Comment to Article 377. Violation of the statutory rules of the guard (watch) service of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Violation of the statutory rules of guard (watch) service by a person who is part of the guard (watch), if this act has caused damage to objects protected by the guard (watch) or the occurrence of other harmful consequences., —      

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 two years.      2. The same act, which entailed grave consequences, —    

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

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

     The public danger of this act lies in the fact that it creates conditions for possible encroachments on protected objects; plundering and damaging military property, equipment and weapons; disclosure of state and military secrets; escape of arrested and convicted persons or violations of their detention in places of deprivation of liberty; as well as for gross violations of military discipline and public order by individual servicemen Thus, it reduces the state's defense capability, leads to the disruption of military activities and the implementation of decisions taken.  

   The immediate object of the crime is the order of guard or watch services, the observance of which ensures the safety of military and state facilities entrusted to the protection of the appropriate guard.    

On the objective side, violation of the rules of the guard (watch) service is characterized by the commission of actions that are prohibited by the Charter of the garrison and guard Services of the Armed Forces of the Republic of Kazakhstan and the legal acts issued on its basis, or by failure to comply with the instructions of the governing documents to commit certain actions or omissions that contradict this Charter of the Armed Forces of the Republic of Kazakhstan.   

  This crime consists in the fact that a person who is part of the guard (watch) violates the statutory requirements, for example, the use of alcoholic beverages, the admission of unauthorized persons to a protected object, leaving the post, sleeping on duty, etc.     

The harm caused to objects protected by the guard (watch) may consist in damage, destruction of property, theft, intrusion of unauthorized persons into protected objects, disorder among those arrested in the guardhouse.   

  The onset of consequences refers to the actual harm (damage) caused to the protected object. It's not just the consequences (looting and damage to protected property) that can be harmful. Harm and damage are also expressed in the illegal use of equipment and weapons, the escape of an arrested person from custody, the disruption of a combat mission, or the fact that secret information about the facility became known and available to an outsider who entered the protected facility, etc. All the consequences must be real.   

  The disposition of this article is a blank one, therefore, in order to establish signs of a socially dangerous act, it is necessary to refer to the Charter of the garrison and guard services of the Armed Forces of the Republic of Kazakhstan and other instructions and orders on the organization of guard service in all types of the Armed Forces of the Republic of Kazakhstan.    

 The crime is considered completed from the moment of the commission of actions under the circumstances that are indicated in the disposition of this rule and the onset of consequences in the form of harm.   

 Article 254 of the Criminal Code in Part 2 establishes criminal liability for improper performance of duties to protect weapons of mass destruction or materials or equipment that can be used in the creation of weapons of mass destruction, if this has entailed grave consequences or created a threat of their occurrence (see comments to the said article).    

 In cases where a violation of the statutory rules of the guard (watch) service was committed by a serviceman while guarding facilities with weapons of mass destruction and it entailed the consequences specified in Part 2 of Article 254 of the Criminal Code, as well as created a threat of their occurrence, the deed should be classified according to the totality of crimes provided for in Part 2 of Article 377 and Part 2 of Article 254 of the Criminal Code.   

  The subjective side is characterized by an intentional form of guilt in the form of direct or indirect intent. There will be direct intent when the sentry leaves the post or, for example, when the guard (watchman), by prior arrangement, allows unauthorized persons to enter the facility in order to steal weapons. In this case, it is necessary to qualify the act according to the totality of crimes provided for in Articles 255 and 377 of the Criminal Code of the Republic of Kazakhstan.  

   Other violations are committed by negligence, such as negligent handling of weapons and insufficient vigilance while on duty. At the same time, a number of violations are committed both intentionally and inadvertently — sleeping on duty, violating the route of a sentry while on duty by patrolling, for example, in weather conditions (fog, blizzard, poor visibility), additional sentries are posted between posts.   

  If harmful consequences have occurred as a result of violations of the statutory rules of service, it is necessary to establish guilt in relation not only to the violation itself, but also to the consequences that have occurred. In relation to the consequences, guilt may be negligent (in the form of criminal arrogance or criminal negligence) or intentional (in the form of both direct and indirect intent).   

  The subject of the crime is a special one, i.e. a soldier who is part of the guard (watch).   

  The perpetrator of this crime is a person who is on guard duty, and accomplices can be both military personnel who are not part of the guard (watch) and civilians.   

  The actions of the head of the guard as an official in relation to the composition of the guard, expressed in violation of the rules of special service, although related to the abuse of his position as head of the guard, should be qualified under articles providing responsibility for violating the order of such service in the event of the consequences specified in Articles 375 - 379 of the Criminal Code.   

  In Part 2 of Article 377 of the Criminal Code of the Republic of Kazakhstan, the onset of serious consequences is named as a qualifying sign. This feature is evaluative. Grave consequences are those expressed in the disclosure of classified information as a result of an unauthorized person entering the security post of a secret facility; in the disruption of an important combat mission; in serious damage to important state and military facilities, in the escape from custody of a prisoner or arrested person, etc.    

 377 of the Criminal Code of the Republic of Kazakhstan refers to the conditions for the release of military personnel who violated the statutory rules of guard duty. These conditions are similar to the note in art. 375 of the Criminal Code of the Republic of Kazakhstan.   

  The crime provided for in Part 1 of Article 377 of the Criminal Code of the Republic of Kazakhstan refers to crimes of minor gravity.   

  The crime provided for in Part 2 of Article 377 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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