Commentary to article 370. Violation of the statutory rules of relations between military personnel in the absence of subordination relations between them of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Violation of the statutory rules of relations between military personnel in the absence of subordination relations between them, expressed in beatings, minor injury to health or other violence, or related to humiliation of honor and dignity or bullying of the victim., —
is punishable by restriction on military service for a term of up to two years, or by arrest for a term of up to six months, or by correctional labor for a term of up to two years, or by detention in a disciplinary military unit for a term of up to two years.
2. The same act committed by:
a) repeatedly;
b) in relation to two or more persons;
c) a group of persons, a group of persons by prior agreement, or an organized group;
d) with the use of weapons;
e) causing moderate harm to health, —
is punishable by imprisonment for a term of up to five years.
3. The acts provided for in the first or second parts of this Article, entailing grave consequences, —
are punishable by imprisonment for a term of up to ten years.
The public danger of this act lies in the fact that it reduces the cohesion of personnel, weakens the defense capability of the state, leads to the disruption of military activities and the implementation of decisions taken. The interests of performing tasks facing units and units require mutual respect among military personnel, solidarity and willingness to assist each other, both in fulfilling specific duties of military service and in relationships not related to the performance of specific duties in the service. The degree of public danger of this crime depends on the damage caused to the victim's personality.
The immediate object of the crime is the established order of relations between military personnel who are not related to subordination relations, as well as the identity of the injured military personnel, their life and health, honor and dignity. The objective side of the crime is expressed in violation of the statutory rules of relations between military personnel. Such a violation is manifested in beatings, minor injury to health, other violence, humiliation of honor and dignity, or bullying of the victim.
Signs of beatings and minor harm to health are considered in the analysis of crimes provided for in Articles 368 and 369 of the Criminal Code of the Republic of Kazakhstan.
Other violence refers to various types of violence that are not beatings: bondage, forced imprisonment, sexual violence, various kinds of mockery and bullying. The concept of "other violence" also covers the threat of physical violence in cases where the perpetrator uses threats to force the victim to perform certain duties of military service for himself, to perform personal services, thereby committing acts degrading his personal dignity.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities" dated December 18, 1992 (as amended and supplemented dated June 18, 2004) defines that honor is a public assessment of a person, a measure of his spiritual and social qualities; dignity is an internal self—assessment of a person's own qualities, abilities, worldview, and social importance; business reputation is a stable positive assessment of a person's business (industrial, professional) merits by public opinion.
Humiliation of honor and dignity, unlike the offense provided for in Article 130 of the Criminal Code of the Republic of Kazakhstan, does not necessarily have to be expressed in an indecent form. Therefore, any kind of statements and other actions that humiliate the honor and dignity of a serviceman are considered a violation of the statutory rules of relations. There is no need for public humiliation. It can be committed in the absence of the victim, but it is always designed to humiliate his dignity in his own eyes.
Bullying is an act that also humiliates the honor and dignity of the victim, but is expressed in mocking his personality by forcing him to commit any actions or perform any work that offends human dignity.
Violation of the statutory rules of relations between military personnel in the absence of subordination relations between them is understood to mean the violence specified in the disposition of Article 370 of the Criminal Code, committed by one serviceman against another both in connection with service or in the performance of at least one of their official duties, and under other circumstances, but accompanied by a manifestation of obvious disrespect for the military staff, a gross violation internal regulations in the department.
Violence can be expressed in beatings and physical pain, as well as in bullying, humiliation of honor and dignity, forced exchange or seizure of food, uniforms, and other items issued to a serviceman as clothing and other supplies.
The use of violence based on property, marital, family and other civil relations or obligations not related to encroachment on military law and order should be qualified under the article of the Criminal Code, which provides for liability for crimes against the person, other people's property and other crimes not related to military crimes.
The crime will be considered completed from the moment of violation of the statutory rules of relations between military personnel in the absence of subordination relations between them, which resulted in beatings, minor injury to health or other violence, or related to humiliation of honor and dignity or bullying of the victim.
The subjective side is characterized by direct intent. The perpetrator is aware that by inflicting beatings, causing minor harm to health, committing other violence, humiliating honor and dignity or mocking the victim, violates the statutory rules of relations between military personnel, and wants to commit these actions.
Cases of violence by one serviceman against another based on personal relationships unrelated to military service or violation of military order cannot be qualified under Article 370 of the Criminal Code. In such cases, criminal liability may be imposed under the relevant articles against the individual.
Motives and goals do not matter for qualification, but they can be taken into account when imposing punishment. If the humiliation of the honor and dignity of the victim or mockery of him is associated with the performance of military service duties, then responsibility comes under art. 371 of the Criminal Code of the Republic of Kazakhstan.
The subject of the crime is a special one, i.e. a serviceman undergoing military service on conscription or under contract. These are soldiers and sailors, sergeants and petty officers, as well as officers of the Armed Forces, other troops and military formations of the Republic of Kazakhstan who are not subordinate to the victim, i.e. they are not their superiors or subordinates in service and military rank. They may be equal to the victims in official position and military rank, senior or junior in military rank.
