Kidnapping means the capture and movement of the abducted person to some place that he cannot leave on his own. Kidnapping in each case has a selfish purpose, that is, obtaining some benefit from such an act. The “lightest” composition of Art. 126 of the Criminal Code of the Russian Federation belongs to the category of crimes of medium gravity and provides for imprisonment for up to 5 years.
Defense of a lawyer under Art. 126 of the Criminal Code of the Russian Federation Kidnapping
Defense of a lawyer under Art.
126 of the Criminal Code of the Russian Federation is based on, among other things, preventing the incorrect qualification of the actions of one’s client. In practice, investigative authorities often incorrectly classify the actions of the accused and charge him with a more serious crime. Kidnapping is similar in a number of ways to other crimes, including less serious ones, for example Art. 127 of the Criminal Code of the Russian Federation Illegal deprivation of liberty, and more serious ones, such as Art. 206 of the Criminal Code of the Russian Federation Hostage taking. In addition, in order to be charged with kidnapping, an impressive evidence base must be collected. Therefore, to defend against charges of kidnapping under Art. 126 of the Criminal Code of the Russian Federation, it is advisable to seek the help of a lawyer with experience in this category of cases. CRIMINAL LAWYER call now: ☎ 8 (495) 532-75-40
Kidnapping from a criminal legal point of view
Any crime must have 4 components, different for each specific criminal act. Without at least one component, it is impossible to hold someone accountable.
Kidnapping is no exception; these elements for liability to arise must be:
- The subject is the one who commits the crime. For the kidnapping of a person, the 14-year-old citizen who committed it is subject to criminal liability. The legislator considered that at this age a person is mature enough to understand the harm caused by this act. In addition, the person must be of sound mind.
- The subjective side is the attitude of the criminal to the actions performed. For liability to arise, the abduction must be committed with direct intent. This means that the criminal is quite clearly aware of what he is doing, what dangerous consequences his actions may entail for society, and wants them to occur.
- The object is the social relations that the crime causes harm. In the case under consideration, this is the freedom of a specific victim or victims in its physical expression. Abduction may have additional objects - property, health, life of the abducted person or his loved ones.
- The objective side is the actions themselves committed by the offender, which define the crime.
According to the comments to the article, abduction is the secret or overt removal of a person against his will from the place where he is located or his usual habitat, followed by moving to another place with the purpose of detaining him there.
Lawyer under Art. 126 of the Criminal Code of the Russian Federation Kidnapping, how to act when charged under Art. 126 of the Criminal Code of the Russian Federation
If you or your relative are charged with Art. 126 of the Criminal Code of the Russian Federation Kidnapping, it is necessary, firstly, before you have a conversation with a lawyer, do not give any explanations or testimony, and secondly, immediately contact a lawyer under Art. 126 of the Criminal Code of the Russian Federation Kidnapping. Why is early contact with a lawyer so important? At the initial stage of criminal prosecution, key processes take place - the issue of initiating a criminal case or refusing to initiate it in accordance with Art. Art. 144-145 of the Code of Criminal Procedure of the Russian Federation, evidence of the commission of a crime is obtained, including the suspect is interrogated, and the testimony of the suspect (accused) given in the presence of a lawyer can serve as evidence in court. Therefore, the sooner you invite a lawyer to participate in the case under Art. 126 of the Criminal Code of the Russian Federation, the greater the likelihood that the outcome of the criminal case will have the minimum possible consequences for you. To contact a lawyer under Art. 126 of the Criminal Code of the Russian Federation Kidnapping in Krasnogorsk, call the phone number listed on the website.
Child abduction by a second parent: the “weak link” of the law
As practice shows, the presence of a court decision that has entered into force regarding the child’s place of residence with one of the parents after the divorce does not guarantee its execution by the second parent. The mechanisms provided for by Russian legislation for parents to exercise their rights after the court has determined the place of residence of the child (children) and the procedure for communicating with him (them), in my opinion, are ineffective.
Let me give you an example. The court determined the place of residence of the children with their mother and established the order of communication between the father and the children. However, after meeting the children, the father did not return them, but took them away in an unknown direction (to a neighboring house, to another city, and maybe to another country - the mother does not know about this). Let me make it clear right away that I do not divide the situation based on gender, since any of the parents could find themselves in it.
