Commentary to article 358. Escape from places of imprisonment, from arrest or from custody of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Escape from places of deprivation of liberty, from arrest or from custody committed by a person serving a sentence or being in pre-trial detention, —
is punishable by imprisonment for a term of up to three years.
2. The same act committed by:
a) a group of persons by prior agreement;
b) with the use of violence dangerous to life or health, or with the threat of such violence;
c) with the use of weapons or objects used as weapons, —
is punishable by imprisonment for a term of up to seven years.
Note. A person who has voluntarily returned to a place of detention or custody within seven days of the moment of escape shall be released from criminal liability for escape, unless he has committed another new crime and if escape was not associated with the actions provided for in paragraphs b) and c) of the second part of this Article.
Escape from places of deprivation of liberty, from arrest, or from custody constitutes evasion from serving a sentence of deprivation of liberty or arrest, as well as evasion from a preventive measure in the form of arrest. The commission of these acts interferes with the normal activities of the bodies of inquiry, preliminary investigation and court, as well as the normal activities of the bodies executing the sentence on the imposition of these types of punishment.
The public danger of this crime lies in the fact that it really impedes the execution of a sentence or measures of procedural coercion, the realization of the tasks and goals of imprisonment or arrest, undermines the authority of the penal enforcement system and the preliminary investigation, and poses a threat to the safety of other citizens.
The object of the crime is the normal functioning of the organs of the penal enforcement system, the preliminary investigation and the court, because this act prevents the conduct of inquiry, investigation and trial. The objective side is characterized by the commission of one of the acts listed in the disposition of the analyzed article of the Criminal Code: 1) escape from places of deprivation of liberty; 2) escape from places of serving arrest as a form of punishment; 3) escape from custody.
Escape is the illegal, unauthorized abandonment of a place of serving a sentence of imprisonment or arrest, as well as a place of detention, as well as other places where a person is in custody, that is, under the control of those responsible for his protection. The illegality of these actions means leaving places of punishment or detention without the permission of officials authorized to give such permission, or on the basis of a forged permit, as well as a permit obtained illegally (for example, by bribing an official).
Places of serving sentences in the form of imprisonment or arrest are prisons, correctional colonies, educational colonies, penal settlements, houses of arrest, as well as guardhouses where military personnel serve their sentences in the form of arrest. Escape may also be committed from pre-trial detention facilities where persons sentenced to imprisonment or arrest are temporarily held, or from vehicles used to transport such persons.
In accordance with Article 102 of the Criminal Code, persons sentenced to imprisonment may be involved without pay in work on the improvement of correctional institutions and adjacent territories, as well as to improve cultural and living conditions. To perform such work, convicts may stay outside correctional facilities. Escape from these places should be considered as escape from places of imprisonment.
Some of those sentenced to imprisonment are serving their sentences in accordance with articles 124 and 125 of the Criminal Code in penal colonies. They are not isolated from society, they are given the right to move freely (without escort) both on the territory of the colony and outside the colony with the permission of the administration of the colony settlement. They are in conditions of "semi-freedom", under the supervision of the administration of the colony-settlement. Leaving the places where they should be does not contain signs of the objective side of the corpus delicti provided for in art. 358 of the Criminal Code, because, although they are considered persons serving imprisonment, they are held in these institutions without protection.
Disciplinary military units and guardhouses are not places of deprivation of liberty, since convicts held in these institutions are not deprived of their liberty completely. Therefore, escape from these institutions can be qualified under the articles of the Criminal Code on military crimes if there are signs of these crimes.
Institutions and their premises where administrative offenders, distribution centers, and institutions for the compulsory treatment of alcoholics, drug addicts, and substance abusers are also not considered places of deprivation of liberty.
