Article 33. Infliction of Harm in the Apprehension of a Person Who Has Committed an Encroachment

1. The infliction of harm upon a person who has committed a criminally punishable act during their apprehension for the purpose of delivering them to state authorities and preventing the possibility of their committing new encroachments shall not constitute a criminal offense, provided that apprehending such a person by other means was not possible and that no excess of the measures necessary for this purpose was committed.

2. Exceeding the measures necessary for the apprehension of a person who has committed an encroachment shall be recognized as their obvious disproportion to the nature and degree of public danger posed by the offense committed by the person being apprehended and to the circumstances of the apprehension, where the person is unnecessarily inflicted with clearly excessive harm that is not justified by the circumstances. Such excess entails criminal liability only in cases of intentional infliction of harm.

3. The right to apprehend a person who has committed an encroachment, alongside persons specially authorized to do so, is also vested in victims and other citizens.

The institution of apprehending a person who has committed an encroachment is an important institution aimed at ensuring citizens' right to protection against criminal encroachments. The institution of apprehending an offender is recognized in international criminal law.

Thus, the United Nations General Assembly called upon all Member States to make efforts toward the “creation and strengthening of means for identifying, prosecuting and punishing those guilty of committing crimes,” and the development of cooperation with other States on the basis of providing mutual assistance in such matters as the identification and prosecution of offenders, their extradition, and the confiscation of property for the purpose of providing restitution to victims” (Article 4 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. General Assembly Resolution 40/34).

It should be noted that, prior to the introduction of “apprehension of an offender” as an independent institution into the Criminal Code, apprehension of an offender was not regarded as a criminally punishable act. Thus, pursuant to Article 16 of the Decree of the Presidium of the Supreme Soviet of the USSR dated July 26, 1966 (as amended by the Decree dated June 5, 1981) “On Strengthening Liability for Hooliganism,” the compelled infliction of harm upon an offender during apprehension and the suppression of a criminal encroachment was regarded as lawful conduct not subject to criminal or other liability. The Decree of July 26, 1966 equated actions aimed at apprehending an offender, in terms of their legal consequences, with necessary defense.

The Plenum of the Supreme Court of the USSR adhered to a similar position. Thus, paragraph 3 of the Resolution of the Plenum of the Supreme Court of the USSR dated August 16, 1984, “On the Application by Courts of Legislation Ensuring the Right to Necessary Defense Against Socially Dangerous Encroachments,” stated that the actions of persons who inflicted harm upon an individual in connection with suppressing that individual's socially dangerous encroachment and apprehending or directly delivering the encroaching person to the relevant authorities should be regarded as having been committed in a state of necessary defense. Criminal liability for inflicting harm upon an apprehended person could arise only if such actions were not necessary for the apprehension and were clearly inconsistent with the nature and danger of the encroachment.

The legal assessment of actions aimed at apprehending an offender as acts of necessary defense or exceeding its limits fails to take into account that, although certain features of the action of apprehending an offender coincide with those of necessary defense, taken together they reflect the qualitative distinctiveness of apprehension, which makes it possible to distinguish it as an independent type of lawful conduct alongside necessary defense.

The 1991 Fundamentals of Criminal Legislation of the USSR and the Union Republics provided for the apprehension of a person who had committed a crime as an independent type of lawful, socially beneficial conduct (Article 24). Although they did not enter into force, the idea of legislative consolidation embodied therein was implemented in the Criminal Code of the Republic of Kazakhstan.

Pursuant to Part 1 of Article 33 of the Criminal Code, the infliction of harm upon a person who has committed a criminally punishable act during their apprehension for the purpose of delivering them to state authorities and preventing the possibility of their committing new encroachments shall not constitute a criminal offense, provided that apprehending such a person by other means was not possible and that no excess of the measures necessary for this purpose was committed.

It should be borne in mind that the concept of “encroachment” encompasses any criminally punishable act, that is, any crime or criminal misdemeanor.

