Commentary on Article 368 of the Criminal Code of the Republic of Kazakhstan
Resistance to a superior or coercion of a superior to violate official duties
1. Resistance to a superior, or to another person performing assigned military service duties, as well as coercion of such person to violate those duties, accompanied by violence or threat of violence, shall be punishable by arrest for up to six months, restriction in military service for up to two years, detention in a disciplinary military unit for up to two years, or imprisonment for up to five years.
2. The same acts committed: a) by a group of persons, a group of persons acting in prior conspiracy, or an organized group; b) with the use of a weapon; c) causing serious or moderate bodily injury or other grave consequences,
shall be punishable by imprisonment for a term of three to ten years.
3. Acts provided for in Parts 1 or 2 of this Article, committed during wartime or in a combat situation, shall be punishable by imprisonment for a term of five to twenty years, or by the death penalty, or life imprisonment.
General Characteristics of the Offense
The public danger of this offense lies in the fact that it undermines the state's defense capability, disrupts military operations, and interferes with the implementation of military decisions. Encroachments on the established system of military-service relations are characterized by open defiance and are accompanied by violence against a superior or another person performing military duties, or by threats of such violence, thereby increasing their social danger.
The disposition of Article 368 of the Criminal Code consists of two independent offenses:
- Resistance to a superior or another person performing military service duties.
- Coercion of such a person to violate those duties through violence or threats of violence.
The direct object of the offense is the system of military subordination and the established military-service relations concerning the lawful performance of duties by superiors or other military personnel carrying out special military functions.
An additional object of protection is the health, freedom, and personal integrity of the victim while performing military duties.
It is important to establish that the servicemember committing resistance or coercion was aware that the act was directed specifically against a military superior or another person performing military service duties.
Objective Elements of the Crime
Resistance involves obstructing a superior or another person from carrying out assigned military duties. Coercion, by contrast, involves forcing such a person to violate those duties. In both cases, the crime is committed through active conduct.
Resistance occurs only during the actual performance of military duties by the victim.
Typically, resistance is preceded by a violation of military discipline or public order by the offender and represents a reaction to lawful actions taken by the superior or another authorized person to stop such violations.
Both resistance and coercion constitute military offenses only when accompanied by violence or threats of violence.
In cases of resistance, the offender personally prevents the superior or other authorized person from performing military duties. In cases of coercion, the offender attempts to force such a person to act contrary to the interests of military service.
Examples of coercion include demanding that a superior unlawfully grant leave, transfer the offender to another military unit, exempt them from certain service obligations, or perform other illegal actions under the threat or use of violence.
Coercion is always committed through physical or psychological violence and includes specific demands requiring the superior or other military official to act or refrain from acting contrary to service interests.
While resistance is possible only at the moment military duties are being carried out, coercion may concern both current and future actions of the superior or other military official.
A superior is considered to be performing military service duties when exercising official authority, such as commanding subordinates, conducting training, briefing personnel before duty assignments, or otherwise carrying out service functions.
Resistance may also be directed against other military personnel performing special duties, such as members of a guard unit, patrol, or internal duty detail, including duty officers, orderlies, and sentries.
Violence and Threats of Violence
Violence includes physical actions against the protected persons, such as:
- Beatings;
- Infliction of minor bodily injury;
- Torture or prolonged physical abuse.
A threat of violence refers to psychological pressure, intimidation, or threats to cause harm to a superior or another person performing military service duties.
For the offense to be complete, it is not necessary that resistance actually prevent the performance of military duties or that coercion successfully induce a violation of those duties. The act of obstruction or coercion itself constitutes a completed offense.
In some cases, resistance or coercion may follow a refusal to obey an order. If resistance is merely a reaction to a superior's attempt to secure compliance with the order, the conduct does not constitute a combination of separate offenses and is qualified solely under Article 368.
Subjective Elements
The offense is committed with direct intent.
The motives and purposes may vary, including:
- Obtaining privileges or advantages in service;
- Avoiding detention by a patrol;
- Other personal interests.
Such motives do not affect legal qualification but should be considered when sentencing.
Subject of the Crime
The offender may be any servicemember, including one who is not subordinate to the victim, provided that the unlawful actions are directed against a person performing military service duties.
Aggravating Circumstances (Part 2)
Part 2 of Article 368 establishes increased liability for resistance or coercion committed:
a) By a group of persons, a group acting under prior conspiracy, or an organized group
These concepts correspond to the definitions used elsewhere in Kazakhstan's criminal law.
b) With the use of a weapon
Use of a weapon means its actual employment for physical or psychological influence on the superior or other military official.
This includes:
- Inflicting bodily injury with a weapon;
- Threatening with a drawn weapon;
- Brandishing a weapon;
- Firing warning shots in the air or near the victim.
A weapon includes:
- Standard military weapons assigned to servicemembers (rifles, pistols, bayonets, etc.);
- Other firearms or cold weapons, whether factory-made or improvised (hunting rifles, sawed-off shotguns, combat knives, brass knuckles, etc.).
Ordinary household or utility objects, such as axes, sticks, or pocketknives, are not regarded as weapons for purposes of qualification under Part 2(b).
Merely possessing a weapon without threatening or using it does not constitute use of a weapon.
c) Causing serious or moderate bodily injury or other grave consequences
Resistance or coercion resulting in serious or moderate bodily injury is fully covered by Part 2(c) of Article 368 and requires no additional qualification under bodily injury provisions.
If intentional serious bodily injury results in the victim's death through negligence, the act should be qualified cumulatively under Article 368 and the corresponding provisions on serious bodily injury causing death.
If resistance or coercion is accompanied by intentional murder of a superior, the offense should be qualified cumulatively under the provisions governing both murder and Article 368.
Where resistance follows particularly aggressive acts of hooliganism and is a reaction to attempts to stop such conduct, the acts form a real concurrence of offenses under Article 368 and hooliganism provisions.
Examples of other grave consequences include:
- Failure of a combat mission;
- Destruction or disabling of military equipment;
- Significant harm to the interests of the Armed Forces of Kazakhstan;
- Creation of a real danger to the life and health of military personnel.
Wartime and Combat Conditions (Part 3)
Part 3 establishes liability for acts described in Parts 1 and 2 when committed during wartime or in combat conditions. Such circumstances significantly increase the danger of the offense because they directly threaten military effectiveness and national security.
Classification by Severity
- Part 1 of Article 368: Medium-gravity crime.
- Part 2 of Article 368: Serious crime.
- Part 3 of Article 368: Especially serious crime.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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 Declaration Decree Order Resolution Decision Report Conclusion Statement Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Messages
