ST 313 of the Criminal Code of the Russian Federation.
1. Escape from a place of imprisonment, from arrest or from custody, committed by a person serving a sentence or in pre-trial detention, is punishable by forced labor for up to four years or imprisonment for the same term.
2. The same act, committed by a group of persons by prior conspiracy or by an organized group, is punishable by forced labor for a term of up to five years or imprisonment for the same term.
3. Acts provided for in parts one or two of this article, committed with the use of violence dangerous to life or health, or with the threat of such violence, as well as with the use of weapons or objects used as weapons, are punishable by forced labor for up to five years or imprisonment for a term of up to eight years.
Commentary to Art. 313 Criminal Code
1. The objective side is expressed in the form of actions to escape from a place of imprisonment, from arrest or from custody. Escape is the illegal unauthorized leaving of institutions in which sentences in the form of imprisonment, arrest or a preventive measure in the form of detention are being served. In accordance with Part 1 of Art. 77 of the Penal Code of the Russian Federation, in exceptional cases, those sentenced to imprisonment who have not previously served imprisonment, and who are assigned to serve their sentence in a general regime correctional colony, may, with their consent, be left in a pre-trial detention center to perform housekeeping work. The arrest must be carried out in arrest houses, which currently do not exist. Military personnel are serving arrest in a guardhouse. Places of detention when applying a preventive measure are pre-trial detention centers and temporary detention centers. In some cases, places of detention of suspects and accused may be institutions of the penal system that carry out criminal punishment in the form of imprisonment, and guardhouses. The escape of a person sentenced to imprisonment from a vehicle while being escorted, of suspects, accused persons in custody, from the investigator's office, from the courtroom is qualified under this article. Escape can be accomplished in various ways: undermining, sawing off bars on windows, etc. The specified actions committed by a group of persons by prior conspiracy or by an organized group (Part 2), committed with the use of violence dangerous to life or health, or with the threat of such violence, as well as with the use of weapons or objects used as weapons (Part 3), form qualified elements of crime. These groups of persons may include not only convicted persons or persons in custody, but also third parties.
2. The crime is recognized as completed from the moment of leaving the places of deprivation of liberty, arrest or places of detention.
3. Special subject: a person sentenced to imprisonment or arrest; convicts to whom these types of punishment were assigned as a replacement for a more lenient punishment; suspects and accused persons against whom procedural coercive measures have been applied in the form of detention or detention.
Article 313. Escape from a place of imprisonment, from arrest or from custody
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- Article 313. Escape from a place of imprisonment, from arrest or from custody
1. Escape from a place of imprisonment, from arrest or from custody, committed by a person serving a sentence or in pre-trial detention,
is punishable by forced labor for up to four years or imprisonment for the same term.
2. The same act, committed by a group of persons by prior conspiracy or by an organized group, -
shall be punishable by forced labor for a term of up to five years or imprisonment for the same term.
(Part two as amended by the Federal Law of December 8, 2003 N 162-FZ - Collection of Legislation of the Russian Federation, 2003, N 50, Art. 4848)
3. Acts provided for in parts one or two of this article, committed with the use of violence dangerous to life or health, or with the threat of such violence, as well as with the use of weapons or objects used as weapons, -
shall be punishable by forced labor for a term of up to five years or imprisonment for a term of up to eight years.
(Part three was introduced by Federal Law of December 8, 2003 N 162-FZ - Collection of Legislation of the Russian Federation, 2003, N 50, Art. 4848)
Commentary on Article 313
Main object
crimes are the interests of justice in the field of execution of court decisions. An additional object is the normal activity of places of confinement, arrest, and detention. If the escape was accompanied by the signs specified in Part 3 of Art. 313 of the Criminal Code of the Russian Federation, then human health also acts as an additional object.
The social danger of escape lies in the fact that the serving of a sentence by a person sentenced to imprisonment is interrupted, which counteracts the execution of a court sentence, the execution of a court decision on choosing a preventive measure in the form of detention in relation to a suspect or accused is interrupted, and a preliminary investigation is made difficult or impossible. and judicial consideration of the case, if the person is in custody as a preventive measure, i.e. harm to the interests of justice. In addition, the activities of a correctional institution or law enforcement agency are disorganized to a certain extent due to the diversion of forces and resources to search and detain a fugitive, creating the danger that this person will commit a new crime, and creating doubt among the population about the ability of specially created bodies to ensure reliable isolation of criminals from society.
Objective side
crime under Part 1 of Art. 313 of the Criminal Code of the Russian Federation, consists of escaping from a place of imprisonment, from arrest or from custody.
Place of detention
are institutions in which those sentenced to imprisonment serve their sentences. In accordance with Part 1 of Art. 73 of the Penal Code of the Russian Federation, those sentenced to imprisonment serve their sentences in correctional institutions.
According to Part 1 of Art. 74 of the Penal Code of the Russian Federation, correctional institutions are correctional colonies, educational colonies, prisons, and medical correctional institutions. Pre-trial detention centers perform the functions of correctional institutions in relation to convicts left to perform household maintenance work, as well as in relation to convicts sentenced for a period of not more than six months, left in pre-trial detention centers with their consent.
Correctional colonies are divided into settlement colonies, general-regime correctional colonies, high-security correctional colonies, and special-regime correctional colonies (Part 2 of Article 74 of the Penal Code of the Russian Federation).
In accordance with Part 1 of Art. 77 of the Penal Code of the Russian Federation, in exceptional cases, persons sentenced for the first time to imprisonment for a term of not more than five years, who are assigned to serve their sentence in a general regime correctional colony, may, with their consent, be left in a pre-trial detention center or prison to perform household maintenance work.
Currently, arrest as a form of punishment has not been introduced.
The legislator in Art. 313 of the Criminal Code of the Russian Federation establishes criminal liability for violation of the requirements of a court conviction.
When escaping from custody, the matter must be a violation of the requirements of a judicial act on the selection of a preventive measure.
Places of detention
suspects and accused in accordance with Art. 7 of the Federal Law of July 15, 1995 N 103-FZ “On the detention of suspects and accused of committing crimes” <1> are:
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<1> Northwestern Russian Federation. 1995. N 29. Art. 2759.
— pre-trial detention centers of the penal system;
— temporary detention centers for suspects and accused of internal affairs bodies;
— temporary detention centers for suspects and accused border agencies of the Federal Security Service.
In cases provided for by this Federal Law, places of detention of suspects and accused may be institutions of the penal system that carry out criminal punishment in the form of imprisonment, and guardhouses.
In cases where detention on suspicion of committing a crime is carried out in accordance with the Code of Criminal Procedure of the Russian Federation by captains of sea vessels on long voyages, or by the heads of wintering quarters during the absence of transport connections with wintering quarters, the suspects are kept in premises that are determined by the specified officials and are adapted for these purposes. goals.
In accordance with Part 1 of Art. 10 of the Federal Law of July 15, 1995 N 103-FZ, convicts serving sentences in correctional institutions, detained on suspicion of committing another crime, may be kept in custody in these institutions, but in isolation from convicts serving their sentences.
Suspects and accused persons, in respect of whom detention in custody has been chosen as a preventive measure, may be kept in prisons or on the territories of institutions executing punishments, in premises specially equipped for these purposes, functioning as pre-trial detention centers (Part 2 of Article 10 of the Federal Law dated July 15, 1995 N 103-FZ). The list of correctional institutions in the territories of which suspects and accused may be held is approved by the Minister of Justice of the Russian Federation in agreement with the Prosecutor General of the Russian Federation <1>.
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<1> Order of the Ministry of Justice of Russia dated June 30, 1999 N 212 “On approval of the List of correctional institutions in the territories of which premises operating as pre-trial detention centers have been created” (as amended) // Bulletin of the Ministry of Justice of the Russian Federation. 1999. N 7.
Suspects and defendants in respect of whom detention in custody has been chosen as a preventive measure, in the case of an examination ordered on the grounds provided for by the Code of Criminal Procedure of the Russian Federation, as well as in the case of providing them with medical assistance, are placed in medical institutions (Part 3 of Article 10 of the Federal Law of 15 July 1995 N 103-FZ) <1>.
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<1> Order of the Ministry of Internal Affairs of Russia and the Ministry of Health of Russia dated December 31, 1999 N 1115/475 “On approval of the Instruction on the procedure for medical and sanitary provision of persons held in temporary detention centers of internal affairs bodies” // BNA RF. 2000. N 11.
Suspected and accused military personnel are kept in guardhouses (Article 11 of the Federal Law of July 15, 1995 N 103-FZ).
The place of detention of suspects or accused in respect of whom detention has been chosen as a preventive measure is also the premises in the preliminary investigation bodies (office of the investigator, the person conducting the inquiry), the courtroom, vehicles used for transportation to the place of departure punishment, to court, etc., as well as any other institutions where a person is under escort when carrying out investigative actions. The place of detention is also considered to be the place where investigative actions are carried out, for example, when examining a crime scene or conducting an investigative experiment.
Moment of conclusion
custody begins simultaneously with the announcement to the person of the application of this preventive measure to him.
Under the Escape
means unauthorized illegal (contrary to the law, without the permission of competent officials) abandonment by a person serving a sentence or in custody or under arrest, of a place of deprivation of liberty or a place of detention or custody.
Escape can only be accomplished as a result of active actions. This could be digging, breaking a wall, sawing bars, escaping from guards, etc. There are cases of receiving forged documents in places of deprivation of liberty, releasing convicts from serving their sentences. Such “release” of a convicted person is also an escape. There are cases of escapes accomplished by bribing the administration of places of detention or pre-trial detention centers.
Escape can only be made from the places indicated in the disposition of the commented article. Crime scene
in this composition is a mandatory sign of the objective side.
An escape from a dormitory outside a correctional institution, from a work site, or along the route to it of a person who was allowed to travel without an escort or escort is considered committed from a place of deprivation of liberty. At the same time, evasion from the prescribed route of a person sentenced to imprisonment, who is allowed to travel without an escort, is not an escape if this is done without the purpose of evading serving a sentence. Such actions are recognized as a violation of the regime of the correctional institution and entail disciplinary liability.
Escape from a place of deprivation of liberty will also be illegal unauthorized leaving of the place of a long meeting outside the correctional institution. Failure to return from a vacation spent outside a correctional institution does not constitute the crime in question, since there are no signs of escape such as unauthorized, illegal leaving of the place of deprivation of liberty. In this case, leaving the correctional institution is carried out legally. If permission to travel outside the place of confinement during vacation was obtained fraudulently, failure to return should be considered an escape.
By design, escape refers to crimes with a formal composition
and is considered
completed
from the moment: 1) crossing the outer perimeter of a place of deprivation of liberty (for example, a general regime correctional colony) or a place of detention (for example, a pre-trial detention center or a temporary detention center), if the escape was committed from the territory of such places; 2) complete loss of control over the escort by the convoy, if the escape was made during the convoy process outside the specified places, in other words, when the subject will be able, at his own discretion, to change locations, come into contact with other persons, etc.
Judicial practice also proceeds from the fact that from the moment the security is overcome, the crime is considered completed <1>.
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<1> See: Bulletin of the Supreme Court of the RSFSR. 1965. N 10. P. 11 (R.’s case).
Taking into account the specific conditions of serving a sentence in penal colonies, the moment of completion of escape from them is determined differently. In accordance with Art. 129 of the Penal Code of the Russian Federation in colony settlements, those sentenced to imprisonment during the hours from waking up to lights out have the right to free movement within the colony settlement. In these cases, the moment of the end of the escape will be the moment of unauthorized abandonment of the territory of the colony-settlement. In addition, with the permission of the administration of the colony-settlement, convicts can move without supervision outside the colony-settlement, but within the territory of the corresponding administrative-territorial entity. An escape committed under such conditions will be completed from the moment of illegally leaving the territory of the administrative-territorial entity.
Escape from places of imprisonment, pre-trial detention and custody is a continuing crime
. It ends with the arrest of the perpetrator or his confession. Recognition of escape as a continuing crime affects the calculation of the statute of limitations (Article 83 of the Criminal Code of the Russian Federation), as well as the application of an amnesty (Article 84 of the Criminal Code of the Russian Federation). The statute of limitations at the time of escape is interrupted and resumed only after the arrest of the fugitive or his surrender. An amnesty can be applied to such persons (if it applies to a given person) only if the person was detained or turned himself in before the issuance of the amnesty resolution (unless otherwise specified in the text of the amnesty itself <1>).
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<1> In art. 13 Resolution of the Supreme Court of the Russian Federation dated June 18, 1992 N 3075-1 (as amended on November 13, 1992) “On amnesty” (Gazette of the Supreme Court of the Russian Federation. 1992. N 47. Art. 2671) indicated that persons Those who escaped from places of imprisonment or from custody, who appeared within a month from the date of publication of the amnesty act to the police or the place where they served their sentence, are exempt from liability for escape or evasion from serving their sentence.
In the literature, two moments of the end of the escape are distinguished: legal
- from the moment of leaving the place of deprivation of liberty and
actual
- from the moment of surrender, detention, death of the perpetrator, changes in the criminal law that decriminalizes the act or reduces the punishment to the one actually served, from the moment of issuing an act of amnesty or pardon. The calculation of the statute of limitations for criminal prosecution for escape begins from the moment the crime actually ends <1>.
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<1> See: Criminal law. Special part: Textbook. for universities / Rep. ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M., 2000. S. 653 - 654.
Thus, we can conclude that the corpus delicti of the crime in question is completed from the moment of leaving the place of deprivation of liberty or the complete loss of control over the escort by the convoy.
A crime, as a socially dangerous act, will be completed as a result of the action of the culprit himself, aimed at stopping the crime, or the occurrence of events that prevent the commission of the crime (for example, the intervention of authorities).
Subjective side
crimes are characterized
by direct intent
. The person is aware that a preventive measure has been chosen for him in the form of detention, or he has been detained on suspicion of committing a crime, or has been sentenced to imprisonment or arrest. His consciousness also embraces the fact that he is leaving this place without permission, and desires it.
Considering issues of judicial practice in cases of escapes, the Plenum of the Supreme Court of the Russian Federation in Resolution No. 1 of March 19, 1975 “On judicial practice of considering materials on the transfer of convicts to forced labor colonies-settlements and criminal cases on escapes from these colonies” indicated the following : “When considering cases of escapes from penal colonies, courts must take into account the peculiarities of the detention regime in such colonies (lack of barriers, security, etc.), and therefore, in each case, especially carefully examine the actual circumstances of the convict’s unauthorized abandonment of this colony, motives, reasons and conditions that prompted him to commit such an act, and, based on the totality of all the collected evidence, as well as personal data, decide whether his actions contained a crime under Art. 313 of the Criminal Code of the Russian Federation or Art. 314 of the Criminal Code of the Russian Federation. Do not allow facts of conviction for actions that only formally contain signs of escape or evasion from serving the sentence of a convicted person who is allowed a short-term exit from places of deprivation of liberty, but in essence constitute violations of the established procedure for serving a sentence, liability for which is provided for in Art. 115 of the Penal Code of the Russian Federation."
