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Commentary on Article 414 of the Criminal Code of the Republic of Kazakhstan. Knowingly Unlawful Detention, Taking into Custody or Keeping in Custody

1. Knowingly unlawful detention —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

2. Knowingly unlawful taking into custody or keeping in custody —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to seven years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to six years.

3. Acts provided for in Parts One or Two of this Article, which have resulted in grave consequences —

shall be punishable by imprisonment for a period of three to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to seven years.

4. Deliberate failure to notify the relatives of a suspect of the fact of their detention and their whereabouts, unlawful refusal to provide information concerning the place where a person is being held in custody to a citizen entitled to receive such information, as well as falsification of the time when the detention record was drawn up or the actual time of detention —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to two hundred and sixty hours, or arrest for a period of ten to fifty days, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

The public danger of the criminal offence (Parts 1, 2 and 3 constitute crimes, while Part 4 constitutes a criminal misdemeanour) lies in the fact that such actions violate one of the fundamental principles of the inviolability of human rights and freedoms.

Article 9 of the Universal Declaration of Human Rights of 10 December 1948 establishes that no one shall be subjected to arbitrary arrest, detention or exile.

In addition, pursuant to paragraph 1 of Article 16 of the Constitution of the Republic of Kazakhstan, everyone has the right to personal liberty. Arrest and detention in custody shall be permitted only in cases provided for by law and only with the sanction of a court, with the arrested person being granted the right to appeal. Without a court sanction, a person may be detained for a period not exceeding seventy-two hours (paragraph 2 of Article 16 of the Constitution of the Republic of Kazakhstan).

The object of the offence is the interests of justice, since its commission undermines the authority of law enforcement agencies, violates the rule of law, and infringes upon a person's personal liberty.

The objective side of Part 1 of the Article under consideration consists in knowingly unlawful detention.

Pursuant to Part 1 of Article 14 of the Criminal Procedure Code, no one may be detained on suspicion of committing a criminal offence, placed in custody or otherwise deprived of liberty except on the grounds and in accordance with the procedure established by the Criminal Procedure Code.

According to Part 1 of Article 128 of the Criminal Procedure Code, the detention of a person suspected of committing a criminal offence is a measure of procedural coercion applied by a criminal prosecution authority for the purpose of preventing a crime and resolving the issue of applying a preventive measure in the form of detention in custody, or ensuring proceedings in respect of a criminal misdemeanour where there are grounds to believe that the person may abscond or commit a more serious act.

An official of a criminal prosecution authority shall have the right to detain a person suspected of committing a crime punishable by imprisonment where one of the following grounds exists:

when the person is caught in the act of committing a crime or immediately after its commission;

when eyewitnesses (witnesses), including victims, directly identify the person as having committed the crime, or when the person is detained in accordance with the procedure provided for in Article 130 of the Criminal Procedure Code;

when obvious traces of a crime are found on the person or their clothing, among their belongings or at their place of residence;

when materials obtained in accordance with the law through operational-search activities, counterintelligence activities and/or covert investigative actions contain reliable information concerning a crime committed or being prepared by the person (Part 2 of Article 128 of the Criminal Procedure Code).

The detention of persons suspected of committing a crime shall be carried out after the necessary urgent investigative actions have been conducted, except in the case of the ground provided for in subparagraph 1) of Part 2 of Article 128 of the Criminal Procedure Code (Part 3 of Article 128 of the Criminal Procedure Code).

Where other information provides grounds for suspecting a person of committing a criminal offence, that person may be detained only if they have attempted to abscond, or if they have no permanent place of residence, or their identity has not been established, or if a motion for authorisation of a preventive measure in the form of detention in custody has been submitted to the court (Part 4 of Article 128 of the Criminal Procedure Code).

The period of detention of a person suspected of committing a criminal offence shall be calculated from the moment of actual detention and shall not exceed seventy-two hours (Part 5 of Article 128 of the Criminal Procedure Code).

The sixth paragraph of subparagraph 2 of the Normative Resolution of the Constitutional Council of the Republic of Kazakhstan dated 13 April 2012, "On the Official Interpretation of the Provisions of the Constitution of the Republic of Kazakhstan on the Issue of Calculating Constitutional Time Limits", stipulates: "The commencement of the detention period shall be the hour, accurate to the minute, when the restriction of the detained person's liberty, including freedom of movement — compulsory confinement in a particular place, compulsory delivery to the bodies of inquiry and investigation (seizure, confinement in premises, compelling a person to go somewhere or remain in a particular place, etc.), as well as any other actions that substantially restrict a person's personal liberty — becomes actual, irrespective of whether the detained person has been assigned any procedural status or whether other formal procedures have been completed. The moment of expiry of this period shall be the expiration of seventy-two hours, calculated continuously from the time of actual detention."

It follows from the content of paragraph 2 of Article 16 of the Constitution of the Republic of Kazakhstan that cases involving the establishment of other rules for detention in custody, including the calculation of its period, should be regarded as violations of this constitutional provision.

Consequently, unlawful detention should be understood as detention carried out in the absence of the grounds specified by law or in violation of procedural formalities, as well as the detention of a person who is subject to release.

