Criminal Law Remedies for Counteraction Human Trafficking and

Trafficking of Children: Legislative Issues

Behruz Rustam Bukhorizoda

, Pulod Asadullo Nasuriyon

and Nigora Abdumannonovna Mullajanova

State educational institution of higher professional education Academy of the Ministry of Internal Affairs, St. Mastongulov,

Tajikistan

Tajik State University of Law, Business and Politics, 17th district, 1 h., Tajikistan

Keywords: Human trafficking, child trafficking, changes, additions, purchase and sale, other illegal transactions,

delimitation, extraction of illegal profit.

Abstract: The article discusses positive and negative aspects of the latest changes and additions made to the disposition

of Art. 130

and Art. 167 of the Criminal Code of the Republic of Tajikistan. The purpose of the study is to

identify positive and negative aspects of the changes and additions to the norms under consideration. The

objectives of the study are to identify positive and negative aspects of the changes and additions to the norms

under consideration; development of proposals for solving the problems of norms on human trafficking and

trafficking of children. The methodological base consists of the dialectical method of cognition, which made

it possible to study the problems of norms on human trafficking and trafficking of children. The authors

analyzed the new acts of these norms, considered some points of delimiting human trafficking from related

structures, taking into account the above changes and additions, and also analyzed the new purpose of human

trafficking. As a result of the study, the positive and negative aspects of the changes and additions to Art. 130

and 167 of the Criminal Code of the Republic of Tajikistan were identified.

1 INTRODUCTION

The significance of counteraction to human

trafficking in Tajik Republic is undoubted, since the

addition of norms to CC of RT, there were included

two more laws, Comprehensive programs, National

plans, changes and additions were made to the CC of

RT three times, there were held many conferences,

round tables and seminars. But, indeed, the problems

are still not solved. Analysis of scientific foreign and

domestic literature shows that the scheme and

mechanism of human trafficking in most countries are

the same. In Japan, organized crime is engaged in

human trafficking (Stoker Sully, 2008). The same

situation is in India (Singh G., Singh H., 2013). The

regulations for the investigation of this category of

crimes are also similar. For example, in India,

recruiters into the sex industry are women (Mikhel

I.V., Kengurusi N. 2019), as well as in Tajikistan, in

https://orcid.org/0000-0003-0319-3285

https://orcid.org/0000-0003-0812-879X

https://orcid.org/0000-0002-6702-928

Vietnam, human trafficking is mainly investigated at

the victim or his family members’ statement

(Selezneva N.A.).

Moreover, due to the similarity of the Criminal

Code of the Republic of Tajikistan and the Criminal

Code of the Russian Federation, the problems of

qualification and delimitation of human trafficking

from related components of crime are the same. For

example, in the law enforcement practice of Russia,

as well as of Tajikistan, there is a problem of

delimiting human trafficking from kidnapping

(Taranenko V.V., Kharitonov S.S., Reshnyak M.G.,

Borisov S.V., 2020).

Another circumstance that actualizes the fight

against human trafficking is labor migration, in

particular international, which increases the

efficiency of labor markets, facilitates the transfer of

knowledge and competencies, facilitates the system

of technology transfer, trade at the international level

Bukhorizoda, B., Nasuriyon, P. and Mullajanova, N.

Criminal Law Remedies for Counteraction Human Trafﬁcking and Trafﬁcking of Children: Legislative Issues.

DOI: 10.5220/0010646800003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

425-429

ISBN: 978-989-758-532-6; ISSN: 2184-9854

425

and removes obstacles to economic development

(Melnik T.M., 2011), creates new jobs and supports

the social security system (PotemkinaO.Yu., 2019).

However, Tajik citizens do not formalize their stay,

in order to save money, and become illegal migrants,

which leads to human trafficking. All above listed

proves that criminal associations create transnational

strategic alliances, so joint measures of states at

different levels are required to counteract the

alliances (Aliev N.T.O., Borbat A.V., 2020). All of

the above factors determine the topicality of human

trafficking in the Republic of Tajikistan.

The hypothesis of the study is the fact that,

without taking into account the legislative technique,

the changes and additions made will not be able to

solve the problems in law enforcement practice.

The purpose of the study is to assess the

effectiveness of the latest changes and additions made

to Art. 130

and 167 of the Criminal Code of the

Republic of Tajikistan.

