Commentary on Article 449. Violation of the Rules Governing the Performance of Service for the Protection of Public Order and Ensuring Public Security of the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules governing the performance of service by a person who is a member of a military unit assigned to protect public order and ensure public security, if such act causes substantial harm to the rights and legitimate interests of citizens or organizations, —
shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or corrective labour in the same amount, or arrest for a term of up to twenty days.
2. The same act, if it results in grave consequences or is 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.
3. The acts provided for in Parts One or Two of this Article, committed under a state of emergency, —
shall be punishable by deprivation of liberty for a term of three to seven years.
The public danger of the criminal offence (Part One — a criminal misdemeanour; Parts Two and Three — crimes) lies in the actual infliction of substantial harm upon the established procedure for the performance of service for the protection of public order and ensuring public security by military personnel of the National Guard of the Republic of Kazakhstan.
Pursuant to Article 4 of the Law of the Republic of Kazakhstan dated 10 January 2015, “On the National Guard of the Republic of Kazakhstan”, one of the tasks of the National Guard of the Republic of Kazakhstan is to participate jointly with the internal affairs bodies in the protection of public order, suppression of mass riots, ensuring public security and the legal regimes of states of emergency and martial law, participation in counter-terrorism operations, as well as participation in measures to eliminate the consequences of emergency situations of natural, technological and social character.
The performance of service for the protection of public order and ensuring public security means patrolling streets and public places, maintaining order during demonstrations, rallies, entertainment events, sporting competitions and other mass events, maintaining order during the elimination of the consequences of accidents and natural disasters, and preventing or suppressing unlawful encroachments.
The object of the criminal offence under consideration is the established procedure for performing service for the protection of public order and ensuring public security.
The objective element is expressed in the violation of the rules governing the performance of service for the protection of public order and ensuring public security by a person who is a member of a military unit assigned to such service, resulting in substantial harm to the rights and legitimate interests of citizens or organizations, together with the existence of a causal link between the act and the consequences.
A violation of the rules governing the performance of service for the protection of public order and ensuring public security means a deviation by a military serviceman from the requirements of the relevant regulatory legal acts governing the procedure for performing this type of service.
The infliction of substantial harm to the rights and legitimate interests of citizens or organizations may be expressed in the unjustified detention of citizens, the commission of acts against them that humiliate their honour and dignity, the unlawful use of physical force or psychological violence, and the restriction of other rights and freedoms established by the legislation of the Republic of Kazakhstan.
For the purpose of qualifying the act, it is necessary to establish precisely which particular rule was violated by the perpetrator and in what manner the violation was manifested. A violation of the rules governing the performance of service for the protection of public order and ensuring public security by military personnel who are members of a military unit assigned to such service, which results in the infliction of minor harm to health, shall be classified under Part One of this Article, whereas the same acts resulting in the infliction of harm to health of moderate severity shall be classified under Part Two of Article 449 of the Criminal Code. In this regard, additional qualification of the act under the articles of criminal law providing for liability for criminal offences against the person is not required.
If, under the above circumstances, the perpetrator intentionally inflicts grievous harm to the health of other military personnel or causes their death, the act shall be classified under the cumulative application of Articles 449, 99 and 106 of the Criminal Code. By its legal construction, the corpus delicti of the criminal offence is material. The criminal offence shall be deemed completed from the moment substantial harm is caused to the rights and legitimate interests of citizens or organizations.
The subjective element is characterized by an intentional form of guilt, in the form of direct or indirect intent.
When committing an act with direct intent, a person is aware of the socially dangerous nature of violating the rules governing the performance of service for the protection of public order and ensuring public security, foresees the possibility or inevitability of socially dangerous consequences in the form of substantial harm to the rights and legitimate interests of citizens or organizations, and desires the occurrence of such consequences.
When committing an act with indirect intent, a person is aware of the socially dangerous nature of violating the rules governing the performance of service for the protection of public order and ensuring public security, foresees the possibility or inevitability of socially dangerous consequences in the form of substantial harm to the rights and legitimate interests of citizens or organizations, but does not desire such consequences, while consciously allowing them to occur or remaining indifferent to their occurrence.
Motives and purposes do not affect the legal qualification of the act but are taken into account by the court when imposing punishment.
The subject is special, namely, only a military serviceman who is a member of a military unit assigned to protect public order and ensure public security.
The qualifying elements under Part Two of this Article include the occurrence of grave consequences or the commission of the act by a group of persons or by a group of persons acting upon prior conspiracy. Definitions of these concepts are provided in the commentary to Part Two of Article 437 of the Criminal Code.
Part Three of Article 449 of the Criminal Code establishes criminal liability for committing an act provided for in Parts One or Two of this Article under a state of emergency.
The definition of the concept of a state of emergency is provided in the commentary to Part Three of Article 437 of the Criminal Code of the Republic of Kazakhstan.
The act provided for in Part One of Article 449 of the Criminal Code constitutes a criminal misdemeanour.
The act provided for in Part Two of Article 449 of the Criminal Code constitutes a crime of medium gravity.
The act provided for in Part Three of Article 449 of the Criminal Code constitutes a serious crime.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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, and Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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