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Causing harm during detention
Article 33 of the Criminal Code of the Republic of Kazakhstan (CC RK) regulates the legal grounds and permissible limits for causing harm when detaining a person who has committed an assault. Below is a detailed legal commentary with analysis, examples from practice, and references to related articles of other codes and normative resolutions.
📘 General Provisions
Article 33 of the CC RK establishes that causing harm to a person who has committed a criminal offense during their detention is not considered a criminal offense if:
- The detention is carried out to deliver the person to state authorities and to prevent them from committing new assaults.
- It was impossible to detain such a person by other means.
- No excessive measures beyond what was necessary for this purpose were applied.
Thus, the law recognizes the lawfulness of causing harm during detention if the specified conditions are met.
⚖️ Conditions for the Lawfulness of Causing Harm during Detention
- The person committed a crime – Detention is permissible only in relation to a person who has committed a criminal offense. If the person has not committed a crime, they may not be subjected to forcible detention. (Law and Justice Almaty)
- Purpose of detention – Detention must be aimed at delivering the person to state authorities and preventing them from committing further assaults.
- Impossibility of detaining by other means – Causing harm is permissible only if it was impossible to detain the person by other means.
- Proportionality of applied measures – The measures applied must correspond to the nature and degree of public danger posed by the offense committed by the detainee and to the circumstances of the detention.
🚫 Exceeding the Measures Necessary for Detention
Exceeding the measures necessary for detention means an obvious disproportion between the defense and the nature and degree of public danger of the offense committed by the detainee, as well as the circumstances of the detention, when clearly excessive harm, not justified by the situation, is inflicted on the person.
Such excess entails criminal liability only in cases of intentional harm.
👥 Subjects Entitled to Detain
The right to detain a person who has committed an assault is granted not only to specially authorized persons but also to victims and other citizens.
🧾 Judicial Practice
In the practice of the courts of the Republic of Kazakhstan, when considering cases involving the infliction of harm during detention, special attention is paid to establishing the presence of all conditions for the lawfulness of such harm. The courts analyze whether a crime was committed, whether causing harm was necessary, and whether there was any excess of the necessary measures.
📚 Related Normative Acts
- Article 38 of the CC RK: Innocent infliction of harm. (Law and Justice Almaty)
- Article 112 of the CC RK: Causing grievous bodily harm when exceeding the limits of necessary defense. (Law and Justice Almaty)
- Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, No. 7: On the practice of applying legislation on compensation for damage caused by unlawful actions of bodies conducting criminal proceedings. (Law and Justice Almaty)
🧠 Conclusion
Article 33 of the CC RK grants citizens the right to cause harm when detaining a person who has committed an assault, provided that certain conditions are met. The correct application of this provision requires a careful analysis of all the circumstances of the case in order to establish the lawfulness of the detainee’s actions.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
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