Commentary on Article 431. Evasion of Administrative Supervision Established by a Court in Respect of Persons Released from Places of Imprisonment of the Criminal Code of the Republic of Kazakhstan
1. Evasion of administrative supervision established by a court in respect of persons released from places of imprisonment, expressed in the unauthorized abandonment by a person under supervision of his or her place of residence or failure of a person under supervision to arrive at the chosen place of residence within five days, excluding weekends and public holidays, after release from places of imprisonment, shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or imprisonment for the same period.
The public danger of the offence under consideration lies in the fact that persons released from places of imprisonment may, through their behaviour and lifestyle, exert a negative influence on others, thereby expanding the circle of persons who may commit a crime. The establishment and implementation of administrative supervision are aimed at preventing recidivism by certain categories of persons who have committed criminal offences and have been held criminally liable, for the purpose of exerting the necessary educational and preventive influence upon them.
The object of the crime is the interests of justice and the procedure for enforcing a court ruling establishing administrative supervision over a person released from places of imprisonment.
The objective element is expressed in evasion of administrative supervision established by a court in respect of persons released from places of imprisonment, manifested in the unauthorized abandonment by a person under supervision of his or her place of residence or failure of a person under supervision to arrive at the chosen place of residence within five days, excluding weekends and public holidays, after release from places of imprisonment.
The procedure for establishing and implementing administrative supervision is regulated by Article 171 of the Criminal Executive Code and the Law of the Republic of Kazakhstan dated 15 July 1996, “On Administrative Supervision of Persons Released from Places of Imprisonment”, as well as the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 31 May 2019, “On Judicial Practice in the Application of Legislation on Administrative Supervision”.
According to Article 1 of the aforementioned Law, administrative supervision is a form of preventing recidivist crime, implemented on the basis of compliance with the law and guarantees of citizens’ rights and freedoms, and carried out on the basis of a judge’s ruling by internal affairs bodies as a compulsory measure in the form of monitoring the behaviour of persons released from places of imprisonment, in respect of whom restrictions established by law have been imposed for the purpose of preventing offences on their part.
Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Legislation on Administrative Supervision” states: “Administrative supervision is a measure aimed at preventing the repeated commission of crimes by persons released from places of imprisonment who have criminal records for certain types of crimes provided for by law, through the establishment by a court of temporary restrictions on their rights and freedoms, the imposition of duties upon them, and the exercise by internal affairs bodies of monitoring over compliance by such persons (persons under supervision) with administrative restrictions. Administrative supervision is not a punishment for the commission of a criminal offence”.
Administrative supervision is established exclusively by a court through the issuance of a ruling, in which the court must specify the particular grounds provided for in Article 3 of the aforementioned Law on the basis of which the person is subject to administrative supervision.
In accordance with Articles 3, 4 and 5 of the aforementioned Law, the heads of internal affairs bodies are entitled to apply to the court with a submission seeking the establishment of administrative supervision; the internal affairs body may apply for an extension of administrative supervision and the addition of previously established administrative restrictions; the internal affairs body and/or the person under supervision or his or her defence counsel may submit a petition for early termination or partial cancellation or reduction of administrative restrictions.
The prosecutor is entitled to apply to the court with a submission seeking early termination of administrative supervision or partial reduction of administrative restrictions in order to protect the rights and freedoms of the person under supervision, provided that, due to the person’s state of health, age or other valid reasons, the person under supervision is unable to apply to the court independently.
The head of a penal institution is obliged to substantiate the submission seeking the establishment of administrative supervision in respect of a convicted person who is subject to release from that institution and to attach copies of the judgment, rulings of the appellate and cassation instances in respect of the convicted person, and other materials relevant to the adoption of a lawful decision and indicating the need to establish administrative supervision, including materials characterising the convicted person’s behaviour while serving the sentence, as well as a ruling determining the third negative degree of the convicted person’s behaviour.
According to Article 7 of the aforementioned Law, the following restrictions, in the form of prohibitions, may be imposed in full or separately on persons subject to administrative supervision, depending on their lifestyle, behaviour within the family and at their place of residence, and other circumstances characterising the personality of the person under supervision:
prohibition on leaving the residence during hours determined by the internal affairs bodies;
prohibition on staying in certain places within a district (city) designated by the internal affairs bodies;
prohibition on travelling outside the district (city) without the permission of the internal affairs bodies exercising supervision;
prohibition on searching for, visiting, conducting telephone conversations with, or communicating by other means with minors without the consent of their parents or legal representatives;
prohibition on consuming alcoholic beverages, narcotic drugs and psychotropic substances.