It should be noted that law enforcement practice has developed in such a way that the following cases are classified as forms of unlawful detention:

1. Failure to confirm the suspicion of committing a criminal offence;

absence of grounds for applying to the detained person a preventive measure in the form of detention in custody or a punishment in the form of arrest or expulsion from the Republic of Kazakhstan;

detention carried out with a substantial violation of the requirements of Article 131 of the Criminal Procedure Code;

absence of lawful grounds for detention (Part 2 of Article 128 of the Criminal Procedure Code).

However, this approach is not entirely correct. The grounds and conditions for detention are not directly connected with the prospect of subsequently placing that person in custody as a preventive measure. Moreover, this is not the primary purpose of detention. There may be cases where the authority conducting criminal proceedings had grounds to detain a person but did not have grounds to place that person in custody as a preventive measure. Therefore, the only "reliable" objective criterion for determining whether a particular detention is unlawful is whether the detention procedure and its documentation comply with the requirements of Chapter 17 of the Criminal Procedure Code.

Unlawful detention giving rise to criminal liability occurs both when a person is detained without sufficient factual grounds and when the procedural procedure for detention is violated, as well as when a lawfully detained person is unlawfully kept in custody beyond the detention period.

Detention of a person suspected of committing a crime as a measure of procedural coercion should be distinguished from detention as a measure of administrative enforcement. Pursuant to Article 789 of the Code of Administrative Offences, administrative detention shall be carried out for the period necessary to achieve the purposes specified in Article 785 of the Code of Administrative Offences and may not exceed three hours. If, in such circumstances, police officers violate the rules governing administrative detention, such conduct constitutes a disciplinary offence or an official crime and may be classified under Article 414 of the Criminal Code.

The crimes provided for in Parts 1, 2 and 3 of Article 414 of the Criminal Code should be distinguished from unlawful deprivation of liberty (Article 126 of the Criminal Code), which is committed exclusively by a private individual and infringes upon a person's personal liberty.

By its legal construction, the corpus delicti is formal, and the moment of its completion depends entirely on the form in which it is manifested. Thus, if detention was carried out without sufficient grounds, it shall be considered completed from the moment of actual detention. If lawful grounds for detention existed but no detention record was drawn up, the crime should be considered completed three hours after the suspect was delivered to the body of inquiry, investigator or prosecutor (Part 2 of Article 131 of the Criminal Procedure Code expressly provides that the detention record of a suspect must be drawn up no later than three hours after delivery). If no preventive measure in the form of detention in custody has been imposed on the person, or the court has not postponed the final decision, the act shall be considered completed forty-eight hours after the moment of actual detention.

The subjective side is characterised by direct intent. This follows from the meaning of the term "knowingly", which indicates that the person clearly understands the unlawful nature of their actions. The perpetrator is aware of the public danger of the act, understands that there are no lawful grounds for detention, foresees the commission of unlawful detention and desires to carry it out.

The motives for detention may vary: revenge, greed, envy, careerism, etc.

The subject of unlawful detention is special. It may include officials of criminal prosecution authorities (a prosecutor, investigator, head of a body of inquiry, inquiry officer, as well as the head of the administration of a place of detention).

Part 2 of Article 414 of the Criminal Code establishes liability for knowingly unlawful taking into custody or keeping in custody.

Pursuant to Article 2 of the Law of the Republic of Kazakhstan dated 30 March 1999, "On the Procedure and Conditions for the Detention of Persons in Special Institutions Ensuring Temporary Isolation from Society", detention in custody shall mean the temporary isolation of persons in special institutions, as authorised by a court, in accordance with the procedure established by the law of the Republic of Kazakhstan. Thus, two categories of persons may be held in custody:

detained suspects or accused persons who have been subjected to a preventive measure in the form of detention in custody;

suspects or accused persons who have not been detained but in respect of whom a preventive measure in the form of detention in custody has been imposed. This usually occurs after charges have been brought against a person who was previously at liberty.

According to Part 1 of Article 136 of the Criminal Procedure Code, where there are sufficient grounds to believe that a suspect or accused person may abscond from the criminal prosecution authorities or the court, obstruct an objective investigation of the case or its examination in court, or continue engaging in criminal activity, as well as for the purpose of ensuring the execution of a sentence, the authority conducting criminal proceedings shall, within the limits of its powers, have the right to apply to such persons one of the preventive measures provided for in Article 137 of the Criminal Procedure Code.

Pursuant to Part 1 of Article 147 of the Criminal Procedure Code, detention in custody is a preventive measure applied only with the sanction of a judge and only in respect of a suspect, accused or defendant in the commission of a crime for which the law provides for a punishment in the form of imprisonment for a term of at least five years, where it is impossible to apply other, less severe preventive measures. In exceptional cases, this preventive measure may be applied in respect of a person suspected or accused of, or standing trial for, a crime punishable by imprisonment for a term of up to five years, if:

the person has no permanent place of residence within the territory of the Republic of Kazakhstan;

the person's identity has not been established;

the person has violated a previously imposed preventive measure or measure of procedural coercion;

the person has attempted to abscond or has absconded from the criminal prosecution authorities or the court;

the person is suspected of committing a crime as part of an organised group or criminal community (criminal organisation);

the person has a criminal record for a previously committed serious or particularly serious crime;

there is information indicating that the person is continuing criminal activity.

