Commentary on Article 426 of the Criminal Code of the Republic of Kazakhstan. Escape from Places of Imprisonment, from Arrest or from Custody

Home / Codes / Commentary on Article 426 of the Criminal Code of the Republic of Kazakhstan. Escape from Places of Imprisonment, from Arrest or from Custody

1. Escape from places of imprisonment, from arrest or from custody, committed by a person serving a sentence or held in pre-trial detention —

shall be punishable by imprisonment for a term of up to three years.

2. The same act committed:

by a group of persons acting by prior conspiracy;
with the use of violence dangerous to life or health, or with the threat of using such violence;
with the use of weapons or objects used as weapons —

shall be punishable by imprisonment for a term of three to six years.

Note. A person who voluntarily returns to the place of detention or custody within seven days from the moment of committing the escape shall be released from criminal liability for the escape, provided that the person has not committed any other new criminal offence and the escape was not accompanied by the acts specified in subparagraphs 2) and 3) of Part Two of this Article.

The establishment of a state governed by the rule of law is impossible without the effective functioning of a strong and independent judiciary. An indispensable attribute of such a judiciary, pursuant to paragraph 3 of Article 78 of the Constitution of the Republic of Kazakhstan, is the binding nature of court decisions, judgments and other rulings throughout the territory of the Republic of Kazakhstan.

The public danger of this crime lies in the fact that it obstructs the execution of a sentence or the implementation of measures of procedural coercion.

The public danger of escapes also lies in the fact that, constituting a dangerous encroachment upon the aims and objectives of justice and the normal functioning of institutions of the penal enforcement system, escape also obstructs the achievement of the objectives of criminal punishment. Furthermore, it discredits and undermines the authority of state power in society and citizens' confidence in their protection by the law and the state.

The object of the crime is the normal functioning of the bodies of the penal enforcement system and pre-trial investigation.

The physical isolation from society of a person against whom an appropriate compulsory measure of legal influence has been applied constitutes the basis of the regime of execution of a sentence, under which representatives of the administration responsible for executing a judicial act carry out measures aimed at social rehabilitation and the achievement of the objectives of punishment.

At the pre-trial stage of proceedings, temporary deprivation of liberty through detention or the application of a preventive measure in the form of remand in custody is a procedural necessity that contributes to the fulfilment of the tasks of criminal prosecution authorities.

The objective element of the crime consists in escaping from places of imprisonment, from arrest or from custody by a person serving a sentence or held in pre-trial detention.

Escape is the unlawful and unauthorised abandonment of a place where a sentence of imprisonment or arrest is being served, or a place of detention, that is, a place under the control of persons responsible for guarding the individual. The unlawfulness of these actions means leaving a place where a sentence is being served or a place of detention without the permission of officials authorised to grant such permission, or on the basis of forged permission, as well as permission obtained unlawfully.

Escape from places of imprisonment means escape from institutions of the penal enforcement system in which convicted persons serve their sentences in accordance with a court judgment.

Pursuant to Part 1 of Article 88 of the Penal Enforcement Code, persons sentenced to imprisonment serve their sentences in institutions. In accordance with Part 1 of Article 89 of the Penal Enforcement Code, institutions are divided into:

minimum-security institutions;
medium-security institutions;
medium-security institutions for the detention of minors;
maximum-security institutions;
extreme-security institutions;
full-security institutions;
mixed-security institutions.

Escape from places of imprisonment is expressed in the unlawful departure by a convicted person beyond the boundaries of a correctional institution, namely from a place where the convicted person is required or permitted to be, or in deviating from the established route of movement. Furthermore, pursuant to Part 3 of Article 119 of the Penal Enforcement Code, convicted persons may be employed at facilities of organisations that are not part of the penal enforcement system on the basis of agreements between the institution's administration, the organisation and the convicted person.

Escape from places of imprisonment grossly violates the Internal Regulations of Penal Enforcement System Institutions, approved by Order No. 819 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 17 November 2014.

