Commentary on Article 388-1. Intentional Failure to Fulfil Mobilization Assignments or Mobilization Orders During the Period of Mobilization, Martial Law and Wartime of the Criminal Code of the Republic of Kazakhstan
1. Intentional failure to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime, committed by an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions, shall be punishable by a fine in the amount of up to five thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to five years, or imprisonment for the same term.
2. The same act, if it entails grave consequences, shall be punishable by imprisonment for a term of five to ten years.
The public danger of the crime provided for in Article 388-1 of the Criminal Code of the Republic of Kazakhstan lies in the fact that, through their unlawful actions, the perpetrator violates the procedure for ensuring mobilization and combat readiness, complicates the normal performance by mobilization and military units of the tasks assigned to them, as a result of which damage (including material damage) is caused to the mobilization readiness and defence capability of the state.
The object of the crime under consideration is public relations establishing the procedure for fulfilling mobilization assignments or orders of the heads of state bodies and ensuring the lawful activities of officials, persons performing managerial functions in commercial or other organizations, or persons equated to persons authorized to perform state functions.
Life and health, honour and dignity, property interests, rights and freedoms of citizens, and legally protected interests of society and the state may constitute an additional object.
The objective aspect of the crime provided for in Article 388-1 of the Criminal Code of the Republic of Kazakhstan consists in the intentional failure to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime, committed by an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions, and is accordingly characterized by omission.
The disposition of the crime under consideration is of a blanket nature and does not define the elements of failure by an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions, to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime. In this regard, in order to establish the fact of failure to fulfil a mobilization assignment or mobilization order during the period of mobilization, martial law and wartime, it is necessary to refer to other regulatory legal acts or special rules that provide for the obligation of officials or persons performing managerial functions in commercial or other organizations, or persons equated to persons authorized to perform state functions, to fulfil mobilization assignments or mobilization orders, in particular, to the Laws of the Republic of Kazakhstan dated June 16, 1997, “On Mobilization Preparation and Mobilization”; dated March 5, 2003, “On Martial Law”; dated January 7, 2005, “On Defence and the Armed Forces of the Republic of Kazakhstan”; dated April 11, 2014, “On Civil Protection”; and others.
Failure to fulfil (non-performance) means the failure to carry out something that was intended, assigned, etc., or the disruption of the performance of work.
According to subparagraph 10) of Article 1 of the Law of the Republic of Kazakhstan “On Mobilization Preparation and Mobilization,” a mobilization assignment is an assignment to state bodies to carry out measures aimed at resolving tasks related to ensuring the sustainable functioning of the state during the period of mobilization, martial law and wartime.
A mobilization order is a state order to organizations for the production of goods, performance of work and provision of services of a specified range, their quantity and quality, and the establishment of special formations during the period of mobilization, martial law and wartime (subparagraph 11) of Article 1 of the aforementioned Law).
The concept of “mobilization” was disclosed in the analysis of Article 388 of the Criminal Code of the Republic of Kazakhstan.
According to subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan “On Martial Law,” martial law is a special legal regime providing for a set of political, economic, administrative, military and other measures aimed at creating conditions for preventing or repelling aggression against the Republic of Kazakhstan or a direct external threat to its security, and introduced by the President of the Republic of Kazakhstan throughout the territory of the Republic or in certain localities thereof.
In accordance with subparagraph 46) of Article 1 of the Law of the Republic of Kazakhstan “On Defence and the Armed Forces of the Republic of Kazakhstan,” wartime is the period from the moment a state of war is declared or hostilities actually commence until the announcement of the cessation of hostilities, but not earlier than their actual cessation.
Thus, intentional failure to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime should be understood as a criminal act in the form of omission, when an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions, fails to perform actions provided for by regulatory or local legal acts governing their professional activities, that is, fails to perform those actions which they were obliged and able to perform in connection with the fulfilment of their official duties.
From a substantive standpoint, a mobilization assignment or mobilization order represents an instruction to perform certain actions or to refrain from performing them. A mobilization assignment or mobilization order may specify individual provisions, for example, the deadlines for performing actions, their frequency, the procedure for documenting the actions performed, and others. Consequently, failure to fulfil a mobilization assignment or mobilization order consists in failure to perform the prescribed action either in full or in part (for example, violation of the deadlines for performing the prescribed actions).
According to the Law of the Republic of Kazakhstan “On Mobilization Preparation and Mobilization,” the issuance of instructions concerning mobilization assignments and mobilization orders falls within the competence of the President and the Government of the Republic of Kazakhstan.
