Commentary on Article 437 of the Criminal Code of the Republic of Kazakhstan. Disobedience or Other Failure to Execute an Order

1. Disobedience, that is, refusal to execute an order given by a superior, as well as any other intentional failure by a subordinate to execute an order given by a superior in the prescribed manner, where such actions cause substantial harm to the interests of the service, —

shall be punishable by a fine in an amount of up to one hundred and twenty monthly calculation indices, or corrective labour in the same amount, or arrest for a term of up to thirty days.

2. The same acts, committed by a group of persons or by a group of persons acting in prior collusion, as well as acts resulting in grave consequences, —

shall be punishable by deprivation of liberty for a term of up to five years.

3. The acts provided for in Parts One or Two of this Article, committed by a criminal group, in a combat situation or under a state of emergency, —

shall be punishable by deprivation of liberty for a term of five to fifteen years, and, under aggravating circumstances, for a term of ten to twenty years or life imprisonment.

4. The acts provided for in Parts One or Two of this Article, committed during wartime, —

shall be punishable by deprivation of liberty for a term of fifteen to twenty years or life imprisonment.

5. Failure to execute an order due to negligent or bad-faith attitude towards service, resulting in grave consequences, —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or arrest for a term of up to fifty days.

6. An act provided for in Part Five of this Article, committed during wartime, in a combat situation or under a state of emergency, —

shall be punishable by deprivation of liberty for a term of three to ten years.

The public danger of this criminal offence (Parts 1 and 5 constitute criminal misdemeanours, while Parts 2, 3, 4 and 6 constitute crimes) lies in the fact that it infringes upon the established procedure for military service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan, namely, the legal institution of unity of command, which is the fundamental principle underlying the organisation of the Armed Forces, their management and the relationships between military personnel.

The essence of unity of command is expressed in vesting a superior with certain rights in relation to subordinates and imposing upon that superior personal responsibility before the state for all aspects of the life and activities of a military unit, subdivision and each individual service member.

The procedure governing relations between a superior and a subordinate in the course of performing their military service duties is regulated by the Internal Service Regulations of the Armed Forces, approved by Decree of the President of the Republic of Kazakhstan dated 5 July 2007.

The right of a superior, based on a comprehensive assessment of the situation, to make decisions independently and issue appropriate orders in accordance with the law, together with the subordinate's obligation to obey the superior unconditionally, constitute the chain-of-command system. Consequently, disobedience or other failure to execute an order undermines the fundamental foundations of the functioning of the troops, gives rise to disorder and disorganisation in the performance of daily tasks relating to combat and state-legal training of personnel, reduces the effectiveness of efforts to maintain strict statutory discipline within a subdivision or military unit and, overall, weakens the state's defence capability.

Furthermore, the consequences of the criminal offence under consideration may include gross violations of the rights, legitimate interests and benefits of military personnel or other citizens, as well as the infliction of material damage upon the Armed Forces and the state.

The object of the criminal offence is the established chain-of-command system within the Armed Forces, that is, service relations between a superior and a subordinate regulated by military regulations.

Pursuant to Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 28 October, "On Judicial Practice in Cases Involving Military Criminal Offences", the object of military criminal offences is the established procedure for military service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan.

The chain-of-command system, as part of the procedure for performing military service, encompasses a wide range of service relations regulated by the general military regulations of the Armed Forces and other legal acts, and must ensure the proper performance by both superiors and subordinates of their official and service duties.

In accordance with the Law of the Republic of Kazakhstan dated 16 February 2012, "On Military Service and the Status of Military Personnel", the performance of military service duties primarily includes the performance by a service member of their official duties, which include executing an order or instruction issued by a superior. At the same time, commanders are prohibited from issuing orders (commands) and instructions that are unrelated to the performance of military service duties or aimed at violating the legislation of the Republic of Kazakhstan (Paragraph 4 of Article 5 of the aforementioned Law).

From the objective side, the criminal offence consists of disobedience, that is, refusal to execute an order given by a superior, as well as any other intentional failure by a subordinate to execute an order given by a superior in the prescribed manner, where such actions cause substantial harm to the interests of the service.

The Internal Service Regulations establish that discussion of an order is impermissible, and that disobedience or any other failure to execute an order constitutes a military crime.