Persons in respect of whom a preventive measure in the form of arrest has been chosen are being held in custody. This measure of restraint may be applied against a suspect, accused, or convicted person (before the sentence enters into legal force). Places of detention are pre-trial detention facilities, temporary detention facilities. A person in custody may be held for a short or rather long time in other premises or vehicles, including in the office of a KNB officer, in the premises of a court, prosecutor's office, Ministry of Internal Affairs, in a train carriage, in a car, in a medical facility, as well as in an open area (when checking testimony on the spot, investigative experiment and the like). Thus, escape from custody, as well as from a person in pre-trial detention, can be carried out from almost any place.
A person serving a custodial sentence or being held in pre-trial detention is simultaneously in custody, that is, under guard, isolated from society. Being in custody is designed to prevent uncontrolled contacts, free movement, receiving, transmitting letters, notes, and other actions undesirable from the point of view of the interests of justice.
Unauthorized and unlawful abandonment of these places means that a person leaves these places on his own initiative, without the knowledge and permission of employees of places of deprivation of liberty, as well as employees guarding detained persons.
Escape is a continuing crime. It begins from the moment when the perpetrator unlawfully leaves the place of serving his sentence or the place of detention. From this point on, the perpetrator can be prosecuted for escape as a completed crime. When determining the moment of the end of this crime, the place from where the escape was made should also be taken into account. If it is committed from a protected area (for example, from a colony), it is considered completed from the moment the guard line is crossed. The escape of a convicted person who enjoys the right of unrestricted movement and is legally outside the colony is considered completed from the moment he leaves the convict's movement route. From this moment on, the perpetrator gets the opportunity to perform any actions without control, including free movement at his discretion. In the case of persecution of a person sentenced to imprisonment, arrest, or taken into custody who has left his place of residence, the escape is considered completed from the moment when the pursued person has left the chase and can continue to perform any actions at his discretion.
The method of escape from places of detention, from arrest, or from custody can be varied: bribing prison officers or persons guarding those in custody, attacking guards, breaking into fences, doors, windows, using vehicles, forged documents, jumping out of vehicles, and others. The methods of committing this crime, with the exception of those specified in the second part of Article 358 of the Criminal Code (the use of violence, the use of weapons or objects used as weapons), do not affect the qualification of the crime.
The location of the crime also does not affect the qualification of the crime, since escape can be committed by a person under escort from almost any place. A person under escort is considered to be in custody and may be the subject of this crime. For example, a convicted person or someone in custody escapes while being transported for interrogation, for examination, to participate in other investigative actions, or in court proceedings.
If the escape from places of detention, from arrest or from custody was accompanied by the commission of other crimes (for example, forgery of documents, theft of vehicles, hostage-taking, murder), then the actions are qualified as a set of crimes.
If the escape from places of detention, from arrest or from custody was accompanied by the commission of other crimes (for example, forgery of documents, theft of vehicles, hostage-taking, murder), then the actions are qualified as a set of crimes.
The disposition of Article 358 of the Criminal Code does not indicate time as a mandatory feature of the composition of the crime in question. According to the current criminal legislation of the CIS countries, the time spent by a person on the run plays a role in the voluntary subsequent return of the escapee to the institution from which he escaped. According to the note to this article, a person who escapes and returns voluntarily within seven days is subject to unconditional release from criminal liability, regardless of the motive or purpose of the escape. However, this applies only to cases of voluntary return of the person who committed the crime in question to a place of serving his sentence or being in custody. If this does not happen, then it does not matter how long the perpetrator is on the run, which can last for minutes, hours, days, months, or even years. The actions of a subject are considered to be escape only if he has been given a decision on the choice of a preventive measure in the form of arrest, authorized by the prosecutor, a court decision on the choice of the same preventive measure, or a court verdict on the imposition of a custodial sentence or arrest. It is not a crime, the responsibility for which is provided for by the analyzed article of the Criminal Code, the escape of a person illegally detained in places of deprivation of liberty, in institutions where a measure of punishment in the form of arrest is being served or where they are being held in pre-trial detention, as well as unauthorized abandonment of the place of serving an administrative measure in the form of arrest. The escape of a detainee in accordance with Article 132 of the CPC after the expiration of the time limits set by Article 136 of the CPC is also not a crime, since he should have already been at large. It also does not constitute a criminal offense to escape an unlawfully detained person if he did not commit a crime or there were insufficient grounds to detain the person.