Thus, in accordance with paragraph 4-3 of Article 5 of the aforementioned Law, the President of the Republic of Kazakhstan approves the rules for assessing the mobilization readiness of state bodies and organizations that have mobilization assignments and mobilization orders.
The Government of the Republic of Kazakhstan establishes the procedure for organizations to fulfil mobilization orders provided for by the Mobilization Plan of the Republic of Kazakhstan, and also determines the procedure and makes decisions on the removal and transfer of mobilization orders in the event of bankruptcy, liquidation, reorganization or a change in the operational profile of organizations (paragraphs 4, 7-1 of Article 7 of the aforementioned Law).
The organization, coordination and monitoring of the implementation of mobilization preparation measures in state bodies and organizations that have mobilization assignments or mobilization orders are entrusted to mobilization bodies (units), which report directly to the first head of the state bodies and organizations. The structure, staffing levels and powers of mobilization bodies (units) are determined based on the nature and scope of these assignments or orders.
The first heads of state bodies and organizations that have mobilization assignments or mobilization orders shall create the necessary conditions for mobilization bodies (units) to fulfil the duties assigned to them in relation to mobilization preparation and mobilization (Article 13 of the aforementioned Law).
The corpus delicti provided for in Part 1 of Article 388-1 of the Criminal Code of the Republic of Kazakhstan, in terms of the construction of its objective aspect, is formal. Accordingly, the occurrence of any negative consequences is not required in order to bring a person to criminal liability; the mere fact of failure by an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions, to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime is sufficient.
The subjective aspect of the crime provided for in Part 1 of Article 388-1 of the Criminal Code of the Republic of Kazakhstan is characterized by an intentional form of guilt (direct or indirect intent), since the official or the person performing managerial functions in a commercial or other organization, or the person equated to persons authorized to perform state functions, is aware that they are failing to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime, and wishes to do so, or consciously allows it to happen, or is indifferent to it.
Motive and purpose, in relation to the corpus delicti of the crime under examination, have the status of optional elements of the subjective aspect. Accordingly, they do not affect the legal classification of the crime. Motives may vary and must be taken into account when imposing punishment.
The subject of the crime is special — an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions.
The concept of “official” is provided in subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” as well as in subparagraph 26) of Article 3 of the Criminal Code of the Republic of Kazakhstan.
The concept of “a person performing managerial functions in a commercial or other organization” is provided in subparagraph 19) of Article 3 of the Criminal Code of the Republic of Kazakhstan.
The concept of “a person equated to persons authorized to perform state functions” is provided in subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption,” as well as in subparagraph 28) of Article 3 of the Criminal Code of the Republic of Kazakhstan.
Part 2 of the provision under consideration establishes liability for intentional failure to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime, committed by an official or a person performing managerial functions in a commercial or other organization, or a person equated to persons authorized to perform state functions, which has resulted in grave consequences.
Grave consequences are listed in subparagraph 4) of Article 3 of the Criminal Code of the Republic of Kazakhstan. In this situation, grave consequences should include: the death of a person; the death of two or more persons; suicide by the victim or their close relative(s); the infliction of serious harm to health; the infliction of serious harm to the health of two or more persons; mass illness, infection, radiation exposure or poisoning of people; deterioration of public health and the environment; the occurrence of a man-made or environmental disaster, or an emergency environmental situation; the infliction of large or especially large damage; disruption of the fulfilment of tasks assigned by the high command; creation of a threat to state security, a catastrophe or an accident; a prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions; disruption of the fulfilment of a combat mission; disabling of military equipment; and other consequences indicating the severity of the harm caused.
Thus, the corpus delicti provided for in Part 2 of Article 388-1 of the Criminal Code belongs, by its construction, to the category of material offences.
The act provided for in Part 2 of Article 388-1 of the Criminal Code of the Republic of Kazakhstan is also characterized by an intentional form of guilt. However, in the act under consideration, the intentional form of guilt may relate only to the very fact of intentional failure to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime. The mental attitude towards the consequences, however, must be expressed in the form of negligence. If an intentional form of guilt is present, the actions of the guilty person must be classified cumulatively: as intentional failure to fulfil mobilization assignments or mobilization orders during the period of mobilization, martial law and wartime, and as the criminal offence provided for by the relevant article of the Special Part of the Criminal Code.
The act provided for in Part 1 of Article 388-1 of the Criminal Code of the Republic of Kazakhstan belongs to criminal offences of medium gravity.
The act provided for in Part 2 of Article 388-1 of the Criminal Code of the Republic of Kazakhstan belongs to serious crimes.
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.
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