Article 126 of the Criminal Code of the Russian Federation. Kidnapping (Article 126 of the Criminal Code of the Russian Federation). Basic composition and qualifying characteristics. Objective and subjective signs. The problem of the moment of the end of the crime. Voluntary refusal in case of kidnapping. What punishment is provided for

Last updated - December 2019

Almost every day, law enforcement agencies register reports of missing people. In most cases, the search ends successfully, but sometimes the disappearance is due to the commission of illegal actions against the missing person. One possible criminal act in such situations may be kidnapping.

It begins with the chapter of the Criminal Code of the Russian Federation on crimes encroaching on intangible values, primarily on a person’s physical freedom, personal integrity, guaranteed by the Supreme Law of Russia and international acts. Responsibility for kidnapping is established by Art. 126 of the Criminal Code of the Russian Federation.

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:

Subject- the one who commits a 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.
Subjective side- This is the attitude of the criminal to the actions committed. 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.
An object- These are social relations that are harmed by crime. 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.
Objective side– these are the very actions committed by the offender that define the crime.

According to the comments to the article, kidnapping is secret or obvious 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 keeping him there.

Features during qualification

The law somewhat differentiates responsibility for committing a completed and an unfinished crime.

To kidnapping was considered completed, and for the culprit there was full responsibility, no negative consequences were necessary. The crime is over already from the beginning of the movement of the victim after the seizure.

All other actions with the victim, committed after the abduction, for another purpose - demand for ransom, violence, deprivation of life, etc., are assessed according to other norms of the Criminal Code of the Russian Federation.

For example, a person is kidnapped, for whose release the criminal demands money. In this case, he commits kidnapping with a mercenary motive and extortion.

When bodily injuries are caused during the abduction, they are not additionally qualified under article o.

If the goal is not the kidnapping itself, but another crime, the actions are assessed only according to the article that establishes responsibility for it.

For example, a man was captured to be killed in a deserted place where his life was taken. Such actions are assessed only as, additionally under Art. 126 of the Criminal Code of the Russian Federation does not qualify them.

Separate nuances of the act:

Anyone can become a victim. Taking possession of the body of a deceased person is not kidnapping in relation to Art. 126 of the Criminal Code of the Russian Federation.
The period during which the victim was detained in order to assess the act under Art. 126 of the Criminal Code of the Russian Federation does not matter.
Detention of a person after abduction separately under Art. 127 of the Criminal Code of the Russian Federation is not considered as unlawful deprivation of liberty.
Keeping a person where he is, for example, in his home, is not kidnapping.
Kidnapping with the consent of a person, its staging cannot form part of the analyzed crime. For example, the ritual abduction of a bride with her consent.
Approval of one's abduction by a minor or other person who is not aware of his actions cannot be regarded as consent.
The consent of the victim, obtained by deception, is not taken into account when he independently, of his own free will, goes to the place of detention, without realizing it.
Grasping without the purpose of holding a person elsewhere constitutes a compound.
Anyone who holds a kidnapped person by other persons will also only be liable under Art. 127 of the Criminal Code.
According to the norm under consideration, the facts of abduction of a child by a parent or relatives are not considered abduction if, in their opinion, even if incorrect, they do this following the interests of the child.

Punishment for kidnapping

The degree of responsibility for kidnapping increases in direct proportion to the danger of this act to society.

Kidnapping without aggravating circumstances will be a simple offense and is punishable by forced labor or imprisonment for up to 5 years.

Liability that is more stringent than simple liability is established by the second part of Art. 126 of the Criminal Code of the Russian Federation. She cites signs indicating a more cynical attitude of the criminal towards his crime.

Qualified according to the second part of Art. 126 of the Criminal Code of the Russian Federation there will be kidnapping in relation to:

a minor whose age was reliably known to the offender;
a pregnant woman, when the perpetrator was aware of her situation;
two or more people.

Also, to be qualified, it must be perfect:

Two or more persons who agreed on a crime in advance, that is, by a group of persons by prior conspiracy.
Dangerous to the health of the victim and his life with violence, or with the threat of using it. Damage to the health of the abducted person from mild to severe will be dangerous.
With weapon, with objects that were used as weapons.
For selfish reasons.

If the qualifying criteria are met, the punishment is imprisonment within the range of 5-12 years. The court has the right to additionally impose a restriction of freedom of up to 2 years.

The third part of the article defines liability for kidnapping under even more dangerous conditions for society:

The commission of a crime by a stable community united for illegal activities. Such a community is called an organized criminal group, or OCG for short.
Death and other serious consequences resulting from the abduction. These consequences can include mental and severe physical illness.

Kidnapping with particularly qualifying characteristics entails loss of freedom from 6 to 15 years with or without an additional up to 2 years.

Release from liability

Despite the severe liability, the legislator has provided the opportunity to avoid punishment under certain conditions. This was done, on the one hand, in order to minimize the consequences for the victim, and on the other, to enable the erring citizen to realize his act and correct it as far as possible.

The conditions under which the perpetrator may not be punished are indicated in the note to Art. 126 of the Criminal Code of the Russian Federation:

voluntary release of the victim;
absence of other crimes committed by the kidnapper.

Release can be assessed as voluntary when the kidnapper had the opportunity to continue his criminal actions, but decided to release the victim. Why he decided this is not important.

A situation where a criminal releases a kidnapped person after fulfilling the conditions of release, for example, transferring money, even when he was unable to receive it, for example, was detained, is not considered voluntary release.

Difference from unlawful imprisonment and hostage taking

The Criminal Code of the Russian Federation contains two acts that at first glance are similar to kidnapping - unlawful deprivation of liberty and hostage taking. Even though the elements are similar, the differences in them are significant.

