Commentary on Article 444 of the Criminal Code of the Republic of Kazakhstan. Violation of the Rules for Performing Combat Duty

1. Violation of the rules for performing combat duty (combat service) aimed at the timely detection and repelling of a sudden attack on the Republic of Kazakhstan or ensuring its security, where such act has resulted in or could have resulted in substantial harm to the interests of the State, -

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to two years, or imprisonment for the same term.

2. The same act, resulting in grave consequences, -

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

3. Acts provided for in Parts One or Two of this Article, committed in a combat situation or during wartime, -

shall be punishable by imprisonment for a term of ten to twenty years or life imprisonment.

Note. A serviceman who has committed an act provided for in Part One of this Article for the first time may, in the presence of mitigating circumstances, be released from criminal liability by a court.

The public danger of this act lies in the fact that a violation of the rules for performing combat duty may cause irreparable harm to the security of the country and reduce the state's defense capability. Grave consequences may also arise if even a single operator, communications specialist, radio technician, or duty pilot fails to perform their direct duties in a timely manner.

Since the rules for performing combat duty in various branches of the Armed Forces differ from one another, the nature, tasks, procedures for performing such duty, and the functional responsibilities of the personnel of the duty unit are determined by various regulatory legal acts, instructions, and orders, taking into account the specific nature and particular characteristics of this service. Therefore, when charging a serviceman with violating the rules for performing combat duty, it is particularly important to establish which legal acts regulate the rules of service, the specific procedures for its performance, and precisely how the violations were committed.

The object of the crime is the procedure for performing combat duty, which is a special type of duty involving the presence of specially designated forces and assets at established levels of readiness to conduct or support combat operations or to carry out suddenly arising tasks. The procedure for performing combat duty is determined by the Internal Service Regulations of the Armed Forces and other regulatory acts of the command applicable to each particular branch of the Armed Forces.

The objective side consists of violating the rules for performing combat duty (combat service) aimed at the timely detection and repelling of a sudden attack on the Republic of Kazakhstan or ensuring its security, where such act has resulted in or could have resulted in substantial harm to the interests of the State.

Combat duty (combat service) constitutes the performance of a combat mission. It is carried out by duty forces and assets assigned from military units and subdivisions of the branches and arms of the Armed Forces. The duty forces and assets include combat crews, crews of ships and aircraft, duty shifts of command posts, and combat support and maintenance forces and assets.

In accordance with Paragraph 331 of the Internal Service Regulations of the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan dated July 5, 2007, combat duty is a special type of duty involving the presence of specially designated forces and assets at established levels of readiness to conduct (support) combat operations or perform suddenly arising tasks. It is carried out in peacetime and wartime and constitutes the performance of a combat mission. A combat mission is a task assigned by a superior commander (chief) to achieve a specific objective in battle (operation) by an established deadline (Subparagraph 19) of Article 1 of the Law of the Republic of Kazakhstan "On Defense and the Armed Forces of the Republic of Kazakhstan"). Combat duty is organized by the commander of the military unit. The commander is responsible for the performance of tasks by the duty forces and assets. It is prohibited to assign to combat duty (combat service) servicemen who have not taken the Military Oath, have not mastered the relevant training program to the required extent and passed the tests for authorization to perform combat duty, have committed disciplinary offenses in respect of which an investigation is underway, or are ill, as well as main units that have not undergone combat coordination involving live-fire exercises with their primary types of weapons.

Violations may take the form of leaving a combat post, sleeping while on duty, consuming alcoholic beverages during duty, and similar conduct. In each specific case, it is necessary to establish precisely which rules were violated and how.

Violation of the rules for performing combat duty (combat service) is expressed in the failure to perform, or improper performance of, duties by persons who have been assigned the responsibility of performing combat duty in accordance with the established procedure.

