Full text of Art. 126 of the Criminal Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 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;

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) the clause became invalid on December 11, 2003 - the federal law dated December 8, 2003 N 162-FZ;
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 on Article 126 of the Criminal Code of the Russian Federation

1. Composition of the crime:
1) object: main - social relations to ensure the international and constitutional human right to freedom and personal integrity; additional - safety of life, health, property rights;
2) objective side: actions expressed in capturing a person, removing him against his will from his usual microsocial environment, followed by moving and detaining him in another place. The three main ways to commit kidnapping are to capture, move and detain a person by putting psychological pressure on him, using physical violence and through deception;
3) subject: a sane individual who has reached 14 years of age;
4) subjective side: characterized by a deliberate form of guilt (direct intent). The perpetrator is aware of the social danger of his actions, foresees the onset of dangerous consequences and desires their occurrence. The motive for committing a crime can be different - revenge, hatred, jealousy, hooligan motives, etc.

The crime is considered completed from the moment the person is captured and begins to move. At the same time, subsequent retention of additional qualifications under Art. 127 of the Criminal Code of the Russian Federation does not require it.

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

The qualifying criteria include the same act committed by a group of persons by prior conspiracy; with the use of violence dangerous to life or health, or with the threat of such violence; using weapons or objects used as weapons; in relation to a known minor; in relation to a woman who is known to the perpetrator to be pregnant; in relation to two or more persons; for selfish reasons (Part 2 of Article 126 of the Criminal Code of the Russian Federation). A particularly qualified crime is its commission by an organized group; or if the actions negligently resulted in the death of the victim or other grave consequences (Part 3 of Article 126 of the Criminal Code of the Russian Federation).

2. Applicable law:
1) Constitution of the Russian Federation (Article 22);
2) International Covenant on Civil and Political Rights;
3) Federal Law “On Weapons” (Articles 2-5, 13, etc.);
4) Decree of the Government of the Russian Federation dated August 17, 2007 N 522 “On approval of the Rules for determining the severity of harm caused to human health.”

3. Judicial practice:
1) Resolution of the Supreme Court of the Russian Federation dated December 27, 2002 N 29 “On judicial practice in cases of theft, robbery and robbery";
2) Resolution of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 “On judicial practice in murder cases ()”;
3) cassation ruling of the Moscow City Court dated January 14, 2013 in case No. 22-0001. The verdict in the case of organizing the kidnapping of a person by a group of persons by prior conspiracy, with the threat of violence dangerous to life and health, was left unchanged, since the actions of the convicts were qualified correctly, the punishment was imposed taking into account the nature and degree of public danger of the crime committed, information about the identity of each convicted person, aggravating and mitigating circumstances.

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

Kidnapping (Article 126 of the Criminal Code of the Russian Federation). Responsibility for kidnapping was first introduced into Russian criminal legislation on April 29, 1993 due to the wide spread of this crime. The Criminal Code of 1996 not only retained the rule on liability for kidnapping, but expanded the scope of this responsibility, including other, along with existing, aggravating circumstances.

A significant novelty is the note to Art. 126 of the Criminal Code of the Russian Federation, which states that a person who voluntarily frees a kidnapped person is exempt from criminal liability if his actions do not contain another crime. Article 126 of the Criminal Code of the Russian Federation consists of three parts.

The immediate object of the crime is the personal freedom of a person. In qualified types of abduction, an additional object may be the life and health of the abducted person.

The victim can be any person, regardless of age, citizenship, social and official status, etc. The consent of the victim to his “abduction” in secret from his family and friends excludes the elements of this crime, since the law (Article 126) does not indicate such signs of abduction - “with consent” or “without consent”.

From the objective side, the abduction of a person consists of his capture (taking possession) in any way (secretly, openly, by deception) and the restriction of personal freedom by moving or placing him in some other room (place) for some time, where he is forcibly held. Thus, kidnapping involves a combination of three sequential actions. This is: capture, movement to another place and subsequent forcible detention of the victim there against his will. The kidnapping may be accompanied by the commission of other criminal acts - threats, bullying, physical and mental coercion of the victim to commit actions that are aimed at achieving the goal of the crime (for example, receiving a ransom for release, drawing up documents for a car, dacha, apartment in the name of the subject, etc. .).

The crime in question is constructed by the legislator according to the type of material elements. Therefore, it will not be completed from the moment the person is captured, but only after other actions of this composition are completed: after the abducted person is moved to another place and his freedom of movement is limited. In the literature on this issue, another opinion has been expressed that the elements of kidnapping are formal in nature, but no arguments are given to substantiate this position.

An attempt to capture the victim, i.e. actions directly aimed at taking possession of him for the purpose of subsequent movement to another place and restricting his freedom of movement, which were unsuccessful due to circumstances beyond the control of the perpetrator, should be considered as an attempted kidnapping and qualified under Part 3 of Art. 30 and art. 126 of the Criminal Code. Judicial practice also adheres to this position.

