Commentary on Article 427. Evasion of Serving a Sentence of Imprisonment of the Criminal Code of the Republic of Kazakhstan
1. Failure of a convicted person who has been granted permission for a short-term leave outside the place of imprisonment to return to a correctional institution upon expiry of the authorized period of leave, as well as failure of a convicted person who enjoys the right to move without an escort or is under supervision to return, committed with the purpose of evading further service of a sentence of imprisonment, —
shall be punishable by imprisonment for a term of up to two years.
2. Evasion by a person convicted of criminal offences against the sexual inviolability of minors, as well as by convicted persons recognized as requiring treatment for alcoholism, drug addiction and substance abuse, of the application of compulsory medical measures to them, —
shall be punishable by imprisonment for a term of up to one year.
The public danger of the offence under consideration lies in the fact that convicted persons, abusing the privileges granted to them by law and the trust placed in them, violate the process of implementing criminal punishment, obstruct the enforcement of a conviction, and prevent the actual achievement of the objectives of punishment in the form of imprisonment.
The object of the crime is the normal functioning of the institution of the penal enforcement system in which a sentence of imprisonment is served, as well as social relations ensuring the binding nature of a judicial act with regard to the convicted person's obligation to serve a sentence of imprisonment.
The objective element of the crime is expressed in the failure of a convicted person who has been granted permission for a short-term leave outside the place of imprisonment to return to the correctional institution upon expiry of the authorized period of leave, as well as in the failure of a convicted person who enjoys the right to move without an escort or is under supervision to return, committed with the purpose of evading further service of a sentence of imprisonment.
In all cases, the issue must concern a person's failure to fulfil the obligation to return to the correctional institution within a specified period, provided that the person has a real opportunity to fulfil this obligation. This obligation constitutes an integral part of the legal status of a convicted person sentenced to imprisonment who, in accordance with the law, has been granted legal privileges, namely, the opportunity to be temporarily absent from the institution.
The grounds and procedure for granting a convicted person the right to leave places of imprisonment are determined by criminal-executive legislation. In accordance with Part 1 of Article 113 of the Penal Enforcement Code, convicted persons held in institutions, as well as those left in a mixed-security institution and transferred to a full-security institution to perform maintenance and хозяйственные service work, have the right to leave the institution:
short-term leave — for a period of no more than seven days, excluding the time required for travel in both directions (not exceeding five days), in connection with the death or serious illness of a spouse or close relative, where the illness threatens the patient's life, or a natural disaster that has caused significant material damage to the person's family;
long-term leave — for the duration of the annual paid leave at a minimum-security institution.
Convicted women who have children in childcare homes located within institutions have the right to short-term leave outside the institution for the purpose of arranging for their children to be placed with their spouse, relatives or in a children's home. Convicted women who have minor children with disabilities living outside the institution have the right to one short-term leave per year to visit them (Part 2 of Article 113 of the Penal Enforcement Code).
It should be noted that short-term and long-term leave may not be granted to convicted persons: 1) who have committed crimes under conditions of dangerous recidivism; 2) whose death sentence has been commuted to imprisonment by way of pardon; 3) sentenced to life imprisonment; 4) recognized as suffering from a mental disorder that does not exclude criminal responsibility, as well as those who have not completed treatment for alcoholism, substance abuse, drug addiction, tuberculosis or infection; 5) convicted of terrorist or extremist crimes, or crimes committed as part of a criminal group, as well as crimes against the sexual inviolability of minors under the age of fourteen; 6) persons having the second or third negative behaviour classification (Part 3 of Article 113 of the Penal Enforcement Code).
Part 5 of Article 113 of the Penal Enforcement Code establishes that an application by a convicted person for leave shall be considered within twenty-four hours. Permission to leave is granted by the head of the institution or a person acting in their capacity, taking into account the requirements stipulated in Part 3 of Article 113 of the Penal Enforcement Code and the behaviour of the convicted person.
A convicted person's failure to fulfil the obligation to return to the institution upon expiry of the authorized period constitutes the crime under consideration only where there were no circumstances that presented an insurmountable obstacle to fulfilling such an obligation.
If the offender returned to the institution where the sentence was being served with a delay for a valid reason (for example, due to a natural disaster, illness, being summoned as a witness in connection with another person's commission of a criminal offence, etc.), the person shall not be held liable under Article 427 of the Criminal Code.
The issue of whether the reasons for late arrival are to be recognized as valid shall be decided by the court, taking into account all the factual circumstances of the case. In particular, consideration should be given to the nature and significance of the interests for which the return to the correctional institution was delayed, the necessity of the convicted person's presence at the relevant location, the possibility of removing the obstacle that arose at that particular time, and other relevant circumstances.
Attention should be drawn to the procedure established by criminal-executive legislation for extending the period for returning to the institution in the event of unforeseen circumstances. Such an extension is carried out pursuant to a reasoned resolution issued by the head of the internal affairs body at the place where the convicted person is staying. The period for returning to the institution may be extended by up to five days, with mandatory notification of the institution's administration of the decision taken (Part 8 of Article 113 of the Penal Enforcement Code).
The procedure for granting convicted persons short-term leave outside the institution is determined by 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 November 17, 2014.
This crime belongs to the category of continuing offences. It is considered completed from the moment the period of leave outside the institution granted to the convicted person expires. Failure to return to the correctional institution means the convicted person's failure to appear at the institution where the person was serving or was required to serve a sentence of imprisonment after the expiry of the period within which the person was obliged to return to that institution, except in cases where there was a valid reason.
The subjective element of the offence under consideration is characterized by direct intent. The convicted person is aware that they are violating the obligation imposed on them to return to the correctional institution within the prescribed period, that they have a real opportunity to fulfil this obligation, and that, by doing so, they are evading the service of a sentence of imprisonment; the person foresees the occurrence of negative consequences and wishes to violate the said obligation.
A mandatory element of the subjective side of the composition of the offence under consideration is a special purpose. The purpose of committing this crime is the desire to evade serving a sentence of imprisonment. This element must be established as a mandatory condition for holding the offender criminally liable under the relevant article of the Criminal Code. The existence of such a purpose may be evidenced, for example, by leaving the country or attempting to do so, replacing or forging identity documents belonging to the convicted person in order to conceal themselves from the authorities conducting the search, and other similar actions. However, the convicted person's return after a minor delay may be regarded as an insignificant act. A person who has allowed such a delay shall not be subject to criminal liability pursuant to Part 4 of Article 10 of the Criminal Code.
The subject of the crime is special. It may be a sane individual who has attained the age of sixteen, has been sentenced to imprisonment and is serving the sentence in a correctional institution.
Evasion of serving a sentence of imprisonment should be distinguished from escape from places of imprisonment, from arrest or from custody, as provided for in Article 426 of the Criminal Code.
The similarity between these crimes lies in their object: the normal functioning of the correctional institution in which a sentence of imprisonment is served, as well as social relations ensuring the mandatory enforcement of a court judgment.
The principal distinction lies in the objective elements of these types of crimes. It is precisely the unlawfulness of leaving the relevant place or the unauthorized nature of freeing oneself from custody that distinguishes escape from places of imprisonment, from arrest or from custody from evasion of serving a sentence of imprisonment.
In terms of the form of the conduct involved, escape constitutes an active form of behaviour (an action). The method chosen by a person to evade serving a sentence or complying with another coercive measure involves unlawful or unauthorized self-release. When committing the crime provided for in Article 427 of the Criminal Code, the person obtains the opportunity to leave the correctional institution on lawful grounds and in accordance with the established procedure. Furthermore, if the grounds for leaving the place of imprisonment provided for by law existed and permission to leave had been granted, leaving the institution does not become unlawful, even if the person had no intention of returning there.
The moment of completion of these crimes also differs. In the first case, it is associated with the emergence of a real opportunity for the person to exercise control over their own movements, whereas in the second case, it is associated with the expiry of the period established for fulfilling the obligation to return to the correctional institution.
Differences between escape and evasion of serving a sentence also exist in the subjective element, namely, in the content of the offender's intent when committing the compared crimes.
The scope of persons who may be subjects of these crimes is also defined differently. In relation to escape, it is expanded to include, firstly, persons serving a sentence of arrest; secondly, persons held in pre-trial detention; and thirdly, convicted persons serving a sentence of imprisonment as a result of the replacement of another punishment with imprisonment.
Part 2 of Article 427 of the Criminal Code provides for liability for evasion by: 1) a person convicted of criminal offences against the sexual inviolability of minors; 2) convicted persons recognized as requiring treatment for mental and behavioural disorders (diseases) associated with the use of psychoactive substances.
The list of crimes against the sexual inviolability of minors is contained in Subparagraph 42) of Article 3 of the Criminal Code.
In accordance with Part 1 of Article 93 of the Criminal Code, the court may impose the following types of compulsory medical measures:
compulsory outpatient psychiatric observation and treatment;
compulsory treatment in a general-type psychiatric hospital;
compulsory treatment in a specialized-type psychiatric hospital;
compulsory treatment in a specialized-type psychiatric hospital with intensive supervision;
compulsory treatment in the form of chemical castration.
Part 2 of Article 427 of the Criminal Code provides for liability for evasion in respect of two special categories of subjects of the crime: 1) persons convicted of criminal offences listed in Subparagraph 42) of Article 3 of the Criminal Code; 2) persons recognized as requiring treatment for mental and behavioural disorders (diseases) associated with the use of psychoactive substances, in respect of whom the measures specified in Part 1 of Article 93 of the Criminal Code are to be applied.
- The acts provided for in Parts 1 and 2 of Article 427 of the Criminal Code are classified as minor offences.
The 2021 Commentary on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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 the Reform of 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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