Commentary on Article 445 of the Criminal Code of the Republic of Kazakhstan. Violation of the Rules for the Protection of the State Border of the Republic of Kazakhstan
1. Violation of the rules for the protection of the State Border of the Republic of Kazakhstan, including at border crossing points, by a person who is a member of a border patrol or performs other duties related to the protection of the State Border, where such act has caused or could have caused substantial harm to the interests of state security, —
shall be punishable by a fine of up to two thousand monthly calculation indices or correctional 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, if it has resulted in grave consequences or has been committed by a group of persons acting in prior conspiracy, —
shall be punishable by imprisonment for a term of up to five years.
Note. A military 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.
The public danger of this offence lies in the fact that a violation of the established rules for the protection of the State Border causes substantial harm or creates a threat to the inviolability of the State Border and, consequently, to the security interests of the Republic of Kazakhstan.
Pursuant to the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan,” protection of the State Border consists in ensuring the national security of the Republic of Kazakhstan within the border area and is carried out by the Government of the Republic of Kazakhstan and authorized bodies through the adoption, within their respective competences, of political, legal, organizational, economic, border-related, military and other measures (Article 6 of the said Law).
Protection of the State Border, as an integral part of the defence of the State Border, consists in the implementation by authorized bodies of a set of measures aimed at preventing changes to the course of the State Border, as well as identifying and suppressing the prerequisites, signs and facts of violations of the State Border regime and the regime at border crossing points.
Protection of the State Border on land, in territorial waters (at sea) and inland waters (including the underwater environment) is carried out by the Border Service of the National Security Committee of the Republic of Kazakhstan.
Protection of the State Border in airspace is carried out by the Armed Forces of the Republic of Kazakhstan.
In protecting the State Border, the Border Service is obliged to: prevent any attempts to illegally alter the course of the State Border of the Republic of Kazakhstan on the ground; repel armed incursions into the territory of the Republic of Kazakhstan by military groups and gangs; suppress armed and other provocations at the State Border of the Republic of Kazakhstan; and protect the population, state property and private property from the aforementioned criminal encroachments.
Performing border service constitutes the fulfilment of a combat mission and requires personnel to strictly comply with the requirements of laws and other regulatory legal acts governing the protection of the State Border of the Republic of Kazakhstan, as well as to demonstrate a high level of vigilance, initiative and unwavering determination.
The object of the offence of violating the rules for the protection of the State Border is the established procedure for performing this special service, the purpose of which is to ensure the inviolability of the State Border and the security of the state.
The objective element consists in the violation of the rules for the protection of the State Border, including at border crossing points, by a person who is a member of a border patrol or performs other duties related to the protection of the State Border, provided that such act has caused or could have caused substantial harm to the interests of state security.
A border crossing point is a territory (water area) within the boundaries of a railway or bus station, a seaport or river port, an international airport or aerodrome, as well as another specially designated section of land located in the immediate vicinity of the State Border, equipped with the appropriate infrastructure and used for the passage of persons, vehicles, cargo and goods (Subparagraph 14) of Article 2 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan”).
Substantial harm to the interests of state security shall be deemed to 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; untimely detection or repulsion 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 contraband cargo; connivance in actions causing damage to border installations and technical means of border protection; and other consequences indicating the substantial nature of the harm caused.
The creation of a possibility of causing substantial harm to the interests of state security shall be understood as the creation of real conditions for the occurrence of the aforementioned harm through a socially dangerous act or omission. For example, as a result of abandoning a post, a section of the State Border remained unguarded, while an attempt by an offender to cross the State Border was prevented by residents of border areas.
Violation of the rules for the protection of the State Border may be characterized by a combination of criminal offences. For example, unauthorized departure from a border patrol may also constitute unauthorized abandonment of the place of service or desertion; violation of the rules governing the use or application of weapons may constitute a violation of the rules for handling weapons. Complicity in the illegal crossing of the border or in the commission of smuggling is also possible.
An essential element of the objective side of this offence is the causal relationship between the violation of the rules for the protection of the State Border and the substantial harmful consequences that have occurred.
The disposition is of a blanket nature; therefore, in order to establish the elements of this act, reference must be made to the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan” and other regulatory legal acts governing public relations in the field of protection of the State Border of the Republic of Kazakhstan. The border or unlawfully performed organizational and administrative functions.
Part 2 of Article 445 of the Criminal Code establishes criminal liability for the same act if it has resulted in grave consequences or has been committed by a group of persons acting in prior conspiracy. In accordance with Subparagraph 4) of Article 3 of the Criminal Code, grave consequences may include: failure to carry out tasks assigned by the higher 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; failure to accomplish a combat mission; disabling the combat equipment of a border outpost; and other consequences indicating the gravity of the harm caused.
A violation of the rules for the protection of the State Border shall be recognized as committed by a group of persons acting in prior conspiracy if it involved persons who had agreed in advance to commit the crime jointly.
In accordance with the Note to this provision, a military serviceman who has committed an act provided for in Part 1 of this Article for the first time may, in the presence of mitigating circumstances, be released from criminal liability. Release from criminal liability is a right, not an obligation, of the court.
These elements are analogous to those provided for in the Note to Article 444 of the Criminal Code.
The act provided for in Part 1 of Article 445 of the Criminal Code is classified as a minor criminal offence.
The act provided for in Part 2 of Article 445 of the Criminal Code is classified as a criminal offence of medium gravity.
The spelling errors and obvious typographical mistakes have been corrected. The content, sequence and length of the text have been preserved. In one place, the original text contains the fragment “The border or unlawfully performed organizational and administrative functions,” which apparently belongs to the preceding sentence or paragraph. I have retained it, correcting only the typo in the word “organizational and administrative,” since restoring the omitted context would require modifying the text.
Commentary (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 the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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