Commentary on Article 448. Violation of the Rules for Performing Guard Duty by Controllers of the Criminal Code of the Republic of Kazakhstan

1. Violation of the rules for performing guard duty by a military serviceman performing control functions, if this act has caused substantial harm to the rights or legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, —

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.

2. The same act, if it has entailed grave consequences or has been committed by a group of persons or by a group of persons acting upon prior conspiracy, —

shall be punishable by deprivation of liberty 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 be released from criminal liability if mitigating circumstances are present.

The public danger of the criminal offense (Part 1 — a criminal misdemeanor, Part 2 — a crime) lies in causing substantial harm to the established procedure for performing guard duty involving the supervision of convicted persons in correctional institutions, as well as to the procedure and conditions for keeping convicted military servicemen in guardhouses, regulated by Chapter 15 of the Penal Enforcement Code of the Republic of Kazakhstan.

Military servicemen of the National Guard of the Republic of Kazakhstan, when performing tasks involving the protection of correctional institutions, are guided by the Law of the Republic of Kazakhstan dated January 10, 2015, “On the National Guard of the Republic of Kazakhstan.”

Military police officers performing controller functions in relation to convicted military servicemen in guardhouses are guided by the requirements of the Law of the Republic of Kazakhstan dated February 21, 2005, “On Military Police Bodies,” as well as departmental regulations governing the rules for performing this type of duty.

Supervision in a correctional institution, as one of the means of ensuring the regime in correctional institutions, includes a system of measures aimed at ensuring the process of execution of criminal punishment in the form of deprivation of liberty through constant monitoring of the conduct of convicted persons in the places where they are housed and work, preventing and suppressing their unlawful actions, ensuring isolation, as well as the safety of convicted persons, employees of the administration of correctional institutions, and military servicemen of the National Guard of the Republic of Kazakhstan. These measures are specified in the above-mentioned Rules.

The object of the criminal offense is the established procedure for performing guard duty involving the supervision of convicted persons in correctional institutions and guardhouses. This procedure is characterized by the special legal status of persons performing controller duty, the assignment of specific functions to them, in connection with which they are vested with certain rights and obligations, and the clear regulation of the performance of controller duty in accordance with orders and industry-specific instructions.

The internal regulations and the procedure for keeping convicted persons in guardhouses are determined by the authorized bodies in the areas of penal enforcement activities, national security, and defense of the Republic of Kazakhstan.

The objective element is expressed in the violation of the rules for performing guard duty by a military serviceman performing control functions, provided that this act has caused substantial harm to the rights or legitimate interests of citizens or organizations, or to the legally protected interests of society or the state.

Violation of the rules for performing guard duty means a deviation by a military serviceman performing control (controller) functions from the requirements of the relevant regulatory acts governing the procedure for performing this type of duty. Such a violation may be expressed in breaching the established access control procedures when entering (leaving) the territory of a correctional institution or guardhouse, as well as between residential and industrial zones, isolated areas, workshops and other facilities; failure to properly perform control functions over convicted persons' compliance with the established rules of movement and wearing the prescribed uniform; committing actions against convicted persons that humiliate their honor and dignity; unlawful use of physical force and special means; bringing prohibited items into the facility, etc.

The concept of causing substantial harm to the rights or legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, is contained in subparagraph 14) of Article 3 of the Criminal Code. With regard to the Article under consideration, this means violations of the rights of convicted persons, rights and legitimate interests related to the normal functioning of correctional institutions and guardhouses, etc.

For the purpose of qualifying this criminal offense, it is necessary to establish precisely which particular rule for performing guard duty was violated by the perpetrator and how this violation was manifested.

By its legal structure, the elements of the criminal offense are material. The criminal offense is considered completed from the moment substantial harm is caused to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state.

The subjective element is characterized by an intentional form of guilt in the form of direct or indirect intent. The perpetrator is aware of the public danger of their actions (inaction), that is, understands that they are violating the rules for performing guard duty, foresees the possibility or inevitability of socially dangerous consequences in the form of causing substantial harm to the legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, and desires their occurrence. In the case of indirect intent, the perpetrator does not desire these consequences but consciously allows them to occur or is indifferent to their occurrence.

Motives and purposes do not affect the legal qualification of the offense but are taken into account by the court when imposing punishment.

The subject is special, namely, a military serviceman who is a member of a military controller unit in a correctional institution or guardhouse.

In paragraph 20-1 of the Regulatory Resolution “On Judicial Practice in Cases of Military Criminal Offenses,” the Supreme Court emphasized:

“Courts are hereby instructed that, when considering cases involving criminal offenses provided for by Article 448 of the Criminal Code, they should take into account that the subject of the violation of the rules for performing guard duty is a military serviceman who is part of a military unit performing guard duty and exercising control functions. Such control functions shall mean the duties assigned to the serviceman by job descriptions or orders to continuously monitor the assigned area (facility) within an institution of the penal enforcement system for the purpose of ensuring that convicted persons comply with the requirements of the Internal Regulations of the Institution.”

Part 2 of Article 448 of the Criminal Code provides for criminal liability for violation of the rules for performing guard duty if it has entailed grave consequences or has been committed by a group of persons or by a group of persons acting upon prior conspiracy.

Grave consequences should be understood to include the occurrence of riots among convicted persons and clashes between them and law enforcement forces, etc.

The definition of the concept of commission of a military criminal offense by a group of persons or by a group of persons acting upon prior conspiracy is provided in the commentary to Part 2 of Article 437 of the Criminal Code.

The Note to Article 448 of the Criminal Code provides for the conditions under which military servicemen may be released from criminal liability: commission for the first time of an act provided for in Part 1 of this Article, in the presence of mitigating circumstances analogous to the conditions set out in the Note to Article 444 of the Criminal Code.

The release from criminal liability of a military serviceman who has violated the rules for performing guard duty, where mitigating circumstances are present, is not an obligation but a right of the court.

The act provided for in Part 1 of Article 448 of the Criminal Code is classified as a criminal misdemeanor.

The act provided for in Part 2 of Article 448 of the Criminal Code is classified as a crime of medium gravity.

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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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