Part 2 of Article 370 of the Criminal Code of the Republic of Kazakhstan provides for liability for the same act committed: a) repeatedly; b) against two or more persons; c) by a group of persons, a group of persons by prior agreement or an organized group; d) with the use of weapons; e) causing moderate harm to health.
370 of the Criminal Code, it is necessary to qualify the commission of two or more violations of the statutory rules of relations between military personnel, if the person has not been released from criminal liability for a previously committed act, or the criminal record for it has not been withdrawn or extinguished and the statute of limitations for criminal liability has not expired. This is an act.
Acts committed against the same person at different times in the absence of signs of a continuing crime are also subject to qualification on the basis of repetition (Part 4 of Article 11 of the Criminal Code of the Republic of Kazakhstan).
According to paragraph "b" of Part 2 of Article 370 of the Criminal Code, acts committed against two or more persons, both simultaneously and at different times, are subject to qualification if these actions were ongoing, were covered by a single intent, but were not carried out simultaneously for various reasons. At the same time, the courts should examine the direction of the perpetrator's intent, the specific circumstances of the crime and its motives, the duration of the gap in time between the committed actions against different victims, etc.
For the concepts of a group of persons, a group of persons by prior agreement and an organized group (paragraph "b" of the commented article), see the commentary to art. 31 of the Criminal Code. However, it is necessary to focus on the individual features of complicity in this crime.
In cases where the chief or subordinate of the victim or a civilian is involved in the commission of a crime together with the guilty serviceman, the actions of the perpetrator are qualified under art. 370 of the Criminal Code of the Republic of Kazakhstan, and the actions of the chief or subordinate of the victim, as well as a civilian — under parts 4 and 5 of art. 28 and art. 370 of the Criminal Code of the Republic of Kazakhstan. In such cases, the crime cannot be considered to have been committed by a group of persons or a group of persons by prior agreement, since the boss and subordinate, as well as a civilian, can only act as instigators and accomplices, not perpetrators.
Under certain conditions, the actions of a superior who has failed to take measures to stop violence against his subordinate, and thus grossly violated his official duties, along with complicity in a crime under Article 370 of the Criminal Code of the Republic of Kazakhstan, may contain signs of other official offenses (for example, Article 380 of the Criminal Code of the Republic of Kazakhstan). And when a subordinate, acting as an accomplice to a crime under Article 370 of the Criminal Code of the Republic of Kazakhstan, committed against his superior, simultaneously uses violence against the superior out of revenge for his specific actions in the service, the deed should be additionally qualified under art. 369 OF THE Criminal Code OF the Republic of Kazakhstan.
In cases where a person subordinate to both the perpetrator and the victim joins the non-statutory actions of a superior in relation to a serviceman equal in official position, the actions of the superior should be qualified under Article 370 of the Criminal Code, and the actions of a subordinate under the relevant part of Article 369 of the Criminal Code as violent actions against the superior, regardless of it depends on which of them initiated the commission of the crime and began its commission.
If a superior commits unlawful acts against a subordinate and a serviceman of equal official status with the injured soldier joins him, the actions of the subordinate who joined are qualified as complicity in an official offense.
Paragraph "d" of Part 2 of Article 370 of the Criminal Code of the Republic of Kazakhstan provides for criminal liability for committing an act with the use of weapons. The use of weapons should be considered only cases when the perpetrator uses it, i.e. causes damage to the life and health of the victim. It cannot be considered the use of weapons when the perpetrator had a weapon at the time of the violation, but he did not threaten or use it, and the verbal threat was not accompanied by specific actions with a weapon.
For moderate harm, see comments to art. 104 of the Criminal Code.
Part 3 of Article 370 of the Criminal Code of the Republic of Kazakhstan provides for the occurrence of serious consequences as a qualifying circumstance. The grave consequences specified in Part 3 of Article 370 of the Criminal Code include intentional infliction of serious harm to the victim's health, including negligently causing the victim's death, driving a person to suicide or attempted suicide, disrupting a combat mission, the onset of a disaster or accident, disabling military equipment, causing major material damage, etc. etc .
Such consequences are covered by the disposition of data in the article of the Criminal Code and additional qualifications for other types of crimes are not required.
If the actions of the perpetrator in the commission of these crimes were associated with premeditated murder, then they are subject to additional qualification under art. 96 of the Criminal Code of the Republic of Kazakhstan.
According to the same rule, abuse of power or abuse of official authority by a superior or official, which has serious consequences for the life and health of the victim, should be qualified.
The crime provided for in Article 370 of the Criminal Code of the Republic of Kazakhstan and abuse of power, excess or inaction of power, the signs of which are indicated in Article 380 of the Criminal Code, committed by a superior or official, accompanied by the seizure of personal items and belongings from the victim, are classified according to the totality of crimes involving responsibility for military crimes and crimes against property.
In accordance with paragraph 12 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of military crimes", if violence or the threat of its use was accompanied by the seizure of items or uniforms issued to a serviceman for the period of service, then such actions, in the absence of intent to steal, are covered by the disposition of the article of the criminal law providing for responsibility for military crimes.
The crimes provided for in Parts 1 and 2 of art. 370 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity.
The crime provided for in Part 3 of Article 370 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
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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