The research objectives are:

- identification of positive and negative aspects of

changes and additions to the norms under

consideration.

- development of proposals for solving problems

of norms on human trafficking and trafficking of

children.

2 MATERIALS AND METHODS

Research was made with considering of dialectical

method of cognition, which made it possible to study

the problems of norms on human trafficking and

trafficking of children.

With the help of synthesis, there was determined

the validity of the existence of problems of legislative

technique in the formation of Art.130

and 167 of the

Criminal Code of the Republic of Tajikistan. The

logical-legal method made it possible to give

recommendations for solving the identified problems

of the new edition of the norms.

3 RESULTS AND DISCUSSION

Traditionally, for the realization of preventive

measures, a substantive norm is needed, which is the

basis of such a task. For effective preventive action,

the norm should also be harmonized, since such

norms of criminal law can reduce the risks that are

caused by the principle of double criminality (Peers

S., 2011), which, as a rule, acts as a serious obstacle

in the implementation of international cooperation in

criminal cases (Entin M.L., Voinikov V.V., 2019).

In our case, thesubstantive norm is Art. 130

of the

Criminal Code of the Republic of Tajikistan - human

trafficking. As mentioned above, despite all the

efforts of domestic legislation to bring the editing of

the norm on human trafficking to an ideal

formulation, from our point of view, the attempts

were not entirely successful.

Disposition of Art. 130

of the Criminal Code of

the Republic of Tajikistan makes provision of one of

eight alternative actions: 1) purchase and sale, 2)

other illegal transactions, 3) offer, 4) recruitment, 5)

transportation, 6) transfer, 7) harboring and 8)

receiving a person. The legislator took the path of

formalizing the methods of committing trafficking, as

evidenced by the indication of various methods of

committing of human trafficking.

In the disposition of Art. 130

of the Criminal

Code of the Republic of Tajikistan, due to the latest

amendments and additions, such act as sale and

purchase of a person was included and for the

domestic scientific world this act has not been studied

yet. In the Russian scientific world, this act has been

sufficiently studied, so in this connection, the

experience of Russian scientists on the term should be

studied.

In the theory of criminal law, there are two

approaches to the question of defining the concept of

"buying and selling a person" among scientists.

Supporters of the first approach (Vinokurov S.I.,

2014, Kostrova M.B. 2002, Magomedov S.K. 2004,

Skorlukov O.A., 2005), suggest not to use the terms

of civil law, since a person cannot be a thing or be

considered similar to that.

The second approach involves the use of these

terms within the framework of Art. 1271 of the

Criminal Code of the Russian Federation (Naumov

A., 2002, Zhinkin A.A., 2005, Kislova E.A., 2005,

Dolgolenko T.V., 2004, ZaydievaD.Ya. 2006).

Moreover, the blanket formulation of this norm is

considered to be correct. The following example can

be given: A contract of sale in civil law is similar to

the sale and purchase of a person in criminal law, the

only difference is the subject of the transaction, which

is the person in the second case. In civil law, a sale

and purchase is considered completed upon

fulfillment of the obligations of the parties (transfer

of goods in exchange for money), and in criminal law,

the fact of exchange is not required for the recognition

of an action to be completed. In this regard, the use of

civil terms is acceptable in the context of human

trafficking.

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

426

In the Republic of Tajikistan, the term “buying

and selling a person” is disclosed by the Law of the

Republic of Tajikistan “On Counteraction to Human

Trafficking and Assistance to Victims of Human

Trafficking” (hereinafter - the Law of the Republic of

Tajikistan “On Counteraction to Human

Trafficking”), the which meaning, from our point of

view, is fully disclosed.

The next new action in Art.130

of the Criminal

Code of the Republic of Tajikistan - making other

illegal transactions in relation to a person. As well as

the sale and purchase, the definition of other

transactions in relation to a person is disclosed in the

Law of the Republic of Tajikistan "On combating

human trafficking." Due to the absence of a similar

law in the Russian Federation, there is no definite

approach to understanding the action among

researchers.

