the law, on a contract, for example, the dependence of children on parents, guardians on guardians, an employee on boss, debtor from creditor, etc.

Trafficking committed in relation to a woman who is known to the perpetrator to be pregnant (clause “i” of Part 2 of Article 127.1 of the Criminal Code of the Russian Federation) presupposes that the perpetrator reliably knows about the condition of the victim (for example, due to the fact that he is a relative, acquaintance, neighbor, etc. or when a woman’s appearance clearly indicates her pregnancy).

Trafficking in persons, resulting through negligence in death, causing grievous harm to the health of the victim or other grave consequences (clause “a”, part 3, article 127.1 of the Criminal Code of the Russian Federation), forms a material crime with two forms of guilt. These consequences may be a consequence of actions that constitute trade, a consequence of violence used during trade, or a consequence of the actions of the victim himself. The mental attitude of the perpetrator to these consequences is characterized by carelessness in the form of frivolity or negligence.

Infliction of death by negligence, careless infliction of grievous bodily harm, intentional infliction of grievous bodily harm resulting in the death of the victim through negligence, when engaged in human trafficking, do not require independent qualification and are fully covered by paragraph “a” of Part 3 of Art. 127.1 of the Criminal Code of the Russian Federation.

In case of intentional infliction of death or serious harm to health during human trafficking, the act is qualified under the totality of Part 2 of Art. 127.1 and accordingly Art. 105 or 111 of the Criminal Code of the Russian Federation.

Other grave consequences are an evaluative sign. These are consequences not related to death or serious harm to the victim’s health. They can be expressed in suicide of the victim or his relatives, infection of the victim with HIV infection or other serious illness of the victim or other persons, etc.

Trafficking in persons, committed in a way dangerous to the life and health of many people (clause “b”, part 3, article 127.1 of the Criminal Code of the Russian Federation), is characterized by the use by the perpetrator of a method that creates a real threat to two or more persons, for example, leaving when trading groups of people without food and water, transportation in cramped containers without proper ventilation, on dilapidated or overcrowded ships, etc.

Trafficking in persons committed by an organized group (clause “c” of Part 3 of Article 127.1 of the Criminal Code of the Russian Federation). The concept of an organized group is given in Art. 35 of the Criminal Code of the Russian Federation.

Real examples from practice

Having analyzed the theoretical consolidation of forms of human exploitation and examined some elements of crimes, let us turn to specific examples from practice that illustrate crimes related to human exploitation. Official UN data says that 79 percent of human trafficking cases involve exploitation for sexual services. In second place is the trafficking of children for the removal of their organs or also for sexual use.

In 2013, I was shocked by the story of Olga Goryachikh, who decided to start a business - she trafficked people. They lived in the city of Tchaikovsky near Perm and formed a criminal group of 5 people. They searched for girls from poor or single-parent, drinking families under the pretext of earning extra money, took them abroad, took away their documents and sold them into slavery. The girls had to serve 15 clients a day, and, of course, there was no medical equipment, the conditions were unsanitary. Until 2016, Olga’s business flourished; she transported 23 girls, of which only 6 were found.

In 2016, a girl who ran away contacted the police and was held captive in the UAE. The employees do not disclose how she managed to leave such a place. In order to protect the girl, her location, last name, first name and other data remain secret. As a result, law enforcement agencies found Olga and her gang, each was sentenced to 15 years in prison under the article on exploitation of people and trafficking, which we talked about earlier.

This example is not isolated; groups of criminals are active all over the world and transport girls, boys and children to other countries for sale. There are also girls in Russia brought from Asian countries and sold into prostitution.

Paragraph 1 of the note to Article 127.1 of the Criminal Code of the Russian Federation

To apply paragraph 1 of the note and release a person from criminal liability, it is necessary to establish that:

• the person committed the act for the first time;
• the act is provided for in Part 1 or Clause “a” of Part 2 of Article 127.1 of the Criminal Code of the Russian Federation;
• the person voluntarily released the victim;
• the person contributed to the discovery of the crime committed.

At the same time, the voluntary release of the victim(s) does not relieve the guilty person from criminal liability for other illegal actions, including acts committed during human trafficking, if they contain elements of an independent crime (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 24. 2019 N 58 “On judicial practice in cases of kidnapping, unlawful imprisonment and human trafficking”).

A first-time offender is a person who has committed one or more crimes, for none of which he was convicted, the previous sentence at the time of committing a new crime did not enter into legal force or entered into legal force, but one of the circumstances that annulled the legal consequences occurred bringing to criminal liability (for example, the expiration of the statute of limitations, expungement or expungement of a criminal record), or the criminality of the act for which the person was convicted was eliminated and was previously exempt from criminal liability (on the concept of “for the first time” see paragraph 2 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27 .2013 N 19).

The voluntary release of the victim assumes that the person did this of his own free will if he had an objective opportunity to continue trafficking in persons.

Contributing to the solution of a crime means voluntarily, not under the pressure of evidence, providing the preliminary investigation authorities with previously unknown information, data about the circumstances of the crime committed by a person, accomplices, about the subjects of the crime, about material evidence, etc.