Comment to Article 367. Disobedience or other non-fulfillment of an order of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Disobedience, that is, an open refusal to execute a superior's order, as well as other deliberate failure by a subordinate to execute a superior's order given in accordance with the established procedure, which caused significant harm to the interests of the service., —
is punishable by restriction on military service for a term of up to two years, or by arrest for a term of up to six months, or by detention in a disciplinary military unit for a term of up to two years.
2. The same act committed by a group of persons, a group of persons by prior agreement, or an organized group, as well as entailing grave consequences, —
is punishable by imprisonment for a term of up to five years.
3. The acts provided for in the first or second parts of this Article, committed during wartime or in a combat situation, —
are punishable by imprisonment for a term of five to twenty years, and in aggravating circumstances — by death penalty or life imprisonment.
4. Failure to execute an order due to negligent or unfair attitude to the service, which entailed grave consequences., —
is punishable by restriction on military service for a term of up to one year, or by arrest for a term of three to six months, or by detention in a disciplinary military unit for a term of up to one year.
5. The act provided for in part four of this article, committed during wartime or in a combat situation, —
is punishable by imprisonment for a term of three to ten years.
The public danger of this crime lies in the fact that this act violates the most important foundations of the life and activities of the troops, creates disorder and disorganization in the performance of daily tasks of combat and state-legal training of personnel, reduces the effectiveness of maintaining a solid legal order in the unit, and generally weakens the state's defense capability. Also, the result of disobedience may be a gross violation of the rights, legitimate interests and benefits of military personnel or other citizens, causing material damage to the Armed Forces of the Republic of Kazakhstan and the state.
The direct object of this crime is the subordination order established in the Armed Forces, other troops and military formations of the Republic of Kazakhstan, i.e. the service relationship between the superior and subordinate regulated by military regulations.
On the objective side, a crime is committed both by openly refusing to execute an order (disobedience) and by otherwise evading the execution of an order.
Disobedience is the most dangerous form of non-fulfillment of an order in the form of an open, demonstrative, public or private refusal by subordinates to comply with the superior's order. It differs from bickering in that when bickering, the subordinate enters into a discussion of the order, shows dissatisfaction with it, but then executes the order. Bickering is recognized as a disciplinary offense, and responsibility for it is regulated by the Disciplinary Statute of the Armed Forces of the Republic of Kazakhstan.
Another deliberate failure to execute an order is that the subordinate accepts the superior's order for execution, but does not actually execute it. In this case, the perpetrator may have an intention to disobey the order at the time of receiving the order or later.
Failure to comply with an order is expressed both in action (the perpetrator does what was forbidden by the order) and in inaction (the perpetrator does not perform the actions prescribed by the order), as well as in inaccurate and untimely execution.
When qualifying this act, it is necessary to take into account the norms of the General part of the Criminal Code of the Republic of Kazakhstan, namely Article 37 of the Criminal Code of the Republic of Kazakhstan — execution of an order or instruction:
In this case, an order should be distinguished from an order.
The order is a way of implementing the principle of unity of command, managing subordinates, organizing their official activities, solving official tasks, and is an act that is issued in the order of subordination and comes from the boss, addressed to subordinates in the service.
The order, as the will of the boss, is the basis for the execution of the decision, does not depend on the will of the executor and therefore has greater legal force than the executive action itself. Therefore, the responsibility for causing harm by executing an illegal order or instruction lies not with the executor, but with the superior who gave them.
This crime occurs when a subordinate intentionally fails to comply with a superior's order under two conditions: if the order is given in accordance with the established procedure and if significant harm is caused to the interests of the service. Not every order of the chief is subject to execution, but only given in the interests of military service, in order to comply with the order of military service.
The unquestioning fulfillment by a subordinate of an order given to him by his superior is the main sign of unity of command, which is one of the principles of building the Armed Forces of the Republic of Kazakhstan, their leadership and the relationship between military personnel. It consists in granting the commander (chief) all rights in relation to subordinates and assigning him personal responsibility to the state for all aspects of the life and activities of a military unit, subdivision and each serviceman.
Unity of command is expressed in the right of the chief, based on the comprehensive situation, to make decisions alone, give appropriate orders in strict accordance with the requirements of laws and military regulations and ensure their implementation.
Article 34 of the Charter of the Internal Service of the Armed Forces of the Republic of Kazakhstan stipulates that discussion of an order is unacceptable, and disobedience or other non-fulfillment of an order is a military crime.
The chief is a serviceman who has other military personnel under his command, he has the right to give orders and orders to the latter and monitor their execution. The bosses differ in their official position and military rank. Superiors to whom military personnel are subordinated, at least temporarily, are direct superiors. According to the military rank, the military officers are higher-ranking military personnel. An officer, for example, is the chief for all enlisted and non–commissioned personnel, a sergeant is the chief for enlisted men of the same military unit, etc.