Such actions are similar in meaning to arbitrariness (Article 330 of the Criminal Code of the Russian Federation) and kidnapping (Article 126 of the Criminal Code of the Russian Federation). However, I was not able to find a single verdict on charges of an act provided for in Art. 126 of the Criminal Code of the Russian Federation, in relation to the parents of the child. According to Art. 330 I found only one verdict of a magistrate from 2013! Since the introduction of Art. 5.35 “Failure of parents or other legal representatives of minors to fulfill their responsibilities for the maintenance and upbringing of minors” is the practice of prosecuting a parent for arbitrariness under Art. 330 of the Criminal Code of the Russian Federation was, one might say, “buried.”
It is impossible to prosecute a citizen who has not been deprived of parental rights for the abduction of his own child in Russia, since parents have equal rights to determine the whereabouts of their children.
According to the disposition of Part 2 of Art. 5.35 of the Code of Administrative Offenses of the Russian Federation, violations committed by parents or legal representatives can be expressed in various forms.
Firstly, this is a violation of the child’s right to communicate with both parents or close relatives, provided for in Art. 55 of the Family Code of the Russian Federation. It is worth noting that a very important condition has been set: such communication should not contradict the interests of children. It can be assumed that the court took their interests into account when determining their place of residence and the order of communication. But the situation may change, and then who will determine whether it is in the interests of the child to communicate with the second parent, grandmother and other relatives or not?
Secondly, deliberate concealment of the location of children against their will. According to paragraph 1 of Art. 65 of the RF IC, parental rights cannot be exercised in conflict with the interests of children. In accordance with Art. 57 of the Code, taking into account the child’s opinion is mandatory - except in cases where this is contrary to his interests. On some issues, guardianship authorities or the court make decisions only with the consent of a child who has reached the age of 10 years. An analysis of the legislation allows us to come to the conclusion that the child’s wishes are not mandatory for the court when determining the place of residence; the child’s legal capacity is limited.
Thirdly, non-execution of a court decision on determining the place of residence and the procedure for exercising parental rights, as well as other obstruction by parents of the rights to raise and educate minors and protect their rights and interests.
In fact, the second parent is completely excluded from the process of raising and communicating with the child, and is deprived of the opportunity to defend his interests in the best possible way. The independent rights of the child provided for by the RF IC are also grossly violated. The consequences of such actions sometimes cannot be assessed in monetary terms and can be compensated for later. A child, due to his age, under the influence of psychological pressure, may simply forget the second parent or think that he has abandoned him, betrayed him, and by the time the child’s whereabouts are established, he will not want to communicate with the second parent.
The costs of legal procedures associated with the restoration of a violated right and the search for a child are colossal and place a heavy burden on the shoulders of the injured party. If a child is taken to another state, the amount can be measured in hundreds of thousands, or even millions of rubles.
Proceedings in cases of offenses under Art. 5.35 of the Code of Administrative Offenses of the Russian Federation, initiated by an official of the FSSP of Russia. The procedure for bringing a person to administrative responsibility has a number of formal features and is regulated in detail (see Methodological recommendations on the procedure for applying parts 2 and 3 of Article 5.35 of the Code of the Russian Federation on Administrative Offenses, approved by the FSSP of the Russian Federation on September 29, 2011 No. 04-15).
Based on my own legal practice, I note that the time frame for considering a case of an administrative offense and the entry into force of the decision can last up to six months or more, and as a result, the violator will pay a fine of 3,000 rubles. or be subject to administrative arrest for five days. However, this does not mean that the child will be returned to the legal guardian.
As punishment for the above actions, the sanction of Art. 5.35 of the Code of Administrative Offenses of the Russian Federation establishes a fine of 2000 to 3000 rubles. For repeated commission of an offense under Part 2 of this article, the fine will be from 4,000 to 5,000 rubles. or the culprit may be subject to administrative arrest for up to five days.
Such a minor punishment, I believe, does not objectively correspond to the social danger of the acts described and their consequences.
The actual execution of a court decision within the framework of enforcement proceedings is also not always possible, since bailiffs do not have the right, without the permission of the owner, to enter a home where a child may presumably be kept. And in a situation where the child is not on Russian territory, the bailiffs are simply powerless.
It is worth paying attention to the presence of such a mechanism as a ban on traveling abroad. From June 12, 2021, one of the parents has the right to declare disagreement with the departure of a minor child from Russia. In this case, the question of the possibility of his departure is resolved in court (Article 21 of the Federal Law of August 15, 1996 No. 114-FZ; clause 1 of the Procedure for filing, considering and keeping records of applications for disagreement with the departure from the Russian Federation of a minor citizen of the Russian Federation Federation - annex to the Order of the Ministry of Internal Affairs of Russia dated February 11, 2021 No. 62).