This list of restrictions applicable to persons in respect of whom administrative supervision is established is exhaustive and is not subject to broad interpretation.
Based on the provisions of this rule of the aforementioned Law, the court ruling establishing administrative supervision, extending its duration or supplementing previously established administrative restrictions must specify one or several administrative restrictions.
The court is entitled to establish other administrative restrictions not specified in the submission of the internal affairs body, but only within the limits of the list provided for in Article 7 of the aforementioned Law.
The selection of specific administrative restrictions must not be arbitrary; their application must be aimed at ensuring individual preventive influence.
Unauthorized abandonment of a place of residence by a person under supervision means changing one’s place of residence or travelling to another locality without written permission from the internal affairs body. Furthermore, unauthorized abandonment of a place of residence by a person under supervision should also be understood as leaving the house (apartment) during certain hours of the day. At the same time, a restriction in the form of a prohibition on leaving the residence during hours determined by the internal affairs bodies may be imposed on a person under supervision for the period from 22:00 to 6:00 local time, except in cases involving the performance of employment duties.
Failure of a person under supervision to arrive at the chosen place of residence within five days, excluding weekends and public holidays, after release from places of imprisonment constitutes the objective element of the crime commented on herein.
The time of commission of the crime is a mandatory element of its objective side.
Criminal liability under Article 431 of the Criminal Code may be imposed only on a person in respect of whom there is a court ruling establishing administrative supervision that has entered into legal force and who has violated the restrictions established by the court. The commission of other violations unrelated to the established restrictions does not constitute grounds for holding a person criminally liable under this Article.
Where there are reasons that prevented the person under supervision from complying with the established restrictions (a sudden serious illness of the person under supervision, the death or illness of a close relative, and other reasons), liability under the Article of the Criminal Code under consideration is excluded.
When qualifying the actions of the perpetrator for failure to arrive at the chosen place of residence within the prescribed period after release from places of imprisonment, it is important to establish the reason for the perpetrator’s late arrival at the place of residence and the length of the delay, as well as whether there were any valid reasons for the late arrival at the place of residence. If the delay was for a short period (one or two days), then, in accordance with Part 4 of Article 10 of the Criminal Code, such conduct by the person under supervision does not constitute a crime due to its insignificance, as it does not pose a public danger. If valid reasons for the person under supervision’s late arrival at the place of residence are established, then, even if the delay was for a long period, the act does not contain the elements of the crime under consideration due to the absence of the objective element.
In accordance with Paragraph 45 of the Rules for Registering Persons Subject to Administrative Supervision, approved by Order No. 97 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 11 February 2005, if a person in respect of whom administrative supervision has been established fails to arrive at the chosen place of residence within the period prescribed by law, the internal affairs body shall carry out initial measures to establish the person’s whereabouts and the reasons for the failure to arrive. If the whereabouts of the said person cannot be established, the internal affairs body shall commence a pre-trial investigation and place the person on the wanted list, with a preventive measure being selected.
For the elements of the crime under consideration to be recognised as present, the person under supervision must have violated the rules of administrative supervision during the period for which administrative supervision has been established.
The period of administrative supervision shall be calculated from the date on which the court ruling enters into legal force. The period of administrative supervision may be extended no later than the last day of its validity.
In accordance with Article 6 of the Law of the Republic of Kazakhstan dated 15 July 1996, “On Administrative Supervision of Persons Released from Places of Imprisonment”, administrative supervision is established for a period of six months to three years, and in respect of persons who have served sentences for criminal offences against the sexual inviolability of minors, for a period of one year to five years.
In cases where a person under supervision violates the rules of administrative supervision or the restrictions announced to him or her, as well as where such person commits offences, the period of established administrative supervision shall be extended by a judge’s ruling upon a reasoned submission by the internal affairs bodies each time for six months, but not exceeding two years; in respect of persons who have committed criminal offences against the sexual inviolability of minors, each extension shall be for one year, but shall not exceed five years.
