Commentary on Article 383. Surrendering or Abandoning Means of Warfare to the Enemy under the Criminal Code of the Republic of Kazakhstan
Article 383. Surrendering or Abandoning Means of Warfare to the Enemy
The surrender by a commander of military forces entrusted to him to the enemy, as well as the abandonment of fortifications, military equipment and other means of warfare to the enemy when such abandonment is not necessitated by the combat situation, provided that these actions are not committed for the purpose of assisting the enemy, —
shall be punishable by imprisonment for a term of five to twenty years, or by the death penalty, or life imprisonment.
The public danger of this offence lies in the fact that it weakens the combat readiness of units and military formations engaged in combat operations, strengthens the enemy's position, adversely affects military discipline and the morale of personnel, and reduces the state's defence capability.
The direct object of the offence is the established procedure for conducting combat operations and commanding military forces and equipment under combat conditions, which ensures the preservation and combat use of military forces and means of warfare.
Military forces are understood to mean personnel who may be armed with weapons and other means of combat or who, under specific circumstances, may be unarmed.
Military forces are considered entrusted to a commander if they are directly subordinate to that commander (superior) or another official.
A fortification is an area of terrain equipped for defence and combat operations and occupied by military forces entrusted to a particular commander.
In accordance with the Law of the Republic of Kazakhstan On Defence and the Armed Forces of the Republic of Kazakhstan:
Defence is a system of state measures of a political, military, economic, environmental, social and legal, and other nature aimed at ensuring military security and the armed protection of the sovereignty, territorial integrity and inviolability of the borders of the Republic of Kazakhstan.
Combat operations are organized actions of military units, formations and subdivisions carried out under the command of the relevant military authorities in the performance of combat missions.
A combat mission is a task assigned by a superior commander (superior officer) to achieve a specific objective in battle (an operation) within an established timeframe.
In turn, combat operations form part of the broader system of military operations. Military operations are understood as a set of actions of strategic scope involving the use of all branches of the Armed Forces to accomplish assigned combat missions in repelling aggression.
Military equipment refers to technical means used to conduct combat operations, including weapons, missile launchers, combat vehicles, warships and other equipment.
Other means of warfare include missiles, ammunition, radio communications equipment, means of transportation, engineering and demining equipment, and other resources necessary for conducting combat operations or providing logistical and operational support.
The objective element of the offence consists of surrendering military forces entrusted to the commander to the enemy or abandoning means of warfare to the enemy.
The surrender of entrusted military forces means the transfer or abandonment of personnel to the enemy.
If weapons and other means of warfare with which the personnel are equipped are surrendered to the enemy together with the entrusted military forces, such conduct is also covered by the concept of surrendering entrusted military forces.
The abandonment of military equipment and other means of warfare to the enemy is manifested in leaving weapons and other equipment behind during a retreat or manoeuvre.
In the event of a forced withdrawal, commanders and superior officers are obliged to take measures to prevent such equipment from falling into enemy hands. They must take all necessary measures to achieve this, including destroying the equipment being abandoned.
The objective element of this offence requires that the abandonment of fortifications, military equipment and other means of warfare must not be necessitated by the combat situation.
If such actions are necessitated by the combat situation, that is, if they are committed in order to accomplish another combat mission or to prevent more serious consequences, they do not constitute the offence provided for under Article 383 of the Criminal Code of the Republic of Kazakhstan.
The offence is considered completed from the moment the enemy actually takes possession of the military forces surrendered to it or the fortifications, military equipment and other means of warfare abandoned to it.
The subjective element of the offence may involve either intentional or negligent conduct.
If it is established that the surrender by a commander of entrusted military forces, or the abandonment of fortifications, military equipment and other means of warfare, was committed for the purpose of assisting the enemy, the offender's actions constitute the offence of high treason, provided for under Article 165 of the Criminal Code of the Republic of Kazakhstan.
The subject of the offence is a special subject.
Criminal liability under Article 383 of the Criminal Code of the Republic of Kazakhstan may be imposed only on commanders and superior officers who exercise operational command over subordinate military forces, military equipment and other means of warfare under combat conditions.
These include commanders of all ranks.
In addition, the subjects of this offence may include the Chief of Artillery of a military unit and the Chief of Air Defence of a military unit, who, in accordance with the Internal Service Regulations, are responsible in both peacetime and wartime for the combat employment of all artillery units and all air defence assets of the respective military unit.
Furthermore, heads of various services, including engineering, chemical and other services, may also be held criminally liable under this Article for surrendering subordinate personnel to the enemy or abandoning military equipment and other means of warfare.
The offence provided for under Article 383 of the Criminal Code of the Republic of Kazakhstan belongs to the category of particularly serious crimes.
Source of the Commentary
Commentary to the Criminal Code of the Republic of Kazakhstan (2007)
Author: I.Sh. Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan.
Regulatory Legal Act Information:
- Date of amendment: 02 August 2007.
- Date of adoption: 02 August 2007.
- Place of adoption: Not specified.
- Adopting authority: 180000000000.
- Registration number assigned by the rule-making authority: 167.
- Status of the act: New.
- Legal relations sector: 028000000000.
- Form of the act: Commentary.
- Legal force: 1900.
- Language of the act: Russian.
Areas of law: Criminal Code, commentaries on the Criminal Code, regulatory resolutions of the Supreme Court of the Republic of Kazakhstan, criminal legislation and regulatory legal acts of the Republic of Kazakhstan.
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
