Comment to Article 326. Evasion from military service of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Evading conscription in the absence of legal grounds for exemption from military service —      

is punishable by a fine in the amount of two hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to ten months, or by arrest for a term of three to six months, or by imprisonment for a term of up to two years.      

2. The same act committed by:    

a) by self-harming;      

b) by simulating the disease;      

c) through forgery of documents or other deception, —    

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

     Note. A conscript is released from criminal liability if, prior to the transfer of the case to the court by the investigating authority, he voluntarily appeared at the recruiting station.

     Military service is a special type of public service of citizens of the Republic of Kazakhstan in the Armed Forces or other troops. According to the Law of the Republic of Kazakhstan "On Universal Military Duty and military Service", citizens aged 18 to 27 years who are not eligible for exemption or deferral from military service are subject to conscription (art. 13 of the Law). Z050000074_    

 The object of the crime is the established procedure for conscription and the normal recruitment of the Armed Forces of the Republic of Kazakhstan.   

  The objective side of the crime is expressed in evading conscription in the absence of legitimate grounds for exemption from military service. Failure to appear on the summons of the military commissariat for military service within the specified period without valid reasons, that is, through inaction, is considered evasion.  

   Valid reasons for non-appearance, subject to documentary confirmation, are considered to be: illness or injury of a citizen related to disability; serious health condition or death of a close relative (father, mother, wife, son, daughter, sibling) or the person who brought up the conscript; obstacles of a spontaneous nature; other circumstance recognized by the court a good reason.   

  Evading training, verification fees, or military registration is not considered a crime: these acts can only result in administrative liability.   

  The crime is considered completed from the moment when the person did not appear at the prescribed time and place on the summons of the military commissar or the summons of the military commissariat for military service.    

 326 of the Criminal Code of the Republic of Kazakhstan provides for responsibility for the same act committed by:   

   a) by self-harming;    

  b) by simulating the disease;    

  c) through forgery of documents or other deception.     

Self-harm refers to the intentional infliction by a conscript of harm to himself or herself of varying severity, both by himself or by another person with his or her consent (self-harm) in order to evade conscription.    

 Disease simulation is the creation by a subject of a false impression that he has signs of physical or mental illness for those who decide whether to conscript him for military service.  

   In case of forgery of documents, the perpetrator submits documents to the draft commission in order to evade conscription that knowingly contain incorrect information about age and family composition. If the perpetrator is released from military service as a result of using forged documents by himself, the actions of the perpetrator should be classified according to the totality of crimes under paragraphs "b" of part 2 of Articles 326 and 325 of the Criminal Code. If the perpetrator uses deliberately forged documents to evade military service, then in this case the documents are included in the objective side of this composition and additional qualifications under art. 325 of the Criminal Code of the Republic of Kazakhstan is not required.    

 Another deception is any other way in which the perpetrator can mislead the draft board in order to evade conscription. For example, sending another person unfit for military service to the commission instead of himself, evading by referring to religious beliefs, and so on.   

  Evasion by harming oneself is considered to be completed from the moment such harm is inflicted, since from that moment on he becomes unfit for military service, in all other cases it will be completed from the moment of actual evasion from military service.  

    According to the note to art. 326 of the Criminal Code of the Republic of Kazakhstan, a conscript is released from criminal liability if he voluntarily appeared at the recruiting station before handing over the case to the investigating authorities.   

  The subjective side of the crime in question can only be expressed in the form of direct intent: the perpetrator is aware that he is evading military service and desires it.    

  The subject of the crime is a special citizen of the Republic of Kazakhstan, male, of military age (from 18 to 27 years old), recognized as fit for military service and not having a deferral.

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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