The apprehension of persons who have committed criminal offenses is a moral duty of all citizens and a professional obligation of special state authorities. For example, subparagraph 31) of paragraph 1 of Article 6 of the Law of the Republic of Kazakhstan dated April 23, 2014, “On Internal Affairs Bodies of the Republic of Kazakhstan,” stipulates that employees of internal affairs bodies are obliged to “... apprehend persons committing criminal or administrative offenses.” A similar obligation applies to employees of the National Security Committee, the Customs Service, etc.

When apprehending persons who have committed criminal offenses for the purpose of delivering them to state authorities and preventing the possibility of their committing new encroachments, those carrying out the apprehension are compelled to apply coercive measures against them, since the persons being apprehended generally offer resistance. The application of such measures may result in physical harm (for example, striking blows, causing harm to health, etc.), property damage (breaking down the doors of premises in which the person who committed the encroachment has taken refuge, damaging a vehicle in which the person intended to flee, etc.), and, in certain cases, deprivation of life.

Coercive measures applied during the apprehension of a person who has committed an encroachment only externally resemble a criminal offense, since apprehension is a circumstance that excludes the unlawfulness of an act; therefore, such measures do not contain the elements of a criminal offense.

Pursuant to Part 3 of Article 33 of the Criminal Code, the right to apprehend a person who has committed an encroachment, alongside persons specially authorized to do so, is also vested in victims and other citizens. Representatives of the public and citizens participating in the apprehension of a person who has committed an encroachment possess the same powers as officials responsible for maintaining law and order, with the exception of purely special powers dictated by their official status and the special conditions for the use of service-issued weapons and special equipment. Apprehension is regarded as socially beneficial activity even when harm is inflicted in the process, since such activity prevents apprehended persons from evading criminal liability, facilitates the timely detection of criminal offenses, and prevents them from committing new encroachments.

The infliction of harm upon a person who has committed an encroachment, where such harm was necessary for their apprehension, is justified by the motive and objectives of the activity and its results: the termination of unlawful activity in the future, the punishment of the person who committed the encroachment, and the establishment of legality.

The conditions of lawfulness in the apprehension of a person who has committed an encroachment are generally divided into two groups:

conditions of lawfulness relating to the person being apprehended;

conditions of lawfulness relating to the apprehension.

The first group of conditions of lawfulness relating to the person being apprehended includes:

the commission of a criminal offense by the person;

an attempt by the person who committed the criminal offense to flee from those intending to deliver the person who committed the encroachment to the authorities.

Criminal-law apprehension is possible only in respect of a person who has committed a criminal-law act. This means that Article 33 of the Criminal Code does not apply to cases involving the infliction of harm during the apprehension of a person who has committed an administrative offense or an immoral act. It should be noted that Article 36 of the Administrative Offenses Code of the Republic of Kazakhstan provides for the apprehension of a person who has committed an encroachment as a circumstance excluding administrative liability.

Thus, the grounds for inflicting harm upon an offender during their apprehension are the commission of a criminal offense by that person and an attempt to evade delivery to a state authority. At the same time, there must be convincing data indicating that the person committed a criminal offense.

The Criminal Procedure Code of the Republic of Kazakhstan provides for the concept of “factual apprehension,” which means the restriction of the freedom of an apprehended person, including freedom of movement, forcible detention at a particular location, forcible delivery to the bodies of inquiry and investigation (seizure, confinement in premises, compelling a person to go somewhere or remain in a particular place, and so on), as well as any other actions that substantially restrict a person's personal freedom from the exact minute when the specified restrictions became actual, regardless of whether any procedural status was assigned to the apprehended person or other formal procedures were carried out (subparagraph 29) of Article 7 of the Criminal Procedure Code). Thus, it is precisely factual apprehension that forms the basis of the article under commentary.

The so-called procedural “apprehension of a suspect” is a different criminal procedural institution that has no relation to the article under commentary.

The above provisions make it clear that criminal-law apprehension and criminal-procedural apprehension are different legal phenomena, having their own purposes, objectives, and functions. Therefore, these two concepts should not be confused or assigned identical content.