This is precisely the reason why the legislator established liability for their commission under different articles, within different limits.

Difference from unlawful deprivation of liberty lies in actions. During deprivation of liberty, the victim is not moved anywhere; he is held physically or by threats where he was. In addition, liability under this standard is possible from the age of 16.

The difference with hostage taking is in the object, that is, in what relationships in society are harmed. If, when a person is kidnapped, the object is the freedom of a specific person, then the taking of a hostage encroaches on public safety, and the freedom of the hostage is an additional object.

The goals of these acts also differ significantly. In the first case, the goal is to kidnap a person, all other actions are other crimes. In the second, to achieve compliance with the criminal’s demands as a condition for the release of the hostage.

What to do if a person is kidnapped

Often the fact that a person has been kidnapped, that is, a crime has taken place under Art. 126 of the Criminal Code of the Russian Federation, it is almost impossible to establish initially. It is possible to correctly assess the act of the perpetrator under this article after all the circumstances have been established.

About the signs kidnapping, we can talk, for example, when the kidnappers approached the relatives to indicate the conditions for release.

Most often, all that is immediately clear is that the person has disappeared, is not in contact, or something happened to him. And to establish how this happened is a task for law enforcement officials.

Where to go

Missing statements or, as law enforcement calls it, missing persons submitted to the police department. It would be better if it was a department in the place from which the victim disappeared. The possibility of submitting an application to any police department is not excluded.

There are no reasons why an application may not be accepted. The interdepartmental instructions on this issue indicate that such messages are accepted and registered regardless of how long ago, where the person disappeared, the availability of information about the place of residence, the completeness of personal data, photos, or information about previous cases of disappearance.

Conducting checks and investigating criminal cases of kidnapping falls within the competence of investigators of the Investigative Committee - the Investigative Committee, therefore a statement about the disappearance of a person can be written to its territorial department.

How to write an application correctly

The application for kidnapping is addressed to the head of the police department to which the applicant is applying, and contact information is indicated. It is drawn up in a simple form; there are no special requirements for the content of such an appeal. The main thing is to describe the event that became the basis for the appeal, to state a request to search for the missing person.

Information boards in police department control rooms usually contain examples of the most common statements.

The application to the Investigative Committee is drawn up in the same way, only it is addressed to the head of the territorial department of the Investigative Committee.

What happens after you submit your application?

After registering such a message, the applicant is asked a number of questions, the purpose of which is to restore the circumstances of the person’s disappearance and to understand whether they indicate a crime. This is necessary to put forward versions of the loss.

If the established circumstances of a person’s disappearance indicate that he has been kidnapped, a report of an unknown disappearance received by the police department is transferred to the territorial division of the Investigative Committee (IC) for conducting a pre-investigation check and subsequently making a procedural decision.

Between Investigative Committee and the police have established an exchange of information regarding the unknown disappearance of citizens. We can say that investigators of the Investigative Committee carry out procedural checks and investigate criminal cases, collecting evidence, and police officers accompany the inspection and investigation of the case, carrying out operational search activities.

Kidnapping is punishable by forced labor for up to five years or imprisonment for the same period.

Part 2 art. 126 of the Criminal Code of the Russian Federation

The same act committed:

a) by a group of persons by prior conspiracy;

c) with the use of violence dangerous to life or health, or with the threat of such violence;

d) using weapons or objects used as weapons;

e) in relation to a known minor;

f) in relation to a woman who is known to the perpetrator to be pregnant;

g) in relation to two or more persons;

h) for mercenary reasons - is punishable by imprisonment for a term of five to twelve years, with or without restriction of freedom for a term of up to two years.

Part 3 art. 126 of the Criminal Code of the Russian Federation

Acts provided for in parts one or two of this article, if they:

a) committed by an organized group;

b) has become invalid. – Federal Law of December 8, 2003 N 162-FZ;

c) caused through negligence the death of the victim or other grave consequences - shall be punishable by imprisonment for a term of six to fifteen years, with or without restriction of freedom for a term of up to two years.

Note. A person who voluntarily frees a kidnapped person is exempt from criminal liability unless his actions contain another crime.

Commentary to Art. 126 of the Criminal Code of the Russian Federation

Commentary edited by Esakova G.A.

1. The objective side of the crime is expressed in the actions of capturing (taking possession) and moving a person to another place for subsequent detention against his will. These actions can be carried out either secretly or openly, through the use of violence or other means, such as deception. Battering the victim is covered by the basic elements of kidnapping and does not require additional qualifications under Art. 116 of the Criminal Code.

2. The elements of kidnapping are formal; the crime should be considered completed from the moment of transfer, regardless of the time of detention.

3. The movement of a person for the purpose of committing another crime, for example murder or rape, does not require independent qualification under Art. 126 of the Criminal Code. Other cases of movement, for example, moving a person to another place with his consent, which no one knew about, also do not contain elements of a crime; taking possession and moving one's own child against the will of the other parent (adoptive parent) or other persons with whom he was in custody legally, provided that the person acts in the interests of the child (Part 2 of Article 14 of the Criminal Code).

4. A preliminary conspiracy to kidnap (clause “a” of Part 2 of Article 126 of the Criminal Code) presupposes an agreement expressed in any form between two or more persons, which took place before the commencement of actions directly aimed at kidnapping.

5. The use of violence dangerous to life or health (clause “c” of Part 2 of Article 126 of the Criminal Code) involves such violence that resulted in the infliction of grave, moderate or slight harm to the health of the victim. The threat of violence presupposes the externally expressed intention of a person to cause death or harm to health of any degree to the victim. The victim can be either the kidnapped person or third parties who prevent the commission of a crime. The timing of the use of physical or mental violence does not matter (it can be used both during the abduction and during the detention).