The recognition of other illegal transactions to be

socially dangerous act is determined from the

practical experience, since a person is exchanged not

only for monetary reward. A person, in addition, can

be donated, rented out, mortgaged, etc. In domestic

practice, there are several cases of such actions. For

example, for non-payment of a debt, the culprit was

forced to leave his spouse as a bail; another case

shows that the child is given to relatives, etc. The term

"other" allows the law enforcement officer to use it

widely and understand the same transactions that are

given in civil law (chapter 7, § 2, 3, 4, 7 chap. 22,

chap. 30, 31, 33 paragraphs 1 and 2, 35 Of the Civil

Code of the Republic of Tajikistan (hereinafter - the

Civil Code of the Republic of Tajikistan)). All of the

above stipulates the connection of these actions with

human trafficking, respectively, in our opinion, the

criminalization of "sale and purchase" and "other

illegal transactions" is considered to be correct. A

similar conclusion was drawn by the results of a

survey of law enforcement officials in Tajikistan.

84% of respondents support the legislator’s position.

It should be mentioned, that only other illegal

transactions are considered criminal, in this

connection there may be raised the question of legal

transactions in relation to a person. From our point of

view, legal transactions in relation to a person can be

understood as those transactions when a person can

express his will.

Addition of the disposition of Art. 130

of the

Criminal Code of the Republic of Tajikistan by such

acts as "purchase and sale" and "other illegal

transactions" is a positive point, since they constitute

the essence of human trafficking. On the other hand,

the legislator of the republic has fulfilled the

obligation to unify and harmonize the legislation of

the CIS member states in the field of combating

human trafficking.

The next act as a part of the objective side of

human trafficking is a proposal. This socially

dangerous action was also criminalized with the

introduction of the latest amendments and additions

to Art. 130

of the Criminal Code of the Republic of

Tajikistan. In the dictionary of the Russian language

this term means "something that is proposed, offered

..." (Ozhegov S.I., 1990). A person's proposal is the

introduction of an offer (service, giving an idea,

incentives to commit human trafficking) to buy, sell

a person or other actions in relation to him in order to

exploit him or extract illegal benefits to another

person (group of persons). This term is not a novelty

in the Criminal Code of the Republic of Tajikistan.

For the first time, it was recognized as socially

dangerous in the form of an offer to imitate and

support public justification of terrorist activities and

extremism in 2016. The analyzed act is considered

completed from the moment a person makes a

proposal for the abovementioned purposes.

The proposal as an illegal act is found in the

Optional Protocol to the Convention on the Rights of

the Child on the sale of children, child prostitution

and child pornography. Thus, the legislator tried to

criminalize all methods of human trafficking and

comply with international standards. In fact, the list

of acts is wider than those ones provided in this

disposition, for example, forced labor, use of people

in armed establishments (Shestakov D.A., 2010), etc.

From our point of view, this approach is casuistic,

which leads to unnecessary detailing: listing the

specific circumstances of life situations, all kinds of

cases (Ivanchin A.V., 2010). Evidence of the casuistic

method in Art. 130

of the Criminal Code of the

Republic of Tajikistan is presented by 62 words that

make up this disposition. According to the rules of

legislative technique for "the perception, the norm

should consist of 7-8 words" (Tretyakova NS, 2008,

Kuznetsova NF, 1973).

Description of such qualifying identifiers as

pressure, abuse of an official position by a guilty

person, or abuse of a vulnerable position of a victim

of human trafficking, in the disposition of parts 1 and

2 of Art. 130

of the Criminal Code of the Republic

of Tajikistan, from our point of view, may lead to

competition between parts of this norm and to a

corruption component. These aggravating

circumstances should be criminalized in Part 2 of this

norm. It should be noted that abuse of a vulnerable

position, being an aggravating circumstance in other

norms of the Special Part of the Criminal Code of the

Republic of Tajikistan, is completely absent in Part 2

Criminal Law Remedies for Counteraction Human Trafﬁcking and Trafﬁcking of Children: Legislative Issues

427

of Art. 130

of the Criminal Code of the Republic of

Tajikistan as a qualifying component. Thus, in our

opinion, the disposition of Part 1 of Art. 130

of the

Criminal Code of the Republic of Tajikistan was not

quite correctly constructed by the legislator.

