Commentary on Article 443 of the Criminal Code of the Republic of Kazakhstan. Evasion of or Refusal to Perform Military Service
1. Evasion by a servicemember of the performance of military service duties through feigning illness or inflicting any injury upon oneself (self-mutilation), or otherwise harming one's health, or falsification of documents, or other deception, as well as refusal to perform military service —
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.
2. The same acts committed in a combat situation or under a state of emergency —
shall be punishable by imprisonment for a term of ten to twenty years or life imprisonment.
3. The acts provided for in Part One of this Article, committed during wartime —
shall be punishable by imprisonment for a term of ten to twenty years or life imprisonment.
The public danger of the criminal offence (Part 1 — a criminal misdemeanour; Parts 2 and 3 — crimes) consisting of evasion of or refusal to perform military service lies in the specific nature of its objective elements. The characteristic features of these dangerous methods of evading military service consist in the fact that the perpetrators achieve their objective of unlawfully obtaining release from the performance of military service duties, as a rule, with the permission of the relevant superiors. Outwardly, the release appears justified, whereas in reality it is fictitious and is based on feigning illness, self-mutilation, falsification of documents or other deception, or refusal to perform military service.
The public danger of this criminal offence consists in the deliberate violation of military discipline and the requirements of the military oath and military regulations to perform military duties honestly and conscientiously and to steadfastly endure the difficulties and hardships of military service.
The object of the offence is the established procedure for performing military service, as well as the timely and accurate fulfilment of assigned tasks.
From the objective standpoint, the act is characterised by evasion of military service through feigning illness, inflicting any injury upon oneself (self-mutilation) or otherwise harming one's health, falsification of documents or other deception, as well as refusal to perform military service.
Evasion of the performance of military service duties by the specified means consists in a servicemember artificially creating grounds (or the appearance of grounds) for temporary or permanent release from the performance of the relevant military service duties through deception (feigning illness, falsification of documents or other deception) or by inflicting an injury upon oneself.
Feigning illness, within the meaning of Article 443 of the Criminal Code, is the intentional portrayal or assertion by a servicemember, for the purpose of obtaining release from military service, that they suffer from illnesses which they do not actually have, or the deliberate exaggeration of existing illnesses for the same purpose (aggravation).
In this regard, it is necessary to distinguish simulation as a method of evading the performance of military service duties from pathological (unconscious) simulation, in which a person does not pursue the objective of evading military service but is honestly mistaken about an existing or imaginary illness.
Inflicting any injury upon oneself (self-mutilation) consists in a servicemember causing harm to their own health for the purpose of evading military service. This involves the intentional and artificial injury of an organ or body tissues, impairment of the functioning of an organ, or the causing or aggravation of an illness. Harm to health may be inflicted through the use of various instruments, devices and substances.
For the purpose of qualifying the perpetrator's actions as self-mutilation, neither the degree of severity of the harm caused by the servicemember to their own health nor the period of time during which they evaded military service is relevant.
Where an injury is inflicted upon a servicemember by another person at the servicemember's request for the purpose of assisting them in evading military service, that person's actions shall be qualified as a criminal offence against the person and aiding and abetting the commission of the act provided for in Article 443 of the Criminal Code.
In this case, the servicemember themselves shall bear liability as the perpetrator of this criminal offence, since it is the servicemember who commits the act of evading military service.
Causing other harm to health should be understood as any other impact on the body, apart from self-mutilation, by various means (through the consumption of substances harmful to health, an overdose of medicinal products, and so on), which makes it impossible to perform military service duties.
Falsification of documents consists in a servicemember submitting to their commander a document fabricated by the servicemember themselves or by another person at their request for the purpose of obtaining release from military service, for example, a fictitious telegram concerning the death of a close relative, a forged birth certificate of a child, or another document containing false information that formally provides grounds for release from the performance of military service.
Since document falsification is a mandatory element of the objective side of evasion of the performance of military service duties, additional qualification under Part 3 of Article 385 of the Criminal Code, which provides for criminal liability for the use of a knowingly forged document, is not required; that is, in this case, there is no concurrence of criminal offences.
Where a servicemember evades the performance of military service duties by personally producing a knowingly forged document, the act shall be qualified under the aggregate of Articles 443 and 385 of the Criminal Code.
The Supreme Court of the Republic of Kazakhstan adheres to a similar position. Thus, paragraph 18 of the previously mentioned Resolution states: “Liability under Article 443 of the Criminal Code arises regardless of the method of self-mutilation, the severity of the harm caused to one's own health, or the method of deception used.
Evasion of or refusal to perform military service does not require additional qualification under Articles 441 and 442, except in cases involving an actual concurrence of criminal offences.
Evasion of military service through the production by the servicemember themselves of a knowingly forged document shall be qualified under the aggregate of Articles 443 and 385 of the Criminal Code.”
A person who assists a servicemember in submitting a forged document for the purpose of releasing the servicemember from the performance of military service duties, or who produces such a document, shall be held criminally liable as an accomplice to this criminal offence, but only on the condition that they were aware of the purposes for which the document was being produced or submitted.
Other deception as a method of evading military service consists in a servicemember communicating knowingly false information to their commander for the purpose of obtaining full or temporary release from the performance of military service duties, or intentionally concealing, for the same purpose, the fact that information available to the command does not correspond to reality. The information that does not correspond to reality may concern the servicemember's family status, education and other circumstances that provide grounds for release from military service.