At the same time, it should be borne in mind that if a person has not committed any offense at all, the use of violence against that person for the purpose of delivering them to state authorities constitutes grounds for that person to exercise the right to necessary defense. In cases where the person being apprehended did not actually commit a criminal offense giving rise to the need for their apprehension, or did not in fact attempt to evade apprehension after committing it, while the person carrying out the apprehension mistakenly assumed the existence of both circumstances, the infliction of harm upon such a person under these circumstances is recognized as an act committed during the mistaken apprehension of an offender. The actions of a “person carrying out a mistaken apprehension” are objectively dangerous, since they cause harm both to the rights and legitimate interests of the person being apprehended and to the interests of criminal justice.

In the event of a bona fide mistake by the person carrying out the apprehension regarding the circumstances of the apprehension, the legal assessment of the act is carried out in the same manner as in cases of necessary defense. Based on the provisions of Article 33 of the Criminal Code, the person carrying out the apprehension must be confident that they are inflicting harm upon a person who has committed a criminal offense (for example, where the person carrying out the apprehension is the victim or an eyewitness to the criminal offense; where eyewitnesses to the criminal offense directly identify the person being apprehended as the person who committed it; where obvious traces of a criminal offense are discovered on the person being apprehended or on their clothing, on their person, or in their residence; where the person is identified from a photograph in an announcement concerning the search for an offender; or where there is any reliable information providing substantial grounds for confidence that the person being apprehended committed the crime).

If, during apprehension, a person is acting under a bona fide mistake regarding the nature of the unlawful act committed by the person being apprehended, having mistaken an administrative offense or an act committed by a person who has not attained the age of criminal responsibility or by an insane person for a crime, and the circumstances provided grounds for believing that a crime had been committed, while the person carrying out the apprehension neither realized nor could have realized the actual nature of the act committed, their actions should be assessed in accordance with the rules of Article 33 of the Criminal Code, including those concerning the permissible limits of inflicting harm.

The same assessment should be applied to situations in which, during apprehension, a person was acting under a bona fide mistake regarding precisely who had committed the crime, while the circumstances provided grounds for believing that the crime had been committed by the person apprehended by them, and the person carrying out the apprehension neither realized nor could have realized that their assumption was erroneous.

If, during apprehension, a person did not realize, but under the circumstances of the case should and could have realized, the above circumstances concerning the nature of the unlawful act and the identity of the person who committed the crime, their actions shall be classified under the articles of the Criminal Code of the Republic of Kazakhstan providing for liability for crimes committed through negligence.

In the absence of the above circumstances, the infliction of harm upon a person during their apprehension shall be classified on general grounds.

Criminal-law apprehension is possible both in respect of persons who have committed criminal offenses that were obvious to those carrying out the apprehension and committed in their presence, and in respect of persons against whom a conviction has entered into legal force and in which a legal assessment of the person's conduct has been provided.

Article 33 of the Criminal Code may not be applied where harm is inflicted upon persons:

who have committed not a criminal offense but another offense, for example, an administrative or disciplinary tort;

who are merely contemplating the commission of a crime and have not undertaken any socially dangerous actions to implement their intent;

who have been delivered to state authorities or are in other conditions that make it possible to prevent them from committing new criminal offenses.

Harm may be inflicted only during the apprehension of a person who has committed a criminal offense and is evading justice. If harm is inflicted upon a person who has committed a criminal offense after that person has been apprehended, the person who inflicted the harm upon the apprehended individual may incur criminal liability for committing an intentional or negligent crime. The law prohibits inflicting harm upon the health of relatives or close persons of the guilty individual who is in hiding, or restricting their rights for the purpose of compelling that individual to appear before state authorities.

Criminal-law apprehension is not applied in respect of persons who have not attained the age of criminal responsibility and persons who are legally insane. As is known, these characteristics relate to the elements of the subject of a criminal offense.

At the same time, any person who has committed a socially dangerous act provided for by criminal law is subject to apprehension, regardless of whether they possess all the necessary characteristics of the subject of a criminal offense. Assessment of the lawfulness of harm inflicted upon a person under the rules of criminal-law apprehension is possible only in cases where the person being apprehended possesses all the necessary characteristics of the subject of a criminal offense, or where the person carrying out the apprehension was acting under a bona fide mistake regarding that person's identity, that is, believed that they were apprehending the person who had committed the encroachment. However, in cases where the person carrying out the apprehension knows in advance that the person being apprehended does not possess the characteristics of the subject of a criminal offense, the harm inflicted must be assessed under the rules of extreme necessity. Since the law refers to the infliction of harm upon a person who has committed a criminally punishable act, the forcible apprehension of persons who have committed any crimes, including negligent crimes, is not excluded, provided, of course, that all the conditions arising from the content of Article 33 of the Criminal Code are observed.

