Commentary on Article 388. Evasion of Conscription for Mobilization under the Criminal Code of the Republic of Kazakhstan
1. Evasion of conscription for military service upon mobilization into the Armed Forces, other troops and military formations of the Republic of Kazakhstan —
shall be punishable by a fine of up to five thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period.
2. The same act, as well as evasion of subsequent conscription calls for the purpose of manning the Armed Forces of the Republic of Kazakhstan, committed during wartime —
shall be punishable by imprisonment for a period of five to ten years.
The public danger of the crime provided for in Article 388 of the Criminal Code lies in the fact that, through unlawful actions, the perpetrator violates the established procedure for calling up citizens for military service upon mobilization into the Armed Forces of the Republic of Kazakhstan, thereby causing damage to the state's mobilization readiness and defense capability.
The object of the crime under consideration is the social relations governing the procedure for organizing conscription for military service upon mobilization and the proper staffing of the Armed Forces.
The objective aspect of the crime provided for in Article 388 of the Criminal Code consists in evading conscription for military service upon mobilization into the Armed Forces, other troops and military formations of the Republic of Kazakhstan.
In accordance with subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan “On Defense and the Armed Forces of the Republic of Kazakhstan,” other troops and military formations include: the Border Service, military counterintelligence and military police bodies of the National Security Committee of the Republic of Kazakhstan, the Special Purpose Forces of the Security Service of the President of the Republic of Kazakhstan, the National Guard of the Republic of Kazakhstan, military investigative bodies of the Ministry of Internal Affairs of the Republic of Kazakhstan, civil defense management bodies and military units of the authorized body in the field of civil protection, and military prosecutor's offices.
The article under consideration constitutes a special provision in relation to Article 387 of the Criminal Code. In this regard, such basic concepts as “military service” and “conscription” are explained in the analysis of Article 387 of the Criminal Code.
In accordance with the Law of the Republic of Kazakhstan dated June 16, 1997, “On Mobilization Training and Mobilization,” mobilization is a set of nationwide measures related to the transfer of state bodies, organizations, the Armed Forces, other troops and military formations, the population, territory and economy of the Republic of Kazakhstan to a wartime regime (general mobilization) or to such a regime for any part thereof (partial mobilization).
Mobilization training is a set of measures carried out in peacetime and aimed at ensuring stable governance of the state during wartime, the organized transfer of the country's economy to meeting the needs of the Armed Forces, other troops and military formations, special state bodies and the population of the Republic of Kazakhstan, the armed protection and defense of the country, and ensuring the functioning of administrative-territorial units during mobilization, martial law and wartime.
Pursuant to Article 34 of the Law of the Republic of Kazakhstan “On Military Service and the Status of Military Personnel” and Article 19 of the Law of the Republic of Kazakhstan “On Mobilization Training and Mobilization,” the conscription of citizens for military service upon mobilization during martial law and wartime is carried out on the basis of a decree of the President of the Republic of Kazakhstan declaring partial or general mobilization.
Evasion of conscription for military service upon mobilization means intentional actions aimed at avoiding the established conscription procedure by simulating an illness or through other means, committed by a person subject to conscription for military service upon mobilization. In other words, it is failure to appear, without valid reasons, at the designated time and place specified in a summons issued by the military administration authority for conscription into military service upon mobilization, at the assembly point for dispatch to a military unit (conscription station) or at the military unit itself. Such evasion may be committed through active actions (inflicting bodily injury upon oneself, simulating an illness, changing one's place of residence for the purpose of evading conscription upon mobilization, falsifying documents), as well as through inaction (failure to appear for a medical examination, refusal to receive a summons from the military commissariat).
According to paragraph 4 of Article 36 of the above-mentioned Law, the lawful grounds for exemption from conscription for military service upon mobilization during martial law and wartime include recognition of citizens as unfit for military service due to their state of health. Other valid reasons for citizens' failure to appear at conscription stations are specified in the Rules for Organizing 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 May 15, 2012 (see the commentary on Article 387 of the Criminal Code).
The deferment granted to citizens upon conscription for military service during martial law and wartime is suspended, with the exception of deferment granted on health grounds.
The elements of the criminal offense provided for in Article 388 of the Criminal Code are formal in nature. Accordingly, for a person to be held criminally liable, the mere fact of evading conscription for military service upon mobilization is sufficient, that is, the person's failure to appear, without valid reasons, at the designated time and place specified in the summons issued by the local military administration authority.
It should be noted that this criminal offense is continuing in nature. Accordingly, the moment it begins is determined by the commencement of the evasion, while the moment it ends is determined by the evading person's appearance at the conscription (assembly) point or by their detention.
The subjective aspect of the crime under consideration is characterized by direct intent. The perpetrator is aware that they are evading conscription for military service upon mobilization in the absence of lawful grounds for exemption from such service and desires to do so.
The motive and purpose do not affect the legal qualification of the offense but are taken into account by the court when determining the punishment.
The subject of the crime is special: a sane individual who has reached the age of 18 and is subject to conscription for military service upon mobilization; a person liable for military service or a conscript subject to conscription for military service upon mobilization.
Persons liable for military service are citizens of the Republic of Kazakhstan who are registered for military service and remain in the reserve until they reach the maximum age for military registration.
Conscript citizens are male citizens of the Republic of Kazakhstan registered with the conscription districts of local military administration authorities and subject to conscription for compulsory military service.
Part 2 of Article 387 of the Criminal Code provides for liability for evasion of conscription for military service upon mobilization into the Armed Forces, other troops and military formations of the Republic of Kazakhstan, as well as for evasion of subsequent conscription calls for the purpose of manning the Armed Forces of the Republic of Kazakhstan, when committed during wartime.
According to Article 28 of the Law of the Republic of Kazakhstan “On Defense and the Armed Forces of the Republic of Kazakhstan,” a state of war is declared by the Parliament of the Republic of Kazakhstan in the event of an armed attack on the Republic of Kazakhstan by another state (a group or coalition of states), as well as in cases provided for by international treaties ratified by the Republic of Kazakhstan. Wartime begins from the moment a state of war is declared or hostilities actually commence and ends from the moment the termination of hostilities is declared, but not before their actual cessation.
Thus, wartime is the period beginning from the moment a state of war is declared or hostilities actually commence and ending from the moment the termination of hostilities is declared, but not before their actual cessation (subparagraph 46) of Article 1 of the above-mentioned Law).
The act provided for in Part I of Article 388 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 2 of Article 388 of the Criminal Code is classified as a serious crime.
Commentary to the Criminal Code of the Republic of Kazakhstan (2021), by Isidor Shamilovich Borchashvili, Honored 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 the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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