At the same time, servicemen performing combat duty (combat service) may be held criminally liable for violating both the general requirements established for performing combat duty and their specific functional duties. In particular, Paragraph 339 of the Internal Service Regulations of the Armed Forces stipulates that personnel of a duty shift (crew), while performing combat duty, are prohibited from:

transferring to anyone, even temporarily, the performance of duties related to combat duty without the permission of the operational duty officer, the duty officer at the command post, the chiefs (senior officers) of duty combat crews (shifts, posts, stations), or commanders of duty units;

being distracted or engaging in activities unrelated to the performance of combat duty responsibilities;

leaving a combat post or any other location where combat duty is being performed without authorization;

carrying out work on weapons and military equipment that reduces their established level of readiness.

Violation of any of these prohibitions, provided that other qualifying elements specified in Article 444 of the Criminal Code are present, may entail liability under this Article.

Violation of the rules for performing combat duty may manifest itself through either an act or an omission. For example, the commission of this crime through an act may be expressed in a serviceman independently leaving the location where combat duty is being performed, damaging combat equipment and weapons, consuming alcoholic beverages, switching off equipment, and so forth.

Unlawful omission in the commission of the act under consideration occurs in cases where, for example, a serviceman fails to prevent unauthorized persons from entering the location where combat duty is being performed, although such persons may damage equipment or otherwise adversely affect the course of combat duty; fails to monitor instrument readings; fails to execute commands given; fails to take measures to destroy detected targets; and so forth.

The above-mentioned violations may be accompanied by violations of the rules for performing other types of military service or the commission of other criminal offenses. In such cases, qualification of the acts as a cumulative set of criminal offenses may be possible. For example, where a serviceman arbitrarily leaves the location where combat duty is being performed, their actions may be qualified under Articles 441 and 444 of the Criminal Code.

Where, during the performance of combat duty, a serviceman removes components from equipment and thereby renders it unusable, their actions may be qualified as intentional destruction or damage to military property (Article 459 of the Criminal Code) and violation of the rules for performing combat duty.

An essential element of the composition of the crime under consideration is the causing of substantial harm or the creation of a threat of causing substantial harm to the interests of state security (Part One of Article 444 of the Criminal Code), or the occurrence of grave consequences (Part Two of Article 444 of the Criminal Code).

The concept of causing substantial harm is provided in the commentary to Article 437 of the Criminal Code. In particular, this includes the disruption of important military activities or a short-term reduction in the level of combat readiness and combat capability of military units and subdivisions; the untimely detection or repelling of an attack by armed groups or individual armed persons, land, air, or naval combat equipment; allowing the unhindered illegal crossing of the State Border of the Republic of Kazakhstan by persons and vehicles, the movement of smuggled goods, or failure to prevent actions causing damage to border installations and technical border protection equipment; and other consequences indicating the substantial nature of the harm caused.

A violation of the rules for performing combat duty that could have caused substantial harm to the interests of state security should be understood as an act or omission that created a real threat to the interests of the State. The possibility of such harm occurring is determined in each specific case where the violations committed created real prerequisites for substantial harm to state security, but the harm did not occur because it was prevented.

In order to qualify the actions of a serviceman under Article 444 of the Criminal Code, it is necessary to establish a causal relationship between the violation of the rules for performing combat duty committed by that serviceman and the harm that occurred or the creation of a threat of harm to the interests of state security.

In cases where the substantial harm or grave consequences caused as a result of a violation of the rules for performing combat duty are not related to the interests of state security, there are no grounds for qualifying the act under Article 444 of the Criminal Code. In such cases, the offender must be held liable for committing a criminal offense against the object to which the harm was caused.

By its legal construction, the composition of the crime is material-formal. The crime is considered completed either from the moment the rules for performing combat duty are violated, if this has resulted in substantial harm to the interests of the State (material element), that is, from the moment the socially dangerous consequences actually occur, or where the violation could have caused such harm, meaning that it created a real threat to the interests of state security (formal element).

