Commentary on Article 440 of the Criminal Code of the Republic of Kazakhstan. Violation of Statutory Rules Governing Relations Between Military Personnel in the Absence of Subordination Relationships
1. Violation of statutory rules governing relations between military personnel in the absence of subordination relationships, expressed in the infliction of beatings, causing minor bodily harm or other violence, or associated with the humiliation of the victim’s honor and dignity or with abuse of the victim, —
shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labor in the same amount, or arrest for a period of up to forty days.
2. The same act committed repeatedly —
shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labor in the same amount, or arrest for a period of up to fifty days.
3. The acts provided for in Parts One or Two of this Article, committed:
1) against two or more persons;
2) by a group of persons or by a group of persons acting upon prior conspiracy;
3) with the use of weapons or special means;
4) causing grievous or moderately serious bodily harm, —
shall be punishable by imprisonment for a term of four to eight years.
4. The acts provided for in Parts One, Two or Three of this Article, committed by a criminal group or resulting in the death of a person or other grave consequences, —
shall be punishable by imprisonment for a term of eight to twelve years.
Article 17 of the Constitution of the Republic of Kazakhstan proclaims: “Human dignity is inviolable. No one shall be subjected to torture, violence, or other cruel or degrading treatment or punishment.” Article 18 of the Constitution states: “Everyone shall have the right to the protection of their honor and dignity.”
The cohesion of military units, the creation of an atmosphere of military comradeship within them, and the maintenance of firm statutory relations are essential conditions for ensuring the constant combat readiness and combat effectiveness of personnel, and are a guarantee of the successful performance of daily tasks, training, and the education of military personnel in the spirit of Kazakhstani patriotism. Therefore, the interests of fulfilling the tasks assigned to military subdivisions and units require mutual respect among military personnel, cohesion, and readiness to assist one another both in the performance of specific military service duties and outside the scope of official duties.
The public danger of the criminal offense (Parts 1 and 2 constitute criminal misdemeanors, while Parts 2 and 3 constitute crimes) lies in the weakening of personnel cohesion and the absence of readiness for mutual assistance and support in carrying out combat and other service tasks. Ultimately, this leads to the disruption of military activities and the implementation of adopted decisions and weakens the state's defense capability. Violations of statutory rules governing relations between military personnel cause damage to military discipline, the health, honor and dignity of military personnel, and the interests of ensuring the constant combat readiness of the Armed Forces. The degree of public danger of this criminal offense depends on the harm caused to the victim.
The object of this offense is the established procedure governing relations between military personnel who are not connected by subordination relationships. An additional object is the personality of military personnel who are victims, including their life and health, honor and dignity.
The objective element is expressed in the violation of statutory rules governing relations between military personnel in the absence of subordination relationships. Such a violation manifests itself in the infliction of beatings, causing minor bodily harm, other violence, humiliation of honor and dignity, or abuse of the victim.
Violations of statutory rules governing relations are understood to include various forms of violence committed by one military serviceman against another, humiliation of their honor and dignity, and abuse, carried out for the purpose of securing easier conditions of service for oneself, obtaining a privileged position within the military collective, subordinating fellow servicemen to one's will, as well as for other motives, including hooligan motives. Violations of statutory relations may specifically manifest themselves in forcing victims to perform actions that humiliate their personal dignity, provide personal services to military personnel of earlier conscription periods, perform certain military service duties on their behalf, engage in sexual perversions, and endure other forms of abuse. Such actions may involve the seizure from young servicemen of items of uniform, food products, bank payment cards, and other material valuables. All these actions are generally accompanied by the use of violence or the threat of its use. Violence may consist of beatings, causing bodily harm of varying degrees of severity, and other violent acts involving the infliction of physical pain on the victim or restriction of their freedom.
The elements of beatings and the infliction of minor bodily harm are discussed in the commentary to Article 439 of the Criminal Code.
The concept of violence also encompasses threats to use various forms of physical violence.
Under Article 440 of the Criminal Code, the following acts are subject to qualification.
First, the aforementioned violent and other acts are subject to qualification when committed in connection with the victim's performance of military service duties. This also includes contract servicemen and officers, since, under the current legislation, conscript military personnel, that is, those performing compulsory military service, are considered to be performing their military service duties throughout the entire period of their military service. An example would be acts committed because of dissatisfaction with the victim's conscientious attitude toward service.