Disobedience represents the most dangerous form of failure to execute an order: the subordinate openly sets their will in opposition to the lawful requirements of the superior. Having received an order from the superior, the subordinate categorically declares, or otherwise demonstrates, that they will not execute it. Refusal to execute an order may be made publicly or communicated to the superior in private, expressed directly to the superior or through a person who conveyed the order on their behalf.

An order issued by a superior constitutes a specific requirement to perform or cease certain actions in a given situation, or to comply with particular service rules. It may be addressed to one person or a group of persons in writing, orally or through technical means. A written order is the principal administrative service document (legal act) of military administration, issued under the authority of unity of command by commanders of military units, individual subdivisions and higher-level commanders, while oral orders may be issued by all superiors.

By virtue of their official position, superiors include the President of the Republic of Kazakhstan (Supreme Commander-in-Chief of the Armed Forces of the Republic of Kazakhstan), heads of the Armed Forces, other troops and military formations from among civilian personnel, and military personnel who exercise command over subordinates in accordance with their official duties arising from their established positions. A commander is a superior in relation to their subordinates.

The list of principal military positions that determine the essence of the chain-of-command system and subordination based on military rank is provided in Chapter 2 of the Internal Service Regulations.

A superior is a service member who has other service members under their command and is entitled to issue orders and instructions to them and monitor their execution. Superiors are distinguished by their official positions and military ranks. Superiors to whom service members are subordinate in the course of their service, even temporarily, are considered direct superiors. By military rank, service members holding a higher rank are considered superiors. For example, an officer is a superior to all members of the enlisted and sergeant ranks, while a sergeant is a superior to enlisted personnel of the same military unit, and so forth.

A subordinate is a service member who belongs to a combat subdivision, department, service or duty detail and is obliged to execute the orders of their supervisor, or a service member who, by virtue of their military rank, is obliged to comply with the requirements of another service member holding the corresponding superior military rank.

An order has greater legal force than the act of its execution itself.

Failure to comply with general instructions contained in the general military regulations, manuals and instructions cannot be regarded as failure to execute an order. Under certain circumstances, failure to comply with such requirements of regulations and instructions may constitute an offence involving a criminal violation of official duties or a violation of the rules governing combat duty or special services (guard duty, internal duty, controller duty, etc.).

Where, in connection with a subordinate's violation of general military service requirements, a superior issues an order to that subordinate to cease the violation and perform their duties (for example, an order to a service member who has left their unit without authorisation to return immediately to the military unit), failure to execute such an order falls within the elements of Article 437 of the Criminal Code.

An order is a superior's requirement that a subordinate perform certain actions or refrain from performing them; this requirement is categorical and unconditional. However, it has certain limits, is restricted by the interests of military service, must be lawful and must arise from the superior's official powers.

Commanders are prohibited from issuing orders (commands) and instructions that are unrelated to the performance of military service duties or aimed at violating the legislation of the Republic of Kazakhstan.

Precise execution of an order issued by a commander (superior), which is mandatory for execution, releases the subordinate from liability for actions committed pursuant to that order and for their consequences, provided that the subordinate was unaware of the unlawfulness of the order being executed.

At the same time, an order issued by a commander (superior) is subject to execution if it is issued in the interests of military service for the purpose of maintaining the established procedure for military service.

Failure to execute an order issued by a superior in the prescribed manner, that is, an order that does not contradict the law, and which causes substantial harm to the interests of the service, is recognised as a criminal offence. When legally assessing actions involving disobedience, it is necessary to take into account the rule set out in Article 38 of the Criminal Code. According to Part 1 of Article 38 of the Criminal Code, the infliction of harm upon interests protected by the Criminal Code by a person acting in execution of an order or instruction that is binding upon them does not constitute a criminal offence. Criminal liability for the infliction of such harm shall be borne by the person who issued the unlawful order or instruction.

However, criminal liability on general grounds arises for the intentional commission of a criminal offence in execution of an order or instruction that is knowingly unlawful.

If a superior deliberately issues a knowingly unlawful order for criminal purposes, and the subordinate, understanding the obvious unlawfulness of the decision made, executes it, their actions should be considered under the rules of Parts 2 and 3 of Article 28 of the Criminal Code as complicity in the commission of a criminal offence, with the superior acting as the organiser and the subordinate as the perpetrator of that criminal offence. Execution by a subordinate of an order whose unlawfulness is known only to that subordinate is regarded as an independent criminal offence without the elements of complicity.

