Commentary to article 346. Knowingly unlawful detention, detention or detention of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Knowingly unlawful detention —    

is punishable by restriction of liberty for a term of up to three years, or by arrest for a term of four to six months, or by imprisonment for a term of up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.   

  2. Knowingly unlawful detention or detention in custody —    

 are punishable by imprisonment for a term of up to four years.    

3. The acts provided for in the first or second parts of this Article, entailing grave consequences, —  

   are punishable by imprisonment for a term of three to eight years.

     According to Article 16 of the Constitution, personal freedom is an inalienable right of every human being. It is one of the most valuable human goods and is second in value only to such as life and health. If a person is deprived of personal freedom unlawfully, unreasonably, then its consequences can be quite serious for the victim, not to mention that the interests and authority of justice will suffer. In these cases, this crime is capable of causing, in addition to physical, material and enormous moral harm.    

  The public danger of this crime lies in the fact that such actions violate the constitutional principle of the Republic of Kazakhstan — the principle of personal inviolability (Part 2 of Article 16 of the Constitution of the Republic of Kazakhstan). Arrest and detention are permitted only in cases prescribed by law and only with the approval of a court or prosecutor.  

   The Constitution of the Republic of Kazakhstan regulates in detail the procedure and grounds for detention and detention. Detention carried out knowingly in violation of the procedure for conducting these criminal procedural actions is criminal.   

  The object of this crime is the interests of justice, since as a result of its commission, the authority of law enforcement agencies is undermined and the rule of law is grossly violated. The second, additional direct object that is violated in the commission of this crime is the personal freedom of a person. Thus, the crime in question belongs to the number of two-object crimes.    

 On the objective side, the corpus delicti contained in Article 346 of the Criminal Code provides for the commission of one of the following three acts:   

  a) illegal detention;   

  b) illegal detention;    

 c) illegal detention.    

 Responsibility for unlawful detention is provided for in part one, and for the other two acts mentioned above – in part two of Article 346 of the Criminal Code. Thus, parts one and two of the article under consideration of the Criminal Code provide for liability for various acts that differ in the nature of public danger. It follows that they contain different types of crimes.    

 Detention is a short-term deprivation of liberty by the investigating or inquest authorities of a person suspected of committing a crime. According to Article 132 of the CPC, a person may be detained if he is suspected of committing a crime for which a custodial sentence may be imposed, if there are at least one of the following grounds::     

 1) when this person is caught at the scene of the crime or immediately after its commission;  

   2) when eyewitnesses, including victims, directly identify the person as having committed the crime or detain him in accordance with the procedure provided for in Article 133 of the CPC;    

 3) when obvious traces of a crime are found on this person or on his clothes, with him or in his home;    

 4) when, in accordance with the law, the materials of operational investigative activities against a person contain reliable information about a serious or especially serious crime committed or being prepared by him.   

  If there is other information that gives grounds to suspect a person of committing a crime, he can be detained only if this person tried to escape or when he does not have a permanent place of residence or the identity of the suspect has not been established. The detention of a person in the presence of at least one of the specified factual grounds is considered lawful.    

  The inquirer or investigator, within no more than three hours after delivering the detainee to the body of inquiry or preliminary investigation, is obliged to draw up a protocol of detention, which, in accordance with Article 134 of the CPC, indicates the grounds, motives, place and time of detention (indicating the time of detention), the results of a personal search, as well as the time of drawing up the protocol. The contents of the protocol are announced to the detainee, and at the same time the rights of the suspect provided for in Article 68 of the CPC are explained to him, including the right to invite a defense lawyer and to testify in his presence. The detention protocol is signed by the person who drafted it and the detainee. The inquirer or investigator is obliged to inform the prosecutor in writing about the detention within twelve hours from the moment of drawing up the detention report. Detention is recognized as lawful in compliance with the procedural forms, i.e. the procedure and the time limits stipulated by law.    

  The procedure for the detention of a person suspected of committing a crime is established by articles 134, 135, 137, 138 of the CPC. The detention of a suspect in the commission of a crime is carried out for up to 72 hours (three days).      On the objective side, knowingly illegal detention is expressed in the unlawful choice of a preventive measure in the form of detention in relation to a suspect in the commission of a crime or an accused.   

