Commentary on Article 33. Infliction of Harm in the Apprehension of a Person Who Has Committed an Encroachment — Criminal Code of the Republic of Kazakhstan
1. The infliction of harm on a person who has committed a crime during their apprehension for the purpose of delivering them to state authorities and preventing the possibility of their committing further encroachments shall not constitute a crime, provided that it was not possible to apprehend such person by other means and that the limits of the measures necessary for this purpose were not exceeded.
2. Exceeding the measures necessary for the apprehension of a person who has committed an encroachment shall be deemed to constitute an obvious inconsistency between such measures and the nature and degree of public danger of the crime committed by the person being apprehended, as well as the circumstances of the apprehension, where the person is unnecessarily caused harm that is clearly excessive and not justified by the circumstances. Such excess shall entail criminal liability only in cases of intentional infliction of harm.
3. The right to apprehend a person who has committed an encroachment belongs not only to persons specially authorized to do so, but also to victims and other citizens.
The second circumstance excluding the criminality of an act, provided for in Article 33 of the Criminal Code of the Republic of Kazakhstan, is the “Infliction of Harm in the Apprehension of a Person Who Has Committed an Encroachment.” Part 1 states that “the infliction of harm on a person who has committed a crime during their apprehension for the purpose of delivering them to state authorities and preventing the possibility of their committing further encroachments shall not constitute a crime, provided that it was not possible to apprehend such person by other means and that the limits of the measures necessary for this purpose were not exceeded.”
The apprehension of persons who have committed crimes is a moral duty of all citizens and a professional obligation of special state authorities. For example, paragraph 10 of Article 10 of the Law of the Republic of Kazakhstan “On Internal Affairs Bodies of the Republic of Kazakhstan” dated December 21, 1995, provides that employees of internal affairs bodies are obliged “to participate, in accordance with the procedure established by law, in conducting ... operations for the apprehension of persons who have committed crimes.” A similar obligation applies to employees of the National Security Committee, the customs service, etc.
When apprehending persons who have committed crimes for the purpose of delivering them to state authorities and preventing the possibility of their committing further encroachments, those carrying out the apprehension are compelled to apply coercive measures against them, since persons being apprehended generally offer resistance. Such measures may include the infliction of physical harm (for example, striking blows, causing bodily injury, etc.), property damage (breaking down the doors of premises in which the offender has taken refuge, damaging a vehicle in which the person intended to escape, etc.), and, in certain cases, deprivation of life.
Coercive measures applied during the apprehension of a person who has committed an encroachment only outwardly resemble a crime, because apprehension is a circumstance that excludes the criminality of an act; therefore, such measures do not contain the elements of a crime.
This legal institution was introduced into the Criminal Code of the Republic of Kazakhstan for the first time. However, the apprehension of persons who had committed crimes through the use of weapons was addressed in various regulatory legal acts governing the activities of internal affairs bodies. For example, Article 6 of the USSR Law “On the Duties and Rights of the Internal Troops of the USSR Ministry of Internal Affairs in Maintaining Public Order,” etc. At the same time, these regulatory legal acts contained no provisions concerning the legal consequences of causing harm to a person being apprehended, the content and limits of which can be regulated only by criminal law.
The gap in criminal legislation concerning the apprehension of a person who has committed an encroachment was addressed by guiding judicial practice. However, this institution was classified under other circumstances excluding the criminality of an act. Thus, the Resolution of the Plenum of the Supreme Court of the USSR “On the Practice of Applying Legislation Ensuring the Right to Necessary Defense Against Socially Dangerous Encroachments” dated August 16, 1984, stated that the actions of citizens apprehending an offender should be regarded by courts as having been committed in a state of necessary defense.
“The right to apprehend a person who has committed an encroachment belongs not only to persons specially authorized to do so, but also to victims and other citizens” (Part 3 of Article 33 of the Criminal Code of the Republic of Kazakhstan). Apprehension is regarded as socially beneficial activity even when harm is caused in the course of such activity, since it prevents such persons from evading criminal liability, contributes to the timely detection and investigation of crimes, and prevents them from committing further encroachments.