Fourthly, when apprehending a person who has committed a criminally punishable act, the infliction of harm is lawful only where it is impossible to apprehend that person by other means; necessary defense is permissible even where there is an opportunity to avoid the encroachment or seek assistance from other persons or state authorities.

The second condition of lawfulness relating to the person being apprehended is the attempt by the offender to flee from those intending to deliver the person who committed the encroachment to the authorities. In practice, after committing a criminal offense, a person who has committed an encroachment generally attempts to leave the scene of the criminal offense unnoticed. If the victim or other persons become aware of the identity of the offender, the latter takes every measure to avoid apprehension. In this case, it is necessary to distinguish the flight of a person who has committed a criminal offense and in respect of whom criminal-law apprehension is being applied from the escape of a person in respect of whom criminal-procedural apprehension is being applied, which is defined by law as a criminal offense (Article 426 of the Criminal Code, “Escape from Places of Imprisonment, from Arrest or from Custody”).

The second group of conditions of lawfulness relating to apprehension includes:

the apprehension of a person who has committed a criminal offense is carried out for a specific purpose;

the infliction of harm during the apprehension of a person who has committed a criminal offense was the only means of preventing that person's attempt to flee from prosecution;

the proportionality of the harm inflicted during apprehension to the harm resulting from the criminal offense committed.

Firstly, the apprehension of a person who has committed a criminal offense is carried out for a specific purpose. In this regard, it should be noted that every person, when determining their actions, strives to achieve a particular result. For example, when committing an encroachment, a person who has committed an encroachment seeks to enrich themselves unlawfully by taking possession of another person's property, causing harm to health, etc. In cases involving the apprehension of a person who has committed a criminal offense, it is necessary for such apprehension to be recognized as lawful. In this case, establishing the purpose of the apprehension is a legislative requirement.

Based on the requirements of Article 33 of the Criminal Code, the purposes of criminal-law apprehension are:

delivery to state authorities of the person who has committed a criminal offense;

prevention of the possibility of that person committing new encroachments.

Only the combination of these purposes constitutes the lawfulness of the criminal-law apprehension of a person who has committed an encroachment. It should be noted that the legislator reasonably identifies the requirement that the person who has committed a criminal offense must be delivered specifically to state authorities. The apprehended person should not be delivered to just any state body, but specifically to a body whose employees are vested with the functions of representatives of authority. Pursuant to subparagraph 9) of Article 3 of the Criminal Code, a representative of authority is a person in public service who, in accordance with the procedure established by the law of the Republic of Kazakhstan, is vested with administrative powers in relation to persons who are not subordinate to them in their official capacity, including an employee of a law enforcement or special state body, an employee of a military police body, or a servicemember participating in ensuring public order.

Thus, persons who have committed criminal offenses should primarily be delivered to such state bodies for which combating offenses is one of their functional tasks. If there is no objective possibility of delivering the person who has committed a criminal offense to these bodies, the apprehended person should be delivered to other state authorities — regional, city, and district akimats, territorial emergency management units, etc.

If the apprehension of a person who has committed a criminal offense is carried out for another purpose, for example, for reprisal or for obtaining compensation for damage caused, etc., such apprehension shall not be lawful. In this case, the apprehended person does not lose the rights granted by law, including the right to necessary defense.

The second purpose of the criminal-law apprehension of a person who has committed a criminal offense is to prevent the possibility of that person committing new encroachments.

Secondly, the next condition of lawfulness relating to apprehension is that the infliction of harm during the apprehension of a person who has committed a criminal offense must be the only means of preventing that person's attempt to flee from prosecution. In other words, in this case, the issue concerns the necessity of inflicting harm during the apprehension of the offender.