Second, the grounds for qualifying the specified actions under Article 440 of the Criminal Code include not only their commission in connection with the victim's performance of military service duties, but also their commission for other reasons, including hooligan motives, provided that at least one of the military personnel (the victim or the perpetrator) was performing military service duties, that is, was acting in the performance of such duties. (For the concept of “in the performance of duties,” see the commentary to Article 439 of the Criminal Code.)
Third, a criminal offense qualified under Article 440 of the Criminal Code may be committed neither in connection with nor during the performance of military service duties, but may nevertheless be accompanied by an obvious display of disrespect toward the military collective, a gross violation of the internal regulations of the unit, the normal rest or leisure of personnel, and the desire of individual military personnel from earlier conscription periods to establish their “superiority” over young servicemen.
The actions of the perpetrators may be committed within the territory of a military unit or outside its boundaries, during working hours or during rest periods, at cultural and public events, while on a business trip, in a medical institution, and so forth. In accordance with Paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Military Criminal Offenses,” a violation of statutory rules governing relations between military personnel in the absence of subordination relationships means the violence specified in the disposition of Article 440 of the Criminal Code, committed by one military serviceman against another, both in connection with military service or while at least one of them is performing official duties, and under other circumstances, provided that it is accompanied by an obvious display of disrespect toward the military collective and a gross violation of internal order within the unit. Violence may take the form of beatings and the infliction of physical pain, as well as abuse, humiliation of honor and dignity, forced exchange or seizure of food products, uniforms, and other items issued to a serviceman as clothing and other provisions.
The use of violence arising from property-related, marital and family, or other civil legal relationships or obligations unrelated to an encroachment upon military discipline must be qualified under the relevant Article of the Criminal Code providing for liability for offenses against the person, property, and other offenses that do not constitute military criminal offenses.
Violations of statutory rules governing relations between military personnel are sometimes committed on the grounds of national hostility or discord and are accompanied by the humiliation of the national feelings of military personnel.
Not every act of violence committed by one military serviceman against another constitutes the elements of the criminal offense under consideration. During military service, military personnel enter into not only military-service relationships regulated and protected by the provisions of military legislation. In the course of their mutual interaction, purely personal relationships may also arise on the basis of the exercise of property, marital and family, and other personal rights and freedoms. In specific cases, such relationships may involve socially dangerous violations of the general civil rights and freedoms of the military personnel involved, including the use of violence. Since such offenses do not encroach upon military discipline, they must be qualified under the relevant provisions of general criminal legislation concerning criminal offenses against the person, property, public order and public safety, and other offenses.
Thus, violence committed by one military serviceman against another for personal reasons, for example, when the servicemen were on leave outside the military unit, attending a family celebration, or among acquaintances outside the military unit, does not constitute a military criminal offense. Depending on the specific circumstances, such violence may be recognized as a criminal offense against the person or, for example, hooliganism under Article 293 of the Criminal Code.
In most cases, violence committed by one military serviceman against another within the territory of a military unit will be recognized as a violation of statutory rules governing relations between military personnel. However, in certain specific cases, such violence may not contain the elements of a military criminal offense.
For example, if two military servicemen, having secluded themselves in a room used for storing personal belongings, clarify their relationship and one of them beats the other or causes bodily harm out of jealousy or for similar reasons, the act cannot be qualified under Article 440 of the Criminal Code.
Other violence means various forms of violence that do not constitute beatings: tying up, unlawful deprivation of liberty, violent acts of a sexual nature, various forms of mockery and abuse. The concept of “other violence” also encompasses threats to use physical violence in cases where the perpetrator, through threats, forces the victim to perform certain military service duties on their behalf or provide personal services, thereby compelling the victim to perform actions that humiliate their personal dignity.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 18, 1992, “On the Application in Judicial Practice of Legislation on the Protection of the Honor, Dignity and Business Reputation of Individuals and Legal Entities,” defines honor as the public assessment of a person and the measure of their spiritual and social qualities; dignity as an individual's internal assessment of their own qualities, abilities, worldview, and social significance; and business reputation as a stable positive assessment by public opinion of a person's business (production-related and professional) qualities.
Unlike the offense of insult provided for in Article 131 of the Criminal Code, humiliation of honor and dignity does not necessarily have to be expressed in an indecent form. Therefore, any statements or other actions that demean the honor and dignity of a military serviceman are regarded as violations of statutory rules governing relations. Publicity of the humiliation is also not required. It may be committed in the absence of the victim, but it is always intended to humiliate the victim's dignity in their own eyes.