It would seem that everything is simple: if the parents cannot agree on the place of residence of the child, and one of the parents fears that the child may be taken out of the country, he has the right to write a statement to the migration department of the territorial body of the Ministry of Internal Affairs of Russia and be calm. However, as practice shows, entering information about restrictions on the child’s travel to the departmental segment of the Ministry of Internal Affairs of Russia of the “Mir” system does not work, since it is possible, despite the ban of the Ministry of Internal Affairs, to freely travel abroad with the child through the Republic of Belarus.
I will dwell in more detail on cases where a child was taken abroad without the knowledge of the other parent. International legislation contains a definition of child abduction and provides for liability, including criminal liability.
Thus, if the country where the child is taken is a party to the Convention on the Civil Aspects of International Abduction (The Hague, October 25, 1980, hereinafter referred to as the Hague Convention), for example Germany or Finland, then the removal or retention of the child is considered illegal if:
- they are carried out in violation of the rights of guardianship that were vested in a person, institution or other organization (jointly or individually) in accordance with the legislation of the state in which the child permanently resided before his removal or retention;
- at the time of removal or retention, these rights were effectively exercised (jointly or individually) or would have been exercised if the child had not been removed or retained.
The requirement to return the child is limited to his 16 years of age, the period of residence in another country should not exceed a year, and there are also other restrictions provided for in Art. 12, 13 and 20 of the Hague Convention.
The practice of returning children illegally taken from Russia to countries party to the Hague Convention exists, as does the practice of returning from the Russian Federation (see, for example, the ECHR ruling of November 26, 2013 in the case “Ushakov v. Russia”).
The situation is much more complicated if the child was taken to the United States, a country for which European conventions are not binding. According to Part 2 of Art. VI of the US Constitution of 1787, only international treaties ratified in “due order” acquire the status of “supreme law of the land”. Since the United States has not ratified either the Hague Convention or the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is necessary to seek the truth according to the internal laws of the state. When the United States was elected to the UN Human Rights Council, it promised to join the UN Convention on the Rights of the Child of November 20, 1989 and the UN Convention on the Elimination of All Forms of Discrimination against Women of December 18, 1979, but this never happened. It is worth noting that all (193) UN member states are parties to the Convention on the Rights of the Child, except the United States and South Sudan.
General information about the concept (kidnapping)
Kidnapping is an action aimed at forcibly detaining a person without his consent and detaining him without providing him with the opportunity to communicate in person or by telephone with third parties.
All, without exception, states in the world have provided for criminal liability for kidnapping, which is associated with imprisonment for a considerable period.
This is due to the fact that actions that deprive a person of freedom also deprive him of the opportunity to exercise other rights, which contradicts not only national legislative documents, but also ratified international acts. Since most crimes of this type are committed for selfish motives, that is, for the purpose of ransom, the governments of all countries are trying to eradicate the desire to enrich themselves by restricting the freedom of third parties, establishing severe liability for kidnapping.
Not least important in the application of harsh measures is the unpleasant statistics studied over ten years. On average, between 12 and 25 thousand people are kidnapped around the world each year, the lion's share of which are children. 90% of these crimes were committed for the purpose of demanding ransom or coercion to carry out specific actions. And, given the complexity of the investigation mechanism, the average percentage of disclosure of such misconduct ranges from 65 to 70 percent.
Compound
The subject may be a person who is at least 14 years old. This suggests that this crime is among the most serious. The subjective side of kidnapping is only direct intent (with indirect intent or other forms of guilt such a crime cannot be committed).
Now let’s talk about what signs of an act are mandatory objective signs of kidnapping. The immediate main object of this crime is the individual’s right to complete freedom to move in space and be in any place - in accordance with his own will. The objective side is active actions aimed at:
- take possession of a living individual (capture him);
- remove him from the place where he was at that moment;
- move it to a certain place;
- where it will be retained in the future.
Capture of a person can occur in a secret way, either openly (capture) or by deception (when the individual is lured into a certain room by misleading him and is subsequently held there).
The composition of this article is formal. This means that the crime is over at the moment of harm to social relations. It does not matter whether serious consequences occurred or not.
In the case of a crime committed without qualifying characteristics (Part 1 of Article 126) and with these characteristics (Part 2), social relations associated with the individual’s right to physical freedom suffer.
Clause “c” of Part 3 of Article 126 mentions the death of a captured person due to negligence or other grave consequences (for example, suicide of a detained person or his relatives, major material damage, etc.). Here we are already observing an element of material composition, since there are grave consequences affecting a person’s life, his health, property rights, etc.