6. The use of weapons or objects used as weapons (clause “d”, part 2 of Article 126 of the Criminal Code) means the use of any type of weapon classified as such in accordance with Federal Law of December 13, 1996 N 150-FZ “On weapons,” as well as other items with the help of which harm is caused or a threat is created to the victim.

7. Minors mean persons under the age of 18; this fact must be covered by the intent of the perpetrator (clause “d”, part 2 of article 126 of the Criminal Code).

8. The abduction of a pregnant woman (clause “e”, part 2 of Article 126 of the Criminal Code) also presupposes knowledge of the perpetrator about this circumstance.

9. In accordance with the provisions of Part 1 of Art. 17 of the Criminal Code, kidnapping of two or more persons, committed simultaneously or in different time, does not form a set of crimes and is subject to qualification only under paragraph “g” of Part 2 of Art. 126 of the Criminal Code.

10. According to clause “h”, part 2, art. 126 of the Criminal Code qualifies as kidnapping committed for the purpose of obtaining material benefits for the perpetrator or other persons or getting rid of material costs. If the theft is associated with a demand for the transfer of money or other property, then the act should be qualified under the totality of Art. 126 and 163 of the Criminal Code.

11. If the kidnapping is recognized as committed by an organized group (clause “a” of Part 3 of Article 126 of the Criminal Code), the actions of all participants, regardless of their role in the crime, should be qualified as co-perpetrator without reference to Art. 33 of the Criminal Code.

12. Other serious consequences include, for example, the victim’s suicide, his mental disorder, etc. If in relation to death the form of guilt can only be careless, then to other grave consequences it can be both intentional and careless (clause “c” of Part 3 of Article 126 of the Criminal Code).

13. According to the note to Art. 126 of the Criminal Code, the conditions for releasing a guilty person from criminal liability are: a) voluntary release of the kidnapped person; b) the absence of other elements of a crime in the person’s actions.

Commentary on Article 126 of the Criminal Code of the Russian Federation

Commentary edited by Rarog A.I.

1. The direct object of the crime is the physical freedom of a specific victim(s). An additional object may be the safety of life, health of the victim, his relatives, property relations, etc.

2. The objective side of the crime is expressed in the commission of actions, in the secret or open abduction of a person, i.e. in removal against his will from his place of residence (residence, work, study, recreation, etc.) and moving to another place determined by the abductor, for example, to another house, basement, garage, where he is held in captivity. Abduction can be carried out by deception, when the victim himself goes with the kidnapper to the place where he will be forcibly detained in the future, without suspecting it.

3. The crime is considered completed from the moment of the actual abduction of a person. The holding time (for an hour, a day, a month, etc.) does not matter. The consent of the victim to his transfer to another place, which is not known to persons interested in his release, does not form part of this crime.

4. The subjective side is characterized by direct intent.

5. The subject of this crime is any person who has reached the age of 14 years.

6. Cases of abduction by a parent, adoptive parent (including those deprived of parental rights) of their own child from another parent or other persons to whom the child was transferred to established by law order for upbringing, as well as the abduction of a child by close relatives (relatives and adopted brother, sister, grandfather, grandmother), if these actions are committed in the interests of the child, including false witnesses, do not form a crime under Art. 126 of the Criminal Code.

7. Kidnapping is recognized as committed by a group of persons by prior conspiracy when it is established that it was attended by at least two persons who agreed in advance to commit such a crime, and each of them carried out the objective side of the crime or part of it (BVS RF. 2006. N 12. P. 10).

8. The use of violence dangerous to life and health, or the threat of using such violence, is understood to mean the actual infliction of grave, or moderate, or slight harm to health on the victim, or violence that did not cause actual harm to health, but created real threat its infliction, as well as the mental threat of causing physical harm.

9. The use of weapons or objects used as weapons involves the use of any type of serviceable weapon, as well as various objects, regardless of whether they were specially brought with them or picked up on the spot.

10. The kidnapping of a minor presupposes reliable knowledge by the perpetrator that the kidnapped person has not reached the age of 18 years. Retaining a lost young child against his will must be considered as unlawful deprivation of liberty (Article 127 of the Criminal Code), and in case of substitution, Art. 153 of the Criminal Code.

11. The abduction of a woman who is known to the perpetrator to be pregnant also presupposes that the perpetrator reliably knew about this circumstance.

13. Kidnapping for mercenary reasons presupposes the desire to obtain material benefit for oneself or others. For example, K.’s conviction under paragraph “g” of Part 2 of Art. 126 of the Criminal Code for the abduction of F., since it was established that K. had no material benefit (BVS RF. 1999. N 5. P. 19).

14. When the theft is associated with simultaneous demands for the transfer of money and other valuables, then the actions of the perpetrator are qualified under the totality of paragraph “h” of Part 2 of Art. 126 and art. 163 of the Criminal Code (BVS RF. 1998. N 6. P. 16).

15. Kidnapping for mercenary reasons should be distinguished from hostage-taking for the same reasons (clause “h”, part 2, article 206 of the Criminal Code). During a seizure, the perpetrator is interested in wide publicity of his demands, but during a kidnapping, he is not, the demand for ransom is presented to a narrow circle of people, and the place of detention of the kidnapped person is kept secret.

16. The concept of an organized group is given in Art. 35 of the Criminal Code. When qualifying the actions of the perpetrators, references to Art. 33 of the Criminal Code is not required (BVS RF. 1997. N 8. P. 5 – 6).

