Akbolatova Maral Eltaevna

Senior teacher of Department of Criminal law, Criminal Procedure and Criminalistics, Law faculty, Al-Farabi Kazakh National University

URGENT PROBLEMS OF CRIMINAL LIABILITY FOR ESCAPE

Annotation: In article problematic issues of qualification of violent escape from places of detention, from under arrest or from custody are considered.

Keywords: violent escape, places of commission of escape, the armed escape, society, isolation, responsibility.

The most widespread type of crimes made in places of detention are escapes. Escapes cause reasonable concern of citizens, disbelief them in ability of the state to provide reliable isolation of criminals, dangerous to society.

The essence of escape from the place of detention, its danger to society is expressed in counteraction to execution of the purposes and problems of justice connected with realization of punishment in the form of imprisonment or measures of criminal procedure coercion, in undermining authority of judicial bodies and creation of obstacles for their normal activity.

Places of commission of escapes treat: correctional facilities (corrective labor colonies of the general, strictly and especially the mode, colonies settlements, educational colonies, prisons), and also places of keeping of the arrested military personnel – a guardroom. Various vehicles used for convoy of suspects, defendants, the defendants taken as a measure of restraint into custody in court, in the camera of the investigator, prosecutor or person making inquiry and also the convicts directed to the place of serving sentence belong to spaces of stay for guards.

Escape from custody is leaving from a convoy in the hall of court session, by production of various investigative actions, for example, of an investigative experiment, departure to the place of commission of crime. It is necessary to emphasize that the arrangement of IU is understood not only as the territory of colony (prison) limited to system of technical means of protection. Local governments determine by the decision the territory borders adjacent to security constructions where regime requirements are established.

Escape from places of detention, from custody is among crimes with formal structure. The moment of the termination of a crime the moment of leaving of the appropriate place of imprisonment and run out of control of administration admits jurisprudence. Leaving of the appropriate place is stated not earlier than the person leaves his territory, will overcome the last protecting construction or other element of protection.

However O. W. Masur considers that escape from the place of detention has to be referred to material corpus delicti at which a criminal consequence is that the person obliged to be in the place of detention and to serve the imposed sentence in the form of imprisonment as a result of commission of escape appears outside the place of detention, out of the sphere of protection and control of him from administration of correctional facility and at the same time in advance committed crime doesn't serve sentence.

In our opinion, the design of structure of the studied crime concerns to formal structure as in the Criminal Code of Kazakhstan there is no instruction on socially dangerous consequences as an obligatory sign of the objective party. A number of authors fairly consider that escape can have stages of preparation and attempt".

Problematic issue of qualification of escape from places of detention, from under arrest or from custody his reference to number of the lasting crimes is. In jurisprudence, as well as in scientific publications, there is no unity of opinions on this matter. Many scientists fairly refer escape to the lasting crimes. And it involves a number of consequences. The limitation period of criminal prosecution is estimated since then when the made escape has ceased on the listed above bases to evade from the investigation, court or serving sentence. O. W. Masur agreeing that escape is lasting a crime allocates two periods of this criminal act. "At the same time directly escape is time period, since the moment of commission of escape and including the moment when in actions of the guilty person there is an ended structure of escape. Escape on this time span is escape in the true sense of this word as during this period of time the guilty person carries out the objective party of escape. The second period of time, since the moment when in actions of the convict there is already an ended structure of escape and until his detention or surrender - it is not escape in the true sense any more of this word as the ended corpus delict took place earlier, is a special criminal state in which there is a guilty person after commission of escape by him. This special criminal state is in a direct causal relationship with perfect escape, and it has criminal and legal value as the guilty person continues to evade from serving sentence in the form of imprisonment.

Directly escape and the evasion following it from serving sentence in the form of imprisonment represent uniform, continuous process as they have internal unity and represent various forms of criminal activity directed to achievement of the uniform purpose".

Other part of authors proved other position. So, N.Yu.Kuznetsova considered that escape from places of detention and from under arrest by the lasting crime isn't. It comes to an end right after leaving of places of detention and arrest.

M.I.Bazhanov, sharing this position, I claimed that "escape not lasting crime as he can't be identified with evasion from serving sentence which in itself isn't punishable". Permission of this controversial issue is possible only from a position of the analysis of signs of the lasting crime. The lasting crime is characterized by three signs: - continuity of negative impact on a crime object; - the continuity of implementation of criminal action forming a peculiar criminal state and - presence at the person of the purpose to commit continuously criminal action.

Escape from the place of detention, from under arrest or from custody contains all three signs. First, escape violates the interests of justice from the moment of the end of escape and the subsequent stay out of the place of detention as the court verdict isn't executed on serving of imprisonment. E. T. Borisov correctly noted that the interests of justice violated by escape continue to be broken by the subsequent evasion from serving sentence.

Escape is carried out continuously and continuously violates the interests of justice. In - the second, escape is continuously made act begun with the moment of leaving of the place of detention. The essence of the criminal action called by escape consists in evasion from execution of the court verdict about appointment and serving sentence in the form of imprisonment. Escape as one of evasion forms from serving of imprisonment is a certain state – stay "is in hiding". Thirdly, the sign of the lasting crime, the purpose on commission of continuous criminal action, is also characteristic of escape from the place of detention, from - under arrest or from custody. The convict to imprisonment carries out continuously this crime at a stage ended with one purpose - to be at large and not to serve sentence according to the court verdict. Use of violence and use of weapons are the one-act actions which aren't possessing in itself signs of the lasting acts. However they in addition characterize, in this case aggravate the main crime – escape from the place of detention, from under arrest or from custody. Therefore this structure keeps constructive signs of the main structure and represents the lasting crime.

Problematic issue of qualification of escape with use of violence, life-threatening or health, and equally with use of weapons is the question of his from actions of persons, disorganizing activity of the institutions providing isolation from society. Violence at escape is way of implementation of escape and is applied for to facilitate his commission. In disorganization of activity of the institutions providing to isolation from society violence it is applied with the purpose to prevent correction of the convict or to revenge for assistance of establishment to administration rendered to them. Also real set of these crimes when in the course of preparation for escape violent acts have been made isn't excluded.

References:

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2. Griazev N.V. Ways of committing escapes fromprison // Penitentiary Law, 2008. Number 2.

3. Ilyin V.A., Naryshkin N., Aladin L.S. Escapes from prisons and pre-trial detention centers of Penal System of the Russian Federation: Historical and Criminal Aspects. Vladimir, 2004.

4. Kuznetsova N.F. Problems of qualifying crimes. Lectures on the course "Fundamentals of qualifying crimes". M., 2007.

5. Course of Soviet criminal law. The special part. Volume 6. Moscow, 1971.

6. Litvinov I. Some issues of criminal liability for escape // Penal Law. 2008. Number 5.

7. Mazur O. Criminal and criminological problems of prisons escapes control.Candidate of Science Thesis. Omsk, 1997.

8. Shumikhin V.G. Signs of continuous crime // Criminal Law. 2010. № 2.