Commentary to article 359. Evasion from serving a sentence of imprisonment of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Non-return to a correctional institution of a convicted person who is allowed to leave the place of deprivation of liberty for a short time after the expiration of the period of departure, as well as a convicted person who enjoys the right to travel without escort or under supervision, committed with the aim of evading further serving of a custodial sentence., —
is punishable by imprisonment for a term of up to two years.
The public danger of the crime in question lies in the fact that convicts, abusing the benefits and trust provided by the legislation, violate the process of implementing punishment, prevent the execution of a guilty verdict, and the real achievement of the goals of punishment in the form of imprisonment.
The direct object of the crime in question is the normal activities of institutions where a custodial sentence is served.
The objective side of this crime is to avoid serving a custodial sentence for a convicted person who is allowed to leave correctional facilities. Evasion may be expressed in non-return or untimely return to the place where the perpetrator served his sentence in the form of imprisonment. If the perpetrator has not returned to the institution where he is serving his sentence, or returned late for a valid reason (for example, due to natural disasters, illness, detention as a suspect in a new crime, etc.), he is not liable under art.359 of the Criminal Code.
This crime belongs to the category of continuing. It is considered completed from the moment of expiration of the period of departure from correctional institutions, which was provided to the convicted person. On the objective side, the crime in question differs from escaping from places of deprivation of liberty in that the commission of this crime is not related to the unlawful abandonment of places of deprivation of liberty. Unlike escape from places of deprivation of liberty, it is committed through inaction, which is expressed in the unlawful unauthorized evasion of the convicted person from fulfilling the obligation imposed on him by penal enforcement legislation to return to the place of serving his sentence of imprisonment in a timely manner.
Failure to return to places of deprivation of liberty means that the convicted person fails to appear at the institution where he served or was supposed to serve his imprisonment after the expiration of the period when he was obliged to return to this institution.
The subjective side of the crime in question is characterized by direct intent. The convicted person is aware that he is evading further serving of a custodial sentence.
A mandatory feature of the composition of the crime in question is a special purpose. The purpose of committing this crime is the desire to evade serving a sentence of imprisonment, and this feature is subject to mandatory identification in order to bring the perpetrator to justice under the article of the Criminal Code in question. Such a goal may be indicated, for example, by traveling outside the Republic of Kazakhstan or attempting to do so, replacing the identity documents of the convicted person, or forging them in order to hide from the authorities searching for him, etc. However, the return of a convicted person with a slight delay can be considered as an insignificant act. The person who made such a delay is not subject to criminal liability on the basis of the second part of Article 9 of the Criminal Code.
The subject of the crime is special. They may be a sane person who has reached the age of sixteen and has been sentenced to imprisonment.
Those sentenced to imprisonment while serving this sentence are mostly located in the protected area of the institutions where this sentence is being served. Outside the protected area, they move under escort or accompanied by prison staff. There are exceptions to this general rule in relation to certain categories of persons sentenced to imprisonment. These exceptions are provided for by the norms of the Penal Enforcement Code of the Republic of Kazakhstan. In particular, in accordance with the first part of art. PEC 91 positively characterized convicts serving imprisonment in correctional and educational colonies, as well as those left to perform household maintenance work in pre-trial detention facilities and prisons, may be allowed to travel without escort or escort outside the protected area, if necessary by the nature of their work.
A person who has been granted the right to travel without escort or escort outside a protected area, i.e. who is actually at large, although he is considered to be serving a prison sentence, is liable, in our opinion, not under art. 358, but under art. 359 of the Criminal Code, in case of escape from his place of work. responsibility for escape from places of deprivation of liberty requires establishing that the escape was committed from a protected area or a person located outside the protected area, but under escort. Such a solution to the problem of the qualification of the specified act is proposed due to the fact that the escape of a person sentenced to imprisonment, who has been granted the right to travel outside the protected territory of places of serving a sentence of imprisonment without escort or escort, has more similarities in its objective features with evasion from serving a sentence of imprisonment than when comparing escape from prison. In accordance with Part 1 of art . 93 PECS convicts held in correctional and educational colonies, as well as convicts left in pre-trial detention facilities and prisons in accordance with the established procedure for carrying out household maintenance work, may be allowed to travel outside correctional facilities due to exceptional personal circumstances (death or serious illness of a close relative, life-threatening to the patient, natural disaster caused significant material damage to the convicted person or his family), as well as for the preliminary resolution of labor and household issues after release.
These persons may be granted the right to leave correctional institutions for either a short period (within seven days) or for a longer period – for the duration of an annual paid vacation or for a period equal to the duration of the vacation (for 15 or 18 days).
In accordance with the penal enforcement legislation of the Republic of Kazakhstan, travel outside correctional institutions where a custodial sentence is being served may be allowed only to certain categories of convicts established by this legislation. They may be the subject of this crime.
If a person who does not fall under this category of convicts unlawfully obtains permission to leave the institution where he is serving a custodial sentence and does not return in order to avoid further serving a custodial sentence, he is liable under article 358 of the Criminal Code.
Thus, the subject of this crime may be a person sentenced to imprisonment, who enjoys the right to travel without escort or is under supervision.
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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