All the above-stated leads to the following

problems: the description of all methods and

qualifying features in one part of the article, firstly,

does not correspond to the legislative technique,

secondly, it complicates the use of this norm by law

enforcement agencies and courts, and thirdly, citizens

will also not be able to understand the essence of such

a norm. The issue of difficulty in understanding the

aspects of the rules of human trafficking also exists in

the law enforcement practice of the Russian

Federation (Volkov K.A., 2014).

An obligatory identifier of the subjective side of

human trafficking are the two goals - exploitation of

a person or obtaining illegal profit in another way.

Getting of illegal profit is a sign of exploitation,

however, in this case, the position of the legislator is

considered correct, since when committing the acts

listed in the disposition of the article under study, the

perpetrators may not pursue the purpose of

exploitation (for example, in organized groups, a

person can be recruited and sold without exploitation

to another organized group in connection with which

the first group commits human trafficking to gain

profit). This goal is new in Art. 130

of the Criminal

Code of the Republic of Tajikistan, since it was

included in connection with the inclusion of the latest

changes and additions. Thus, it is necessary to

distinguish the analyzed goal from the attribute of the

goal of human exploitation. In the latter case, getting

of benefits occurs through exploitation.

Regarding the issue of delimiting human

trafficking from kidnapping, before making changes

and additions to Art. 130

of the Criminal Code of the

Republic of Tajikistan dated 02.01.2019, in

distinguishing human trafficking from abduction, a

difficulty appeared, which was associated with the

fact that such a socially dangerous act as “abduction”

was created in Art. 130 and in art.130

of the Criminal

Code of the Republic of Tajikistan. The law

enforcement officials faced difficulty of qualifying

the act as aggregate or as a single crime in case of

human trafficking by kidnapping. However, this

problem was solved by excluding the term

“abduction” from Art. 130

of the Criminal Code of

the Republic of Tajikistan, which is also a positive

point.

Regarding the issue of delimiting human

trafficking from trafficking of children, in this issue,

from our point of view, there are several difficulties.

The first one is in the objective aspect of child

trafficking, which consists of two actions: any act or

any transaction through which a child is illegally

transferred to another person (group of persons). The

meaning of the disposition in part 4 of Art. 4 of the

Criminal Code of the Republic of Tajikistan "the

principle of legality" indicates that a person who is

receiving a child is not subjected to criminal liability

for this act. Of course, the recipient who has

committed the sale of children is prosecuted, but not

under Art. 167 of the Criminal Code of the Republic

of Tajikistan, and under Art.130

of the Criminal

Code of the Republic of Tajikistan. The problem is

that the penalties of both norms are proportionate,

which is considered wrong from the point of view of

fairness, i.e. a person who has committed a crime

against a minor must bear greater responsibility. But

if the punishment of Art. 130

of the Criminal Code

of the Republic of Tajikistan would be stricter than of

Art. 167 of the Criminal Code of the Republic of

Tajikistan, then the question of the need for the

existence of a rule on trafficking of children is raising.

In other words, if there is a special norm, but it is not

applied, then why is it needed?

There is another difficulty in the subject of child

trafficking. In accordance with the disposition of Art.

167 of the Criminal Code of the Republic of

Tajikistan, the subject in this crime is a parent, or

another legal representative or another person (group

of persons), who has a child to care for permanently

or temporarily, i.e. the subject is special. In Art. 130

of the Criminal Code of the Republic of Tajikistan the

subject is common. Thus, if a minor is sold by a

neighbor, the latter one cannot be criminally

responsible for this crime.

4 CONCLUSIONS

In conclusion, it should be noted about positive and

negative aspects of the amendments and additions to

Art. 130

and 167 of the Criminal Code of the

Republic of Tajikistan.

The positive aspects include: a) addition of the

disposition of Art. 130

of the Criminal Code of the

Republic of Tajikistan by such acts as "purchase and

sale" and "other illegal transactions"; b) the allocation

of another goal in the subjective side of the analyzed

crime - getting illegal benefits, which differs from the

goal of exploitation; c) exclusion from the disposition

of Art. 130

of the Criminal Code of the Republic of

Tajikistan such actions as “kidnapping”, which

previously created problems for law enforcement

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

428

agencies and judges in qualifying and delimiting

trafficking in persons from abduction.