Only the combination of the above factors indicates the existence of compulsion (necessity) to inflict harm.

When apprehending a person who has committed a criminal offense, both their external physical characteristics and their behavioral response during apprehension must be taken into account. If the apprehended person is tall, physically well-built, and behaves aggressively toward those carrying out the apprehension, the degree of harm inflicted during apprehension may be greater than in another case. For example, conversely, if the apprehended person is short, physically weak, psychologically depressed, and indecisive, the use of violence during their apprehension is not entirely justified or is required only to a limited extent.

If the apprehended person commits an encroachment against the person carrying out the apprehension, the situation should be assessed under the rules on necessary defense, since a person who has already committed a criminal offense is transformed from an apprehended person into an attacker, whose encroachment must be suppressed.

In such cases, necessary defense and the apprehension of the person carrying out the encroachment do not occur simultaneously. When suppressing a criminal encroachment, the person carrying out the apprehension is first compelled to address the tasks of necessary defense, and then, once the encroachment has been suppressed, proceeds to address the tasks of apprehending the person who committed the encroachment and delivering them to state authorities, taking into account not only the nature and danger of the act committed but also the nature and intensity of the resistance to apprehension.

The external and internal characteristics of the person carrying out the apprehension also influence, to an equal extent, the infliction of harm during the apprehension of a person who has committed a criminal offense. For example, if the person carrying out the apprehension has sufficient physical training and possesses special skills, they will not need to inflict more serious harm to health in order to apprehend the person who committed the encroachment. The situation will look different if the person carrying out the apprehension possesses directly opposite characteristics.

The conditions under which the apprehension takes place may have a significant influence on the apprehension of a person who has committed an encroachment. Depending on the circumstances, the person carrying out the apprehension may optimally select methods of apprehension, regulating the degree of harm inflicted. The following factors may have a significant influence on the circumstances of apprehension:

time (nighttime, daytime);

place (street, residential premises, transport, vacant lot, forest area, etc.);

number of persons carrying out the apprehension and persons being apprehended;

presence or absence of bystanders, as well as other circumstances.

However, the main condition applicable to all these factors is that they must demonstrate the exclusive necessity of inflicting harm during apprehension. The law requires that the infliction of harm upon a person who has committed a criminally punishable act must be the only means of delivering that person to state authorities and preventing the possibility of their committing new encroachments. Persons professionally engaged in apprehending individuals who have committed crimes are also required to comply with legislative and other regulatory acts that determine the procedure for apprehension and the use of weapons, special equipment, etc. Therefore, apprehension will not be lawful in cases where it could have been carried out by other means, without inflicting harm upon the apprehended person, for example, with the assistance of a dog, or without using firearms against a person attempting to flee, etc.

The infliction of harm upon an apprehended person means striking them, using special equipment and improvised objects that cause wounds or injuries. Harm may also take the form of the seizure of vehicles, clothing, etc.

At the time harm is inflicted upon the apprehended person, the criminally punishable act committed must contain all the elements of a completed crime, an attempt to commit a crime, or preparation for a crime. At the same time, it should be taken into account that, within the meaning of Part 2 of Article 24 of the Criminal Code, preparation for crimes of minor and medium gravity is not a crime. Accordingly, the rules established by Article 33 of the Criminal Code do not apply to cases involving the infliction of harm during the apprehension of a person who discontinued the commission of a crime of minor or medium gravity at the preparation stage for reasons beyond their control.

Thus, depending on the three groups of factors mentioned above, the necessity of inflicting harm during the apprehension of a person who has committed an encroachment may arise where apprehending such a person by other means was not possible.

Thirdly, the second group of conditions of lawfulness relating to apprehension also includes the proportionality of the harm inflicted during apprehension to the harm resulting from the criminal offense committed.

There is no doubt that the harm inflicted upon a person who has committed an encroachment during apprehension must have certain limits. These limits depend on the nature and degree of public danger of the act committed by the person and on the circumstances of apprehension.