17. Causing death by negligence refers to cases where the perpetrator chose a method of abduction in which, due to his carelessness or negligence, the death of the victim occurred, for example, he placed it in a basement where there was poor ventilation and the victim suffocated. In case of murder of the victim, qualification under Part 3 of Art. 126 of the Criminal Code is excluded (BVS RF. 1998. N 4. P. 15; 2000. N 1. P. 7) and the act is qualified under the totality of Art. 126 and paragraph “c”, part 2, art. 105 of the Criminal Code.

18. Other grave consequences mean, in particular, suicide of the abducted person, serious illness, mental disorder, infliction of serious harm to the victim through negligence, major property damage, etc. (BVS RF. 2000. N 1. P. 7).

19. In case of kidnapping of a person with additional qualifications under Art. 127 of the Criminal Code is not required (BVS RF. 2000. N 2. P. 21).

20. Within the meaning of the note, voluntary release is understood as such a release in which the guilty person realizes that he has the opportunity to hold the kidnapped person, but releases him and hands him over to relatives and authorities. The release was found to be unfounded on the basis of the note to Art. 126 of the Criminal Code from criminal liability of D. and other persons for kidnapping the daughter of the victim K. for ransom, since they agreed to release her for 140 thousand dollars, but when handing over the money, D. was detained (BVS RF. 2000. No. 3. P. 21). Also, a person cannot be released from criminal liability for kidnapping if the abducted person was released after fulfilling the kidnapper’s demands or under an obligation to pay money after release (BVS RF. 1998. N 6. P. 12; 1999. N 10. P. 7) .
The reasons for the exemption do not matter for the application of the note.

21. The absence of other elements of a crime means a crime related specifically to the kidnapping of a person. Thus, in the case of F. and Sh., the Supreme Court of the Russian Federation indicated that they voluntarily released T., therefore they should only be held responsible for causing harm to his health (BVS RF. 1999. No. 2. P. 11).

Commentary on Article 126 of the Criminal Code of the Russian Federation

Commentary edited by A.V. Brilliantova

This criminal law prohibition is based on the norms international law. The main object of kidnapping is the social relations that arise regarding the exercise by a person of a person’s natural right to freedom of residence and movement, guaranteed by international and constitutional norms, and ensuring the security of freedom as the most important social good. An additional object in the qualified elements of a crime (parts 2, 3 of Article 126 of the Criminal Code of the Russian Federation) are relations that ensure the safety of the life and health of the victim.

The victim of a crime can be any living person; “theft” of a corpse cannot be qualified under Art. 126 of the Criminal Code of the Russian Federation

Since freedom of movement and residence is a subjective right that a person can dispose of at his own discretion, the voluntary and conscious consent of the victim to his “kidnapping” (kidnapping at the request of the victim) excludes criminal liability. Criminal liability is also excluded if conditions of extreme necessity are met (for example, when relatives “kidnap” a child from parents whose behavior poses a threat to his life, health, and proper personality formation).

The objective side of the crime consists of active actions to kidnap a person. Within the meaning of the law, kidnapping should be understood as unlawful intentional actions involving the secret or open taking (capture) of a living person, removal from his place of permanent or temporary residence, followed by detention against his will in another place. The corpus delicti is formal; the crime is completed from the moment all actions aimed at the abduction are completed.

Kidnapping involves three sequential operations: capture (taking possession), moving and detaining a person. Capture means secret or open active actions related to the establishment of physical dominance over a person (taking possession of him), as a result of which the victim is actually deprived of freedom of movement in space; displacement is the transportation (both with and without the use of vehicles) of the victim to a new place of residence, not typical for his usual life routine, against or against his will; restraining is preventing the victim (for example, by locking, tying, using force, placing physical barriers, etc.) from freely leaving this new place. The distance of movement and the duration of the victim’s detainment do not matter for qualification, but can be taken into account by the court when individualizing criminal punishment.

As a rule, a crime requires the perpetrator to commit all of these actions. At the same time, modern science proceeds from the fact that in a number of cases, kidnapping of a person can occur without his capture and displacement by the perpetrator, for example, in a situation where the victim independently, but under the influence of deception or abuse of trust on the part of the perpetrator, leaves his usual habitat and is then detained guilty in a new place.

Due to the characteristics of the objective side, if it is established that the perpetrator, when depriving the victim of his freedom, did not intend to move him in space and hold him, the act cannot be qualified under Art. 126 of the Criminal Code of the Russian Federation, but if there are grounds for this, it can be qualified as unlawful deprivation of liberty (Article 127 of the Criminal Code of the Russian Federation). At the same time, according to Art. 126 of the Criminal Code of the Russian Federation qualifies actions not only in the case when a person is kidnapped and moved to another place, but also when he is illegally detained, and therefore the detention itself does not require additional qualification under Art. 127 of the Criminal Code of the Russian Federation as unlawful deprivation of liberty. If the person’s actions were not aimed at keeping the victim in another place, but were an element of the objective side of another, more dangerous crime (for example, murder), there is no element of kidnapping. Only if the intent to commit another crime in relation to the stolen person arose after the end of the abduction itself, the act may form a set of crimes.

Kidnapping, qualified under Part 1 of Art. 126 of the Criminal Code of the Russian Federation, may be accompanied by the use of violence against the victim or other persons that is not dangerous to life or health (which should be understood as beatings or other violent acts associated with causing physical pain to the victim), or the threat of using such violence. Violence in this case does not require additional qualification based on the totality of crimes.

From the subjective side, kidnapping is characterized by guilt in the form of intent. When performing actions to capture, move and hold the victim, the subject is always aware of their social danger. The motives for the crime can be anything (envy, revenge, etc.); with the exception of selfish ones, they do not influence the qualification of the offense, but can be taken into account when assigning punishment. Does not exclude the qualification of the offense under Art. 126 of the Criminal Code of the Russian Federation, abduction of a woman without her consent for marriage.