The infliction of harm on an offender, where such harm was necessary for their apprehension, is justified by the motives and purposes of the activity and its results: the termination of criminal activity in the future, the punishment of the offender, and the affirmation of legality.
The conditions for the lawfulness of apprehending 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:
a) the commission of a crime by the person;
b) an attempt by the person who committed the crime to escape from those intending to deliver the offender to the authorities.
The commission of a crime by a person means that criminal-law apprehension is possible only in respect of persons who have committed an act constituting a criminal offense. If a person has not committed a crime, they cannot be subjected to forcible conveyance.
Based on the meaning of Article 33 of the Criminal Code of the Republic of Kazakhstan, criminal-law apprehension is a circumstance that excludes the criminality and punishability of an act and may be applied in respect of a person who has committed any crime, not only a crime punishable by imprisonment.
According to the provisions of Article 132 of the Criminal Procedure Code of the Republic of Kazakhstan, criminal-procedural apprehension is a measure of procedural coercion applied for the purpose of establishing a person's involvement in a crime and resolving the question of applying a preventive measure in the form of arrest to that person. It is precisely criminal-procedural apprehension that is applied only in respect of a person who has committed a crime for which a penalty in the form of imprisonment may be imposed.
Thus, the above provisions make it clear that criminal-law apprehension and criminal-procedural apprehension are different legal phenomena, each having its own purposes, objectives and functions. Therefore, these two concepts should not be confused or assigned identical meanings.
It is particularly important to note that criminal-law apprehension cannot be applied to persons who have committed an administrative offense. At the same time, it should be pointed out that in practical activities situations frequently arise in which forcible apprehension is also carried out in respect of a person who has committed an administrative offense or another minor offense. However, in such cases, the basis for criminal-law apprehension is not the person's commission of an administrative offense, but rather, where the relevant elements are present, the use of violence against a representative of authority, which is itself classified by law as a crime (Article 321 of the Criminal Code of the Republic of Kazakhstan, “Use of Violence Against a Representative of Authority”).
At the same time, it should be borne in mind that if a person has not committed any offense whatsoever, the use of violence against that person for the purpose of delivering them to the authorities constitutes grounds for that person to exercise the right to necessary defense. If, however, a person mistakenly identifies the person being apprehended and uses violence against them during apprehension for the purpose of delivering them to the authorities, this does not constitute criminal-law apprehension. In such a case, there is a case of fictitious apprehension, which is socially dangerous and, where guilt is present, entails criminal liability.
Criminal-law apprehension is possible both in respect of persons who have committed crimes that were apparent to those carrying out the apprehension and committed in their presence, and in respect of persons against whom a court conviction has entered into legal force and in which a legal assessment of the person's conduct has been given.
It should be noted that criminal-law apprehension is not applied to persons who have not reached the age of criminal responsibility or to persons who are legally insane. As is known, these characteristics relate to the elements of the subject of a crime. 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 crime.
An assessment of the lawfulness of harm caused to 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 crime, or where the person carrying out the apprehension was acting under a good-faith mistake concerning that person's identity, that is, believed that the person being apprehended was an offender. 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 crime, the harm caused must be assessed according to the rules governing extreme necessity.
The second condition of lawfulness relating to the person being apprehended is an attempt by the guilty person to escape from those intending to deliver the offender to the authorities.
This means that, in practical activities, an offender most often attempts to leave the scene of the crime unnoticed after committing it. If the victim or other persons become aware of the identity of the perpetrator, the latter takes every possible measure to avoid apprehension. In this regard, it is necessary to distinguish the flight of a person who has committed a crime 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, since the latter is defined by law as a crime (Article 358 of the Criminal Code of the Republic of Kazakhstan, “Escape from Places of Imprisonment, from Arrest or Custody”).