According to Paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Legislation on Administrative Supervision”, materials confirming the existence of grounds for extending the period of administrative supervision must be attached to the submission of the internal affairs bodies seeking such extension.
The list of grounds for extending administrative supervision is exhaustive and is not subject to broad interpretation.
An offence constituting a necessary condition for extending administrative supervision shall mean the commission by a person under supervision, at least once, of an administrative offence encroaching upon personal rights, the rights of minors, public safety and public health, as well as public order and morality (Chapters 10, 12, 24 and 25 of the Code of Administrative Offences), or the conviction of the said person for a criminal offence for which a punishment not involving deprivation of liberty has been imposed without establishing supervision over his or her behaviour, or the termination of proceedings against such person on non-exonerating grounds.
The period of administrative supervision may be extended no later than the last day of its validity.
Upon the occurrence of circumstances requiring the termination of administrative supervision, employees of the internal affairs bodies exercising administrative supervision are obliged to immediately issue a ruling terminating administrative supervision, which shall be approved by the head of the internal affairs body. Failure to issue such a ruling or its untimely issuance shall not result in the extension of administrative supervision.
Violation of the legislation of the Republic of Kazakhstan on administrative supervision, or evasion of administrative supervision after the expiry of its term, in the absence of a ruling terminating administrative supervision, does not constitute grounds for holding a person administratively liable under Article 480 of the Code of Administrative Offences or criminally liable under Article 431 of the Criminal Code.
In accordance with Article 14 of the Law of the Republic of Kazakhstan dated 15 July 1996, “On Administrative Supervision of Persons Released from Places of Imprisonment”, administrative supervision shall be terminated:
upon expiry of the period for which administrative supervision was established, provided that there are no grounds for its extension;
early, if it is established that the person under supervision has embarked upon the path of rehabilitation and is positively characterised at the place of residence or employment;
in cases where the criminal record of the person under supervision is expunged or removed;
in connection with the referral of the person under supervision for compulsory treatment in an inpatient facility of an organisation providing mental health care;
in connection with the conviction of the person under supervision to imprisonment;
in connection with the death of the person under supervision.
Violation of the rules of administrative supervision after its termination does not constitute grounds for holding a person criminally liable under Article 431 of the Criminal Code.
A person may likewise not be held criminally liable under Article 431 of the Criminal Code if the statutory requirements concerning the time limits for establishing administrative supervision and extending it have not been complied with in respect of that person.
The procedure for exercising supervision over compliance with the rights of persons in respect of whom administrative supervision has been established is regulated by the Instruction on the Organisation of Prosecutorial Supervision over Compliance with Legality in the Execution of Sentences, the Detention of Persons in Special Institutions and the Exercise of Control over Persons Released from Places of Imprisonment, approved by Order of the Prosecutor General of the Republic of Kazakhstan dated 6 January 2014.
By its legal structure, the corpus delicti of the crime is formal. The crime is considered completed from the moment the person under supervision arbitrarily leaves his or her place of residence or fails to arrive at the chosen place of residence within five days, excluding weekends and public holidays, after release from places of imprisonment.
The subjective element of the crime is characterised by direct intent. The perpetrator is aware of the socially dangerous nature of arbitrarily leaving the place of residence or failing to arrive at the chosen place of residence within five days after release from places of imprisonment, foresees the occurrence of negative consequences and desires to commit such actions.
According to Paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Legislation on Administrative Supervision”, criminal liability under Article 431 of the Criminal Code for a person under supervision failing to arrive at the chosen place of residence within five days, excluding weekends and public holidays, after release from places of imprisonment, as well as for the unauthorized abandonment by a person under supervision who has been released from places of imprisonment of his or her place of residence, arises only where these acts are committed for the purpose of evading administrative supervision.
An act shall not be criminally punishable if a person under supervision, having no intent to avoid control by the internal affairs bodies, was unable to arrive at the chosen place of residence within the prescribed period after release from places of imprisonment due to a natural or man-made emergency, temporary absence of transport connections, a serious illness of that person or other valid reasons.
Likewise, an act expressed in the unauthorized abandonment of a place of residence by a person under supervision without the purpose of evading administrative supervision does not constitute the elements of the criminal offence provided for in Article 431 of the Criminal Code and entails only administrative liability under Article 480 of the Code of Administrative Offences.