A commander (superior) bears responsibility for the order issued and its consequences, for the order's compliance with legislation, as well as for abuse of power and excess of authority or official powers in issuing the order. These requirements are provided for in Paragraph 154 of the Internal Service Regulations of the Armed Forces, other troops and military formations of the Republic of Kazakhstan.

In this regard, it is necessary to distinguish an order from an instruction.

An order is a means of implementing the principle of unity of command in managing subordinates, organising their service activities and resolving service-related tasks. It constitutes an act issued within the chain of command, originating from a superior and addressed to persons subordinate to them in the course of their service.

An instruction, as a means of communicating tasks to subordinates, is an administrative act that differs from an order in the nature of its requirements: an order contains requirements relating to service, whereas an instruction sets out other general matters of military service.

Cases of arguing or expressing objections should be distinguished from disobedience. In cases of arguing, the subordinate engages in a discussion of the order and expresses dissatisfaction with it, but subsequently performs the actions specified in the order. Such arguing does not constitute a criminal offence; in certain cases, it is recognised as a disciplinary misconduct, liability for which is regulated by the Disciplinary Regulations of the Armed Forces, other troops and military formations of the Republic of Kazakhstan, dated 5 July 2007.

Any other intentional failure by a subordinate to execute an order issued by a superior in the prescribed manner has independent legal significance and is expressed in the fact that the subordinate outwardly accepts the superior's order for execution but, in reality, intentionally fails to execute it. In this case, the intention not to execute the order may arise in the offender at the moment of receiving the order or at a later time. Unlike disobedience, in the case of any other intentional failure to execute an order, the subordinate does not openly declare or demonstrate that they will not execute it.

A criminal misdemeanor предусмотренный Part 1 of Article 437 of the Criminal Code consists in the subordinate's intentional failure to comply with an order issued by a superior in the prescribed manner, provided that such failure causes substantial harm to the interests of the service.

By its legal structure, the elements of this criminal misdemeanor constitute a material offence. The criminal misdemeanor is deemed completed from the moment the subordinate refuses to carry out the order or actually fails to execute it, provided that substantial harm to the interests of the service results from such conduct.

Pursuant to subparagraph 14) of Article 3 of the Criminal Code, substantial harm, in relation to all military criminal offences provided for in Chapter 18 of the Criminal Code, shall include: disruption of important military activities or a short-term reduction in the level of combat readiness and combat capability of military units and formations; failure to detect or repel in a timely manner an attack by armed groups or individual armed persons, land, air or naval military equipment; allowing the unhindered illegal crossing of the State Border of the Republic of Kazakhstan by persons and vehicles, the transportation of contraband goods, or tolerating actions that cause damage to border facilities; and other consequences indicating the substantial nature of the harm caused.

Disobedience or other failure to execute an order that has not resulted in substantial harm to the interests of the service may be recognized as a disciplinary offence.

From the subjective aspect, disobedience is characterized by direct intent, whereas other intentional failure to execute an order is characterized by either direct or indirect intent. When committing an act with direct intent, a person is aware of the social danger of their actions involving disobedience to an order issued by a superior, as well as other forms of failure to execute an order issued by a superior in the prescribed manner, foresees the possibility or inevitability of consequences in the form of substantial harm to the interests of the service, and desires their occurrence.

When committing an act with indirect intent, a person is aware of the social danger of their actions involving failure to execute an order issued by a superior in the prescribed manner, foresees the possibility or inevitability of consequences in the form of substantial harm to the interests of the service, and does not desire such consequences but consciously allows them to occur or remains indifferent to their occurrence.

The motives and purposes behind failure to execute an order may vary widely (dissatisfaction with the superior's official activities, cowardice, timidity, laziness, etc.) and do not affect the legal classification of the act, but are taken into account by the court when determining the punishment.

However, if the perpetrator, while failing to execute an order, pursued the purpose of undermining the country's military power, such conduct shall be classified as a crime against the foundations of the constitutional order and the security of the state.

The subject of the criminal misdemeanor is a special subject: any military serviceman of the Armed Forces who is subordinate to the person issuing the order by virtue of official subordination or military rank, as well as a citizen in the reserve during the period of military training.

A subordinate is obliged to comply unconditionally with the orders of a superior.

Superiors to whom military servicemen are subordinate in the course of service, even temporarily, are considered direct superiors, while the nearest direct superior to a subordinate is referred to as the immediate superior.

