Comment to Article 374. Evasion from military service by self-mutilation or otherwise of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Evasion of a serviceman from performing his duties of military service by feigning illness or causing himself some kind of injury (self-mutilation) or other harm to his health, or forgery of documents, or other deception, —
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, or by imprisonment for a term of up to two years.
2. The same act committed for the purpose of complete release from the performance of military service duties 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, or by death penalty or life imprisonment.
The public danger of a crime consists in the malicious violation of military discipline, the requirements of the military oath and military regulations to honestly and conscientiously perform military duties, to endure all difficulties and hardships of military service.
The immediate object of the crime is the established procedure for military service, as well as the timely and accurate fulfillment of assigned tasks.
From the objective side, the crime in question is characterized by evasion from military service by feigning illness, self-harm (self-harm) or other harm to health, by forgery of documents or other deception.
Disease simulation consists of attributing non-existent diseases or physical disabilities to oneself, or intentionally exaggerating the signs of an existing disease (deafness, blindness, etc.).
Self-mutilation is expressed in damage to any organ of the human body (arms, legs, eyes) that prevents the performance of military service duties.
By causing other harm to health, one should understand other effects on the body in various ways (by taking chemicals harmful to health, overdosing on medicines, and so on), excluding the possibility of performing military service duties.
Forgery of documents may be expressed in the forgery or presentation of forged documents giving grounds for temporary (Part 1) or permanent (Part 2, Article 374 of the Criminal Code of the Republic of Kazakhstan) exemption from military service (forged certificates of illness or death of a close relative). In all cases, forgery consists in the fictitiousness and inconsistency of the events and circumstances indicated in the document, referring to which the serviceman petitions for temporary or permanent release from military duties.
Since forgery of documents is an obligatory sign of the objective side of the composition of evasion from military service, its qualification is also not required under art. 325 of the Criminal Code of the Republic of Kazakhstan, which provides for liability for forgery of documents, i.e. in this case there is no set of crimes.
A person who provided a serviceman with a forged document in order to obtain his release from military duties is liable as an accomplice to evasion by forgery.
Another deception as a method of evasion consists in the fact that a serviceman deliberately provides false information about events or circumstances to the commander (chief) in order to obtain exemption from duty, or deliberately keeps silent about the circumstances that he was supposed to report for the same purpose. False information may relate to family or other circumstances that, if they existed in reality, would serve as a basis for the commander (chief) to release his subordinate from performing military service duties. According to P. 18 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of military crimes" "responsibility under this article comes regardless of the method of self-harm, the severity of the harm caused to one's health, as well as the method of deception used.
Evading the duties of military service by making a deliberately forged document by a serviceman himself is qualified under the totality of articles 374 and 325 of the Criminal Code — forgery, manufacture or sale of forged documents, stamps, seals, letterheads, and state awards."
If the perpetrators have committed military crimes, the responsibility for which is provided for in different parts of the same article of the Special Part of the Criminal law, then the act is qualified in compliance with the requirements of Part 2 of Article 12 of the Criminal Code — the totality of crimes — according to the part of the Criminal Code article that provides for a more severe punishment.
The crime is considered to be over from the moment when the commander (chief) or other state body, misled, decides on the temporary or permanent release of a serviceman from performing military service duties. Up to this point, the actions of the perpetrator are qualified as an attempted crime.
The subjective side of the crime is characterized by an intentional form of guilt in the form of direct intent. The perpetrator is aware that he is evading the duties of military service by causing himself some kind of injury, deception or otherwise, and desires this.
The purpose of the crime under Part 1 is temporary evasion from military service, under Part 2 of Article 374 of the Criminal Code of the Republic of Kazakhstan — complete exemption from military service duties.
The subject of the crime is a special one, that is, any serviceman undergoing military service on conscription or under contract. 374 of the Criminal Code of the Republic of Kazakhstan may also be citizens who are in reserve, called up for military training.
374 of the Criminal Code of the Republic of Kazakhstan provides for liability for crimes provided for in Parts 1 and 2 of this Article, committed during wartime or in a combat situation, the definition of which is given above.
The crime provided for in Part 1 of Article 374 of the Criminal Code of the Republic of Kazakhstan refers to crimes of minor gravity.
The crime provided for in Part 2 of Article 374 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
The crime provided for in Part 3 of Article 374 of the Criminal Code of the Republic of Kazakhstan is considered a particularly serious crime.
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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