A person who has been brought in, if he escapes, should not be held criminally liable for escape under Article 358 of the Criminal Code, since he cannot be the subject of this crime. He is not recognized as a person in pre-trial detention.
Escape from places of detention or from custody refers to intentional crimes. By committing this crime, the perpetrator is aware that leaving the place of detention, the place of arrest or serving imprisonment, commits a socially dangerous act.
The motives of the crime can be different. The purpose and motive are not mandatory signs of the subjective side of escape from places of deprivation of liberty, from arrest or from custody, therefore they do not affect the qualification of the crime.
The subject of this crime may be a sane person who has reached the age of 16. However, the establishment of these signs of a subject is not enough to bring a person to criminal responsibility under Article 358 of the Criminal Code. In accordance with the disposition of the specified article of the Criminal Code, the subject of this crime may be: a) those serving a sentence of imprisonment; b) those serving a sentence of arrest; c) those detained in custody as suspects of committing a crime; d) those in custody suspected of committing a crime, in respect of whom a preventive measure has been chosen in the form of arrest. Persons in pre-trial detention should include not only those against whom a preventive measure in the form of arrest has been chosen, but also those who are detained on suspicion of committing a crime in accordance with Article 132 of the CPC.
Persons serving sentences in places of deprivation of liberty should include those who are in a correctional or educational colony of any regime or in prison.
Persons sentenced to death, in respect of whom the sentence has not entered into legal force, has not been executed, or the sentence that has entered into legal force has not been executed, should be considered to be in pre-trial detention. If an escape from custody is committed by a person to whom a suspended sentence, suspended sentence, or restriction of liberty has been applied by the court, and he has not been released from custody before the sentence enters into force, he may be recognized as the subject of the crime in question.
The subjects of escape from a place of detention or from custody may not be military personnel who, in connection with the commission of a crime, are held in the brig as a substitute for correctional labor assigned to them by the court or are serving their sentences in a disciplinary battalion. This opinion can be justified by the fact that these persons continue to be military personnel and wear military-style clothing throughout their detention in the brig or their stay in the disciplinary battalion. They are subject to military regulations. Therefore, their escape from the guardhouse or from the disciplinary battalion forms part of another crime related to military service on the basis of a special subject. For example, unauthorized abandonment of a unit or place of service (Article 372 of the Criminal Code).
In cases of serious or especially serious crimes, criminal and criminal procedure legislation allows for the detention of minors and the imposition of custodial sentences (imprisonment from the age of 14, arrest from the age of 16). Because the law (art. 15 of the Criminal Code) has determined the age of sixteen for criminal liability for escape from places of deprivation of liberty, from arrest or from custody, persons aged from fourteen to sixteen years in custody or serving sentences in educational colonies may not be subjects of a crime under art. 358 of the Criminal Code. Their escape from places of imprisonment or from custody is not a crime.
The qualifying signs of this crime are: 1) escape committed by a group of persons by prior agreement; 2) with the use of violence dangerous to life or health, or with the threat of such violence; 3) with the use of weapons or objects used as weapons.
An escape committed by a group of persons by prior agreement can be committed with three forms of complicity: by a group of persons by prior agreement, by an organized group, by members of a criminal organization or a criminal community by prior agreement.
Law enforcement practice faces questions about the qualification of escape when the person who escaped was assisted by a person who is not convicted or in custody. The actions of such a person are subject to qualification as complicity in escape under Articles 28 and part one of Article 358 of the Criminal Code. The person who escaped is not subject to liability under this paragraph "a" of the second part of Article 358 of the Criminal Code as an escape committed by a group of persons by prior agreement, since the actions of the second person involved in this crime are not co-execution. To qualify "the actions of the escape accomplices as a crime committed by prior agreement by a group of people, it is also required that each of them fulfill the objective side of this crime in whole or in part," which was not the case in the example given.
