According to official statistics, about 350 people are kidnapped in Russia every year. However, this number does not include the abduction of a child by relatives, because law enforcement authorities generally avoid initiating such criminal cases. Evgeniia Ivanova, a scholar from St Petersburg University, explains the cases when father and mother have the right to decide where and with whom a child lives, and when the law prohibits it.
In her dissertation 'Abduction: Qualification and Liability', Evgeniia Ivanova studied more than 1,300 cases of abduction and formulated recommendations on improving legislation in this area.
Ms Ivanova, why have you chosen abduction as the subject of your research?
There were a number of reasons. First and foremost, it was the wording of the Article, which is not ideal. The law provides only a name for the crime without defining it, so it is not very clear what the offender has to commit for it to be called abduction. Is it necessary to keep a kidnapped person in captivity for a long time or just a few hours? Is it necessary to have the abducted person removed somewhere, and does the distance matter? Is the motive and purpose of the abductor important? The law does not provide answers to these questions. Secondly, abduction is a crime that infringes on a person's physical freedom. However, the law does not give us a clear definition of what freedom in general and physical freedom in particular is. Moreover, in reality not all people can exercise such freedom fully at their discretion. The insufficient research into these issues has piqued my interest and led to such research.
What kind of people do not have full control over their physical freedom?
There are three categories. First, there are those whose sentence involves the deprivation or restriction of physical liberty. Obviously, people held in correctional institutions are not free to move around. Secondly, there are people who have been appointed custody because of their incapacity. The place of residence of such people is determined by their guardians. Thirdly, there are children, who are underage.
Is this why you focus so much on the liability of parents and relatives for abducting children? Is it because the physical freedom of children is of specific nature?
Absolutely. It is also a pressing social issue. I think each of us has heard of scandals involving the kidnapping of children by their parents or other relatives. Foreign countries have the practice of prosecuting such people. However, Russian law enforcement agencies are reluctant to initiate criminal proceedings, citing that the Criminal Code does not stipulate such liability.
Is there no provision for it?
Parents are not liable because under the law (the Constitution and the Family Code) they are the ones who are responsible for where and with whom the child lives. The conflict between the parents over the removal of a child is therefore a matter of family law, not criminal law. The situation is quite the opposite if one of the parents is deprived of parental rights. If there are no parental rights, there is no right to determine the child's place of residence. The person is legally a stranger to the child, so he/she becomes liable for kidnapping. The same applies to grandparents and other relatives of the child. They do not have the right to dispose of the physical freedom of the child, so they shall be held liable.
What if a child wants to live with a relative or a parent who has been deprived of parental rights? Should this be taken into account?
All things are considered, but only if the issue is resolved by legal means, whether it is a grandmother trying to get custody of a child or a parent trying to recover parental rights. Simply removing a child bypassing the legal procedure is a crime, and the opinion of a child, whatever age he or she may be, is legally irrelevant. However absurd it may seem, but a direct interpretation of the norms of the Constitution of the Russian Federation and the Family Code of the Russian Federation implies that for any minors the decision concerning their residence is made by parents. It is rather strange when a person aged sixteen can take care of their own medical matters, can get a job, can be held criminally liable, and at the same time is dependent on parents to determine the place of residence and spending leisure time.
What happens if living with parents endangers the life and health of a child, and a grandmother has to remove the child? Is it right to charge her with a criminal offence?
It is certainly wrong. That is why the Criminal Code of the Russian Federation provides for an exemption from liability for a person acting in cases of extreme necessity. If a child may be harmed and a person saves him or her, it is an act of extreme necessity.
Are there any changes that you could suggest to the Criminal Code that would allow improvement of the criminal legislation, in particular concerning the issue of criminal liability of child's relatives?
My dissertation includes such proposals. However, it is a social problem and such problems cannot be solved solely by the norms of the most repressive branch of law, criminal law being the most repressive of all. It is necessary to develop comprehensive mechanisms that involve both family and civil law to ensure that the course of action of individuals in a given situation is clear.
The text of the dissertation and a video of the defence are available on the website of St Petersburg University.
Speaking about abduction in general, rather than just children, is it possible to solve the problem with legal instruments?
We can take measures to improve legislation and adopt acts at the level of the global community. However, crime is a social phenomenon, and in my opinion, the most effective way to reduce it is through social mechanisms.
Are there examples of countries where the problem of abduction has been, if not completely solved, then minimised?
In the course of my research, I have not come across a country that does not have provisions for abduction in its legislation. In my opinion, this shows that this offence is common to any state and is 'normal', insofar as one can speak of normality in relation to destructive behaviour. Of course, the specific nature of abduction varies from country to country. For example, in China, women are often kidnapped for the purpose of marriage, which is a result of the demographic situation (there are considerably more men than women in the country). The problem of abduction is unlikely to be completely solved.
Could you please tell us about the defence of your dissertation?
My defence was held in a mixed format: the members of the council who were in other countries and cities were present remotely. Of course, this was rather unconventional, but everything went well, largely thanks to my long experience of distance working at the University. The entire procedure took about 2.5 hours and I received a lot of very different questions from the members of the dissertation council. It was certainly an interesting experience.
Is the defence procedure under the rules of St Petersburg University difficult?
The defence does not seem very complicated. All the requirements for candidates are justified and the mechanism for submitting and verifying documents is well established. I personally had difficulties in selecting a foreign expert, but I admit that this is related to the topic of my research. What is unusual is the absence of opponents: the members of the dissertation council act as both evaluators and critics of the work. In my view, it is not therefore the candidate, but the members of the dissertation council who may find it most challenging.
What do you think of the requirement to publish the research in two languages?
Publication of research in a foreign language is necessary, in my point of view. This solves a number of problems in popularising the research abroad, since not every foreign specialist has a sufficient command of Russian to study scientific works.
What are your plans now, after the defence? Does a PhD degree open new doors for you?
Of course, having a PhD degree is very important. It will contribute to my teaching career at St Petersburg University.
Furthermore, I have already submitted a proposal to St Petersburg University Publishing House for the publication of my monograph. I would really like to see it published this year. There are not many monographs on abduction, so my research might be useful.