Comment on article 360. Malicious disobedience to the requirements of the administration of the penitentiary institution of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Malicious disobedience to the lawful demands of the administration of a penal institution by a person serving a sentence in places of deprivation of liberty, —
is punishable by imprisonment for a term of up to two years.
The public danger of malicious disobedience to the requirements of the administration of a penal institution is the systematic violation of the order and conditions of serving a sentence and failure to comply with the legitimate requirements of the administration. At the same time, the process of execution of punishment and correction of convicts provided for by law is violated, which, in turn, entails a violation of the normal activities of the correctional institution.
The object of this crime is the normal activities of institutions that ensure the execution of sentences related to imprisonment.
The objective side of the crime consists in malicious disobedience to the requirements of the administration of the penitentiary institution. Disobedience is understood as the refusal to comply with a legitimate request from a representative of the administration, who, by virtue of his official position, had the right to present it, and the convicted person was obliged and could fulfill this requirement. It is not considered an offense if the convicted person could not comply with the requirement of the administration of the penitentiary institution for any valid reasons. For example, due to illness. Thus, this crime is committed through inaction.
Disobedience is usually committed openly, when the convicted person openly declares that he will not obey the administration, will not comply with the demands of its representatives. This crime can also be committed in a hidden form, when the perpetrator does not openly say that he will not comply with the demands of the representatives of the administration of the penitentiary institution, but nevertheless does not comply with them without valid reasons.
An important condition for criminal liability under Article 360 of the Criminal Code is to establish the legality of the requirement of the administration of a penal institution. The requirement of the administration of a penal institution to convicts to comply with the established procedure for serving their sentences is considered legitimate.
To recognize an act as criminal, disobedience must be malicious, that is, open, repeated or expressed in an audacious form, as well as in cases where, despite repeated repetition of demands, the perpetrator ignores them. Simple disobedience may result in disciplinary measures provided for by penal enforcement legislation. For example, refusal to work or termination of work is, in accordance with Part 2 of Article 99 of the Criminal Code, a malicious violation of the established procedure for serving a sentence and may entail the application of penalties and financial liability. However, if a convicted person refuses to do work repeatedly or calls for other convicts to refuse to work, such behavior may be recognized as malicious disobedience to the requirements of the administration of the correctional institution.
Representatives of the administration of a penal institution include officials who, according to penal enforcement legislation, enjoy the right to apply measures of encouragement and punishment, as well as those on duty, assistant heads of colonies, and supervisors in the performance of their duties of supervision over convicts.
In accordance with Article 115 of the PECS, officials who enjoy the right to apply incentive and punishment measures are the heads of correctional institutions (correctional colonies, educational colonies, settlement colonies and prisons), their deputies and heads of detachments. Article 134 of the PECS also includes educators of educational and labor colonies among these officials. Thus, all the officials listed in articles 115 and 134 of the Criminal Code can be attributed to the representatives of the administration of the penitentiary institution.
It is necessary to distinguish disobedience as a passive form of behavior from resistance, i.e. active actions towards representatives of the administration of correctional institutions, sometimes of an aggressive nature, accompanied by threats of violence against prison staff. These actions, if there are other elements of a crime, are subject to qualification under Article 361 of the Criminal Code. The crime is considered completed from the moment of refusal to comply with the requirements of the administration, therefore it belongs to the category of formal compositions.
On the subjective side, the crime is committed with direct intent. The perpetrator is aware that he is not obeying the legitimate demands of the administration, although he should have fulfilled them and could.
The subject of this crime may be a convicted person who has reached the age of 16 and is serving a sentence of imprisonment in a correctional colony, an educational colony of any regime, a penal colony or in prison. The fifth part of Article 14 of the Criminal Code states that the death penalty is carried out by institutions of the penal system. Therefore, those sentenced not only to imprisonment, but also to death penalty, may be the subject of this crime.
In accordance with Article 72 of the Criminal Code, some persons sentenced to imprisonment may be retained to serve their sentences in a pre-trial detention facility.
However, the penal enforcement legislation of our country does not classify pre-trial detention facilities as institutions of the penal system. This is evidenced by the content of Article 14 of the Criminal Code. In particular, in part eight of the same article, institutions of the penal enforcement system, as well as pre-trial detention facilities, are used against convicts who have been left to perform household maintenance work.
It follows from this that malicious disobedience to the lawful demands of the administration of pre-trial detention facilities, which took place on the part of persons detained in the pre-trial detention facility, is not recognized as a crime under the current version of Article 360 of the Criminal Code, which entails liability under this article of the Criminal Code. This conclusion can be drawn because the disposition of the article in question of the Criminal Code indicates that the subject of this crime may be a person serving a sentence in places of deprivation of liberty. And pre-trial detention facilities are not places of deprivation of liberty.
A person serving a sentence of arrest cannot be held accountable under Article 360 of the Criminal Code in case of malicious disobedience to the lawful demands of the administration of the detention house because the subject of this crime is a person serving a sentence in places of deprivation of liberty. Since houses of arrest are not places of deprivation of liberty, the article in question cannot be applied to persons serving sentences in the form of arrest.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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