The nature of public danger represents the qualitative characteristic of a criminal offense. It is determined by the social significance and value of the object of the encroachment, the amount of harm caused as a result of its commission, as well as the form of guilt. It is precisely according to the nature of public danger that criminal offenses belonging to different chapters or different groups within one chapter of the Special Part of the Criminal Code are distinguished: criminal offenses against life and criminal offenses against health, etc.

The degree of public danger expresses the quantitative aspect of acts of the same nature. The degree of public danger of each act is composed, firstly, of circumstances characterizing the constituent elements of the composition of that act; secondly, of circumstances recognized by the legislator as qualifying elements of that composition; thirdly, of the degree to which the unlawful intent has been carried out; fourthly, of the presence of accomplices; and fifthly, of the multiplicity of acts committed by the given person. Thus, for example, the types of murder differ from one another precisely in terms of the degree of public danger, whereas in terms of the nature of public danger they are equivalent.

However, in any case, the harm inflicted upon a person who has committed a criminal offense must not be clearly disproportionate to the nature and degree of public danger of the act committed by that person and to the circumstances of apprehension. In other words, there must be no excess of the measures necessary for the apprehension of a person who has committed an encroachment.

In the concept of exceeding the measures necessary for the apprehension of a person who has committed an encroachment, provided for in Part 2 of Article 33 of the Criminal Code, the legislator identifies its objective and subjective features. The objective features include:

the obvious disproportion of the apprehension measures to the nature and degree of public danger of the criminal offense committed by the person being apprehended;

the obvious disproportion of the apprehension measures to the circumstances of apprehension;

the infliction of clearly excessive harm that is not justified by the circumstances.

The subjective feature of exceeding the measures necessary for the apprehension of a person who has committed an encroachment is represented by the intent of the person carrying out the apprehension, who realizes that there is no need to inflict harm upon the apprehended person under the circumstances of the apprehension, foresees the possibility or inevitability of the consequences of their actions, and desires their occurrence. The motives for exceeding the measures during apprehension may be highly diverse, but they do not affect the legal classification.

The obvious disproportion of the apprehension measures to the nature and degree of public danger of the encroachment presupposes that, in such situations, there is a substantial, evident, and significant disproportion between the actions of the person carrying out the apprehension and those of the person being apprehended. For understandable reasons, the law does not provide an exhaustive list of situations that would more fully disclose the content of such disproportion. In each specific case, the disproportion must be established on the basis of a comprehensive analysis of all circumstances inherent in the apprehension of a person who has committed a punishable act.

The obvious disproportion of the apprehension measures to the degree of danger of the encroachment committed may be expressed, for example, in depriving a person being apprehended for non-violent theft of another person's property of their life. When assessing whether apprehension complies with the limits established by law, the ratio between the number of persons apprehending and persons being apprehended, the degree of resistance and its nature, the armament of the parties, the time of apprehension, and other circumstances must also be taken into account.

An act committed while exceeding the limits of necessity for apprehending a person who has committed an encroachment is recognized as a crime committed under mitigating circumstances. Such excess is a constituent feature of the elements of murder and intentional infliction of grievous bodily harm under mitigating circumstances (Articles 103 and 113 of the Criminal Code).

It should be noted that, pursuant to subparagraph 80) of Part 1 of Article 53 of the Criminal Code, the commission of a criminal offense while exceeding the measures necessary for the apprehension of a person who has committed a criminal offense is taken into account when imposing punishment as a circumstance mitigating criminal liability and punishment.

The apprehension of a person who has committed an encroachment should be distinguished from necessary defense.

Firstly, the right to apprehend arises only in connection with the commission by a person of a criminally punishable act; the right to necessary defense arises already during the socially dangerous encroachment.

Secondly, the purpose of apprehension is to deliver the person who has committed a criminally punishable act to state authorities and prevent the possibility of their committing new encroachments, whereas the purpose of necessary defense is to protect legally protected interests from being harmed.

Thirdly, during the apprehension of a person who has committed a criminally punishable act, the initiative always comes from the person vested with this right, whereas in necessary defense a person usually finds themselves, against their will, in a situation that compels them to inflict harm.

Commentary on an Article of the Criminal Code of the Republic of Kazakhstan

Commentary to the Criminal Code of the Republic of Kazakhstan dated 2021 by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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