Ибрагимов А.М. Соотношение понятий «гарантии» и «контроль» в международном праве

Аннотация: The article in divided into two parts in terms of its structure: liability for human traffic in Russia and liability for human traffic under the Criminal code of Germany. The regulations and norms of the Russian criminal law are reviewed in the first part. In particular, it is noted that in 2003 Article 152 was excluded from the Criminal code of the Russian Federation (Traffic of under-age) and at the same time the Code was supplemented with Article 1271 (Human traffic). Inclusion of this regulation into the Section dealing with crimes against freedom, honor and dignity was approved by almost all the scholars. Inclusion of the regulation of human traffic into the Russian Criminal code was a major step forward since any human traffic (not only regarding children) is an act of significant social danger. Moreover, the necessity to establish these independent essential elements of offence was determined by the international law and specified by the international obligations of the Russian Federation. However, the international legal norm of liability for human traffic was implemented into the criminal law of Russia without the required adaptation to the present-day situation in Russia that is why it was severely criticized by the scientific community. In particular, it is noted that among the acts listed in the law only purchase and sale constitute the human traffic in its proper sense. It means illegal onerous transaction under which one party (seller) transfers one or several persons subject to payment to the other party (purchaser); the purchaser obtains them and transfers a fee in terms of money, property or right to property to the seller. In such a case, both the person intending to use directly “the human commodity” and the person acquiring it for the purpose of resale and deriving of property benefit can act as the purchaser All the rest acts listed in Part 1 of Article 1271 of the Code are not the trade in the exact meaning of the word but are merely associated with purchase and sale of a person and facilitating its making. The list of possible actions resulting in a person losing his status and turning to be a subject of transaction is far from being completed. That is why time and again the experts have been making suggestions to supplement the references related to Article 1271 of the Code with reference to “other transactions” involving human beings. The Russian legislator included a special purpose into the subjective aspect of human traffic: the legislator associates the performance of all the actions listed in the reference with the purpose of exploitation of the person involved in the trade with regard to him. Although using of the purpose of exploitation of the wronged person in the reference to the regulation corresponds to the international legal notation of human traffic but it is not socially conditioned, since the parties under the transaction or a middleman in some cases can act having no such purpose. The provisions of the German Criminal code with regard to the liability for human traffic are reviewed in the second part of this article. Specific essential elements of offence, objects of crime, system arrangements in the criminal law structure, matters related to the background of crime, criminal attempts as well as to liability for accompliceship and rendering assistance are considered. Ancillary criminal regulations applied in cases of impossibility to hold liable for human traffic are studied. Contents and structure of the essential elements of offence as well as sanctions in case of certain essential elements of offence: definition of characteristic features of human traffic, deed, means and purpose of crime, exclusion of crime on the basis of consent of the wronged person are investigated particularly. The issues of criminal liability of clients using the services of persons forced to exercise prostitution are indicated.

Abstract: The article in divided into two parts in terms of its structure: liability for human traffic in Russia and liability for human traffic under the Criminal code of Germany. The regulations and norms of the Russian criminal law are reviewed in the first part. In particular, it is noted that in 2003 Article 152 was excluded from the Criminal code of the Russian Federation (Traffic of under-age) and at the same time the Code was supplemented with Article 1271 (Human traffic). Inclusion of this regulation into the Section dealing with crimes against freedom, honor and dignity was approved by almost all the scholars. Inclusion of the regulation of human traffic into the Russian Criminal code was a major step forward since any human traffic (not only regarding children) is an act of significant social danger. Moreover, the necessity to establish these independent essential elements of offence was determined by the international law and specified by the international obligations of the Russian Federation. However, the international legal norm of liability for human traffic was implemented into the criminal law of Russia without the required adaptation to the present-day situation in Russia that is why it was severely criticized by the scientific community. In particular, it is noted that among the acts listed in the law only purchase and sale constitute the human traffic in its proper sense. It means illegal onerous transaction under which one party (seller) transfers one or several persons subject to payment to the other party (purchaser); the purchaser obtains them and transfers a fee in terms of money, property or right to property to the seller. In such a case, both the person intending to use directly “the human commodity” and the person acquiring it for the purpose of resale and deriving of property benefit can act as the purchaser All the rest acts listed in Part 1 of Article 1271 of the Code are not the trade in the exact meaning of the word but are merely associated with purchase and sale of a person and facilitating its making. The list of possible actions resulting in a person losing his status and turning to be a subject of transaction is far from being completed. That is why time and again the experts have been making suggestions to supplement the references related to Article 1271 of the Code with reference to “other transactions” involving human beings. The Russian legislator included a special purpose into the subjective aspect of human traffic: the legislator associates the performance of all the actions listed in the reference with the purpose of exploitation of the person involved in the trade with regard to him. Although using of the purpose of exploitation of the wronged person in the reference to the regulation corresponds to the international legal notation of human traffic but it is not socially conditioned, since the parties under the transaction or a middleman in some cases can act having no such purpose. The provisions of the German Criminal code with regard to the liability for human traffic are reviewed in the second part of this article. Specific essential elements of offence, objects of crime, system arrangements in the criminal law structure, matters related to the background of crime, criminal attempts as well as to liability for accompliceship and rendering assistance are considered. Ancillary criminal regulations applied in cases of impossibility to hold liable for human traffic are studied. Contents and structure of the essential elements of offence as well as sanctions in case of certain essential elements of offence: definition of characteristic features of human traffic, deed, means and purpose of crime, exclusion of crime on the basis of consent of the wronged person are investigated particularly. The issues of criminal liability of clients using the services of persons forced to exercise prostitution are indicated.