The purpose of evading administrative supervision by a person under supervision, as a mandatory element of the subjective side of the criminal offence provided for in Article 431 of the Criminal Code, must be duly proven in the case. The existence of such a purpose on the part of a person under supervision may be evidenced by the unauthorized abandonment of his or her place of residence for an extended period without valid reasons, deliberate concealment from the supervisory authority of his or her whereabouts outside the place of residence, departure beyond the region or country, and similar circumstances.
The subject of the crime is a physically sane individual who has attained the age of 16 and in respect of whom there is a court ruling establishing administrative supervision that has entered into legal force.
In accordance with Article 171 of the Criminal Executive Code, administrative supervision shall be established over persons who have served sentences for:
crimes committed under conditions of dangerous recidivism, as well as terrorist or extremist crimes and crimes against the sexual inviolability of minors;
grave and/or especially grave crimes, or persons who have been sentenced to imprisonment two or more times for intentional crimes and who, at the time of completion of their sentence, had the third negative degree of behaviour.
According to Part 2 of Article 14 of the Criminal Code, dangerous recidivism shall be recognised as the commission by a person of:
a grave crime, if that person was previously sentenced to imprisonment twice for committing a grave crime or was convicted of an especially grave crime;
an especially grave crime, if that person was previously sentenced to imprisonment for a grave or especially grave crime.
The lists of terrorist and extremist crimes and crimes against the sexual inviolability of minors are contained in Subparagraphs 30, 39 and 42 of Article 3 of the Criminal Code.
The definitions of grave and especially grave crimes are provided in Parts 4 and 5 of Article 11 of the Criminal Code.
According to Subparagraph 3) of Part 4 of Article 95 of the Criminal Executive Code, the third negative degree of behaviour is determined when a convicted person is recognised as a persistent violator of the established procedure for serving a sentence.
The recognition of a convicted person as a violator, systematic violator or persistent violator of the established procedure for serving a sentence shall be carried out in accordance with Part 3 of Article 130 and Part 4 of Article 154 of the Criminal Executive Code.
According to Part 3 of Article 130 of the Criminal Executive Code, a convicted person who has committed the violations specified in Part 2 of Article 130 of the Criminal Executive Code, provided that a disciplinary sanction in the form of placement in a disciplinary isolation unit or transfer to a solitary confinement cell has been imposed upon him or her, shall be recognised as a persistent violator of the established procedure for serving a sentence.
A convicted person who has committed the violations specified in Part 2 of Article 154 of the Criminal Executive Code shall be recognised as a persistent violator of the established procedure for serving a sentence by a ruling of the head of the institution, provided that a disciplinary sanction in the form of a severe reprimand has been imposed upon him or her two or more times (Part 4 of Article 154 of the Criminal Executive Code).
It should be noted that there are existing contradictions between Article 171 of the Criminal Executive Code and Article 2 of the Law of the Republic of Kazakhstan dated 15 July 1996, “On Administrative Supervision of Persons Released from Places of Imprisonment”, regarding the establishment of administrative supervision over persons who have served sentences for:
crimes committed under conditions of dangerous recidivism, as well as terrorist or extremist crimes and crimes against the sexual inviolability of minors;
grave and/or especially grave crimes, or persons who have been sentenced to imprisonment two or more times for intentional crimes and who, at the time of completion of their sentence, had the third negative degree of behaviour;
grave and/or especially grave crimes, or persons who have been sentenced to imprisonment two or more times for intentional crimes, if, after serving their sentence, despite warnings from the internal affairs bodies, they systematically violate public order, the rights and legitimate interests of individuals and citizens, or commit other offences.
Article 171 of the Criminal Executive Code does not provide for the category of persons who have served sentences and in respect of whom administrative supervision is established, as specified in Subparagraph (c) of Article 2 of the Law “On Administrative Supervision of Persons Released from Places of Imprisonment”.
I believe that the provisions of the Law must be brought into conformity with the Criminal Executive Code; accordingly, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Legislation on Administrative Supervision” also requires amendment.
The act provided for in Article 431 of the Criminal Code is classified as a minor offence.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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 the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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