Commentary on Article 387. Evasion of Military Service of the Criminal Code of the Republic of Kazakhstan
1. Evasion of conscription for military service in the absence of legal grounds for exemption from such service —
shall be punishable by a fine of up to one thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or imprisonment for the same period.
2. The same act committed:
1) by inflicting harm on one's own health;
2) by feigning illness;
3) through the forgery of documents or other deception, —
shall be punishable by a fine of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period.
Note. A conscript shall be exempt from criminal liability if, before the investigative authority transfers the case to court, he voluntarily appears at the conscription centre.
The public danger of the crime provided for in Article 387 of the Criminal Code lies in the fact that, through his unlawful actions, the perpetrator violates the established procedure for calling up citizens for military service and recruiting the Armed Forces of the Republic of Kazakhstan, thereby causing damage to the state's defence capability.
The object of the crime under consideration is the social relations governing the procedure for organising conscription for military service and the proper recruitment of the Armed Forces.
The objective element of the crime provided for in Article 387 of the Criminal Code consists in evading conscription for military service in the absence of legal grounds for exemption from such service.
The grounds, procedure for the organisation and performance of military service in the Armed Forces are determined by the Constitution (Article 36) and the Laws of the Republic of Kazakhstan "On Defence and the Armed Forces of the Republic of Kazakhstan" and "On Military Service and the Status of Military Personnel".
Citizens subject to conscription for military service are required to appear before the conscription commission upon receiving a summons from the local military administration authority. The summons shall be delivered personally to the citizen by officials of the local military administration authorities or, at the place of employment (study), by the head of the organisation, against signature. If it is impossible to deliver the summons personally to the citizen, ensuring his appearance shall be entrusted to the relevant internal affairs authority.
According to subparagraph 16) of Article 1 of the Law of the Republic of Kazakhstan dated 16 February 2012 "On Military Service and the Status of Military Personnel", military service is a special type of public service performed by military personnel of the Armed Forces, other troops and military formations, aimed at directly ensuring military security and associated with the armed defence of sovereignty, territorial integrity and the inviolability of the State Border of the Republic of Kazakhstan.
Military service includes compulsory military service and contract military service.
Compulsory military service includes: fixed-term military service in the ranks of soldiers (sailors); military service of reserve officers under the age of twenty-nine who are fit for military service and are called up in peacetime on the basis of a resolution of the Government of the Republic of Kazakhstan to serve in officer positions upon requests from authorised bodies; military service during mobilisation, martial law, wartime and military training exercises.
Contract military service includes: military service performed by military personnel under a contract in the positions of soldiers (sailors), sergeants (petty officers) and officers; military service and training of cadets, trainees, adjuncts, master's students and doctoral students, as well as military interns at military educational institutions.
Persons liable for military service who are called up for military training exercises perform the duties of military service.
The period of full-time study at educational institutions of law enforcement and special state bodies, as well as the period of military training at specialised organisations of the Ministry of Defence under the military-trained reserve training programme, is considered equivalent to the completion of fixed-term military service.
Military personnel take a military oath of allegiance to the people of the Republic of Kazakhstan.
Persons liable for military service who have not previously taken the military oath shall take it when called up for military training exercises and upon mobilisation.
Citizens shall be granted a deferment from or exemption from military service in the cases and in accordance with the procedure established by the Law of the Republic of Kazakhstan "On Military Service and the Status of Military Personnel".
A citizen shall be deemed to have been conscripted for military service from the moment an order is issued by the head of the local military administration authority of the region (city of republican significance or the capital) concerning his conscription for military service.
Evasion of conscription for military service means intentional actions aimed at avoiding the established conscription procedure by feigning illness or by other means, committed by a person subject to conscription for military service. In other words, it means failure to appear, without valid reasons, at the time specified in the summons issued by the military administration authority for conscription into military service, or failure to appear at the assembly point for dispatch to a military unit. Such conduct may take the form of active actions (inflicting bodily injury on oneself, feigning illness), as well as omissions (failure to appear for a medical examination, refusal to accept a summons from the military commissariat).
