Commentary on Article 126. Unlawful Deprivation of Liberty of the Criminal Code of the Republic of Kazakhstan

• 1. Unlawful deprivation of a person's liberty, not associated with kidnapping, —

  shall be punishable by restriction of liberty for a term of up to three years or deprivation of liberty for the same term.

• 2. The same act, if committed:
• 1) by a group of persons upon prior conspiracy;
• 2) repeatedly;
• 3) with the use of violence dangerous to life or health;
• 4) with the use of weapons or objects used as weapons;
• 5) against a person known to be a minor;
• 6) against a woman known to the perpetrator to be pregnant;
• 7) against two or more persons;
• 8) for mercenary motives;
• 9) through the use of the victim's material or other dependence;
• 10) by a person using their official position;
• 11) involving the falsification, concealment or destruction of documents certifying the victim's identity, —
• 12) shall be punishable by deprivation of liberty for a term of up to five years, with or without confiscation of property.
• 3. Acts provided for in Parts One or Two of this Article, if they:
• 1) are committed by a criminal group;
• 2) are committed for the purpose of exploiting a person unlawfully deprived of liberty;
• 3) negligently result in the death of the victim or other grave consequences, —
• shall be punishable by deprivation of liberty for a term of five to ten years, with or without confiscation of property.

The public danger of this crime lies in the violation of the constitutional right of everyone to personal liberty (Article 16 of the Constitution of the Republic of Kazakhstan).

The object of the crime is a person's personal liberty. The additional objects are human life and health.

General provisions concerning the possible lawful deprivation of liberty are contained in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, according to which no one may be deprived of liberty except in the following cases and in accordance with the procedure established by law:

the lawful detention of a person after conviction by a competent court;

the lawful arrest or detention of a person for failure to comply with a lawful court order or for the purpose of ensuring the fulfilment of any obligation prescribed by law;

the lawful arrest or detention of a person for the purpose of bringing that person before a competent authority on reasonable suspicion of having committed an offence, or where there are sufficient grounds to believe that it is necessary to prevent that person from committing an offence or fleeing after having committed one;

the detention of a minor pursuant to a lawful order for the purpose of educational supervision, or the lawful detention of a minor for the purpose of bringing that person before a competent authority;

the lawful detention of persons for the purpose of preventing the spread of infectious diseases, as well as the lawful detention of persons of unsound mind, alcoholics, drug addicts or vagrants;

the lawful arrest or detention of a person for the purpose of preventing that person's unlawful entry into the country, or of a person against whom measures are being taken for deportation or extradition.

In addition, there are other circumstances that exclude criminal liability for depriving a person of liberty. In particular, deprivation of liberty under circumstances excluding the criminality of an act cannot be considered a crime: deprivation of liberty when a citizen exercises the right to apprehend a person who has committed a crime, in a state of necessary defence, in a state of extreme necessity, when executing an order or instruction, or when carrying out operational-search, counterintelligence measures or covert investigative actions.

The existence of rights in respect of the victim, based on law, to restrict the victim's freedom of movement, for example, the rights of parents in relation to a minor child, the rights of teachers in relation to a student during the educational process, etc., excludes the elements of unlawful deprivation of liberty.

The objective side of the crime is expressed in the unlawful deprivation of a person's freedom to move at their own discretion and to choose their place of residence. The act consists of unlawfully depriving a person of liberty by means of coercion (the use of psychological or physical violence).

Forms of deprivation of liberty include both detaining a person in the place where they were staying at their own discretion (a room, an office) and placing the victim in another location where they do not wish to be and from which they cannot freely leave (a cellar, a shed, etc.).

Unlike kidnapping, which is always associated with seizing the victim and subsequently holding them in isolation, unlawful deprivation of liberty does not involve removing the victim from the environment in which they were staying voluntarily; rather, the victim is denied free exit from that environment (premises), and their freedom of movement is restricted.

The duration of the victim's unlawful deprivation of liberty does not affect the legal classification of this act.

Unlawful deprivation of liberty may be committed through the use of violence (tying up, handcuffing a person to a radiator, etc.), threats, deception, or without the use of violence.

The use or threat of use, in the course of unlawful deprivation of liberty, of violence that is not dangerous to life or health, as well as a threat to use violence dangerous to life or health (including a threat to kill or cause grievous bodily harm), is fully covered by Part 1 of Article 126 of the Criminal Code and does not require additional classification in conjunction with Article 115 of the Criminal Code.

The elements of the crime are excluded in cases where the victim consents to the restriction of their liberty.

