Commentary on Article 455. Surrendering or Abandoning Means of Warfare to the Enemy of the Criminal Code of the Republic of Kazakhstan

1. The surrender by a commander to the enemy of the military forces entrusted to him, as well as the abandonment to the enemy of fortifications, military equipment and other means of warfare where such abandonment is not necessitated by the combat situation, provided that these actions are not committed for the purpose of assisting the enemy, —

shall be punishable by imprisonment for a term of ten to twenty years or life imprisonment, with or without deprivation of citizenship of the Republic of Kazakhstan.

The public danger of this act lies in the fact that it weakens the combat capability of units and military formations engaged in combat operations, strengthens the enemy's position, negatively affects military discipline and the morale of personnel, and reduces the state's defense capability.

The object of the crime under consideration is the established procedure for conducting combat operations and commanding military forces and assets in a combat situation, ensuring the preservation and combat use of military forces and means of conducting combat operations.

Military forces are understood to mean personnel who may be armed with means of combat or who, in a particular situation, may be unarmed. Military forces are considered entrusted when they are under the direct command of the respective commander.

A fortification is an area of terrain equipped for defense and combat operations and occupied by military forces entrusted to the respective commander.

In accordance with the Law of the Republic of Kazakhstan "On Defense and the Armed Forces of the Republic of Kazakhstan":

defense is a system of state measures of a political, military, economic, environmental, informational, socio-legal and other nature aimed at ensuring military security and the armed protection of the sovereignty, territorial integrity and inviolability of the State Border of the Republic of Kazakhstan (subparagraph 30) of Article 1);

combat operations are organized actions of military units, formations and subdivisions in carrying out combat missions under the command of the relevant military command authorities (subparagraph 48) of Article 1);

a combat mission is a task assigned by a superior commander (chief) to achieve a specific objective in battle (operation) within an established timeframe (subparagraph 19) of Article 1);

military equipment means combat vehicles, military ships (boats and other vessels), military aircraft and other flying vehicles with which the Armed Forces of the Republic of Kazakhstan, other troops and military formations are equipped (subparagraph 13) of Article 1).

Other means of warfare include missiles, ammunition, radio communication equipment, means of transportation, engineering and sapper equipment necessary for conducting combat operations or providing support for them.

The objective element of the crime is expressed in the surrender by a commander to the enemy of the military forces entrusted to him, as well as the abandonment to the enemy of fortifications, military equipment and other means of warfare where such abandonment is not necessitated by the combat situation, provided that these actions are not committed for the purpose of assisting the enemy.

The surrender of entrusted military forces means the transfer or abandonment of personnel to the enemy. The surrender of entrusted military forces may also take the form of a commander ceasing armed resistance or failing to take appropriate measures to protect subordinate military personnel from an attack, as a result of which the enemy captures the military forces.

If, together with the entrusted military forces, the means of warfare with which the personnel are equipped are also surrendered to the enemy, this act is likewise covered by the scope of the criminal law provision under consideration.

The abandonment of fortifications to the enemy is understood as actions whereby a commander ceases to hold the location of his unit, which has been equipped for combat operations, and withdraws personnel from that location. If personnel are also left behind when the fortifications are abandoned, such an act must be classified as the surrender of entrusted military forces to the enemy.

The abandonment of military equipment and other means of warfare to the enemy is manifested in leaving weapons and other equipment to the enemy during a retreat or maneuver. In the event of a forced withdrawal, commanders and chiefs must take care to prevent such equipment from falling into the hands of the enemy and must take all necessary measures to achieve this, including the destruction of the equipment being abandoned.

The objective element of this act presupposes that the abandonment of fortifications, military equipment and other means of warfare is not necessitated by the combat situation.

The concept of a combat situation is explained in the commentary to Part 3 of Article 437 of the Criminal Code.

If these actions are necessitated by the combat situation, that is, if they are committed for the purpose of carrying out another combat mission or preventing more serious consequences, they do not constitute the elements of the crime provided for in Article 455 of the Criminal Code.

At the same time, it should be borne in mind that the requirements of the combat situation that justify abandoning fortifications to the enemy do not always justify abandoning military equipment and other means of warfare. If a commander abandons an area equipped for defense and combat operations for the purpose of maneuvering and subsequently delivering a decisive strike against the enemy, such actions are objectively necessitated by the combat situation and do not constitute a crime. However, if, in such a situation, military equipment and other means of warfare are also abandoned under circumstances not necessitated by the combat situation, where it is possible to prevent the enemy from capturing the aforementioned equipment and means, the commander's actions constitute the elements of a socially dangerous act qualifying under Article 455 of the Criminal Code.

By its legal structure, the corpus delicti is formal. The act is considered completed from the moment the enemy actually takes possession of the military forces surrendered to it or the fortifications, military equipment and other means of warfare abandoned to it.

Subjectively, the crime is committed with direct or indirect intent.

The person is aware that he is abandoning or transferring to the enemy the military forces, fortifications, military equipment and other means of warfare entrusted to him, and either desires that the aforementioned forces and assets fall into the enemy's possession (direct intent) or consciously permits such an outcome (indirect intent).

If it is established that the surrender by a commander of the military forces entrusted to him, or the abandonment of fortifications, military equipment and other means of warfare, was committed for the purpose of assisting the enemy, the perpetrator's actions constitute the elements of the crime provided for in Article 175 of the Criminal Code, "High Treason".

Motives and purpose do not affect the legal classification of the crime but are taken into account by the court when imposing punishment.

The subject is special. Liability under Article 455 of the Criminal Code may be imposed only on commanders who exercise operational control, in a combat situation, over the military forces, fortifications, military equipment and other means of warfare entrusted to them. These include commanders of all ranks.

In addition, the subjects of the crime may include the chief of artillery and the air defense chief of a military unit who, in accordance with the Internal Service Regulations, are responsible, in peacetime and wartime, respectively, for the combat employment of all artillery units of the military unit and all air defense assets.

Under this Article, the chiefs of various services (engineering, chemical and other services) may also be held liable for surrendering to the enemy the personnel subordinate to them or abandoning military equipment and other means of warfare.

Commanders who control military property that does not constitute means of warfare, such as clothing and equipment, food supplies, medicines, etc., cannot be held liable under this Article. For abandoning such property, which does not constitute means of warfare, they may incur liability under other Articles of the Criminal Code, for example, for negligent performance of official duties, abuse of authority through inaction, etc.

The act provided for in Article 455 of the Criminal Code belongs to the category of particularly serious crimes.

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

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