Escape from places of imprisonment may also be committed from pre-trial detention centres used to hold persons sentenced to arrest or imprisonment, persons sentenced to imprisonment who have been retained or transferred to perform maintenance work, or persons who have arrived from institutions in accordance with subparagraph 4) of Part 4 of Article 88 of the Penal Enforcement Code (Part 2 of Article 89 of the Penal Enforcement Code).

In accordance with Part 1 of Article 121 of the Penal Enforcement Code, convicted persons are engaged, on a rotational basis and during non-working hours, in unpaid work lasting no more than two hours per week:

to improve the facilities of cells, rooms and common areas;
to improve the grounds of the institution and the adjoining territory, with the exception of facilities belonging to engineering and technical surveillance, control and security systems located on the main perimeter fence and beyond the internal restricted zone;
to improve cultural and domestic living conditions and sanitary and hygienic conditions.

Convicted persons may be outside correctional institutions in order to perform such work. Escape from these locations should be regarded as escape from places of imprisonment.

Places of imprisonment that permit freedom of movement include minimum-security institutions. In accordance with Part 1 of Article 143 of the Penal Enforcement Code, convicted persons serving their sentences in minimum-security institutions are held without guards, but under the control and supervision of the institution's administration. Convicted persons are granted the right to move freely both within the territory of the institution and, with the permission of the institution's administration, within the boundaries of the territory adjoining the institution. Their departure from places where they are required to be does not contain the elements of the objective side of the offence provided for in Article 426 of the Criminal Code, because although they are considered persons serving a sentence of imprisonment, they are held in minimum-security institutions without guards.

Escape from a place where arrest is being served as a type of punishment means the unlawful departure by a convicted person from the place where this type of sentence is being served. Thus, pursuant to Article 83 of the Penal Enforcement Code, convicted persons serve sentences of arrest at their place of conviction in special detention facilities and isolated sections of pre-trial detention centres. Military personnel serve sentences of arrest in guardhouses.

Escape from custody refers to the escape of persons in respect of whom a preventive measure in the form of remand in custody has been imposed. Pursuant to Part 1 of Article 147 of the Criminal Procedure Code, remand in custody as a preventive measure is applied only with the authorisation of a judge and only in respect of a suspect, accused person or defendant charged with committing a crime for which the law provides for a punishment of imprisonment for a term exceeding five years, where the application of other, less severe preventive measures is impossible. In exceptional cases, this preventive measure may be applied in respect of a person suspected, accused or charged with committing a crime for which the law provides for imprisonment for a term of up to five years, if:

the person does not have a permanent place of residence in the territory of the Republic of Kazakhstan;
the person's identity has not been established;
the person has violated a previously imposed preventive measure or a measure of procedural coercion;
the person has attempted to abscond or has absconded from the criminal prosecution authorities or the court;
the person is suspected of committing a crime as part of an organised group or a criminal community (criminal organisation);
the person has a criminal record for a previously committed serious or particularly serious crime;
there is evidence that the person is continuing criminal activity.

Places of detention also include pre-trial detention centres and temporary detention facilities. A person held in custody may be detained for a short period or for a relatively long period in other premises or vehicles, including an office of an employee of the National Security Committee, premises of a court, prosecutor's office or internal affairs bodies, a railway carriage, an automobile, a medical institution, as well as in open areas (during an on-site verification of testimony, an investigative experiment, etc.).

Thus, an escape by a person from custody, as well as by a person held in pre-trial detention, may be committed from virtually any location.

A person serving a sentence of imprisonment or held in pre-trial detention is simultaneously in custody, that is, under guard and isolated from society. Detention in custody is intended to prevent uncontrolled contacts, freedom of movement, the receipt and transfer of letters, notes and other actions considered undesirable from the standpoint of the interests of justice.

The unauthorised and unlawful abandonment of the above-mentioned places means that a person leaves such places on their own initiative, without the knowledge or permission of employees of penal enforcement system institutions, as well as employees responsible for guarding persons held in custody.

Escape is a continuing crime. When determining the moment at which this crime is completed, the location from which the escape was committed must also be taken into account. If the escape is committed from the guarded territory of a penal enforcement system institution, it is recognised as completed from the moment the security perimeter is crossed. It would seem that, in all cases of escape, the crime should be considered completed when the offender has crossed the actual or imaginary line of control (security) and has acquired a real opportunity to dispose of their actions, an opportunity previously lost as a result of deprivation of liberty. If the person has not acquired such an opportunity, the act can hardly be regarded as a completed crime. In the event that a convicted person serving a sentence of imprisonment or arrest, or a person held in custody, is pursued after leaving the place where they were required to be, the escape is considered completed from the moment the pursued person has evaded the pursuit and is able to perform any subsequent actions at their own discretion.

In this regard, the following example is noteworthy. Zh. was remanded in custody as a preventive measure for committing a number of crimes. After being questioned in the office of the investigative department, while passing a security post, Zh. suddenly ran through a door onto the street and headed towards the city centre. However, after running approximately 50 metres, Zh. was apprehended by police officers pursuing him. The investigative authorities classified Zh.'s actions under Part 1 of Article 426 of the Criminal Code. The district court found this classification incorrect because, in the court's opinion, the crime had not been completed, and classified the act under Part 3 of Article 24 and Part 1 of Article 426 of the Criminal Code as an attempted escape from custody.

When determining the moment of completion of escapes by convicted persons who enjoy the right to move without an escort and are lawfully outside a minimum-security institution, the escape is considered completed from the moment the convicted person leaves the prescribed route of movement. From this moment, the offender acquires the opportunity to perform any actions without supervision, including moving freely at their own discretion.

The methods of escaping from places of imprisonment, from arrest or from custody may vary: bribing employees of places of imprisonment or persons guarding detainees, attacking security personnel, breaking through fences, doors and windows, using vehicles, forged documents, jumping out of vehicles and other methods.

The methods of committing this crime, with the exception of those specified in Part 2 of Article 426 of the Criminal Code (by a group of persons, by a group of persons acting by prior conspiracy; with the use of violence dangerous to life or health, or with the threat of using such violence; with the use of weapons or objects used as weapons), do not affect the classification of the crime.

The place where the crime is committed also does not affect its classification, since an escape may be committed by a person from virtually any location. A person being transported under escort is considered to be in custody and may be the subject of this crime. For example, a convicted person or a person held in custody may escape while being transported for questioning, an expert examination, participation in other investigative actions, a court hearing, etc.

If an escape from places of imprisonment, from arrest or from custody is accompanied by the commission of other criminal offences (for example, unlawful taking of a vehicle without the purpose of theft (Article 200 of the Criminal Code), hostage-taking (Article 261 of the Criminal Code), murder (Article 99 of the Criminal Code)), the actions shall be classified according to the aggregate of crimes.

The subjective element of the crime is characterised by an intentional form of guilt. The offender is aware of the socially dangerous nature of escaping from places of imprisonment, from arrest or from custody, foresees the occurrence of negative consequences and desires to commit the escape.

The purpose of this crime is determined by the specific nature of its object and consists in evading the serving of a sentence of imprisonment or arrest, or evading the fulfilment of obligations arising from the procedural coercive measure applied to the person.

The subject of this crime is special: a physically sane individual who has reached the age of 16 and is serving a sentence of imprisonment or arrest, or is being held in pre-trial detention.

Persons serving sentences of imprisonment or arrest include convicted persons serving their sentences in penal enforcement system institutions, pre-trial detention centres or special detention facilities.

Persons held in pre-trial detention include persons in respect of whom a preventive measure in the form of remand in custody has been imposed in accordance with Article 128 of the Criminal Procedure Code.

Accordingly, the subjects of this crime may include:

persons serving a sentence of imprisonment;
persons serving a sentence of arrest;
persons detained on suspicion of committing a criminal offence;
persons suspected of committing a criminal offence in respect of whom a preventive measure in the form of remand in custody has been imposed.

The actions of the subject of the crime are considered an escape only if the decision imposing a preventive measure in the form of remand in custody has been announced to that person (Part 10 of Article 148 of the Criminal Procedure Code).

The authority to authorise remand in custody belongs to the investigating judge and, in the cases provided for in subparagraphs 2) and 3) of Part 7 of Article 107 of the Criminal Procedure Code, to judges of a regional court or an equivalent court (Part 1 of Article 148 of the Criminal Procedure Code).

Subparagraphs 2) and 3) of Part 7 of Article 107 of the Criminal Procedure Code concern the amendment of a ruling or authorisation of an investigating judge, and the revocation of a ruling or authorisation of an investigating judge and the issuance of a new ruling.

Consequently, the escape of a person unlawfully held in penal enforcement system institutions, pre-trial detention centres or special detention facilities does not constitute a crime.

Persons under the age of 16 who are serving sentences in medium-security institutions for the detention of minors cannot be subjects of the crime provided for in Article 426 of the Criminal Code.

Persons subjected to administrative arrest as a measure of administrative punishment (Article 58 of the Code of Administrative Offences), as well as persons subjected to administrative detention, are not subjects of this crime.

Part 2 of the provision under consideration establishes the following qualifying circumstances:

commission by a group of persons or by a group of persons acting by prior conspiracy;
commission with the use of violence dangerous to life or health, or with the threat of using such violence;
commission with the use of weapons or objects used as weapons.

In accordance with Part 1 of Article 31 of the Criminal Code, an escape is recognised as having been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior conspiracy.

In accordance with Part 2 of Article 31 of the Criminal Code, an escape is recognised as having been committed by a group of persons acting by prior conspiracy if persons who had agreed in advance to commit the criminal offence jointly participated in it.

For the actions of accomplices in an escape to be classified as a crime committed by a group of persons acting by prior conspiracy, each of them must have performed the objective side of the elements of this crime, either in full or in part.

The district court convicted S. and M. of a number of crimes, including escape from custody by a group of persons acting by prior conspiracy. In amending the judgment, the cassation instance found the indication of the group nature of the crime excessive, since S. had escaped from custody alone, while M. had merely assisted him by handing over an aerosol device intended for use against the security personnel during the escape and had no intention of escaping himself.

It is impossible to recognise an escape as a group crime without establishing the element of coordinated action among the accomplices, which means the combination of efforts by the relevant subjects to achieve the objective of leaving the place of imprisonment or overcoming the security perimeter. Moreover, such coordination must be supported by a prior agreement to commit the escape jointly. If the accomplices agree only on joint activities after the escape has been committed, the latter can hardly be recognised as a group crime. It is also important that the agreement be reached before the commencement of actions aimed at the actual self-liberation of persons serving sentences or held in pre-trial detention.

In law enforcement practice, difficulties arise in classifying an escape where a person who committed the escape was assisted by someone who was not serving a sentence in a place of imprisonment or arrest and was not held in custody. The actions of such a person are subject to classification as aiding and abetting an escape under Part 5 of Article 28 and Part 1 of Article 426 of the Criminal Code. The actions of the person who committed the escape, in turn, are not subject to liability under subparagraph 1) of Part 2 of Article 426 of the Criminal Code as an act committed by a group of persons acting by prior conspiracy.

An escape from a place of imprisonment, from arrest or from custody committed with the use of violence dangerous to life or health, or with the threat of using such violence, should be classified under two Articles of the Criminal Code: subparagraph 2) of Part 2 of Article 426 of the Criminal Code and Article 106 of the Criminal Code, depending on the severity of the bodily harm caused. Such classification is correct because the public danger of causing grievous bodily harm to a person who attempted to prevent the escape is greater than that of the escape itself. Furthermore, the punishment under Part 1 of Article 106 of the Criminal Code is more severe than the punishment under subparagraph 2) of Part 2 of Article 426 of the Criminal Code.