The subject of the crime is a general sane person who has reached the age of fourteen.

The law provided for a number of qualifying criteria for kidnapping (Part 2 of Article 126 of the Criminal Code of the Russian Federation). Kidnapping of a person committed by a group of persons by prior conspiracy (clause “a” of Part 2 of Article 126 of the Criminal Code of the Russian Federation) presupposes that it was committed by two or more co-perpetrators who agreed in advance (before the moment of capture) in any form to commit a crime. This qualified crime will also occur if the co-principals, according to a preliminary agreement, carry out the objective side of the kidnapping of a person “in parts” (for example, one subject captures, another moves, a third holds). The actions of persons who hold victims who were previously abducted by other persons, and who are not in conspiracy with them, cannot be qualified under paragraph “a” of Part 2 of Art. 126 of the Criminal Code of the Russian Federation, but require independent assessment under Art. 127 of the Criminal Code of the Russian Federation

Kidnapping of a person with the use of violence dangerous to life or health, or with the threat of using such violence (clause “c” of Part 2 of Article 126 of the Criminal Code of the Russian Federation) presupposes that in the process of committing a crime (during capture, movement or retention) the abducted person or other persons (in order to facilitate the abduction) was subjected to such violence that resulted in the infliction of grave, moderate or minor harm to health, or violence that, although it did not cause harm to the health of the victim, at the time of use created a real danger to his life or health, as well as if there was a threat of such violence. In this case, additional qualifications under articles on liability for crimes against health are not required.

Kidnapping a person with the use of weapons or objects used as weapons (Clause “g”, Part 2 of Article 126 of the Criminal Code of the Russian Federation) involves the use by the perpetrator of a special weapon and method of committing a crime. When qualifying the actions of the perpetrator under paragraph “g” of Part 2 of Art. 126 of the Criminal Code of the Russian Federation follows in accordance with the Federal Law of November 13, 1996 N 150-FZ “On Weapons” (as amended by the Law of December 6, 2011) and on the basis expert opinion determine whether the object used in the attack is a weapon, i.e. an object or mechanism structurally designed to destroy a living or other target. If there are grounds for this, the actions of such persons who use weapons during the abduction of a person must be additionally qualified under Art. 222 of the Criminal Code of the Russian Federation

Objects used as weapons should be understood as objects that could cause bodily harm to the victim that are dangerous to life or health (a penknife or kitchen knife, a razor, a crowbar, a baton, an ax, a flare gun, etc.), as well as objects , intended for temporary destruction of a target (for example, mechanical sprayers, aerosol and other devices equipped with tear and irritant substances).

The mere fact that the subject has weapons or objects used in his capacity during the abduction of a person is not enough to qualify the act under paragraph “g” of Part 2 of Art. 126 of the Criminal Code of the Russian Federation; it is necessary to establish the fact of their use. The use of weapons or objects used as weapons should be understood as deliberate actions aimed at the use by a person of these objects for both physical and mental influence on the victim, as well as other actions indicating an intention to use violence through these weapons or objects, used as weapons (clause 2 of the Resolution of the Plenum Supreme Court RF dated November 15, 2007 N 45 “On judicial practice in criminal cases of hooliganism and other crimes committed with hooligan motives”). Weapons and other objects may be used when capturing, moving or holding a victim.

The kidnapping of a victim who is known to be a minor (clause “d”, part 2 of Article 126 of the Criminal Code of the Russian Federation) assumes that the actions of the perpetrator are directed against a person who has not reached the age of eighteen at the time of the crime, provided that the subject reliably knows about the age of the victim (for example, due to the fact that he is a relative, acquaintance, neighbor, etc.) or when the appearance of the victim clearly indicates his age. A conscientious misconception that arises on the basis that the age of the victim is approaching eighteen years or, due to acceleration, he looks older than his age, excludes the imputation of this qualifying characteristic to the guilty person.

The abduction of a woman who is known to the perpetrator to be pregnant (clause “e” of Part 2 of Article 126 of the Criminal Code of the Russian Federation) assumes that the perpetrator reliably knows about the condition of the victim (for example, due to the fact that he is a relative, acquaintance, neighbor and etc.) or when a woman’s appearance clearly indicates she is pregnant.

The abduction of two or more persons (clause “g”, part 2 of article 126 of the Criminal Code of the Russian Federation) represents the actions of the perpetrator, consisting of the simultaneous or sequential abduction of several people, regardless of whether the crimes committed are connected by a unity of intent, motive, intentions, provided that the perpetrator has not previously been convicted of any of the abductions (see commentary to Article 105 of the Criminal Code of the Russian Federation).

Under the kidnapping of a person committed for mercenary reasons (clause “h” of Part 2 of Article 126 of the Criminal Code of the Russian Federation), the law provides for cases where the motive for the kidnapping is the desire of the perpetrator to obtain material benefit from the crime for himself personally or for other persons (see also commentary to Article 105 of the Criminal Code of the Russian Federation). Kidnapping of a person committed for hire should also be recognized as mercenary. When a person is kidnapped for mercenary reasons, demands of a property nature may be presented to the kidnapped person himself or to third parties as a condition of release (ransom); in this case, if there are grounds for it, the act may be classified as a set of crimes as kidnapping and extortion (Article 163 of the Criminal Code of the Russian Federation).

The law calls kidnapping committed by an organized group or negligently causing death or other grave consequences (Part 3 of Article 126 of the Criminal Code of the Russian Federation) a particularly qualified crime.

Kidnapping committed by an organized group (clause “a” of Part 3 of Article 126 of the Criminal Code of the Russian Federation) means that it was committed by a stable group of persons who united in advance to commit one or more crimes (see commentary to Article 35 and 105 of the Criminal Code of the Russian Federation).

Theft, which through negligence resulted in the death of the victim or other grave consequences (clause “c” of Part 3 of Article 126 of the Criminal Code of the Russian Federation), assumes that as a result of the kidnapping actions, the death of the victim or other grave consequences occurs. These include, in particular, the suicide of the victim, the complication or development of his disease, material damage, the disruption of an important commercial transaction, the complication of interstate relations, etc. The act in question is a crime with two forms of guilt and material composition. Its peculiarity is the presence of intent to kidnap a person and carelessness regarding the consequences, due to which the deliberate actions of the perpetrator aimed at depriving the victim of life or causing other grave consequences exclude the imputation of the qualifying characteristic in question and require independent assessment. Careless causing of death to a victim does not require additional independent qualification under Art. 109 of the Criminal Code of the Russian Federation. Careless infliction of death or other grave consequences must be causally related to the actions of the perpetrator in kidnapping a person. Absence causation(for example, in a situation where the death of the victim was the result of the use of a weapon by a police officer when detaining a kidnapper) excludes the qualification of the act under paragraph “c” of Part 3 of Art. 126 of the Criminal Code of the Russian Federation

Kidnapping should be distinguished from some other crimes that are similar in objective terms, primarily from unlawful deprivation of liberty (Article 127 of the Criminal Code of the Russian Federation) and from hostage taking (Article 206 of the Criminal Code of the Russian Federation).

Kidnapping as opposed to unlawful imprisonment in mandatory involves the capture and movement of the victim in space, his removal from the usual living conditions and microsocial environment.

Kidnapping differs from hostage-taking in a number of ways, in particular: during kidnapping, the intent of the perpetrator is aimed at committing a crime against a specific, specific victim, whose identity the perpetrator is not indifferent to; in case of abduction, the perpetrator, as a rule, does not make his actions public; kidnapping does not always involve any demands being made as a condition of the victim's release.

Note to Art. 126 of the Criminal Code of the Russian Federation establishes an incentive norm, according to which a person who voluntarily frees a kidnapped person is exempt from criminal liability if his actions do not contain another crime. This order is imperative. The law enforcement officer is obliged to release the perpetrator from criminal liability for kidnapping if the perpetrator voluntarily released the victim.

Within the meaning of the law, the voluntary release of an abducted person means a release that is not conditioned by the inability to hold the abducted person or by the fulfillment or promise to fulfill the conditions that were the purpose of the abduction; release, which followed in a situation where the perpetrator could continue to illegally detain the kidnapped person, but granted him freedom. Actions cannot be regarded as voluntary if the actual release of the victim took place after the conditions set by the kidnappers were fulfilled, when their goal was achieved and the meaning of further detaining the victim was lost. Even if the victim was released before receiving the ransom, but the perpetrators were aware that the police were looking for them, the release is not voluntary.

The initiator of the release (the culprit himself, the victim, law enforcement agencies, etc.), as well as the motives for the voluntary release of the abducted person (pity and compassion for the victim, fear of exposure, etc.) can be anything and do not affect the resolution of the issue of release from liability.

If, having a real opportunity to illegally detain the victim, the culprit releases him (voluntarily releases him), but his actions contain elements of another crime (for example, beatings, torture, etc.), then he should be held responsible for crimes involving abduction, and not for kidnapping.

Video about the station. 126 of the Criminal Code of the Russian Federation

1. Kidnapping -

shall be punishable by forced labor for a term of up to five years or imprisonment for the same term.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) has become invalid;

c) with the use of violence dangerous to life or health, or with the threat of such violence;

d) using weapons or objects used as weapons;

e) in relation to a known minor;

f) in relation to a woman who is known to the perpetrator to be pregnant;

g) in relation to two or more persons;

h) for selfish reasons, -

shall be punishable by imprisonment for a term of five to twelve years, with or without restriction of freedom for a term of up to two years.

3. Acts provided for in parts one or two of this article, if they:

a) committed by an organized group;

b) has become invalid;

c) caused by negligence the death of the victim or other grave consequences, -

shall be punishable by imprisonment for a term of six to fifteen years, with or without restriction of freedom for a term of up to two years.

Note. A person who voluntarily frees a kidnapped person is exempt from criminal liability unless his actions contain another crime.

Commentary to Art. 126 of the Criminal Code of the Russian Federation

1. Kidnapping should be understood as unlawful intentional actions associated with the secret or open possession (capture) of a living person, removal from his place of permanent or temporary residence, followed by detention against his will in another place. One of the signs of the objective side of this crime is the seizure and movement of the victim for the purpose of subsequent detention in another place.

2. Actions of convicted persons aimed not at keeping the victim in another place, but at committing other crimes against him, exclude qualification under Art. 126 of the Criminal Code.

For example, the court found that the convicts, having beaten M., decided to kill him.

For this purpose, they placed the victim in the trunk of a car and took him to a vacant lot, where they killed him. Then, wanting to hide the crime committed in K.’s presence, they took K. to the forest and also killed him.

Since the actions of the convicts were aimed not at keeping the victims in another place, but at killing them, the Presidium of the RF Armed Forces canceled court decisions in terms of convicting the perpetrators under Part 3 of Art. 126 of the Criminal Code and the case in this part was dismissed due to the lack of corpus delicti.
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Resolution of the Presidium of the RF Armed Forces in case No. 207p2000.

3. When the abduction of a victim with subsequent detention is covered by the intent of the perpetrator and is considered as a way to achieve a criminal result, the act is subject to classification as a set of crimes, for example, demands for ransom from the victim or his relatives for mercenary reasons are subject to qualification as kidnapping and extortion under the relevant parts of Art. . Art. 126 and .