  In accordance with art . 2 of the Law of the Republic of Kazakhstan dated March 30, 1999 "On the procedure and conditions of detention of suspects and accused of committing crimes", detention should be understood as temporary isolation in special institutions and premises established by law for detained suspects of crimes, as well as for persons against whom a preventive measure in the form of arrest has been chosen. Thus, two categories of persons may be in custody.:  

    1) detained suspects or accused of committing a crime, in respect of whom a preventive measure in the form of arrest has been chosen;    

 2) suspects or accused persons who have not been detained, but in respect of whom a preventive measure in the form of arrest has been chosen. This usually happens after the indictment of a person who was previously at large.    

 It follows from the meaning of this provision of the law that a detained suspect or accused of committing a crime is detained after actual detention. Violation of the procedure for the procedural registration of the protocol of detention (for example, a thief arrested at the scene of a crime was not detained after three hours) cannot be recognized as illegal detention, but is recognized as illegal detention.    

  Detention is permitted only in cases prescribed by law and only with the approval of a prosecutor or by court order, granting the arrested person the right to appeal.  

   The grounds and procedure for detention (arrest) as a preventive measure are established by the criminal procedure legislation (Article 150 of the CPC). This preventive measure is applied to an accused (suspect) of committing an intentional crime, for which the law provides for a penalty of imprisonment for a term of more than two years, or a reckless crime, for which imprisonment for a term of more than three years is provided. In exceptional cases, this preventive measure may be applied against the accused (suspect) in cases of crimes for which the law provides for a penalty of imprisonment for a period not exceeding two years, if:    

 a) he does not have a permanent place of residence in the territory of the Republic of Kazakhstan;   

  b) his identity has not been established;  

   c) he violated another preventive measure previously chosen against him;

    d) he tried to escape or escaped from the authorities of criminal prosecution or court.     

Thus, the detention of a person can be chosen as a preventive measure in cases of committing a crime of moderate gravity, grave or especially grave on only one basis – the danger of the crime committed. If imprisonment for up to two years is provided for a deliberate crime committed by a person, or imprisonment for up to three years is provided for a reckless crime, at least one of the additional factual grounds listed above will be required to choose a preventive measure in the form of detention. If imprisonment for a committed crime is not provided for (the sanction of the article establishes other less severe types of punishments), then there will be no factual grounds for choosing detention as a preventive measure.      

The subject of the crime provided for in the first part of Article 346 of the Criminal Code may be employees of the bodies of inquiry, investigation and the prosecutor. According to parts two and three of Article 346 of the Criminal Code, the subject of a crime may be, in addition to the person conducting the inquiry and the investigator, the head of the institution where the detainee is being held (head of the pre-trial detention facility, temporary detention facility), the prosecutor, i.e. persons who are authorized by the criminal procedure legislation of the Republic of Kazakhstan to detain and choose a preventive measure in the form of arrest, as well as law enforcement officials who must ensure the legality of a person's detention. Illegal detention or detention by other officials, for example, a district police inspector, deputy or chief of the police department, should be considered as abuse of official authority (Article 308 of the Criminal Code).     

 A judge cannot be the subject of unlawful detention. Knowingly unlawful detention by a judge's order should be qualified as the pronouncement of a knowingly unlawful judicial act (Article 350 of the Criminal Code).    

 The study of practice shows that when applying the article in question, it is difficult to establish the degree of guilt of those involved in illegal detention. For example, if a person is detained in the absence of factual grounds for choosing a preventive measure in the form of arrest, only the investigator is liable by misleading the prosecutor who signed the arrest warrant. If the active role of both the investigator and the prosecutor is recognized in the illegal recruitment, both are subject to criminal liability for the commission of this crime as co-perpetrators.  

  Part three of the article in question of the Criminal Code is applied in cases where the commission of the specified crime entailed grave consequences. A grave consequence can be considered the occurrence of death or causing serious harm to the health of an unlawfully detained or detained person. The death of an unlawfully detained or unlawfully detained person is possible, for example, as a result of suicide or the deprivation of his life by other prisoners. Serious harm to the health of an unlawfully detained or unlawfully detained person may be considered caused if, for example, a mental disorder has occurred as a result of a crime committed against the victim. An important basis for qualifying the perpetrator's act under part three of Article 346 of the Criminal Code is to establish a causal relationship between the criminal act of the perpetrator and the ensuing consequence.   

   The guilt in relation to the grave consequences of this crime must be negligent, although this is not stated in the law.    

  The crime provided for in Article 346 of the Criminal Code should be distinguished from unlawful imprisonment (Article 126 of the Criminal Code), which is committed only by a private person and encroaches on a person's personal freedom.

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

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