Commentary to article 37. Execution of an order or order of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. It is not a crime to harm the interests protected by this Code by a person who acted in pursuance of an order or instruction binding on him. The criminal responsibility for causing such harm is borne by the person who gave the illegal order or order.      

2. A person who has committed an intentional crime in fulfillment of a knowingly illegal order or instruction is criminally liable on general grounds. Failure to execute a knowingly illegal order or instruction precludes criminal liability.      

37 of the Criminal Code of the Republic of Kazakhstan defines that it is not a crime to harm interests protected by criminal law by a person acting in pursuance of an order or instruction binding on him.      

This circumstance has also received its legislative regulation for the first time.      

It should be pointed out that, by its legal nature, the execution of an order is an unassailable act. Since the execution of an order is sometimes associated with harming law enforcement interests, it has become necessary to distinguish the criminal execution of an order from the non-criminal one. The introduction of this institution increases the authority of managers and their orders, as well as strengthens the safety of performers. Now they do not need to be afraid of being held accountable for the occurrence of harmful consequences resulting from the proper execution of the order.      

In a general sense, an order and an order are synonymous. An order is an official order of an authority (chief, supervisor). A proper official, whose position is vested with authority, has the right to issue an order. An order or an order is a manifestation of the will of the boss. Due to the binding nature of an order or instruction, the subordinate's conviction of their legality, and his trust in them, they are considered as the basis for the execution of certain actions by the executor. An order is binding if it is given within the competence of an official. This follows from the official relationship between the boss and the subordinate, from the requirements of discipline, which is the key to the normal functioning of organizations and institutions. The legal force of an order or instruction is greater than the executive action itself. Therefore, responsibility for the consequences of illegal orders or orders lies with the person who gave them.       It should be noted that issues related to assessing the legality of harming interests protected by criminal law when subordinates execute orders or orders from their superiors quite often arise in practice. First of all, this applies to military personnel, employees of the Department of Internal Affairs, financial police, customs service and some other categories of civil servants.      

To determine the legality of an act committed in the execution of an order or instruction, mandatory requirements are imposed on the order or instruction. They consist in the fact that an order or an order must be:      

1) given in accordance with the established procedure (from a superior to a subordinate);      

2) are properly executed (in writing or orally);      

3) legal both in form (contain all necessary details) and in substance (must not contradict the current legislation).      

If these conditions are met, the person who executed the order or order, the illegality of which was later established, may be released from criminal liability. For causing harm as a result of the execution of an order, the persons who issued it are held criminally liable.      

The commission of an act by a person in pursuance of a knowingly illegal order or instruction does not exempt from criminal liability either the executor of the order or the person who gave such an order or instruction. In this case, the person must be aware of the clearly illegal nature of the order or instruction, but nevertheless executes it, naturally it is subject to criminal liability. For example, the head of an organization instructs the accountant to enter distorted information in financial documents. If the accountant executes such an order, both the manager and the accountant will be held criminally liable. If the accountant does not comply with the requirement of the head, then only the head can be held accountable, if there are appropriate grounds.      

If a subordinate has no choice but to carry out or not carry out the criminal order he has received, then he must act in such a way that his actions cause harm less than the harm that would have occurred if he had acted otherwise.      

Compliance with the conditions of extreme necessity in case of non-fulfillment of a criminal order - releases a subordinate from responsibility for non-fulfillment of such an order.      

If the conditions of extreme necessity are met when executing a criminal order, then the subordinate is released from responsibility for complicity in a crime committed in pursuance of an order received by the superior.      

All doubts regarding the nature of the order, its legality or illegality, criminality or inviolability should be interpreted in favor of the subordinate, because, firstly, the responsibility for the legality of the orders given lies with the superior, not the subordinate; secondly, the subordinate, as a rule, does not have all the information on the basis of which it was possible to I would like to accurately resolve the issue of the legality of the order received. The law does not provide him with the opportunity and time to collect such information before executing an order.      

The illegality of the order may be expressed as:      

1) the illegality of the person who gave the order;      

2) failure to comply with the prescribed form of the order;      

3) the evidence of the criminal nature of the order.      

The criminality of the illegality of the order is determined by:      

1) the content, i.e. the inconsistency of the order with the goals and objectives of the activity of this department;      

2) infringement of human rights and freedoms, since their observance and protection determines the meaning of the activities of any authorities.      

The conditions for the legality of the actions of the person executing the order or instruction include:      

1) compliance of the order or instruction with the requirements of the law or subordinate regulations;      

2) the person executing the order or instruction has no awareness of their illegality.      

The legality of an order or order is determined in each specific case by analyzing certain laws and regulations that define the competence of the person who gave the relevant order or order.      

It should also be pointed out that, in accordance with Part 2 of Article 37 of the Criminal Code of the Republic of Kazakhstan, "failure to execute a knowingly illegal order or instruction precludes criminal liability." In this case, the legislator establishes certain security guarantees for persons who did not comply with the illegal order.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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