Commentary to article 372. Unauthorized abandonment of a unit or place of service of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time without valid reasons for service upon dismissal from a unit, upon appointment, transfer, from a business trip, vacation or medical institution for a period of more than five days, but not more than ten days, committed by a conscripted serviceman, —    

are punishable by arrest for up to six months or detention in a disciplinary military unit for up to one year.    

2. The same actions committed by a serviceman serving a sentence in a disciplinary military unit, —    

are punishable by imprisonment for a term of up to two years.    

 3. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time without valid reasons for service lasting more than ten days, but not more than one month, committed by a military serviceman undergoing military service on conscription or under contract, —    

are punishable by restriction on military service for a term of up to two years, or by detention in a disciplinary military unit for a term of up to two years.   

  4. The acts provided for in part three of this article if the unauthorized absence lasted for more than one month, as well as the same acts committed by a serviceman serving a sentence in a disciplinary military unit if the unauthorized absence lasted for more than ten days., —   

  are punishable by imprisonment for a term of up to three years.    

5. The acts provided for in the first or second parts of this Article, committed during wartime, if the unauthorized absence lasted for more than one day., —   

  are punishable by imprisonment for a term of five to ten years.   

  6. Unauthorized abandonment of a unit or place of service in a combat situation, regardless of the duration, —   

  is punishable by imprisonment for a term of three to fifteen years.

     Note. A serviceman who has committed the acts provided for in parts one or three of this article may be released from criminal liability by a court if the unauthorized abandonment of a unit was the result of a combination of difficult circumstances, and if he voluntarily appeared for further military service.

     The public danger of this act lies in the fact that a serviceman, by making an unauthorized absence, evades the duties of military service, thereby reducing the combat readiness of a unit or unit.

     The direct object of this crime is the order of service in the Armed Forces, other troops and military formations of the Republic of Kazakhstan, which obliges each serviceman to be in a place of service determined by the command.   

  The objective side of the crime is characterized by unauthorized abandonment of a unit or place of service, failure to appear on time without valid reasons for service for a period of time determined by law.   

  The beginning of the unauthorized abandonment of a unit is the moment when a serviceman leaves the location of a military unit or place of service, as well as his failure to arrive at the place of service within the prescribed period, and the end is the time when the serviceman himself appears at the military authorities or military unit or the time of his detention.   

  The temporary appearance in the location of a person evading military service duties for any personal or other reasons unrelated to the performance of duties on duty does not interrupt the period of unauthorized absence.   

  Conscripted military personnel are accommodated in barracks located on the territory of a military unit. The place of service may be other places determined by the chief.   

  Dismissal from a unit or place of service is carried out with the permission of the commander of the relevant unit. In the absence of such a permit, it is impossible to leave a unit or place of service — this is considered unauthorized abandonment and may entail criminal liability.   

  At the same time, in accordance with the note to Article 372 of the Criminal Code of the Republic of Kazakhstan, a serviceman who for the first time committed the acts provided for in Parts 1 and 3 of this article may be released from criminal liability by a court if the unauthorized abandonment of a unit was the result of a combination of difficult circumstances, and if he voluntarily appeared for further military service.      

Severe circumstances should be considered bullying, violence as a result of violation of the statutory rules of relations between military personnel or abuse of official authority, death or serious illness of a close relative if the commander refused to dismiss from the unit.    

 A prerequisite for criminal prosecution for unauthorized abandonment of a unit or place of service is the duration of absence — more than five days, but not more than 10 days. This period is calculated from the moment of leaving the unit or place of service until the moment of return or detention.   

  Failure to appear on time without valid reasons occurs when the serviceman was outside the unit on a legitimate basis (upon dismissal from the unit, appointment, transfer to another unit, on a business trip, vacation, in a medical institution). The corpus delicti will occur if, in the absence of valid reasons, a serviceman arrives at the duty station late. Valid reasons include illness, natural disaster, and others.      As well as unauthorized abandonment of a unit or place of service, failure to appear on time entails criminal liability if a serviceman is late for a period of more than five days, but not more than 10 days. The duration of the delay is calculated from the moment when the deadline for attendance has expired.    

 The crime is considered completed if the serviceman was illegally outside the unit or place of service or did not appear at the place of service within the above-mentioned period. The duration of the perpetrator's unlawful absence from the unit or duty station does not affect his qualifications, but may be taken into account when imposing punishment.

    The subjective side of the crime is characterized by an intentional form of guilt in the form of direct intent: the perpetrator realizes that he voluntarily leaves a unit or place of service or does not appear on time without valid reasons, and wants to commit these actions.     

An obligatory sign of the subjective side of the composition of this crime is the perpetrator's intention to temporarily leave a unit or place of service or stay outside their limits and have a desire to return to the unit or place of service for further service.     

The motives and goals may vary and should be taken into account when deciding on criminal liability. The goal is an obligatory element of the corpus delicti and is expressed in the intention to evade military service. In all cases, this crime excludes the goal of avoiding military service altogether. Because the commission of these actions for the purpose of evading military service should be considered as desertion (art. 373 of the Criminal Code of the Republic of Kazakhstan).   

  The subject of the crime is a special one, i.e. a conscripted soldier.   

  372 of the Criminal Code of the Republic of Kazakhstan, as a qualifying circumstance, provides for the commission of a crime by a special subject — a serviceman serving a sentence in a disciplinary military unit.    

 In accordance with Article 47 of the Criminal Code of the Republic of Kazakhstan, detention in a disciplinary military unit is used as punishment for military personnel serving in conscription and under contract as soldiers and sergeants if, at the time of sentencing, they have not served the statutory term of conscription. A serviceman who is serving a sentence in a disciplinary military unit is considered to be a serviceman who, according to a court verdict that has entered into legal force, has been brought to the location of a disciplinary military unit to serve his sentence.   

  372 of the Criminal Code of the Republic of Kazakhstan contains a qualifying circumstance, which is the duration of unauthorized abandonment of a unit or place of service, as well as failure to appear on time without valid reasons for service for more than 10 days, but not more than 1 month.     

The subject of this crime, in addition to conscripted military personnel, are military personnel serving under contract and officers. The peculiarity of this category of military personnel is that they can be located outside the territory of the unit.     

Part 4 of Article 372 of the Criminal Code of the Republic of Kazakhstan provides as qualifying features:    

 - committing the acts provided for in Part 3 of this Article if the unauthorized absence lasted for more than 1 month;    

 - the commission of the same acts by a serviceman serving a sentence in a disciplinary military unit if the unauthorized absence lasted for more than 10 days.

    372 of the Criminal Code of the Republic of Kazakhstan provides for liability for the commission of crimes specified in Parts 1 and 2 of this Article in wartime, if the unauthorized absence lasted more than one day.    

 372 of the Criminal Code of the Republic of Kazakhstan considers the commission of this crime in a combat situation as a qualifying circumstance, regardless of the duration of leaving the unit or place of service.  

   The concepts of wartime and combat situation are given in the analysis of art. 367 of the Criminal Code of the Republic of Kazakhstan.  

   The crimes provided for in Parts 1 and 2 of art. 372 of the Criminal Code of the Republic of Kazakhstan are minor crimes.      The crimes provided for in Parts 3 and 4 of Article 371 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity.    

 The crime provided for in Part 5 of Article 371 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.   

  The crime provided for in Part 6 of Article 371 of the Criminal Code of the Republic of Kazakhstan is considered a particularly serious crime.

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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