Comment to article 100. Murder committed while exceeding the measures necessary to detain the person who committed the crime  The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     Murder committed in excess of the measures necessary to detain the person who committed the crime is punishable by restriction of liberty for up to three years or imprisonment for the same term.      

The object of the crime is the life of the detained person.      

The objective side of the composition in question is causing death to the detainee by exceeding the measures of detention.      

The conditions for the legality of causing harm during the detention of a person who has committed an encroachment are disclosed in Part 1 of Article 33 of the Criminal Code, according to which it is not a crime to cause death to a detained person if the conditions for the legality of the act of detention are met and does not entail criminal liability. Exceeding the measures necessary to detain a person who has committed an encroachment is recognized as their obvious inconsistency with the nature and degree of public danger of the crime committed by the detained person and the circumstances of the detention, when clearly excessive harm is unnecessarily inflicted on the person, not caused by the situation.     

To be held accountable under the article of the Criminal Code in question, it is first necessary to establish whether the perpetrator had grounds for detaining the victim provided for in Article 132 of the Criminal Procedure Code of the Republic of Kazakhstan, and whether there were grounds for harming the detained person provided for in Article 33 of the Criminal Code. If a murder is committed in the absence of the specified grounds, the qualification of the culprit's actions under Article 100 of the Criminal Code is excluded. For example, if a person has been killed while being detained for an administrative offense (minor hooliganism) or killed for a crime committed by a detained person who did not try to evade detention.      

When detaining a person who has committed a socially dangerous assault of moderate or minor severity, causing death is not permitted. Intentionally causing death to a detained person without resistance on his part and attempts to escape from the crime scene cannot be qualified under art. 100 of the Criminal Code.      

The use of firearms is permissible only in relation to persons who have committed grave and especially grave crimes. The use of weapons and such means that endanger the life of a person who has committed a crime is permissible both when the latter resists arrest and when the person who has committed a grave or especially grave crime is trying to escape. It is impossible to agree with the opinion existing in the theory of criminal law that the murders of a criminal who is trying to escape (escape, drive away in a car, etc.) should be considered as exceeding those necessary for detention (the argument of supporters: the perpetrator should be brought to justice, and not be killed because he sought to avoid criminal liability).      

The crime is considered completed from the moment of the death of the detained person, i.e. by design, the composition is material.      

The subjective side is characterized by direct or indirect intent. The perpetrator consciously exceeds the permissible measures of detention, anticipates the possibility or inevitability of causing death to the detainee and desires or allows these consequences to occur. Causing death by negligence during the arrest of a person who has committed a crime does not constitute an element of the crime in question.      

The purpose of detaining a person who has committed an encroachment is to bring him to law enforcement agencies and prevent him from committing other crimes. Whatever the purpose of the detention, harming the detainee does not serve as a circumstance excluding the criminality of the act, if it was possible to detain the person by other means. This is explicitly stated in Part 2 of Article 33 of the Criminal Code. If there is such a possibility, causing death to a detainee is unlawful and should not be considered as "exceeding the measures necessary for detention." If a person does not resist and does not try to escape, intentional infliction of death is unacceptable and qualifies either as murder under Part 1 or Part 2 of Article 96 of the Criminal Code, or as murder committed in a state of passion, under Article 98 of the Criminal Code.      

The subject of a crime is a sane individual who has reached the age of 16, regardless of the type of professional activity and special skills, i.e. both law enforcement officers and other persons and citizens (Article 133 of the Criminal Procedure Code of the Republic of Kazakhstan). In cases where a law enforcement official, when detaining a criminal, exceeds the measures necessary for detention and causes death to the detainee, liability is imposed under Article 100 of the Criminal Code without additional qualification under the Criminal Code article on responsibility for abuse of power or official authority (Article 308 of the Criminal Code).      

If a murder is committed in excess of the measures necessary to detain the person who committed the crime, in the presence of aggravating circumstances provided for in Part 2 of Article 96 of the Criminal Code, then the deed should be qualified only under Article 100 of the Criminal Code (without additional qualification under Article 96 of the Criminal Code).

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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases