Comment to Article 174. Evasion from conscription of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Evasion from conscription for military service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan —      

is punishable by imprisonment for a term of up to five years.    

2. The same act, as well as evasion from further conscription to man the Armed Forces of the Republic of Kazakhstan, committed during the war, —      

are punishable by imprisonment for a term of five to ten years.      

The public danger of this crime lies in the fact that evading conscription in the context of an outbreak of war or approaching hostilities weakens the defense capability of the Republic of Kazakhstan.      

The direct object of the crime is the recruitment procedure of the Armed Forces, other troops and military formations of the Republic of Kazakhstan in conditions of mobilization. This procedure is established by the legislation of the Republic of Kazakhstan.    

The objective side of the crime is characterized by evasion from conscription for military service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan (in the absence of legal grounds for exemption from it).      

Mobilization, as defined in Article 1 of the Law of the Republic of Kazakhstan "On Mobilization training and Mobilization in the Republic of Kazakhstan" dated June 16, 1997, is a set of national measures related to the transfer of state bodies, organizations, the Armed Forces, other troops and military formations, the population, territory and economy of the Republic of Kazakhstan to the regime of martial law (general mobilization) or any part of it (partial mobilization)."      

In accordance with the Constitution of the Republic of Kazakhstan and the aforementioned law, partial or full mobilization in the event of aggression against the Republic or an immediate external threat to its security is announced by decree of the President of the Republic of Kazakhstan, on the basis of which citizens are conscripted for military service both in peacetime and in wartime.    

Evasion is failure to appear at a mobilization point without a valid reason. The method of evasion is not specified by the legislator and therefore does not affect the qualification, but can be taken into account by the court when imposing punishment on the perpetrator.      

Valid reasons are documented circumstances that exclude the possibility of fulfilling the mobilization order, for example, the illness of a conscript, the death or serious condition of his close relatives, a natural disaster, and the like.      

Disease simulation should be understood as a false representation of a non-existent disease or its individual symptoms by a person who does not suffer from this disease.      

Forgery of documents involves the production and submission to the body responsible for mobilization of forged documents representing the right to exemption from mobilization or its postponement, regardless of who they are made by.      

Self—harm is the intentional infliction of such harm to oneself that it can serve as a basis for exemption from conscription upon mobilization. A person liable for military service may cause harm to his health, or other persons may do so at his request. In this case, the latter, if they knew about the purpose of evading military conscription, must be responsible for causing harm to health and for complicity in the commission of a crime under art. 174 of the Criminal Code.      

By other deception, it is necessary to understand various actions aimed at misleading the officials of the mobilization point.      

Part 1 of Article 174 of the Criminal Code is applied in peacetime when declaring mobilization in connection with the transition to martial law.      

The crime should be considered over from the moment of evasion.    

 The subjective side of the crime is characterized by direct intent. The motive and purpose do not affect the qualification of this crime, but may be taken into account by the court when sentencing the perpetrator.    

The subject of this crime is an individual, a sane person who has reached the age of 18, who is in the reserve of the Armed Forces of the Republic of Kazakhstan and is subject to mobilization.      

Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan is applied in wartime. It covers two types of acts: evading conscription and evading further conscription to man the Armed Forces of the Republic of Kazakhstan.    

According to the Law of the Republic of Kazakhstan "On Defense and the Armed Forces of the Republic of Kazakhstan", wartime is the period from the moment of the declaration of a state of war or the actual outbreak of hostilities to the moment of the announcement of the cessation of hostilities, but not earlier than their actual cessation.    

  The subjects of a crime under aggravating circumstances may be both military reserve personnel and persons conscripted for military service for the first time.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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