Where, in addition to violating the rules for performing combat duty, a serviceman commits another military criminal offense (for example, unauthorized abandonment of a military unit or place of service, desertion, violation of statutory rules governing relations between servicemen, etc.), the acts committed are subject to qualification as a cumulative set of criminal offenses, since in such cases several legally protected objects are infringed upon.

The subjective side of the crime provided for in Part One of Article 444 of the Criminal Code is characterized by an intentional form of guilt in the form of direct intent, whereas Part Two of this Article is characterized by indirect intent.

In the case of intentional guilt, the offender is aware that they are violating the rules for performing combat duty (combat service), foresees the possibility or inevitability of socially dangerous consequences in the form of substantial harm to the interests of state security, and desires their occurrence.

In the case of indirect intent, a person is aware of the social danger of their actions (omissions), foresees the possibility of socially dangerous consequences occurring, but does not desire their occurrence, while consciously allowing such consequences to occur or remaining indifferent to them.

Where direct intent and a special purpose of causing substantial harm to the interests of the State are established, the question of criminal liability for high treason (Article 175 of the Criminal Code) may be raised.

The subject of the crime is a serviceman who is part of a duty shift, combat crew, crew of a ship or aircraft, command post, post, or another unit performing combat service.

In accordance with Paragraph 333 of the Internal Service Regulations of the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan, the composition of duty forces and assets, their tasks and levels of combat readiness, the duration and procedure for performing combat duty, the training of personnel, weapons and military equipment for assuming combat duty, and the procedure for their replacement are determined by an order of the commander of the military unit in accordance with the requirements of these Regulations, orders of the Minister of Defense, the relevant heads of other troops and military formations, the Chief of the General Staff of the Armed Forces, the commanders-in-chief of the branches of the Armed Forces, commanders of the arms of service, commanders of regional command troops, and chiefs of special troops.

It was mentioned above that it is prohibited to assign to combat duty (combat service) servicemen who have not taken the Military Oath, have not mastered the relevant training program to the required extent, have committed disciplinary offenses in respect of which an investigation is underway, or are ill. The above-mentioned servicemen cannot be subjects of this crime.

For a violation of the procedure for performing combat duty committed by such a serviceman, the relevant commander (chief) who decided to unlawfully assign that person to combat duty must bear responsibility.

Other persons upon whom military service duties have been unlawfully imposed cannot be recognized as subjects of the act under consideration either.

Part Two of the Article under consideration establishes criminal liability for the same act resulting in grave consequences. According to Subparagraph 4) of Article 3 of the Criminal Code, in relation to this Article, grave consequences include the creation of a threat to state security, a prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions, failure to accomplish a combat mission, putting combat equipment out of service, and other consequences indicating the severity of the harm caused. Definitions of the above-mentioned consequences are provided in the commentary to Article 437 of the Criminal Code.

The question of whether the substantial harm caused should be classified as grave consequences is decided by the court in each specific case, based on the circumstances of the case.

Part Three of Article 444 of the Criminal Code establishes liability for acts provided for in Parts One or Two of this Article when committed in a combat situation or during wartime, the definitions of which are provided in the commentary to Parts Three and Four of Article 437 of the Criminal Code, respectively.

The Note to Article 444 of the Criminal Code provides for the conditions under which a serviceman who has violated the rules for performing combat duty (combat service) may be released from criminal liability. These conditions are the commission, for the first time, of a crime provided for in Part One of the Article under consideration and the existence of mitigating circumstances.

The release from criminal liability of a serviceman who has violated the rules for performing combat duty, where mitigating circumstances exist, is a right of the court rather than an obligation.

The act provided for in Part One of Article 444 of the Criminal Code belongs to the category of minor-gravity crimes.

The act provided for in Part Two of Article 444 of the Criminal Code belongs to the category of serious crimes.

The act provided for in Part Three of Article 444 of the Criminal Code belongs to the category of especially serious crimes.

Commentary of 2021 to 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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