The subjects also include military servicemen who, in cases of violation of military discipline or public order, are obliged to comply with the demands of persons senior to them in military rank to eliminate such violations, as well as military servicemen performing military service duties jointly, whose commanders (superiors) are persons senior to them in military rank or in their established staff positions.

According to Paragraph 2 of the Regulatory Resolution of the Supreme Court "On Judicial Practice in Cases Involving Military Criminal Offences", the subjects of military criminal offences are exclusively military servicemen performing military service under conscription or contract in the Armed Forces, other troops and military formations, as well as citizens in the reserve during the period of their military training.

A person shall remain subject to criminal liability for military criminal offences even after the completion of military service if such acts were committed during the period of military service and the limitation periods for criminal prosecution have not expired.

According to subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan "On Military Service and the Status of Military Servicemen", military servicemen performing military service under conscription are citizens of the Republic of Kazakhstan who have been called up for military service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan for a period determined by this Law.

Military servicemen performing military service under contract are citizens of the Republic of Kazakhstan who have voluntarily entered military service in the Armed Forces, other troops and military formations for a period determined by the aforementioned Law (subparagraph 33) of Article 1 of the Law).

The period of military service is the entire period during which a person performs military service in the status of a military serviceman in the Armed Forces, other troops and military formations (subparagraph 17) of Article 1 of the Law).

Military service is a special type of public service performed by military servicemen of the Armed Forces, other troops and military formations, aimed at directly ensuring military security and associated with the armed defence of the sovereignty, territorial integrity and inviolability of the State Border of the Republic of Kazakhstan (subparagraph 16) of Article 1 of the Law).

A contract for military service is an agreement between an authorized body and a citizen of the Republic of Kazakhstan on voluntary military service, establishing the rights, obligations and liability of the parties for the period during which the citizen performs military service (subparagraph 18) of Article 1 of the Law).

Other troops and military formations include the Border Service, Aviation Service, Border Academy, military counterintelligence and military police bodies of the National Security Committee of the Republic of Kazakhstan, as well as other units of the national security bodies of the Republic of Kazakhstan determined in accordance with the procedure established by the legislation of the Republic of Kazakhstan; the Special Purpose Forces of the State Security Service 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 defence management bodies and military units of the authorized body in the field of civil protection; and military prosecutor's offices (subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan "On Defence and the Armed Forces of the Republic of Kazakhstan").

Part 2 of Article 437 of the Criminal Code establishes criminal liability for the same acts committed by a group of persons or a group of persons acting upon prior conspiracy, as well as for acts resulting in grave consequences.

A group of persons shall mean the commission of a criminal offence by two or more military servicemen acting jointly without prior conspiracy.

A group of persons acting upon prior conspiracy means the participation of military servicemen who have agreed in advance to jointly commit a criminal offence.

For disobedience or other failure to execute an order to be recognized as having been committed by a group of persons or a group of persons acting upon prior conspiracy, all members of the group must act as co-perpetrators, that is, participate in carrying out the objective elements of the criminal offence. The commission of an act by a group of persons without prior conspiracy presupposes coordination between the actions of the group members, whereby each military serviceman is aware that they are acting in coordination with the others, even though no prior agreement existed between them. Prior conspiracy to disobey an order may take place either before the superior issues the order, when the subordinates become aware that the order will be given, during the issuance of the order by the superior, or after the subordinates have received the superior's order, when they agree among themselves not to execute it.

Paragraph 8 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan emphasizes that, when classifying a military criminal offence on the grounds of its commission by a group of persons, a group of persons acting upon prior conspiracy or a criminal group, the provisions of Article 31 of the Criminal Code must be taken into account.

An act shall be classified under these qualifying grounds where two or more military servicemen participate in the criminal offence, irrespective of whether they are subordinate to one another, as well as where persons who are not military servicemen participate together with them in committing the criminal offence. The actions of such persons shall be classified as complicity in the commission of a military criminal offence in the capacity of organizers, instigators or accomplices.

According to subparagraph 4) of Article 3 of the Criminal Code, grave consequences may include various consequences depending on the specific circumstances, in particular: 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 formations; disruption of the performance of a combat mission; rendering military equipment inoperative; and other consequences indicating the severity of the harm caused.

Criminal liability for disobedience or other failure to execute an order issued by a superior, committed by a criminal group, in a combat situation or under a state of emergency, is established in Part 3 of Article 437 of the Criminal Code.

The concept of a criminal group is contained in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.

When this crime is committed by a criminal group, all participants are recognized as perpetrators of the crime committed, and their actions are subject to classification under Part 3 of Article 437 of the Criminal Code without reference to Article 31 of the Criminal Code.

It should be noted that criminal liability for military criminal offences committed during wartime, in a combat situation or under a state of emergency in general, and for disobedience or other failure to execute an order in particular, is determined by the legislation of the Republic of Kazakhstan governing wartime and states of emergency.

A combat situation is understood as the totality of factors and conditions under which preparations for and the conduct of a battle (operation) take place. A combat situation is characterized by the immediate proximity of the enemy, the threat of an enemy attack or direct engagement with the enemy. At the same time, a combat situation may also arise in peacetime when repelling an attack by an armed group (a gang, terrorists, etc.), an attack on a border outpost, a violation of the airspace or maritime space of the Republic of Kazakhstan, as well as during the performance of peacekeeping missions by Kazakhstani military personnel.

It should be noted that the Armed Forces participate in preventing emergencies caused by provocative actions on the part of other states aimed at imposing an armed conflict or violations of the territorial integrity of the Republic of Kazakhstan. Therefore, strict observance of the chain of command under a state of emergency is of great importance.

In accordance with the Law of the Republic of Kazakhstan dated February 8, 2003, "On the State of Emergency", a state of emergency is a temporary measure applied exclusively in the interests of ensuring the safety of citizens and protecting the constitutional order of the Republic of Kazakhstan. It represents a special legal regime governing the activities of state bodies and organizations, permitting the imposition of certain restrictions on the rights and freedoms of citizens, foreigners and stateless persons, as well as on the rights of legal entities, and imposing additional obligations on them (subparagraph 5) of Article 1 of the aforementioned Law).

Part 4 of Article 437 of the Criminal Code provides for criminal liability for the commission, in wartime, of acts предусмотренных in Parts 1 or 2 of this criminal law provision.

According to 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 beginning from the moment a state of war is declared or hostilities actually commence and continuing until the announcement of the cessation of hostilities, but not before their actual cessation.

According to Article 53 of the Constitution of the Republic of Kazakhstan and Article 6 of the Law of the Republic of Kazakhstan "On Defence 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 against the Republic of Kazakhstan by another state (a group or coalition of states), as well as in cases предусмотренных 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 cessation of hostilities is announced, but not before their actual cessation.

Failure to execute an order due to negligent or bad-faith attitude towards service, resulting in grave consequences (Part 5 of Article 437 of the Criminal Code), like intentional failure to execute an order, is characterized by the commission of actions prohibited by the order, failure to perform actions required by the order, or improper (incomplete, inaccurate or untimely) execution of an order issued by a superior. It differs from intentional failure to execute an order only in terms of the subjective element, as it is committed through negligence in the form of recklessness or carelessness.

Negligent failure to execute an order occurs when a subordinate, having received an order from a superior, fails to comply with its requirements or performs them improperly as a result of negligence or a bad-faith attitude towards service. This may result from forgetfulness, an unclear understanding of the content of the order, or carelessness regarding the time, place and method of its execution.

The concept of failure to execute an order, in all three of its forms, encompasses:

failure to perform the actions prescribed by the order;

commission of actions prohibited by the order;

improper execution of the order, that is, deviation from its instructions regarding the time, place and nature of the actions to be performed.

The definition of the concept of "causing grave consequences" was examined in the analysis of Part 2 of the article under consideration.

The qualified forms of failure to execute an order due to a negligent or bad-faith attitude towards service resulting in grave consequences include the commission of the act during wartime, in a combat situation or under a state of emergency (Part 6 of Article 437 of the Criminal Code). The concepts of these circumstances were examined in the analysis of Parts 3 and 4 of the article under consideration.

The acts предусмотренные in Parts 1 and 5 of Article 437 of the Criminal Code are classified as criminal misdemeanors.

The act предусмотренное in Part 2 of Article 437 of the Criminal Code is classified as a crime of medium gravity.

The acts предусмотренные in Parts 3 and 4 of Article 437 of the Criminal Code are classified as especially grave crimes.

The act предусмотренное in Part 6 of Article 437 of the Criminal Code is classified as a grave crime.

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 reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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