Abuse is also an act that humiliates the victim's honor and dignity, but is expressed through mockery of the victim's personality by forcing them to perform certain actions or carry out certain work that insults human dignity.
A violation of the established rules governing relations between military personnel in the absence of subordination relationships, accompanied by the seizure of the victim's personal items and belongings, is qualified cumulatively under Article 440 of the Criminal Code and the Article providing for liability for a criminal offense against property.
If violence or the threat of its use is accompanied by the seizure of items or uniforms issued to a military serviceman for the period of military service, such actions, in the absence of intent to steal and when committed as one of the methods of violating statutory rules governing relations between military personnel, are covered by this Article.
The legal composition of the offense is formal in structure. The criminal offense is considered completed from the moment the statutory rules governing relations between military personnel in the absence of subordination relationships are violated through the infliction of beatings, causing minor bodily harm, other violence, or actions associated with the humiliation of the victim's honor and dignity or abuse of the victim.
The subjective element is characterized by direct intent. The perpetrator realizes that by inflicting beatings, causing minor bodily harm, committing other acts of violence, humiliating the honor and dignity of the victim, or abusing the victim — a military serviceman equal to them in service position and military rank, or senior or junior in military rank — they are violating statutory rules governing relations between military personnel; foresees the possibility or inevitability of socially dangerous consequences; and desires to commit the specified actions.
The perpetrator's attitude toward the consequences of the act specified in Subparagraph 4) of Part 3 and Part 4 of Article 440 of the Criminal Code (the degree of bodily harm caused and the death of a person) may take the form not only of direct or indirect intent but also of negligence.
The motives for committing the criminal offense may vary: dissatisfaction with the victim's attitude toward the performance of military service duties; personal hostility toward the victim; the desire to emphasize one's imaginary superiority over military personnel conscripted at a later date or serving under contract; and other base motives, including hooligan motives. In certain cases, the offense may be committed by a military serviceman from an earlier conscription period against a fellow serviceman because of dissatisfaction with the latter's refusal to participate in the oppression of military personnel from later conscription periods.
Motives and purposes are irrelevant to the legal qualification of the offense but may be taken into account when determining the punishment.
The subject is a special one, namely, a military serviceman performing military service either by conscription or under contract. These include soldiers and sailors, sergeants and petty officers, as well as officers of the Armed Forces who are not in a relationship of subordination with the victims, that is, who are neither their superiors nor their subordinates in terms of service or military rank. They may be equal to the victims in terms of service position and military rank, or senior or junior in military rank.
On general grounds, citizens in the reserve may also be subjects of this criminal offense during the period of their participation in military training exercises.
Part 2 of Article 440 of the Criminal Code provides for liability for the same act committed repeatedly. The repeated-commission element applies to the commission of two or more violations of statutory rules governing relations between military personnel, provided that the person has not been convicted or released from criminal liability for the previously committed act, or the limitation periods for bringing criminal charges in respect of that act have not expired.
The repeated-commission element also applies to acts committed against the same person at different times, provided that there are no elements of a continuing criminal offense.
A continuing criminal offense is not considered a repeated offense. A continuing criminal offense is an offense consisting of a series of identical unlawful acts that are covered by a single intent and purpose and, taken as a whole, constitute one criminal offense (Part 3 of Article 12 of the Criminal Code). If violations of statutory rules governing relations between military personnel in the absence of subordination relationships are committed against the same person at different times but are covered by a single intent and purpose, they cannot be qualified on the basis of repeated commission.
In accordance with Part 1 of Article 12 of the Criminal Code, a crime and a criminal misdemeanor do not constitute repeated offenses in relation to one another. Thus, where a military serviceman first violates statutory rules governing relations, as provided for in Part 1 of Article 440 of the Criminal Code, which constitutes a criminal misdemeanor, and subsequently commits the same acts against two or more persons, the acts likewise cannot be qualified on the basis of repeated commission.
Part 3 of Article 440 of the Criminal Code provides for liability for the same act committed: 1) against two or more persons; 2) by a group of persons or by a group of persons acting upon prior conspiracy; 3) with the use of weapons or special means; 4) causing grievous or moderately serious bodily harm.