Subject
the crime under consideration is special - a person who has reached the age of sixteen: a) sentenced to punishment in the form of imprisonment or arrest; b) in respect of whom a preventive measure has been chosen - detention (Article 108 of the Code of Criminal Procedure of the Russian Federation); c) detained as a person suspected of committing a crime (Article 91 of the Code of Criminal Procedure of the Russian Federation).
Minors aged fourteen to sixteen years for escaping from an educational colony or from custody are liable under Art. 313 of the Criminal Code of the Russian Federation is not covered.
Persons subjected to administrative arrest as a measure of administrative punishment (Article 3.9 of the Code of Administrative Offenses of the Russian Federation), those subjected to administrative detention on the basis of Art. 27.3 Code of Administrative Offenses of the Russian Federation. In the literature, there is a point of view that persons who were illegally convicted or those for whom a preventive measure was chosen illegally <1> are not considered subjects.
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<1> See, in particular: Criminal law. Special part: Textbook. for universities / Rep. ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M., 2000. S. 653 - 654; Criminal law. Special part: Textbook. / Under general ed. IN AND. Radchenko. M., 2004. P. 570.
Since the law does not indicate the legality of detention and in places of deprivation of liberty, escape cannot be an act of necessary defense (Article 37 of the Criminal Code of the Russian Federation) from illegal actions of the justice authorities, since there is an appropriate legal toolkit for resolving this legal conflict - the procedure appealing a judicial act. The issue of ensuring the right to personal safety cannot be resolved by escaping. If a threat to personal safety arises, convicts have the right to contact any official of the place of deprivation of liberty or arrest house with a request to ensure personal safety, which obliges these officials to immediately take the necessary measures to protect convicts from the impending danger (Article 13 of the Penal Code of the Russian Federation). Consequently, escape as a circumstance of extreme necessity (Article 39 of the Criminal Code of the Russian Federation) is unacceptable <1>.
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<1> At the same time, it should be noted that in practice there are court decisions that speak of the factor of the legality of detention in places of deprivation of liberty as a mandatory condition for escaping. See: Review of the judicial practice of the Supreme Court of the Russian Federation on the consideration of criminal cases in cassation and supervisory procedures in 1995 // Bulletin of the Supreme Court of the Russian Federation. 1996. N 8.
Part 2 Art. 313 of the Criminal Code of the Russian Federation establishes liability for a qualified type of escape, which includes an escape committed by a group of persons by prior conspiracy or by an organized group.
According to Part 2 of Art. 35 of the Criminal Code of the Russian Federation, commission of a crime by a group of persons by prior conspiracy
means the participation of two or more perpetrators who have agreed in advance to jointly commit a crime. To impute the analyzed qualifying characteristic, the following characteristics must be present: members of the group should only be persons serving a sentence or in pre-trial detention; the formation of intent to escape (preliminary conspiracy) must arise before the execution of the objective party.
The definition of an organized group is given in Part 3 of Art. 35 of the Criminal Code of the Russian Federation.
Part 3 Art. 313 of the Criminal Code of the Russian Federation establishes liability for a particularly qualified type of escape, which includes escape with the use of violence dangerous to life or health, or with the threat of such violence. This symptom covers physical and mental violence carried out both immediately before the escape and during its commission. In general, violence that causes serious, moderate or minor harm to the health of the victim is dangerous to life and health. It is necessary to find out the scope of such violence provided for in Part 3 of Art. 313 of the Criminal Code of the Russian Federation.
Considering that the sanction of Part 3 of Art. 313 of the Criminal Code of the Russian Federation provides for imprisonment for a term of up to eight years, the sanction of a crime under Part 1 of Art. 111 of the Criminal Code of the Russian Federation - also up to eight years, then it is necessary to conclude that the concept of violence dangerous to life or health, in the composition provided for in Part 3 of Art. 313 of the Criminal Code of the Russian Federation covers causing harm to health of moderate severity and grave harm to health without aggravating circumstances. In the event of serious harm to health caused under aggravating circumstances, the person’s actions are classified as a set of crimes provided for in Part 3 of Art. 313 and part 2, 3, 4 art. 111 of the Criminal Code of the Russian Federation. Causing death is also not covered by this qualifying feature and requires qualification based on a set of crimes (Articles 105 and 313 of the Criminal Code of the Russian Federation).