Violence during an escape may occur both before and during the direct commission of this crime. At the same time, the violence must be aimed at ensuring an unhindered escape. If violence is used after the escape has been completed, for example, to avoid apprehension, the act must be classified as the corresponding crime against the person.

The threat of using violence is expressed in the offender threatening to cause bodily harm to the victim, etc. In this case, the threat must be real and genuine in order to be recognised as criminal conduct.

Victims of violence or threats of violence by the offender during an escape should be considered persons who, by virtue of their official position or on the basis of a special assignment, are obliged to guard persons serving sentences in places of imprisonment or held in pre-trial detention, or in another place under custody, for the purpose of ensuring their isolation, presence at the prescribed location and control over their behaviour.

According to Article 11 of the Law of the Republic of Kazakhstan dated 30 March 1999, "On the Procedure and Conditions for the Detention of Suspects and Accused Persons in the Commission of Crimes", employees of places of detention include rank-and-file and commanding personnel of internal affairs bodies and the penal enforcement system, as well as employees of the national security bodies of the Republic of Kazakhstan who perform duties related to ensuring the detention regime. Employees of places of detention also include captains of sea vessels, heads of correctional institutions, heads of border detachments, as well as persons authorised by them during the period in which they perform duties related to ensuring the detention regime.

In accordance with subparagraph 4) of paragraph 1 of Article 4 of the Law of the Republic of Kazakhstan dated 10 January 2015, "On the National Guard of the Republic of Kazakhstan", the National Guard of the Republic of Kazakhstan is entrusted with the task of exercising control and supervision over the behaviour of persons held in medium-security, maximum-security, extreme-security and mixed-security institutions of the penal enforcement system, as well as citizens located within their territory, with the exception of institutions intended for serving sentences by convicted women and minors, prisons and pre-trial detention centres, and also the task of escorting convicted persons and persons held in custody.

Where an escape accompanied by the use of violence or the threat of using violence is committed during questioning, a confrontation or other procedural actions, the victims may include investigators, inquiry officers and other law enforcement officers participating in the relevant procedural actions.

For the application of subparagraph 3) of Part 2 of Article 426 of the Criminal Code, it must be established that, during the escape, the offender used weapons or objects used as weapons against persons who attempted to prevent the escape.

The concepts of "weapons" and "objects used as weapons" are contained in the Law of the Republic of Kazakhstan dated 30 December 1998, "On State Control over the Circulation of Certain Types of Weapons" (see the commentary to Article 255 of the Criminal Code).

According to the Note to Article 426 of the Criminal Code, a person who has escaped from places of imprisonment, from a place of arrest or from custody and voluntarily returned within seven days from the moment of the escape shall be released from criminal liability subject to the following conditions:

the person has not committed a new criminal offence while at large;
no violence dangerous to life or health was used during the escape, and no threat of using such violence was made;
no weapons or objects used as weapons were employed during the escape.

Only when all three of the above grounds are present together is the person subject to mandatory release from criminal liability for the escape. If the offender commits a new criminal offence while at large, the person shall be held liable for the aggregate of criminal offences: the escape and the newly committed criminal offence.

The act provided for in Part 1 of Article 426 of the Criminal Code belongs to the category of crimes of medium gravity.

The act provided for in Part 2 of Article 426 of the Criminal Code belongs to the category of serious crimes.

the person has not committed a new criminal offence while at large;
no violence dangerous to life or health was used during the escape, and no threat of using such violence was made;
no weapons or objects used as weapons were employed during the escape.

The act provided for in Part 1 of Article 426 of the Criminal Code belongs to the category of crimes of medium gravity.

The act provided for in Part 2 of Article 426 of the Criminal Code belongs to the category of serious crimes.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured 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 reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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