Article 36 of the Law of the Republic of Kazakhstan "On Military Service and the Status of Military Personnel" specifies the legal grounds for exemption from conscription for military service and military training exercises.
Furthermore, according to the Rules for Organising and Conducting the Conscription of Citizens of the Republic of Kazakhstan for Military Service, approved by Resolution of the Government of the Republic of Kazakhstan dated 15 May 2012, valid reasons for citizens' failure to appear at conscription centres are recognised as follows: illness (injury) resulting in loss of working capacity; the death or illness of a close relative who requires outside assistance, is not in full state care and requires care from the person being called up, provided that there are no close relatives or other persons residing together with or separately from them within the territory of the Republic of Kazakhstan who are legally obliged to support family members; natural and man-made emergencies (earthquakes, mudflows, avalanches, floods, fires and other events) that have deprived the citizen of the opportunity to appear in person. The reasons for failure to appear must be documented.
A deferment is also a legal ground for exemption from military service. A deferment from conscription for military service shall be granted to citizens by decision of the district (city of regional significance) conscription commission.
The criminal offence provided for in Article 387 of the Criminal Code is, by the structure of its objective element, a formal offence. Accordingly, in order to bring a person to criminal liability, the mere fact of evasion of conscription for military service is sufficient, that is, the person's failure, without valid reasons, to appear at the designated time and place, upon a summons from the local military administration authority, before the conscription commission for the purpose of determining his fitness for military service.
It should be noted that this criminal offence is continuing in nature; accordingly, its commencement is determined by the moment evasion begins, while its completion occurs when the person evading conscription appears at the conscription (assembly) point or is detained.
The subjective element of the crime under consideration is characterised by direct intent. The perpetrator is aware that he is evading conscription for military service in the absence of legal grounds for exemption from such service and desires to do so.
The motive and purpose do not affect the legal classification of the offence but are taken into account by the court when imposing punishment.
The subject of the crime is a special subject — male citizens of the Republic of Kazakhstan of conscription age (between eighteen and twenty-seven years old), recognised by the conscription commission as fit for military service, who are not entitled to a deferment or exemption from conscription and who are subject to conscription in the number necessary to recruit the Armed Forces.
Part 2 of Article 387 of the Criminal Code provides for liability for evasion of conscription for military service in the absence of legal grounds for exemption from such service, committed: 1) by inflicting harm on one's own health; 2) by feigning illness; 3) through the forgery of documents or other deception.
Infliction of harm on one's own health means the intentional infliction by a conscript of harm of varying degrees of severity to his own health, either by himself or by another person with his consent (self-mutilation), for the purpose of evading conscription for military service.
Feigning illness means the creation by a person of a false impression that he has signs of a physical or mental illness, intended for those persons who decide the issue of his conscription for military service.
In the case of document forgery, the perpetrator, for the purpose of evading conscription, submits to the conscription commission documents knowingly containing false information concerning age, family composition and other details.
If the perpetrator is exempted from conscription for military service as a result of using documents forged by him personally, his actions should be classified as an aggregate of criminal offences (under subparagraph 3) of Part 2 of Article 387 and Part 1 of Article 385 of the Criminal Code).
If the perpetrator uses knowingly forged documents to evade military service, the act is covered by subparagraph 3) of Part 2 of Article 387, and additional classification under Article 385 of the Criminal Code is not required.
Other deception means any other method by which the perpetrator may mislead the conscription commission for the purpose of evading conscription, for example, sending another person who is unfit for military service to appear before the commission in his place, evading conscription by referring to religious beliefs, and so forth.
Evasion through the infliction of harm on one's own health is considered completed from the moment such harm is inflicted, since from that moment the person becomes unfit for military service. In all other cases, as noted above, the offence is completed from the moment of actual evasion of military service.
According to the Note to Article 387 of the Criminal Code, a conscript shall be exempt from criminal liability if, before the investigative authority transfers the case to court, he voluntarily appears at the conscription centre.
The act provided for in Part 1 of Article 387 of the Criminal Code is classified as a minor offence.
The act provided for in Part 2 of Article 387 of the Criminal Code is classified as an offence of medium gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Statute Charter Article Commentary Resolution Regulation Protocol Draft Programme Rules Addresses