From the subjective side, the crime in question is committed with direct intent. The perpetrator is aware that he is kidnapping a person, anticipates that as a result he will be deprived of freedom of movement, and desires this. The motives for such actions can be different: self-interest, revenge, performing any other actions, etc. motive and purpose are not mandatory elements of the composition. At the same time, their correct establishment is of fundamental importance, since they can influence both the qualification of the actions of the perpetrator (clause “h” of Part 2 of Article 126 of the Criminal Code) and the assignment of punishment. Pays attention to this Supreme Court Russian Federation, for example, when the abduction was carried out for the purpose of extortion, sale of minors abroad, involvement in a crime, removal of organs or tissues for transplantation, for hooligan reasons, etc. In all of the above cases, it is necessary to qualify the offense as a set of crimes under Art. 126 of the Criminal Code of the Russian Federation and the corresponding article of the Special Part of the Criminal Code.

The subject of a crime can be any sane person over 14 years of age.

The degree of danger of the crime in question increases significantly in the presence of qualifying circumstances. Part 2 Art. 126 of the Criminal Code of the Russian Federation includes kidnapping committed:

• a) by a group of persons by prior conspiracy;
• b) repeatedly;
• c) with the use of violence dangerous to life and 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.

The abduction of a person by a group of persons by prior conspiracy means that two or more persons who agreed in advance about the abduction participated in the commission of this action (Article 35 of the Criminal Code of the Russian Federation). Even in cases where group members performed different roles (for example, some carried out the capture, others - the retention), they are all co-perpetrators of the same crime: kidnapping.

Repeatedness should be understood, according to Art. 16 of the Criminal Code of the Russian Federation, the commission of two or more crimes provided for in one article or part of an article of the Code. Point "b" part 2 art. 126 of the Criminal Code of the Russian Federation applies only in cases where the subject had previously committed a kidnapping and his actions were qualified by any part of this article.

Violence dangerous to life and health is violence that can cause serious harm to the health of the victim; harm of moderate severity or light harm, causing short-term health disorder or minor permanent loss of general ability to work.

The use of weapons or objects used as weapons means the use of firearms or bladed weapons, as well as objects specially manufactured or adapted to inflict bodily harm, household items and any other objects used by the perpetrator to inflict life-threatening violence or health.

Kidnapping of a minor involves the capture of a person who has not yet reached the age of 18, provided that the kidnapper knew for certain that he was kidnapping a minor.

To apply clause "e" of Part 2 of Art. 126 of the Criminal Code of the Russian Federation, the law puts forward a mandatory condition - the perpetrator’s knowing knowledge that he is kidnapping a pregnant woman. At the same time, the gestational age does not matter for qualification; reliable knowledge of the subject about this is important.

The kidnapping of two or more persons is qualified under paragraph "g" of Part 2 of Art. 126 of the Criminal Code in the case when their abduction occurred simultaneously and was covered by the unity of intent of the perpetrator.

Selfish motives involve the desire to obtain material benefits as a result of kidnapping. The presence of selfish motives is evidenced by the demand from the victim or his relatives for money, property or the right to property, for example, the transfer of documents for an apartment, house, car. Most often, kidnapping is committed for mercenary reasons. Therefore, the qualification of the act is carried out according to the totality of crimes - kidnapping (Article 126) and extortion (Article 163), since the acts encroach on various objects.

The legislator provided in Part 3 of Art. 126 of the Criminal Code of the Russian Federation and especially qualifying circumstances, which include the acts provided for in Part 1 and Part 2 of this article, if they were committed by an organized group or negligently resulted in the death of the victim or other grave consequences.

The concept of an organized group is given in Art. 35 of the Criminal Code of the Russian Federation, according to which such a group is recognized as a stable group of persons who have united in advance to commit one or more crimes.

Other serious consequences of kidnapping include the infliction of serious harm to health through negligence, suicide of the victim, the onset of mental illness, material damage in large size and etc.

Careless causing of death to the victim during his abduction does not require qualification in the aggregate, since it is fully covered by the disposition of Part 3 of Art. 126 of the Criminal Code of the Russian Federation. If the death of the victim occurred as a result of causing grievous harm to health, the actions of the perpetrator must be qualified according to the totality of crimes provided for in Part 3 of Art. 126 and part 4 of Art. 111 of the Criminal Code of the Russian Federation. The murder of a kidnapped person is qualified under paragraph “c” of Part 2 of Art. 105 and part 3 of Art. 126 of the Criminal Code of the Russian Federation. The totality in these cases is necessary, since the subject encroaches on two objects and performs two completely different legally significant actions.

In the note to Art. 126 of the Criminal Code of the Russian Federation, the legislator indicated that a person who voluntarily released a kidnapped person is exempt from criminal liability if his actions do not contain another crime. The note has a preventive value; it gives the kidnapper the opportunity to come to his senses and free the kidnapped person. In addition, the legislator with this provision helps to deter the criminal from further violent actions against the kidnapped person. From the meaning of this norm, it becomes obvious that the law established the conditions for such release, these are: voluntary release of the kidnapped person and the absence of other elements of the crime in the person’s actions.

Voluntary release should be understood as the actions of the person(s) who committed the crime. The last one is already over, but the guilty one own initiative voluntarily released the victim, while having a real opportunity to continue to illegally detain him. The motives for the voluntary release of the victim can be different: repentance, pity for the victim, fear of criminal liability, revenge from the victim’s relatives, and others. Of course, there is no voluntariness if the whereabouts of the kidnapped person became known to his relatives and law enforcement agencies, and in connection with this it becomes possible to take measures to detain the culprit and release the kidnapped person, which the culprit knows about and therefore releases him. Voluntariness is also absent when the perpetrator achieved his goal (for example, received a ransom), and therefore released the victim. Another basis for recognizing the release as voluntary is the absence of other elements of a crime in the person’s actions. If the actions of the perpetrator contain another element of a crime related to kidnapping, for example, causing harm to the health of the kidnapped person of varying degrees of severity, torturing him, illegally carrying weapons, raping a woman, he will be prosecuted as under Art. 126 of the Criminal Code of the Russian Federation, and under the corresponding article of the Special Part of the Code, i.e. by totality of crimes. This solution to the issue follows from the meaning of the note to Art. 126 of the Criminal Code of the Russian Federation, which directly indicates a combination of two conditions for the release of a kidnapped person. The note does not contain any time limit for the release of the victim from the moment of abduction. It seems that we can talk about a very short period of time, which can only be calculated in hours, otherwise it is difficult to talk about voluntariness, since harm has already been caused to the person of the abducted person, arising from the fact and conditions of detention, feeding, provision of drink, walks, etc.

Kidnapping should be distinguished from unlawful deprivation of liberty (Article 127 of the Criminal Code of the Russian Federation), extortion (Article 163 of the Criminal Code of the Russian Federation), and hostage taking (Article 206 of the Criminal Code of the Russian Federation). The main difference between kidnapping and unlawful imprisonment is the method of encroachment on the freedom of the victim; kidnapping is always associated with capture (forced or without it) and his subsequent removal from his place of permanent residence, unlawful movement to another place and keeping him in isolation against his will. The mere holding of the victim in captivity, if this was not preceded by possession (capture), movement, does not constitute kidnapping and is considered as illegal deprivation of liberty.

As noted above, kidnapping may involve extortion. What is done in such cases is qualified according to the totality of these crimes.

Kidnapping differs from hostage-taking in that the fact of capturing and holding the victim, as well as the demands made by the perpetrators, are not advertised here; the ransom demand addressed to his relatives is carried out secretly, hidden from other persons, as well as government authorities; As a rule, the place where the stolen property is kept is kept secret; the demands made are always made on the kidnapped person himself, his relatives, friends, work colleagues, but not on the state or any organization, as is required when taking a hostage.

Criminal codes of many foreign countries provide for liability for kidnapping, although the concept of “kidnapping” (like the Code of the Russian Federation) is not given; it was developed by legal theory.

For example, the Criminal Code of the Federal Republic of Germany contains a group of norms aimed at protecting individual freedom, while responsibility is established differentially depending on the characteristics of the victim, the motives and purpose of the kidnapping.

Such norms, first of all, should include: “Kidnapping”, “Kidnapping of minors”, “Kidnapping for the purpose of extortion”. The basic definition of kidnapping indicates the means of committing the kidnapping and the purpose of this act: “who, using deception, threats or force, kidnaps a person in order to place him in a helpless position or slavery, serfdom or deliver him to foreign military or naval services.”

The French Criminal Code identifies ch. 4 “On attacks on the freedom of a person” and establishes strict liability for “the arrest, abduction, detention or illegal detention of a person committed without an order from legitimate authorities and outside the cases provided for by law (Article 224-1). Thus, any form of unlawful deprivation of liberty of any person. Aggravating circumstances of these crimes are the infliction of grave consequences (injury, chronic illness, death), the commission of crimes by an organized gang or against several persons, also against a minor under 15 years of age (Article 224-2-224 -5).For the commission of these crimes, long terms of imprisonment are established (from 20 years of criminal imprisonment to life imprisonment).In the case of active repentance of the perpetrator, a mitigation of punishment is provided.

Liability for “unlawful pursuit, abduction and detention” is established by the Spanish Criminal Code (Articles 163-168). Responsibility is differentiated depending on the duration of detention (for example, three days of imprisonment, more than 15 days); the code also contains aggravating circumstances for these crimes: kidnapping with the requirement to fulfill certain conditions for the release of the kidnapped person; if the unlawful persecution or abduction was committed under the guise of officials or the victim was a minor, incompetent or an official in the performance of his duties.

Liability for kidnapping is also provided in the CIS countries, for example, Art. 130 Criminal Code of Tajikistan, Art. 125 of the Criminal Code of Kazakhstan, Art. 123 of the Criminal Code of Kyrgyzstan. In terms of content, the norms set out in these articles are similar to Art. 126 of the Criminal Code of the Russian Federation.