The second group of conditions of lawfulness, relating to apprehension, includes:
- the apprehension of a person who has committed a crime is carried out for a specific purpose;
- the infliction of harm during the apprehension of a person who has committed a crime was the only means of preventing that person's attempt to escape from pursuit;
- the harm caused during apprehension must be proportionate to the harm resulting from the crime committed.
First, the apprehension of a person who has committed a crime 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 act, an offender seeks to obtain unlawful enrichment by taking possession of another person's property, causing bodily harm, etc. In cases involving the apprehension of a person who has committed a crime, 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 of the Republic of Kazakhstan, the purposes of criminal-law apprehension are:
- delivering the person who has committed a crime to state authorities;
- preventing the possibility of that person committing further encroachments.
Only the combination of these purposes establishes the lawfulness of the criminal-law apprehension of a person who has committed an encroachment.
It should be noted that the legislator reasonably imposes a requirement on the person carrying out the apprehension to ensure that the person who has committed a crime is delivered specifically to state authorities. The person being apprehended should not be delivered to just any state body, but specifically to a state body whose employees are vested with the functions of representatives of authority.
The characteristics of a representative of authority must be determined on the basis of paragraph 1 of the Note to Article 320 of the Criminal Code of the Republic of Kazakhstan, “Insulting a Representative of Authority.” According to this provision, a representative of authority “is an official of a state body who, in accordance with the procedure established by law, is vested with administrative powers in relation to persons who are not subordinate to them in the course of their service.”
Thus, persons who have committed crimes should primarily be delivered to state bodies for which combating crime is one of their functional responsibilities. Such bodies primarily include: internal affairs bodies; the National Security Committee; the Agency for Combating Economic and Corruption Crime (financial police); the Customs Committee, etc. If there is no objective possibility of delivering a person who has committed a crime to these bodies, the person being apprehended should be delivered to other state authorities, such as regional, city and district akimats, emergency situations committees, etc.
If the apprehension of a person who has committed a crime is carried out for another purpose, for example, revenge, obtaining compensation for damage caused, etc., such apprehension does not constitute lawful apprehension. In this case, the person being apprehended 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 crime is preventing the possibility of that person committing further encroachments. Only the combination of the above-mentioned purposes gives the criminal-law apprehension of a person who has committed an encroachment its legal substance.
Second, the next condition of lawfulness relating to apprehension is that the infliction of harm during the apprehension of a person who has committed a crime must have been the only means of preventing that person's attempt to escape from pursuit.
In other words, this concerns the necessity of inflicting harm during the apprehension of the guilty person.
Only the combined presence of the above-mentioned factors indicates the existence of compulsion (necessity) in inflicting harm.
When apprehending a person who has committed a crime, both that person's external physical characteristics and their behavioral response during apprehension must be taken into account. If the person being apprehended is tall, physically well-developed and behaves aggressively toward those carrying out the apprehension, the degree of harm inflicted during apprehension may be greater than in another situation. For example, conversely, if the person being apprehended is short, physically weak, emotionally subdued and indecisive, the use of violence during their apprehension is not entirely justified or should be applied to a lesser degree.
The external and internal characteristics of the person carrying out the apprehension equally influence the infliction of harm during the apprehension of a person who has committed a crime. For example, if the person carrying out the apprehension has sufficient physical training and possesses special skills, it will not be necessary to inflict more serious bodily harm in order to apprehend the offender. The situation will look different if the person being apprehended 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 the methods of apprehension and regulate the degree of harm inflicted. The following factors may have a significant influence on the circumstances of apprehension:
a) time (nighttime, daytime);
b) place (street, residential premises, transport, vacant lot, forest area, etc.);
c) the number of persons carrying out the apprehension and the number of persons being apprehended;
d) the presence or absence of bystanders, as well as other circumstances.