Under Subparagraph 1) of Part 3 of Article 440 of the Criminal Code, the acts provided for in Parts 1 or 2 of this Article are subject to qualification where they are committed against two or more persons, either simultaneously or at different times, provided that the actions were continuing in nature and were covered by a single intent but were not carried out simultaneously for various reasons. In this regard, courts must examine the direction of the perpetrator's intent, the specific circumstances of the crime committed and its motives, the length of the time interval between the actions committed against different victims, and other relevant circumstances.
The concepts of a group of persons and a group of persons acting upon prior conspiracy are contained in Subparagraph 24) of Article 3 and Parts 2 and 3 of Article 31 of the Criminal Code (see the commentary to Article 437 of the Criminal Code).
It should be taken into account that the offense under consideration belongs to the category of military criminal offenses involving a special subject, and its perpetrators may only be military personnel who are not in a relationship of subordination with the victim. Therefore, it is necessary to consider certain specific features of complicity in this criminal offense.
Where, together with the guilty military serviceman, the victim's superior or subordinate, or a civilian, participates in the commission of the offense under consideration, the actions of the perpetrator are qualified under Article 440 of the Criminal Code, while the actions of the victim's superior or subordinate, as well as the civilian, are qualified under Part 5 of Article 29 of the Criminal Code as those of an organizer, instigator, or accomplice, in conjunction with Article 440 of the Criminal Code. In such cases, the criminal offense cannot be considered to have been committed by a group of persons or by a group of persons acting upon prior conspiracy, since a superior, a subordinate, or a civilian may act only as an organizer, instigator, or accomplice, and not as a perpetrator.
Under certain circumstances, the actions of a superior who fails to take measures to stop violence against a subordinate and thereby grossly violates their official duties may, in addition to complicity in the crime provided for in Article 440 of the Criminal Code, contain the elements of, for example, the offense under Article 452 of the Criminal Code, “Abuse of Authority by Omission.” Where a subordinate, acting as an accomplice to the offense under consideration committed against their superior, simultaneously uses violence against that superior in retaliation for specific actions taken by the superior in the course of service, the act must additionally be qualified under Article 439 of the Criminal Code.
Paragraph 9 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan emphasizes that where a person subordinate to both the perpetrator and the victim joins the unlawful actions of a superior against a military serviceman of equal official status, the actions of the superior must be qualified under Article 440 of the Criminal Code, while the actions of the subordinate must be qualified under the relevant part of Article 439 of the Criminal Code as violent acts against a superior, regardless of which of them initiated the commission of the criminal offense or began committing it.
If a superior commits unlawful actions against a subordinate and a military serviceman of equal official status to the victim joins in, the actions of the subordinate who joined in are qualified as complicity in an official criminal offense.
Subparagraphs 3) and 4) of Part 3 of Article 440 of the Criminal Code provide for criminal liability for committing the offense with the use of weapons or special means and for causing grievous or moderately serious bodily harm, respectively. For the definitions of these terms, see the commentary to Subparagraphs 2) and 3) of Part 2 of Article 438 of the Criminal Code.
Part 4 of Article 440 of the Criminal Code provides for liability, as a particularly qualifying circumstance, for the acts specified in Parts 1, 2 or 3 of this Article when committed by a criminal group or resulting in the death of a person or other grave consequences.
The definitions of these elements are provided in the commentary to Part 3 of Article 438 of the Criminal Code.
In accordance with Subparagraph 4) of Article 3 of the Criminal Code, other grave consequences include the victim's suicide, the disruption of the performance of a combat mission, the occurrence of a catastrophe or accident, the disabling of military equipment, the infliction of substantial material damage, and similar consequences. Such consequences are covered by the disposition of this Article and do not require additional qualification under other criminal offense provisions.
If the perpetrator's actions in committing the criminal offense under consideration were accompanied by intentional homicide, they are subject to additional qualification under Article 99 of the Criminal Code.
The acts provided for in Parts 1 and 2 of Article 440 of the Criminal Code are classified as criminal misdemeanors.
The acts provided for in Parts 3 and 4 of Article 440 of the Criminal Code are classified as serious crimes.
Note: Spelling errors, typographical errors, obvious grammatical agreement errors, and punctuation errors have been corrected. The content, wording of the legal provisions, and sequence of presentation have been preserved. Possible inaccuracies in legal references and provisions of legislation have not been verified or amended.
Commentary (2021) on the Criminal Code of the Republic of Kazakhstan 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 Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defense 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 Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Messages