An escape involving hostage-taking must also be classified as a whole.
Violence as a means of facilitating escape can be applied to employees of places of deprivation of liberty, detention facilities, convicts who are preventing escape, and to other persons.
As a particularly qualifying sign of escape, the law provides for the sign of committing a crime with the use of weapons or objects used as weapons. The concept of “weapons” is formulated in the Federal Law of December 13, 1996 N 150-FZ “On Weapons” <1>.
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<1> Northwestern Russian Federation. 1996. N 51. Art. 5681.
In accordance with Art. 1 of the Federal Law “On Weapons”, weapons are devices and objects that are structurally designed to hit a living or other target, or to send signals.
Weapons do not include products certified as household and industrial products, or sports equipment that is structurally similar to weapons.
To items used as weapons
, include any items that could cause harm to the health of the victim, regardless of whether they were pre-treated, specially prepared or picked up at the scene of the crime (axe, razor, batons, chains, metal rods, stones, glass fragments, etc. .P.). Thus, the log, picked up at the scene of the incident and used to strike, was recognized by the court as an object used as a weapon <1>. Persons who escape using firearms are liable for a set of crimes provided for in Art. Art. 222 and 313 of the Criminal Code of the Russian Federation.
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<1> Review of judicial practice. Appendix to the letter of the General Prosecutor's Office of the Russian Federation dated March 5, 2004 N 12/12-04 “On some decisions of the Presidium of the Supreme Court of the Russian Federation adopted in 2003 in criminal cases” // SPS “ConsultantPlus”.
The use of weapons or objects used as weapons does not simply mean their possession by the perpetrator, but their actual use. It can be expressed both in physical impact on the victim (causing slight, moderate or severe harm to health), and in mental, i.e. threat with a weapon (shooting in the air, aiming or other demonstration of a weapon). The presence of this qualifying feature cannot be seen if the perpetrator expresses only a verbal threat to use weapons or other objects without demonstrating them <1>. The mere possession of a weapon during an escape does not constitute this characteristic.
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<1> Bulletin of the Supreme Court of the Russian Federation. 1992. N 9. P. 9.
Second commentary to Art. 313 of the Criminal Code of the Russian Federation
1. Escape is the unauthorized illegal abandonment by a convicted person or prisoner of institutions and bodies of the penal system.
2. The end of the escape is determined depending on where it was made from. If the escape is carried out from places of deprivation of liberty or pre-trial detention, then it is considered completed from the moment the perpetrator leaves the relevant institution and crosses its borders. If a person escapes from a place of imprisonment or pre-trial detention, but in custody, the crime must be considered completed from the moment when the culprit completely leaves the supervision and control of the persons guarding him, has the opportunity to change his location at his own discretion, and uncontrollably enter into contacts with other persons, etc.
3. The subjective side is characterized by direct intent.
4. The subject of a crime is a person sentenced to imprisonment (regardless of its type) or arrest, or a suspect or accused in respect of whom detention in custody has been chosen as a preventive measure.
8. Part 2 of the commented article provides for a qualified type of this crime - its commission by a group of persons by prior conspiracy or by an organized group (see commentary to Article 35 of the Criminal Code).
9. Part 3 of the article provides for liability for escape under especially aggravating circumstances:
a) with the use of violence dangerous to life or health, or with the threat of using such violence (see commentary to Article 162 of the Criminal Code);
b) using weapons or objects used as weapons. The object referred to in the law should be understood as any object that can cause harm to the health of the victim (razor, axe, crowbar, chain, metal rod, baton, etc.).