If violence is used during the escape, resulting in serious harm to health, the act should be qualified under two articles of the Criminal Code: under paragraph "b" of part 2 of Article 358 and under Article 103 of the Criminal Code. Such a qualification would be correct, since inflicting serious harm to a person who tried to prevent escape provides for a more severe punishment under paragraph "b" of part 2 of Article 103 of the Criminal Code than part 2 of Article 358 of the Criminal Code. Therefore, this act requires additional qualification under Article 103 of the Criminal Code.
Speaking about violence during escape, it should be noted that it can be used both before and during the direct commission of this crime. Violence in the commission of this crime (physical or mental) should be aimed at ensuring unhindered escape. If it is applied after the end of the escape, for example, to avoid arrest, the act should be qualified as an appropriate crime against the person.
An important issue to be clarified when applying paragraph "b" of the second part of Article 358 of the Criminal Code is the question of who can be subjected to violence during escape in order to qualify this crime under paragraph "b" of the specified part of Article 358 of the Criminal Code. As practice materials show, in most cases of escapes with the use of violence, it was used against persons who, by virtue of their position or on the basis of special instructions, were obliged to guard, guard, protect persons serving sentences in places of deprivation of liberty or in pre-trial detention or in another place of detention, in order to ensure their isolation, stay in a designated place and monitoring their behavior. These are mainly military personnel of the internal troops of the Ministry of Internal Affairs, both ordinary and commanding officers, who perform the functions of guarding and escorting suspects, accused persons, defendants taken into custody and sentenced to imprisonment.
These functions are assigned to employees of temporary detention facilities, pre-trial detention facilities, as well as to officers and enlisted personnel of the Ministry of Internal Affairs and other government agencies and institutions charged with protecting convicted, arrested or detained persons in these specific conditions.
These functions are performed by these persons both during the stay of the convicted or arrested person in a place of detention or a place of imprisonment, and when they are outside these places (in the office of the investigator, the inquirer, in the courtroom, during escorting, staging, etc.).
Violence during escape can be used against a convicted person, or against an outsider who is trying to prevent escape. In such cases, it would be correct to classify the actions of the perpetrator as escape with the use of violence under paragraph "b" of the second part of art. 358 of the Criminal Code.
To apply paragraph "b" of the second part of Article 358 of the Criminal Code, it is required to establish that during the escape, the perpetrator used weapons or objects used as weapons against persons who tried to prevent his escape. Weapons include firearms, cold steel, and other types of weapons. In accordance with the Law of the Republic of Kazakhstan dated December 30, 1998 "On State control over the turnover of certain types of weapons" Weapons are devices and objects designed to destroy a live or other target, as well as to send signals.
Objects used as weapons should be understood as any objects adapted to harm health or cause death, as well as any other objects that were not prepared in advance, but were used when applying physical or mental violence to a person who tried to prevent escape.
The use of weapons or specified objects should be understood as their actual use as a means of violence against the victim, when the perpetrator inflicts or tries to inflict bodily harm to the victim with their help. The use of weapons should also be understood as their misuse when the actions of the perpetrator pose a real threat to the life or health of the victim. For example, striking with the butt of a pistol. When using firearms (other than smoothbore hunting rifles) or bladed weapons during the escape, the act should be classified as a set of crimes under articles 358 and 251 of the Criminal Code.
According to the note to Article 358 of the Criminal Code, a person who escapes from places of deprivation of liberty, arrest or from custody, who voluntarily returns within seven days of the escape, is released from criminal liability under the following conditions: 1) if he has not committed a new crime while on the run; 2) if violence dangerous to life or health or the threat of such violence was not used during the escape; 3) if weapons or objects used as weapons were not used during the escape.
Only if all three of these grounds are present in the aggregate, the person is subject to mandatory exemption from criminal liability for escape. If the perpetrator commits a new crime while on the run, he is liable for a combination of crimes: for escape and the newly committed crime.
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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