Commentary to article 373. Desertion of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Desertion, that is, unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for the same purpose., —   

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

2. Desertion with a weapon entrusted to the service, as well as desertion committed by a group of persons by prior agreement or an organized group, —    

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

  3. The same act committed during wartime or in a combat situation, —    

 is punishable by imprisonment for a term of seven to twenty years, or by death penalty or life imprisonment.

     Note. A serviceman who has committed desertion provided for in part one of this article may be released from criminal liability by a court if the desertion was the result of a combination of grave circumstances and if he voluntarily appeared for further military service.

     The public danger of this act lies in the fact that it reduces the state's defense capability, leads to the disruption of military measures and the implementation of decisions taken. This crime negatively affects other mentally unstable, undisciplined military personnel.   

  The length of the perpetrator's illegal stay outside the unit often creates the ground for the commission of other military and ordinary crimes or is accompanied by them. Therefore, the longer the perpetrator stays illegally outside the unit, the higher the degree of public danger of this act.  

   Desertion can cause serious damage to the combat readiness and combat capability of a military unit, as well as to the recruitment of the Armed Forces.   

  The immediate object of the crime is the established procedure for military service, resulting from the constitutional obligation of citizens of the Republic of Kazakhstan. Article 36 of the Constitution defines the protection of the Republic of Kazakhstan as the sacred duty and duty of each of its citizens.  

   On the objective side, desertion can be committed either by leaving the location of a unit or a place of service, or by not showing up for service. By committing desertion, a serviceman unlawfully terminates military service and tries to exclude himself from the sphere of military service relations altogether.   

  In accordance with paragraph 15 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of military crimes", "desertion is recognized as completed from the moment when the subject actually evaded military service: left the location of the military unit or place of service, or did not appear at the unit on time. The motives and duration of service evasion in case of desertion do not affect the qualification of the crime.    

 As a continuing crime, desertion is considered terminated from the moment the serviceman voluntarily appears at the place of service, turns himself in, and is detained.   

  Voluntary return to a place of service or self-surrender, except in the cases specified in the note to Article 373 of the Criminal Code, does not exclude the final composition of desertion and criminal liability, but may be taken into account when imposing punishment."   

  The escape from the guardhouse of a soldier arrested in a disciplinary manner, committed with the aim of evading military service, is subject to qualification as desertion.   

  Escape from the guardhouse, committed by a serviceman sentenced to be sent to a disciplinary military unit and held in the guardhouse until the verdict comes into force, if the escape was committed with the aim of evading military service, should be qualified as desertion, since a person sentenced to be sent to a disciplinary military unit does not cease to be a serviceman, i.e. a subject of military- official relations.     

Escape from the place of the guardhouse or from the pre-trial detention center, committed by a military man, in respect of whom a measure in the form of detention has been chosen, in order to evade criminal responsibility, should be qualified not as desertion, but as escape from places of deprivation of liberty, from custody provided for in art. 358 of the Criminal Code.      

On the subjective side, desertion can only be committed with direct intent. The perpetrator is aware that he is unlawfully leaving a military unit or place of service, or is not at the unit or place of service on time, and wishes in this way to terminate military service or evade it.   

  Desertion must be distinguished from the unauthorized abandonment of a unit or place of service, bearing in mind that in desertion, the purpose of the perpetrator is to evade military service in general, while the unauthorized abandonment of a unit is committed in order to evade military service for a while.   

  Prolonged actual unauthorized presence of the perpetrator outside the unit or place of service, the purchase of fictitious documents or civilian clothes in order to conceal his position (while the purchase of civilian clothes should not be a way to evade military service), living illegally under a false name, changing his place of residence, etc. — is reason to believe that the person is completely evading from military service.    

 The subject of the crime is a military serviceman undergoing military service on conscription or under contract, and an officer.    

 Criminal liability under Part 2 of Article 373 of the Criminal Code of the Republic of Kazakhstan occurs if desertion is committed with a weapon entrusted to the service, as well as desertion committed by a group of persons by prior agreement or an organized group.      The weapons entrusted to the service, in relation to the second part of Article 373 of the Criminal Code, should be understood as service, small arms and other weapons adopted in the Armed Forces and other military formations of the Republic of Kazakhstan, which the serviceman lawfully possesses by virtue of the duties assigned to him by military service.  

   Desertion committed by a serviceman with a bladed weapon attached to him (a bayonet knife from firearms, other special army and navy knives) is also subject to qualification under Part 2 of Article 373 of the Criminal Code.    

 When committing desertion with a weapon not entrusted to the perpetrator in the service, the above-mentioned qualifying feature of the act is missing. In such cases, the actions of a person, regardless of the circumstances of their possession of a weapon, should be qualified under the relevant part of Article 373 of the Criminal Code and articles of the criminal law providing for liability for theft or other illegal acquisition, storage and carrying of firearms or carrying cold weapons (Articles 251 and 253 of the Criminal Code).    

 The commission of a crime by a group of persons by prior agreement means the participation in it of persons who have agreed in advance to commit a crime together.    

 A crime is considered to be committed by an organized group if it is committed by a stable group of persons who have previously joined together to commit one or more crimes.   

  373 of the Criminal Code of the Republic of Kazakhstan provides for the commission of desertion in wartime or in a combat situation, the definition of which is considered in the analysis of previous criminal law norms.   

  373 of the Criminal Code of the Republic of Kazakhstan states that a serviceman who has committed desertion under Part 1 of this article may be released from criminal liability by a court if the desertion was the result of a combination of grave circumstances and if he voluntarily appeared for further military service. It does not apply if a serviceman commits desertion, provided for in parts 2 and 3 of art. 373 of the Criminal Code of the Republic of Kazakhstan.  

   Under severe circumstances, life situations may be recognized that are not an absolute obstacle to military service, but significantly complicate a serviceman's stay in service: a serious illness of the serviceman himself, the illness or death of his close relatives, a natural disaster, as well as irregular actions on the part of colleagues, unlawful actions of commanders and superiors, other actions (inaction) that created a real threat to the life and health of a serviceman, encroached on his honor and dignity, or other rights.   

  34 and 36 of the Criminal Code as an extreme necessity, physical or mental coercion, precludes bringing a person to criminal responsibility for unauthorized abandonment of a unit or desertion.  

   The crimes provided for in Parts 1 and 2 of art. 373 of the Criminal Code of the Republic of Kazakhstan are serious crimes.   

  The crime provided for in Part 3 of Article 373 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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