Some problems of identifying victims of child substitution

Abstract. This article examines the concept of a child as a victim of a criminal offense as a substitute for a child, and gives the concept of victimology. The article deals with international practice in cases of child substitution. The article also states that the child (children) is a direct victim, and the parent (parents) is an indirect victim of the substitution of the child, since as a result of the illegal act, they are caused huge moral harm. Thus, as a result of the substitution of a child as a victim, first of all, the child should be considered, then their parents and other relatives. In this article, the task is to determine the categories of persons who can be considered as victims of substitution of a child (children).

Children are the meaning of life and the continuation of people's lives. Thus, in any state, in any period of the life of society, the rights of the child were violated, in particular, there were facts of substitution of the child, involvement of minor children in the Commission of socially dangerous acts, etc. Thus, the Commission of substitution contradicts the Convention norm, which ensures the preservation of the child's identity, while the right of minor children to know their parents (articles 7-9 Convention). Being loved is the most important condition for the normal development of a child. However, many children in the modern world suffer from a lack of parental love. Some mothers leave their newborns in the maternity hospital, others abuse their children.

The term victimology was coined by the German-American psychiatrist Frederick Wertham in 1949, who insisted that sociologists use a scientific approach to study victims of crime. Victimology has become widespread abroad. International conferences and symposia on topical issues of victimology have been held since 1973. The First conference was held in 1976 in Jerusalem (Israel), then in 1979 in Boston (USA), 1991 in Rio de Janeiro (Brazil), etc. [1, pp. 114115].

In this regard, the issue of determining the victim of the crime in question is of particular importance. Issues of studying the identity of the victim, the relationship between the offender and the victim in order to prevent crime are dealt with by victimology (lat.victim - the victim) as a special branch of criminology [2]. Victimology as a sub-branch of criminology studies victimization [9]. Currently, special attention is paid to the study of various social groups that are more prone to victimization by criminals - the elderly and low-income people, children, etc.

In the large legal dictionary, the victim of a crime is "... a natural or legal person who was directly or indirectly caused material or non-material damage by a criminal act; in a broad sense, social groups" [4, p. 189].As for the victim of child substitution, it should be noted that there are also different approaches of scientists. The opinion of D.V. Rivman, who claims that the victim of a crime is a person who has suffered physical, moral, including material and other harm through a criminal act, is fair [5, p. 15]. Thus, G. Gentig characterizes the victim as a person who undergoes a violation of any right protected by law, and who (the person) perceives such a violation with displeasure or suffering [6, p. 24].

Thus, one of the researchers believes that the direct victim of the analyzed crime should be considered a child, i.e. a person under the age of 18 [7].

The analysis of available scientific works on the definition of the concept of a victim of crime has shown the presence of different points of view.

Other scientists believe that when a child is substituted, the victims are the parents of the children who were substituted. In the case of substitution by one of the parents (parents), the victims will be a child and a family that did not know about the substitution, but if the third person is guilty, it is noted that both children and both parents will be victims of this crime [8, p.84-85]. There is also an opinion that when replacing a child, harm is caused and, accordingly, the rights of both the child and his parents are violated, or moral harm is inflicted on other close relatives" [9, p. 212].

One of the signs of a victim of a crime is a sign that characterizes the attitude of the victim to the harm caused to him, i.e., whether the victim consents to causing him harm or not. On this issue, the most common is the opinion of scientists that the harm caused to the victim with his consent should not have a public danger, and therefore should not contain the elements of a crime. However, in the criminal legislation of many countries there is no rule that would exclude the criminality of an act on this basis. Speaking about the substitution of a child, it is necessary to take into account that the consent of the child to make a substitution in relation to him can take place only if he realizes the nature of the act of the guilty person. This is possible when replacing an older child who can be aware of their actions and (or) lead them. In the case of substitution in relation to a newborn or an infant, such a sign is absent [9, p. 213].

Thus, article 167 of the criminal code of Armenia provides for criminal liability for illegal separation of a child from his parents or substitution of a child. Part 2 of this article presents several types of qualified personnel: «2. The same actions performed: 1) in relation to two or more children; ...4) with the illegal export of the child abroad; ... 6) for the purpose of removing organs and tissues from the child for transplantation" [10].

The above-mentioned criminal law reflects a number of victims of crime, depending on the purpose of substitution of children. That is, the categories of persons who may be potential victims of the designated crime are comprehensively considered. We consider it appropriate to introduce similar qualified compositions in a number of criminal laws of the CIS countries that provide for liability for the substitution of a child. In other words, specifically speaking, here we are talking about victims of substitution -two or more newborn children, as well as children illegally taken abroad, children substituted for illegal acts in the form of transplants.

A mandatory sign of substitution of a child related to its object should be considered the identity of the victim of substitution-the child. There are also opinions that the victims of substitution may be children who do not realize the significance of the crime being committed [11].

However, a child at one, two, and three months may not have pronounced individual traits that allow parents to identify it as their own.

It should be said that prevention, investigation and coverage of the problems of this crime directly affect the formation of civil society [9, р. 210].

The international protection of children's rights is an integral part of the international protection of human rights, since all its principles are also applicable to the international protection of the rights of the child.

It should be noted that the victims here can be children, regardless of blood ties, who are legally part of a certain family.

Meanwhile, it should be emphasized that in the Republic of Kazakhstan the rights of the child as a citizen of the country is enshrined primarily in the Constitution of Kazakhstan, the Code of RK "On marriage (matrimony) and family", Law of RK "On the rights of the child", "About education", Labor Code of the RK, the RK Code "On nation health and health system" and other legislative acts.



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Year: 2020
City: Almaty
Category: Economy