The actions of a servicemember in bribing certain officials for the purpose of securing unlawful release from the performance of military service duties may also be regarded as other deception. In this case, the actions of the perpetrator shall be qualified as evasion of or refusal to perform military service (Article 443 of the Criminal Code) and giving a bribe (Article 367 of the Criminal Code). For example, a servicemember gives a bribe to a commander in order to secure early dismissal from military service without lawful grounds.
In cases where a servicemember gives a bribe for the purpose of expediting release from military service on lawful grounds, their actions shall be qualified solely as giving a bribe. In this case, there are no grounds for qualification under Article 443 of the Criminal Code.
Refusal to perform military service is characterised by the fact that a servicemember openly, without resorting to deception, verbally, in writing or by other means, expresses their unwillingness to perform military service or individual military service duties and actually ceases to perform them. Refusal to perform military service takes two forms.
First, it may take the form of an open statement of unwillingness to perform military service. It should be borne in mind, however, that such a statement alone, no matter how categorical it may be, does not constitute the elements of the criminal offence under consideration if it is not accompanied by an actual refusal to perform military service.
Second, it may take the form of an overt and actual cessation of military service, even if it is not accompanied by a statement from the servicemember expressing their unwillingness to perform military service. For example, if a person, although not openly declaring their unwillingness to perform military service, actually and demonstratively fails to perform military service without any valid reason and ignores the commander's demands to perform their duties, such deliberately persistent conduct indicates a clearly expressed unwillingness on the part of the servicemember to perform military service. Such actions are qualified as refusal to perform military service under Article 443 of the Criminal Code.
Refusal to perform military service differs substantially from unauthorised abandonment of a military unit or place of service (Article 441 of the Criminal Code) not only in the method of commission but also in the fact that, in the case of unauthorised abandonment of a military unit or place of service, the person evades service temporarily, whereas in the case of refusal, the perpetrator evades military service altogether.
The offence of refusal to perform military service also encompasses cases of evasion of these duties under the pretext of religious beliefs. Article 443 of the Criminal Code should be applied, for example, to cases of refusal to take the military oath on religious grounds, provided that such refusal is accompanied by actual evasion of military service or failure to perform any part or individual military service duties (for example, duties relating to internal service, guard duty or the protection of the State Border, etc.). In the absence of this condition, refusal to take the military oath does not constitute the elements of the criminal offence under consideration.
In accordance with Article 22 of the Constitution, as well as the requirements of paragraph 8 of the Internal Service Regulations of the Armed Forces, a servicemember, as a citizen of the Republic of Kazakhstan, has the right to freedom of conscience, which must not restrict their duties towards the State. A servicemember participates in religious ceremonies as a private individual during their free time outside military service hours. Therefore, refusal to perform military service under the pretext of religious or other beliefs, being a gross violation of civic duty and the established procedure for performing military service, constitutes the elements of the military criminal offence provided for in Article 443 of the Criminal Code.
A subordinate's refusal to comply with a specific demand of a superior, for example, to report for a daily duty assignment, depart on a business trip, etc., cannot be regarded as refusal to perform military service. Such actions may constitute the offence of disobedience or other failure to execute an order (Article 437 of the Criminal Code), because in this situation the superior's demand is in the nature of an order, and the actions themselves consist not in refusing to perform military service but in openly failing to execute an order.
By its legal construction, the composition of the criminal offence is formal. The criminal offence is considered completed from the moment the perpetrator commits one of the acts specified in the disposition, when the commander (superior) or another state authority, having been misled, makes a decision to release the servicemember (temporarily or permanently) from the performance of military service duties.
The subjective side of the criminal offence is characterised by an intentional form of guilt in the form of direct intent. The perpetrator is aware that they are evading the performance of military service duties by feigning illness, inflicting an injury upon themselves or otherwise harming their health, falsifying documents or engaging in other deception, as well as refusing to perform military service; they foresee the possibility or inevitability of socially dangerous consequences and desire their occurrence.
An essential element of the composition of this criminal offence is the purpose of evading military service. If feigning illness, self-mutilation, causing harm to one's health, falsification of documents, other deception or refusal are committed without the purpose of evading military service, such actions do not constitute the elements of the criminal offence under consideration. Thus, negligent infliction of harm to their own health by a servicemember, even if it results in their release from military service, does not constitute evasion of the performance of military service duties, because in this situation there is no purpose of evading military service. Feigning illness or other deception used to obtain improved food rations or other material benefits in the form of a sanatorium voucher, other medicinal products or medical services also do not fall within the elements of the act under consideration.
The motives for evasion of or refusal to perform military service in peacetime may include unwillingness to endure the difficulties and hardships of military service, the desire to visit home, and so on; whereas in a combat situation, under a state of emergency or during wartime, such motives are generally cowardice, faint-heartedness, etc.
The subject is special, namely any servicemember performing military service either through conscription or under a contract. A citizen in the reserve who has been called up for military training may also be the subject of the criminal offence under consideration.
Part 2 of Article 443 of the Criminal Code provides for liability for evasion of or refusal to perform military service in a combat situation or under a state of emergency, while Part 3 provides for liability for such acts during wartime. For the definitions of these terms, see the commentary to Parts 3 and 4 of Article 437 of the Criminal Code.
The act provided for in Part 1 of Article 443 of the Criminal Code is classified as a criminal misdemeanour.
The acts provided for in Parts 2 and 3 of Article 443 of the Criminal Code are classified as particularly 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 National Academy of Natural Sciences of Kazakhstan, 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, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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