4. Kidnapping is considered a completed crime from the moment the person is captured and his movement begins. However, the subsequent retention of the stolen property does not require additional qualifications.

5. Committing a crime against the will of the kidnapped person is a prerequisite for criminal liability. In this regard, the ritual abduction of the bride by the groom in those areas where such a custom exists, with her consent, even against the will of her relatives, is not criminal. An exception is consent to abduction by a minor or other incapacitated person who is not able to fully account for what is happening.

6. Persons who did not directly kidnap a person, but hold him against his will, are liable under the relevant part of Art. 127 of the Criminal Code.

For example, the court found that Trunyakov and Kudinov, assuming that S. and K. were involved in the theft of Trunyakov’s car, beat them, placed them in the trunk of the car and took them from the cafe to Trunyakov’s house, where they placed the victims in the basement.

Trunyakov informed his son T. and watchman E. about the purpose and reason for S. and K. being in his house. Subsequently, E., together with Trunyakov, took part in beating the victims, as a result of which S. died from his injuries. At the direction of Trunyakov, T. and E. loaded the corpse of victim S. into the trunk of a car and put victim K into the car.

On the way, Trunyakov took the victim K. out of the car and shot him in the chest and head. After this, the convicts hid the corpses of the victims.

T.’s actions were qualified under paragraphs “a”, “g”, part 2 of Art. 126 of the Criminal Code, and E. - under paragraph “c” of Part 3 of Art. 126 and part 4 of Art. 111 of the Criminal Code.

The Presidium of the Armed Forces of the Russian Federation established that the actions of the convicts were qualified as kidnapping, committed by a group of persons by prior conspiracy against two persons, unfounded, since they did not directly participate in the seizure of the victims in the cafe and moving them to the house of Trunyakov B. and learned about the commission of the crime after the victims were brought to the house.

Thus, T. and E. did not conspire to kidnap S. and K. and did not take part in their abduction, and therefore cannot be held responsible for the abduction of the victims.

In this regard, the actions of T. and E. were reclassified from paragraphs “a”, “g”, part 2 of Art. 126 of the Criminal Code at paragraphs “a”, “g”, part 2 of Art. 127 of the Criminal Code, providing for liability for the unlawful deprivation of a person’s freedom, not related to his abduction, committed by a group of persons by prior conspiracy in relation to two persons.
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See: Resolution of the Presidium of the Supreme Court of the Russian Federation in case No. 533p2004pr.

7. The object of the crime is personal freedom, and additional objects in a qualified crime can be human life and health.

8. Subject is a sane individual who has reached the age of 14.

9. The subjective side is characterized by direct intent.

10. According to note. to the commented article, a person who voluntarily frees a kidnapped person is exempt from criminal liability unless his actions contain another crime.

This basis for exemption from criminal liability has important preventive significance. Within the meaning of Art. 31 of the Criminal Code, such actions cannot be considered a voluntary refusal to commit a crime, since the crime has already been completed. This is an independent basis - voluntary release means that the kidnapper, aware of the possibility of further detaining the victim, refuses this and releases the kidnapped person. The motives for releasing the victim are irrelevant. However, such release of the abducted person cannot be conditioned by the achievement by the perpetrator of the criminal result for the sake of which this crime was committed.

For example, according to the verdict, D. suggested that his friend S. kidnap L., the minor daughter of the production manager of the flour mill K., for ransom. He told S. information about the financial situation, the composition of K.’s family, the place of study of his daughter, and then persuaded S. to commit a crime. At the direction of D., she entered into a preliminary conspiracy with other persons and, using the information provided by D., fraudulently abducted L.

Then the victim's father was asked to pay a ransom, first in the amount of $500 thousand, and then in the amount of $250 thousand. K. agreed to pay 140 thousand dollars, and the perpetrators agreed to release the kidnapped woman for this amount. Upon receiving the money, D. was detained.

The Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation sentenced D. under Parts 4 and 5 of Art. 33, paragraphs “a”, “h”, part 2, art. 126 of the Criminal Code and S. under paragraphs “a”, “h”, part 2 of Art. 126 of the Criminal Code was canceled and the case in this part was dismissed.

The Presidium of the Armed Forces of the Russian Federation, having considered the protest of the prosecutor, found that, having canceled the verdict and dismissed the case regarding the conviction of D. et al. for complicity in kidnapping, S. for kidnapping, the Judicial Collegium referred to the note. to Art. 126 of the Criminal Code and indicated in the ruling that D. and other convicts agreed for a reward to release L., who had been kidnapped by them, and did so voluntarily, handing her over to her father before D. received the money.

However, within the meaning of the law (note to Article 126 of the Criminal Code), the voluntary release of an abducted person should be understood as such a release that followed in a situation where the perpetrator could continue to illegally detain the abducted person, but granted him freedom.

As can be seen from the testimony of victim K., after the abduction of his daughter, the convicts demanded a large ransom for a month. He did not have that amount of money, and as a result of negotiations, he agreed to pay $140 thousand. At the next meeting with the convicts, he showed the money to D., but refused to give it to his daughter before his release and put it in the office safe. A few days later he arrived at work and D. brought his daughter there. When D. tried to take money from the safe, he was detained.

Thus, the convicts released the victim upon transferring money as ransom, i.e. when her father complied with their conditions.

The evidence presented, as well as the circumstances presented, which are essential for the correct resolution of the case, did not receive an assessment by the cassation instance when deciding the issue of the legal qualification of the actions of those convicted of kidnapping, which served as the basis for sending the case for a new cassation consideration.
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BVS RF. 2008. N 4. P. 19 - 20; N 5. P. 20.