The negative points are: a) addition of formation

of the norm on human trafficking with such an action

as “a person's proposal”. Thus, the legislator violated

the legislative technique, which can lead to negative

consequences; b) an attempt to describe all the

methods and aggravating circumstances in the

disposition of Part 1 of Art. 130

of the Criminal Code

of the Republic of Tajikistan, may also lead to

negative consequences; c) the absence of certain acts

in the law on trafficking of minors forces law

enforcement officers to qualify them under Art. 130

of the Criminal Code of the Republic of Tajikistan,

which leads to violation of the principle of justice; d)

narrowing the subject of trafficking of minors in the

disposition of Art. 167 of the Criminal Code of the

Republic of Tajikistan also forces law enforcement

officers to qualify them under Art. 130

of the

Criminal Code of the Republic of Tajikistan.

REFERENCES

Aliev, N.T.O., Borbat, A.V., 2020. Transnational organized

criminal activity in the era of globalization. In All-

Russian criminological journal. 14(3).

Dolgolenko, T.V., 2004. Criminal liability for human

trafficking. In Criminal law. 2.

Entin, M.L., Voinikov, V.V., 2019. The problem of

harmonization of the norms of criminal law within the

EU. In All-Russian criminological journal. 13(2).

Ivanchin, A.V., 2010. Abstract and casuistic methods in

criminal law-making. In Legal technique.

Kislova, E.A., 2005. Criminal Law Means of Counteracting

Slavery and Human Trafficking.

Kostrova, M.B., 2002. Grammatical or linguistic

interpretation of the criminal law. In Legality. 3.

Kuznetsova, N.F., 1973. The effectiveness of criminal law

and the language of law. In Socialist legality. 9. p. 33.

Magomedov, S.K., 2004. In rights. 3.

Melnik, T.M., 2011. International Labor Migration: Impact

on the Development of the World and National

Economy. In Terra Economicus. 9(4-3).

Mikhel, I.V., 2019. 03. 005. Kangaroos N. Human

trafficking in the north-east of India: models and new

trends. In J. of north east India studies. 7(1). pp. 115-

124.

Naumov, A., 2002. Norms of other branches of law as a

source of criminal law. In Legality. 7.

Ozhegov, S.I., 1990. Dictionary of the Russian language:

70,000 words.

Peers, S., 2011. EU Justice and Home Affairs Law.

OXFORD UNIV. PRESS. 3.

Potemkina, O.Yu., 2019. After the crisis: a “new start” of

the EU migration policy. In Modern Europe. 6.

Selezneva, N.A., 2017. Pham ThiBao Ngoc Anti-

trafficking measures under the criminal law of

Vietnam. In Human Rights Defender. 2.

Shestakov, D.A., 2010. Post-liberal criminology on

“Trafficking in Human Beings”. In All-Russian

Criminological Journal. 3.

Singh, G., Singh H., 2013. Trafficking in Human Beings:

Conceptual Foundations. In Siberian Federal

University Journal. Humanitarian sciences. 4.

Skorlukov, O.A., 2005. Slavery and the Slave Trade:

Criminological and Criminal Law Aspects of Research.

Stoker, S., 2008. Japanese Organized Crime: Promoting

Human Trafficking on a Large Scale. In All-Russian

Criminological Journal. 2. pp. 29-35.

Taranenko, V.V., Kharitonov, S.S., Reshnyak, M.G.,

Borisov, S.V., 2020. Actual problems of improving

criminal law measures to counter kidnapping, illegal

imprisonment, human trafficking and the use of slave

labor. In All-Russian criminological journal. 14(3). pp.

481–494.

Tretyakova, N.S., 2008. Linguistic features of criminal law

norms on responsibility for embezzlement.

Vinokurov, S.I., 2014. On the question of ways of

reforming international legislation in the field of

combating trafficking in persons (main theses). In Ros.

investigator. 8.

Volkov, K.A., 2014. Why is the problem of human

trafficking and human exploitation still acute? In All-

Russian criminological journal. 2.

Zaydieva, D.Ya, 2006. Responsibility for human

trafficking. In Business in law. 3-4.

Zhinkin, A.A., 2005. Trafficking in people and the use of

slave labor: problems of qualification and correlation

with related corpus delicti.

Criminal Law Remedies for Counteraction Human Trafﬁcking and Trafﬁcking of Children: Legislative Issues

429