However, the main requirement applicable to all these factors is that they must demonstrate that inflicting harm during apprehension was the only necessary means. Therefore, apprehension will not be lawful in cases where it could have been carried out by other methods without causing harm to the person being apprehended. For example, by using a dog, or without using firearms against a person attempting to escape, etc.
Thus, depending on the above-mentioned three groups of factors, a situation may arise in which inflicting harm during the apprehension of a person who has committed an encroachment becomes necessary because it was not possible to apprehend such person by other means.
Third, the second group of conditions of lawfulness relating to apprehension includes the proportionality between the harm caused during apprehension and the harm resulting from the crime committed.
There can be no doubt that the harm caused to an offender during the apprehension of a person who has committed an encroachment must have certain limits. These limits depend on the nature and degree of public danger of the act committed by the offender and on the circumstances of the apprehension.
The nature of public danger represents the qualitative characteristics of a crime. 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 crimes belonging to different chapters or different groups within one chapter of the Special Part of the Criminal Code are distinguished: crimes against life from crimes 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 consists of: firstly, the circumstances characterizing the essential elements of the composition of that act; secondly, the circumstances recognized by the legislator as qualifying elements of that composition; thirdly, the degree of implementation of the criminal intent; fourthly, the presence of accomplices; and fifthly, the multiplicity of acts committed by the given person.
For example, the types of murder differ from one another precisely in terms of their degree of public danger, whereas in terms of the nature of public danger they are equivalent.
The circumstances of apprehension include various conditions and factors capable of exerting some influence on the apprehension of a person who has committed a crime. However, in any case, the harm caused to a person who has committed a crime must not be clearly inconsistent with the nature and degree of public danger of the act committed by that person and the circumstances of apprehension. In other words, there must be no exceeding of the measures necessary for the apprehension of the offender.
In defining the concept of exceeding the measures necessary for the apprehension of a person who has committed an encroachment, as provided for in Part 2 of Article 33 of the Criminal Code of the Republic of Kazakhstan, the legislator identifies its objective and subjective characteristics.
The objective characteristics include:
a) an obvious inconsistency between the apprehension measures and the nature and degree of public danger of the crime committed by the person being apprehended;
b) an obvious inconsistency between the apprehension measures and the circumstances of apprehension;
c) the infliction of harm that is clearly excessive and not justified by the circumstances.
The subjective characteristic of exceeding the measures necessary for the apprehension of a person who has committed an encroachment is represented by the intent of a person who realizes that, under the circumstances of the apprehension, there is no necessity to cause harm to the person being apprehended, foresees the possibility or inevitability of the consequences of their actions and desires those consequences to occur. The motives for exceeding the measures during apprehension may be varied, but they do not affect the legal classification of the act.
It should be noted that, pursuant to subparagraph “z” of Part 1 of Article 53 of the Criminal Code of the Republic of Kazakhstan, the commission of a crime involving the exceeding of the measures necessary for the apprehension of a person who has committed a crime 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 must be distinguished from necessary defense. The latter constitutes the prevention of an ongoing socially dangerous encroachment against interests protected by criminal law, which has already begun (or is about to begin where there is a real threat of an attack) and has not yet ended.
In practice, violence is often used against a person committing a crime while simultaneously pursuing the purposes of stopping that encroachment and apprehending the guilty person for the purpose of delivering them to the authorities and preventing the possibility of their committing further crimes. In such cases, the legal assessment of the harm caused must be made on the basis of the rules provided by the law on necessary defense.
Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan by I.Sh. BORCHASHVILI, Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences
Date of amendment of the act: 02.08.2007Date of adoption of the act: 02.08.2007Place of adoption: NONEBody that adopted the act: 180000000000Registration number of the normative legal act assigned by the rule-making body: 167Status of the act: newSphere of legal relations: 028000000000Form of the act: COMMENTARYLegal force: 1900Language of the act: rus
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court, Criminal Legislation, Normative Legal Acts of the Republic of Kazakhstan
