Criminal offenses Escape of a convicted person from an institution of the minimum security penal system  

By the verdict of the District Court No. 2 of the Saryarkinsky district of Astana dated July 21, 2017, K., previously convicted on December 10, 2014 under part 3 of Article 296 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) to 7 years in prison.; - convicted under part 1 of Article 426 of the Criminal Code to 1 year and 6 months in prison, on the basis of Article 60 of the Criminal Code for a total of 5 years in prison while serving his sentence in an institution of the medium-security penal system. The case was not considered on appeal. The court found that K. According to the court verdict of December 10, 2014, he served his sentence in an institution of the minimum security penal system (Astana, institution EC-166/22). On May 17, 2017, at about 7 a.m., K. jumped over the fence and left the territory of the institution. On the same day, at about 12 o'clock, he was detained on Shieli Street in the area of the Astana Timber Factory. In the protest, the Prosecutor General asks the court to overturn the verdict and dismiss the case due to the absence of elements of a criminal offense in K.'s actions. The guilt of the convicted K. the crime of escaping from places of deprivation of liberty, in particular from institutions of the minimum security penal system, is proved by the factual data collected in the case. His actions under part 1 of Article 426 of the Criminal Code are qualified correctly. The measure of punishment is imposed on the convicted person in accordance with the requirements of the criminal law, taking into account the nature and degree of public danger of the criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense.

The statement in the protest that the objective side of the composition of the crime provided for in part 1 of Article 426 of the Criminal Code provides for the mandatory presence of two signs at the same time – serving a sentence of imprisonment by a convicted person and keeping him under guard or in custody, does not comply with criminal law. Thus, the disposition of part 1 of Article 426 of the Criminal Code provides for criminal liability for escape from prison. places of deprivation of liberty, from arrest or from custody, committed by a person serving a sentence or being in pre-trial detention. At the same time, this provision of the criminal law does not contain the condition that a person serving a sentence in places of deprivation of liberty must necessarily be under guard or in custody. Other laws of the Republic of Kazakhstan do not provide for such a condition. On the contrary, in accordance with part 1 of Article 143 of the Criminal Code, convicts are held in institutions of the minimum security penal system without protection, but under the supervision and supervision of the institution's administration. At the same time, convicts serving sentences under normal conditions in minimum security institutions live in dormitories or cells and have the right: to move freely within the territory of the institution, except for the time allotted by the internal regulations of the institution for sleeping; with the permission of the administration of the institution, to move without supervision within the boundaries of the territory adjacent to the institution, if necessary the nature of the work they do, four times a month from nine to eighteen hours; live with their families in a rented or private living space within the locality where the institution is located.

The administration of the institution did not grant convict K. the right or permission to move freely outside the institution of the penal system. Thus, the escape of a convicted person from an institution of the minimum security penal enforcement system forms the objective side of the corpus delicti provided for in part 1 of Article 426 of the Criminal Code. The arguments of the protest that since K. if he has already suffered disciplinary liability for unauthorized abandonment of the territory of an institution of the penal correction system in the form of placement in a disciplinary isolation unit for 15 days and has been transferred to an institution of the medium-security penal correction system, then he cannot be criminally liable again for escape under part 1 of Article 426 of the Criminal Code, which are unjustified. According to the criminal law (Articles 1 and 4 of the Criminal Code), a person who has committed a criminal offense is liable only according to the norms of the Criminal Code of the Republic of Kazakhstan. A person may not be criminally liable again only if he has already been criminally liable for the same offense. In such circumstances, bringing a person to disciplinary responsibility in connection with the commission of a criminal offense is not an obstacle to bringing him to criminal responsibility. The fact that K. was transferred from an institution of the minimum security penal system, assigned to him by a court verdict of December 10, 2014, to an institution of medium security, is also not recognized as criminal liability.  This transfer was carried out by the court on the basis of paragraph 4) of Article 476 of the Criminal Procedure Code of the Republic of Kazakhstan on the recommendation of the head of the institution in the order of execution of the court verdict dated December 10, 2014. The arguments in the protest that the provisions of the note to article 426 of the Criminal Code apply to the convicted K., according to which a person who voluntarily returns to the institution within seven days of the escape is released from criminal liability, are also unfounded. According to the materials of the criminal case K. He did not voluntarily return to the institution from which he escaped. After the fact of the escape was established, all employees of the institution were alerted and they took operational search measures to find K., including using a service dog. As a result of these measures, K. On the day of the escape, he was detained in Astana. Based on the above, the judicial board for criminal Cases of the Supreme Court upheld the verdict of the court of first instance against K., and the Prosecutor General's protest was not satisfied. 

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