By its construction, the corpus delicti is formal and is considered completed from the moment the person is actually deprived of liberty.

According to subparagraph 29) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan, actual detention consists of restricting the liberty of the detained person, including freedom of movement, forcibly holding them in a particular place, forcibly delivering them to the bodies of inquiry and investigation (seizing them, locking them in premises, forcing them to go somewhere or remain in a particular place, and so forth), as well as any other actions that substantially restrict a person's personal liberty, from the exact minute when such restrictions become real, irrespective of whether the detained person has been assigned any procedural status or whether other formal procedures have been carried out.

The subjective side of the crime is characterised by direct intent: the perpetrator is aware that they are unlawfully depriving the victim of liberty against the victim's will and desires to do so. The motives for this crime may include revenge, mercenary motives, hooligan motives and others.

The subject of the crime is a sane natural person who has reached the age of 16.

The qualifying and particularly qualifying elements of the crime under consideration are provided for in Parts 2 and 3 of Article 126 of the Criminal Code of the Republic of Kazakhstan. Part 2 of Article 126 of the Criminal Code establishes liability for the same act committed: 1) by a group of persons upon prior conspiracy; 2) repeatedly; 3) with the use of violence dangerous to life or health; 4) with the use of weapons or objects used as weapons; 5) against a person known to be a minor; 6) against a woman known to the perpetrator to be pregnant; 7) against two or more persons; 8) for mercenary motives; 9) through the use of the victim's material or other dependence; 10) by a person using their official position; 11) involving the falsification, concealment or destruction of documents certifying the victim's identity (see the commentary to subparagraphs 9) and 10) of Part 2 of Article 125 of the Criminal Code).

Part 3 of Article 126 of the Criminal Code establishes criminal liability for acts provided for in Parts 1 and 2 of this Article, if they: 1) are committed by a criminal group; 2) are committed for the purpose of exploiting a person unlawfully deprived of liberty; 3) negligently result in the death of the victim or other grave consequences.

The qualifying and particularly qualifying elements provided for in Parts 2 and 3 of Article 126 of the Criminal Code fully coincide with the corresponding elements of Parts 2 and 3 of Article 125 of the Criminal Code (see the commentary to Article 125). However, there is one exception. This concerns unlawful deprivation of liberty accompanied by the use of violence dangerous to life and health (subparagraph 3) of Part 2 of Article 126 of the Criminal Code). In this case, violence covers beatings, torture, the infliction of minor bodily harm or bodily harm of moderate severity. If grievous bodily harm is caused, the perpetrator's actions should be classified under subparagraph 3) of Part 3 of Article 126 of the Criminal Code on the grounds of having “resulted in other grave consequences”. In the case of kidnapping (Article 125 of the Criminal Code), violence dangerous to life or health covers all types of bodily harm, including grievous bodily harm. Furthermore, the element provided for in subparagraph 9) of Part 2 of Article 126 of the Criminal Code, namely “through the use of the victim's material or other dependence”, is not provided for in Article 125 of the Criminal Code.

Where aggravating circumstances provided for in Parts 2 and 3 are present, unlawful deprivation of liberty is classified only under Part 3. For example, unlawful deprivation of liberty was committed by a group of persons upon prior conspiracy and resulted in the victim's death through negligence. In such cases, the act should be classified only under subparagraph 3) of Part 3 of Article 126 of the Criminal Code, without additional classification under subparagraph 1) of Part 2 of the Article under consideration.

Unlawful deprivation of liberty should be distinguished from kidnapping (Article 125 of the Criminal Code) and the unlawful placement of a person in a psychiatric inpatient facility (Article 127 of the Criminal Code). Unlike those crimes, this offence is committed without moving a person against their will to another location.

Unlawful deprivation of liberty provided for in the Article under consideration should be distinguished from unlawful deprivation of liberty as a crime against justice (Articles 414 and 418 of the Criminal Code). The difference lies in the fact that the subject of the crime under Article 126 of the Criminal Code may be any sane person who has reached the age of 16, whereas under Article 414 of the Criminal Code the subject may be a judge, prosecutor or person conducting pre-trial investigation. In other cases, unlawful deprivation of liberty committed by an official may be classified as abuse of power or official authority (Article 362 of the Criminal Code) and does not require additional classification under Article 126 of the Criminal Code.

Acts provided for in Parts 1 and 2 of Article 126 of the Criminal Code are classified as medium-gravity crimes.

The act provided for in Part 3 of Article 126 of the Criminal Code is classified as a serious crime.

Commentary of 2021 on 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 the Reform of 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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