Comment to article 375. Violation of the rules of combat duty of the Criminal Code of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan

     1. Violation of the rules of combat duty (combat service) for the timely detection and repulse of a sudden attack on the Republic of Kazakhstan or to ensure its security, if this act entailed or could have entailed harm to the interests of the security of the state, —      

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, or by imprisonment for a term of up to five years.      2. The same act, which entailed grave consequences, —      

is punishable by imprisonment for a term of three to ten years.    

3. The acts provided for in the first or second parts of this Article, committed in wartime, —    

are punishable by imprisonment for a term of five to twenty years, or by death penalty or life imprisonment.

     Note. A serviceman who has committed an act provided for in the first part of this article for the first time may, under mitigating circumstances, be released from criminal liability by a court.

     The public danger of this act lies in the fact that violating the rules of combat duty can lead to irreparable harm to the security of the country and reduce the state's defense capability. It is possible that serious consequences may occur if only one operator or signalman, radio technician or pilot on duty fails to perform his direct duties in a timely manner.    

Combat duty (combat service) is the fulfillment of a combat mission. It is carried out by the forces and means on duty assigned from military units and divisions of the Armed Forces and branches of the Armed Forces. The forces and facilities on duty include combat crews, crews of ships and aircraft, on-duty shifts of command posts, forces and means of combat support and maintenance.    

A combat mission is a task assigned by a superior commander (chief) to achieve a specific goal in combat (operation) by a set deadline.    

 Combat duty is organized by the commander of the military unit. He is responsible for the performance of tasks by the forces and means on duty.    

It is prohibited to appoint military personnel to combat duty (combat service) who have not been sworn in, have not mastered the appropriate training program to the prescribed extent, have committed offenses under investigation, and are sick.    

 The direct object of this crime is the order of combat duty (combat service), determined by the Charter of the Internal service of the Armed Forces of the Republic of Kazakhstan and other command regulations for each specific branch of the Armed Forces.    

 The objective side of the crime is to violate the rules of combat duty (combat service) for the timely detection and repulse of a sudden attack on the Republic of Kazakhstan or to ensure its security, if this act entailed or could have entailed harm to the interests of the security of the State.  

  Combat duty (combat service) is carried out by the forces and means on duty, which include combat crews, crews, shifts on duty at control points, forces and means of combat support and maintenance. Violations can result in leaving a combat post, sleeping on duty, drinking alcohol while on duty, and the like. In each specific case, it is necessary to establish which rules have been violated and how.    

 Harm to the interests of State security is understood as the untimely detection or repulse of attacks by military groups or individual armed individuals, land, air or naval military equipment, and the like, who invaded the territory of Kazakhstan.    

 To resolve the issue of criminal liability, it is necessary to establish the nature of the violation of the rules of combat duty (combat service) and the causal relationship between this violation and possible consequences or actual consequences. The crime is considered completed either from the moment of violation of these rules, or from the moment of the actual occurrence of socially dangerous consequences (harm).    

 The subjective side of the crime provided for in Part 1 of Article 375 of the Criminal Code of the Republic of Kazakhstan is characterized by an intentional form of guilt in the form of direct or indirect intent and a reckless form of guilt in the form of recklessness or negligence.  

  With an intentional form of guilt, the perpetrator realizes that he is violating the rules of combat duty (combat service), and wants to violate them. At the same time, the subject anticipates that this violation may harm the interests of the security of the state, and deliberately allows such a possibility or treats it indifferently.  

   In case of recklessness, a person is aware that he is violating the rules of combat duty (combat service), but without sufficient grounds presumptuously believes that this violation does not pose a real threat to harm security interests, and when it occurs, presumptuously expects to prevent this threat and prevent their occurrence.    

When establishing a direct intent and a special purpose to harm the interests of the state, it is possible to raise the issue of criminal liability for high treason (art. 165 of the Criminal Code of the Republic of Kazakhstan).  

   The subject of this crime is a serviceman who is part of the duty shift of a combat crew, crew, post or other unit on combat duty.  

   Part 2 of this article provides for grave consequences as a qualifying feature, which can be recognized as: penetration of foreign military reconnaissance ships and aircraft into the territory of the Republic of Kazakhstan; loss of life; disabling of military equipment and weapons; disruption of an important combat event.  

   The issue of attributing the harm caused to grave consequences is decided in each specific case by the court, based on the circumstances of the case.    

 Part 3 of Article 375 of the Criminal Code of the Republic of Kazakhstan provides for liability for acts provided for in Parts 1 and 2 of this Article committed during wartime.    

 A note to Article 375 of the Criminal Code of the Republic of Kazakhstan provides for the conditions for exemption from criminal liability of a serviceman who violated the rules of combat duty (combat service). Such conditions are: the commission of a crime for the first time; the absence of aggravating circumstances provided for in parts 2 and 3 of this Article. The existence of mitigating circumstances and the release from criminal liability of a serviceman who violated the rules of combat duty is not an obligation, but a right of the court.  

  The crime provided for in Part 1 of Article 375 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.  

  The crime provided for in Part 2 of Article 375 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.  

   The crime provided for in Part 3 of Article 375 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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases