Commentary on Article 459. Intentional Destruction or Damage of Military Property of the Criminal Code of the Republic of Kazakhstan

1. Intentional destruction or damage of weapons, ammunition, means of transportation, military equipment or other military property shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour 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 results in grave consequences or is committed through the use of violence or the threat of its use, or by a group of persons or a group of persons acting by prior conspiracy, shall be punishable by:

imprisonment for a term of up to five years.

3. The acts provided for in Parts One or Two of this Article, committed in a combat situation or under a state of emergency, shall be punishable by:

imprisonment for a term of five to twelve years.

4. The acts provided for in Parts One or Two of this Article, committed during wartime, shall be punishable by:

imprisonment for a term of ten to twenty years.

The public danger of this act lies in the fact that it destroys the material resources of the Armed Forces, other troops and military formations of the Republic of Kazakhstan, thereby reducing the state's defence capability, disrupting military operations and the implementation of adopted decisions.

The object of the infringement is the established procedure for the disposal and use of military property, which constitutes the material basis of the combat readiness and combat capability of the Armed Forces, other troops and military formations of the Republic of Kazakhstan.

When deciding on the prosecution of a person for the intentional destruction or damage of military property under Article 459 of the Criminal Code, it should be taken into account that the concepts of military property and military equipment are defined in the Law of the Republic of Kazakhstan dated January 7, 2005, “On Defence and the Armed Forces of the Republic of Kazakhstan”.

Military property means defence facilities, all types of weapons, military equipment, ammunition, special-purpose equipment and other property held under the right of operational management by state institutions of the Armed Forces, other troops and military formations (subparagraph 12) of Article 1 of the aforementioned Law).

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

Weapons are means intended for attack and defence, which include firearms: assault rifles and machine guns, pistols, other types of firearms, and cold weapons: daggers and bayonet-knives.

Ammunition means items of armament intended to destroy the enemy's personnel and equipment: cartridges, grenades, explosive charges, smoke canisters and others.

Means of transportation include all types of vehicles entrusted to a servicemember for official use: aircraft and helicopters, tanks and automobiles, motorcycles and armoured personnel carriers, and others.

Military equipment items are various technical devices in service with the troops that relate to the means of conducting or supporting military operations and do not fall under the concepts of weapons and ammunition. These may include special-purpose vehicles, radio stations, chemical decontamination equipment, computers and binoculars, night-vision devices, etc.

Technical equipment that is unrelated to the conduct or support of military operations does not constitute military equipment.

The objective element is expressed in the intentional destruction or damage of weapons, ammunition, means of transportation, military equipment or other military property.

Destruction means a form of impact on an item whereby it is eliminated and ceases to exist. The principal indicator of destruction is the impossibility of restoring the item for its intended use.

In the case of damage, the item is brought into a condition in which it can be restored. Damage may result in the complete or partial loss of the item's functional properties (for example, a weapon that fires inaccurately or does not fire at all), or in the loss of the item's shape (a damaged vehicle body).

Methods of destroying or damaging military property may include physical destruction, destruction by means of an explosion, arson, submersion, or the use of chemical agents, none of which affect the legal classification of the offence.

A causal relationship must be established between the offender's act and the consequences.

If the specified actions are committed in respect of dual-purpose facilities at the disposal of military units (transport, radio stations, telephone devices, computers, etc.) that do not constitute military property or military equipment, liability arises for the intentional or negligent damage to or destruction of another person's property under Articles 202 or 204 of the Criminal Code.

The subject matter of the offence is not every item supplied to the army and navy, but only those items that constitute weapons, ammunition or military equipment. As noted above, the destruction or damage of other military property constitutes an offence against property (Articles 202 and 204 of the Criminal Code).

By its legal structure, the corpus delicti is formal. The offence shall be considered completed from the moment the military property is destroyed or damaged.

The subjective element is characterised by guilt in the form of direct or indirect intent.

A person is aware of the public danger of their actions, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence, or, while not desiring them, consciously allows such consequences to occur or remains indifferent to them. Motives may vary: hooligan motives, dissatisfaction with military service, the actions of commanders (superiors) or fellow servicemembers, or revenge against a person responsible for safeguarding military property. The motive and purpose do not affect the legal classification of the offence but are taken into account by the court when imposing punishment.

The subject is special, namely any servicemember, as well as a person liable for military service who has been called up for military training.

Part 2 of Article 459 of the Criminal Code provides for the occurrence of grave consequences or the commission of this offence through the use of violence or the threat of its use, or by a group of persons or a group of persons acting by prior conspiracy, as qualifying elements.

The concepts of the occurrence of grave consequences and the commission of an act by a group of persons or by a group of persons acting by prior conspiracy are explained in the commentary to Parts 2 and 3 of Article 437 of the Criminal Code, respectively.

It should be noted that the gravity of the consequences depends on the amount of material damage caused, the military value and uniqueness of the destroyed or damaged property, the importance of the disruption of combat, training-combat and other activities resulting from the destruction or damage of the property, the occurrence of accidents involving people, and other circumstances.

The amount of material damage constituting a grave consequence is determined taking into account the specific circumstances. Major material damage means damage caused to the military department as a result of the destruction or damage of military property in an amount exceeding one thousand times the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time the criminal offence was committed.

Violence may be either physical or psychological. Infliction of minor or moderate harm to the victim's health is covered by Part 2 of Article 459 of the Criminal Code and does not require additional classification under Article 107 of the Criminal Code. In the event of the infliction of grievous bodily harm or the death of the victim, the act should be classified as an aggregate of criminal offences under Part 2 of Article 459 of the Criminal Code and Articles 99 and 106 of the Criminal Code.

A threat of the use of violence should be understood as a threat to cause harm of varying degrees or a threat to cause death, as well as a threat to commit other serious acts of violence against a person. In this case, additional classification under Article 115 of the Criminal Code is not required.

Part 3 of Article 459 of the Criminal Code provides for the destruction or damage of property in a combat situation or under a state of emergency, while Part 4 provides for such acts during wartime. The definitions of these circumstances are given in the commentary to Parts 3 and 4 of Article 437 of the Criminal Code, respectively.

The act provided for in Part 1 of Article 459 of the Criminal Code belongs to the category of minor offences.

The act provided for in Part 2 of Article 459 of the Criminal Code belongs to the category of offences of medium gravity.

The act provided for in Part 3 of Article 459 of the Criminal Code belongs to the category of serious offences.

The act provided for in Part 4 of Article 459 of the Criminal Code belongs to the category of especially serious offences.

Commentary of 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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