Provided in the note. the circumstance that excludes exemption from criminal liability - “if his actions do not contain another corpus delicti” should be understood in such a way that in case of voluntary release of the stolen person the perpetrator is not liable precisely under Art. 126 of the Criminal Code, but not for other crimes committed, for example, in connection with this abduction - causing varying degrees of harm to the health of the victim, theft vehicle, rape, extortion, etc.

Part 1. Kidnapping -

punished forced labor for a term of up to five years or imprisonment for the same period.

(as amended Federal Law dated 07.12.2011 N 420-FZ)

Part 2. The same act committed:

a) by a group of persons by prior conspiracy;

c) with the use of violence dangerous to life or health, or with the threat of such violence;

(as amended by Federal Law dated 02/09/1999 N 24-FZ)

d) using weapons or objects used as weapons;

e) in relation to a known minor;

f) in relation to a woman who is known to the perpetrator to be pregnant;

g) in relation to two or more persons;

h) for selfish reasons, -

punished imprisonment for a term of five to twelve years, with or without restriction of freedom for a term of up to two years.

(as amended by Federal Laws dated 02/09/1999 N 24-FZ, dated 12/27/2009 N 377-FZ, dated 12/07/2011 N 420-FZ)

Part 3. Acts provided for in parts one or two of this article, if they:

a) committed by an organized group;

b) has become invalid. - Federal Law of December 8, 2003 N 162-FZ;

c) caused by negligence the death of the victim or other grave consequences, -

are punished imprisonment for a term of six to fifteen years with restriction of freedom for a term of up to two years or without it.

(as amended by Federal Laws dated December 27, 2009 N 377-FZ, dated December 7, 2011 N 420-FZ)

(Part three as amended by Federal Law dated 02/09/1999 N 24-FZ)

Note. A person who voluntarily frees a kidnapped person is exempt from criminal liability unless his actions contain another crime.

Commentary to Art. 126 of the Criminal Code of the Russian Federation

1. Kidnapping should be understood as unlawful intentional actions associated with the secret or open possession (capture) of a living person, removal from his place of permanent or temporary residence, followed by detention against his will in another place. One of the signs objective side This crime is the seizure and movement of the victim for the purpose of subsequent detention in another place.

2. Actions of convicted persons aimed not at keeping the victim in another place, but at committing other crimes against him, exclude qualification under Art. 126 of the Criminal Code.

For example, the court found that the convicts, having beaten M., decided to kill him.

Since the actions of the convicts were aimed not at keeping the victims in another place, but at killing them, the Presidium of the RF Armed Forces overturned the court decisions regarding the conviction of the perpetrators under Part 3 of Art. 126 of the Criminal Code and the case in this part was dismissed due to the lack of corpus delicti.

6. Persons who did not directly kidnap a person, but hold him against his will, are liable under the relevant part of Art. 127 of the Criminal Code.

For example, the court found that Trunyakov and Kudinov, assuming that S. and K. were involved in the theft of Trunyakov’s car, beat them, placed them in the trunk of the car and took them from the cafe to Trunyakov’s house, where they placed the victims in the basement.

On the way, Trunyakov took the victim K. out of the car and shot him in the chest and head. After this, the convicts hid the corpses of the victims.

Thus, T. and E. did not conspire to kidnap S. and K. and did not take part in their abduction, and therefore cannot be held responsible for the abduction of the victims.

In this regard, the actions of T. and E. were reclassified from clauses “a”, “g”, part 2 of Art. 126 of the Criminal Code at paragraphs “a”, “g”, part 2 of Art. 127 of the Criminal Code, providing for liability for the unlawful deprivation of a person’s freedom, not related to his abduction, committed by a group of persons by prior conspiracy in relation to two persons.

7. Object of crime is personal freedom, and additional objects in a qualified crime can be human life and health.

8. Subject - a sane individual who has reached 14 years of age.

9. Subjective side characterized by direct intent.

10. According to note. to the commented article, a person who voluntarily frees a kidnapped person is exempt from criminal liability unless his actions contain another crime.

This basis for exemption from criminal liability has important preventive significance. Within the meaning of Art. 31 of the Criminal Code, such actions cannot be considered a voluntary refusal to commit a crime, since the crime has already been completed. This independent basis - voluntary release means that the kidnapper, aware of the possibility of further detaining the victim, refuses this and releases the kidnapped person. The motives for releasing the victim are irrelevant. However, such release of the abducted person cannot be conditioned by the achievement by the perpetrator of the criminal result for the sake of which this crime was committed.

For example, according to the verdict, D. suggested that his friend S. kidnap L., the minor daughter of the production manager of the flour mill K., for ransom. He told S. information about the financial situation, the composition of K.’s family, the place of study of his daughter, and then persuaded S. to commit a crime. At the direction of D., she entered into a preliminary conspiracy with other persons and, using the information provided by D., fraudulently abducted L.

The Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation sentenced D. under Parts 4 and 5 of Art. 33, paragraphs “a”, “z”, part 2, art. 126 of the Criminal Code and S. under paragraphs “a”, “z”, part 2 of Art. 126 of the Criminal Code was canceled and the case in this part was dismissed.

The Presidium of the Armed Forces of the Russian Federation, having considered the protest of the prosecutor, found that, having canceled the verdict and dismissed the case regarding the conviction of D. and others for complicity in kidnapping, S. - for kidnapping, the Judicial Collegium referred to the note. to Art. 126 of the Criminal Code and indicated in the ruling that D. and other convicts agreed for a reward to release L., who had been kidnapped by them, and did so voluntarily, handing her over to her father before D. received the money.

Thus, the convicts released the victim upon transferring money as ransom, i.e. when her father complied with their conditions.