According to paragraph 13 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 24 January 2020, "On Certain Issues of Authorising Preventive Measures", the period of detention in custody shall be calculated from the moment of actual detention. In this regard, the ruling authorising the preventive measure in the form of detention in custody must specify the commencement of the calculation of this period with accuracy to the minute, as well as the period for which this preventive measure is authorised.

In addition to the detention period, the following periods shall be included in the period of detention in custody:

the period of compulsory placement in a psychiatric or other medical organisation under inpatient conditions pursuant to a court decision in accordance with Part 6 of Article 152 of the Criminal Procedure Code;

the period of detention in custody of a person extradited (surrendered) to the Republic of Kazakhstan and their transportation in accordance with Article 584 of the Criminal Procedure Code, calculated from the moment they cross the State Border of the Republic of Kazakhstan.

Thus, detention in custody should be recognised as unlawful where it is:

applied to a person in respect of whom criminal prosecution is knowingly being carried out unlawfully;

applied in the absence of the grounds provided for in Part 1 of Article 147 of the Criminal Procedure Code;

applied in respect of a person suspected or accused of committing a crime for which no punishment in the form of imprisonment is provided;

imposed in respect of a suspect or accused person for a crime punishable by imprisonment for a term of up to two years, in the absence of the circumstances listed in subparagraphs 1)–4) of Part 1 of Article 147 of the Criminal Procedure Code;

applied in respect of a minor suspect or accused person for committing a minor crime.

Taking into account the provisions set out above, the crime should be considered completed from the moment the judge issues a ruling imposing a preventive measure in the form of detention in custody in respect of the suspect or accused person.

From the subjective standpoint, the crime provided for in Part 2 of Article 414 is committed only with direct intent. The disposition of the provision refers to knowingly unlawful detention in custody. The element of knowledge means that the absence of lawful grounds for applying this preventive measure must be obvious to the person applying it. At the same time, that person is aware of the public danger and unlawfulness of their actions and nevertheless desires to commit them.

The motives for committing the crime do not affect its legal classification.

The subject of the crime is special. It may only be an investigating judge of a district or equivalent court, and, in cases where a ruling of the investigating judge is amended or the ruling of the investigating judge is overturned and a new ruling is issued, a judge of a regional or equivalent court (Part 1 of Article 148 of the Criminal Procedure Code and subparagraphs 2), 3) of Part 7 of Article 107 of the Criminal Procedure Code).

Part 3 of Article 414 of the Criminal Code establishes criminal liability for acts provided for in Parts 1 and 2 of the Article under consideration that have resulted in grave consequences. In accordance with subparagraph 4) of Article 3 of the Criminal Code, such consequences may be recognised as the death of a person; suicide committed by the victim or their close relative(s); the infliction of grievous bodily harm, as well as other consequences indicating the severity of the harm caused.

By its legal construction, the corpus delicti of the crime for which liability is provided for in Part 3 of the Article under consideration is material.

Part 4 of Article 414 of the Criminal Code provides for liability for deliberate failure to notify the relatives of a suspect of the fact of their detention and their whereabouts, unlawful refusal to provide information concerning the place where a person is being held in custody to a citizen entitled to receive such information, as well as falsification of the time when the detention record was drawn up or the actual time of detention.

According to Article 135 of the Criminal Procedure Code, the person conducting the pre-trial investigation is obliged to immediately notify one of the adult members of the suspect's family of the suspect's detention and whereabouts, and, in their absence, other relatives or close persons, or to provide the suspect with an opportunity to make such notification themselves. In the case of the detention of a foreign national, the embassy, consulate or other representative office of that State must also be notified immediately or, where this is not possible, within twenty-four hours, through the Ministry of Foreign Affairs of the Republic of Kazakhstan, in accordance with the procedure established by a joint order of the Minister of Foreign Affairs of the Republic of Kazakhstan and the Prosecutor General of the Republic of Kazakhstan.

The corpus delicti of the criminal misdemeanour provided for in Part 4 of the Article under consideration is formal. The criminal misdemeanour shall be considered completed:

— from the moment the period within which notification of the suspect's relatives of the fact of detention and the suspect's whereabouts was required expires;

— from the moment of unlawful refusal to provide information concerning the place where a person is being held in custody to a citizen entitled to receive such information;

— from the moment of falsification of the time when the detention record was drawn up or the actual time of detention.

Falsification of the time when the detention record was drawn up or the actual time of detention shall mean indicating in the detention record a time that does not correspond to the actual time when the detention record was drawn up or the person was actually detained.

The act provided for in Part 1 of Article 414 of the Criminal Code is classified as a crime of medium gravity.

The acts provided for in Parts 2 and 3 of Article 414 of the Criminal Code are classified as serious crimes.

The act provided for in Part 4 of Article 414 of the Criminal Code constitutes a criminal misdemeanour.

Commentary of 2021 to 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 reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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