Subordinate – a serviceman who is part of a combat unit, department, service, or outfit, who is obliged to carry out the orders of his supervisor; or a serviceman with a military rank, by virtue of which he is obliged to comply with the requirements of another serviceman with the corresponding military rank of chief.
An order is a demand from a superior that a subordinate commit certain actions or refrain from committing them, and this demand is categorical and unconditional. But it has certain limits, is limited by the interests of military service, must be legitimate, stem from the official powers of the chief.
Commanders (superiors) are prohibited from issuing orders (orders) and orders that are not related to the performance of military service duties or aimed at violating the legislation of the Republic of Kazakhstan.
The exact execution of the order of the chief (commander), which is mandatory for execution, releases the subordinate from responsibility for the actions committed under this order and for their consequences, provided that the subordinate did not realize the illegality of the executed order.
The commission of a crime by a subordinate in pursuance of a deliberately illegal order entails his criminal liability jointly with the superior (commander) who gave the illegal order.
Failure by a subordinate to comply with a deliberately illegal order from a superior (commander) precludes criminal liability of the subordinate.
A crime is considered completed from the moment of refusal to execute an order or its actual non-fulfillment, if as a result significant harm has been caused to the interests of the service.
Significant harm can be: physical (death of people); organizational (disruption of activities provided for in the daily routine); moral (reduction of discipline among personnel, loss of authority by the boss among subordinates, violation of the rights and interests of citizens, etc.).
On the subjective side, disobedience is characterized by guilt in the form of direct intent, and intentional non—fulfillment of an order in the form of direct or indirect intent. The motives and goals of non-fulfillment of an order can be very different (dissatisfaction with the official activities of the chief, cowardice, cowardice, laziness, etc.). However, if the perpetrator of non-fulfillment of the order pursued the goal of damaging the military might of the country, then such an act qualifies as a crime against the foundations of the constitutional order and the security of the state (art. 165 of the Criminal Code of the Republic of Kazakhstan).
The subject of the crime is a special one, i.e. any serviceman of the Armed Forces, other troops and military formations of the Republic of Kazakhstan, subordinate to the person who gave the order, by service or military rank.
A subordinate is obliged to obey the orders of his superior without question. The superiors to whom military personnel are subordinated in the service, at least temporarily, are direct superiors, and the direct superior closest to the subordinate is called the immediate superior.
The list of the main military positions that determine the essence of the order of subordination and subordination by military rank is given in Article 38 of the Charter of the Internal Service of the Armed Forces of the Republic of Kazakhstan.
The subjects of this crime are also military personnel, in case of violation of military discipline or public order, who are obliged to comply with the requirements of their superiors in military rank to eliminate these violations. Also, military personnel, in the joint performance of military service duties, whose commanders (chiefs) are senior in military rank or in their regular positions.
The aggravating circumstances of disobedience or other non-fulfillment of an order are: the commission of this act by a group of persons, a group of persons by prior agreement or an organized group, as well as the occurrence of serious consequences as a result (Part 2 of Article 367 of the Criminal Code).
A group of persons should be understood as the commission of a crime by two or more military personnel acting together without prior agreement.
The commission of a crime by a group of persons by prior agreement means the participation of persons who have agreed in advance to commit a crime together.
A crime is considered to be committed by an organized group if it is committed by a stable group of persons who have previously joined together to commit one or more crimes.
Depending on the specific circumstances, a wide variety of consequences can be attributed to serious consequences, in particular, accidents with people, causing death by negligence, serious or moderate harm to human health, damage or destruction of military equipment, causing major material damage, disruption of combat missions, etc.
Disobedience or other non-fulfillment of a superior's order in a wartime or combat situation can lead to disruption of the unit's combat mission and loss of life, therefore, in such conditions, this crime is punished more severely (Part 3 of art. 367 of the Criminal Code).
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 before their actual cessation.
Failure to execute an order due to negligent or unfair attitude to service (Part 4 of Article 367 of the Criminal Code) is a criminally punishable act only if it causes serious consequences, such as loss of life, disruption of a combat mission, and others.
Improper execution of an order is considered to be its execution in violation of established requirements, in particular, by illegal means, of poor quality, at an unspecified time, in an inappropriate place, etc. This may be the result of forgetfulness or unclear understanding of the content of the order.
Qualified types of non-fulfillment of an order due to negligent or unfair attitude to service, which entailed grave consequences, are the commission of an act in wartime or in a combat situation (Part 5 of art. 367 of the Criminal Code).
The crimes provided for in Parts 1 and 4 of art. 367 of the Criminal Code of the Republic of Kazakhstan are minor crimes.
The crime provided for in Part 2 of Article 367 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.
The crime provided for in Part 3 of Article 367 of the Criminal Code of the Republic of Kazakhstan is considered a particularly serious crime.
The crime provided for in Part 5 of Article 367 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
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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