Commentary to article 376. Violation of the rules of border guard duty of the Criminal Code of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules of border guard service by a person who is part of a border patrol unit or performs other duties of the border guard service, if this act has entailed or could have entailed harm to the interests of the security of the state., —
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 detention in a disciplinary military unit for a term of up to two years, or by imprisonment for a term of up to three years.
2. The same act, which entailed grave consequences, —
is punishable by imprisonment for a term of up to five years.
Note. A serviceman who has committed an act provided for in the first part of this article for the first time may be released from criminal liability under mitigating circumstances.
The public danger of this act lies in the fact that it weakens the established regime of the State Border, reduces the state's defense capability and encroaches on the interests of the country's security.
One of the most important conditions for strengthening the country's external security and ensuring its sovereignty is the full protection of the state border of the Republic of Kazakhstan.
According to According to the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" dated January 13, 1993 (as last amended and supplemented), the protection of the State Border of the Republic of Kazakhstan is an integral part of the national security system of the Republic of Kazakhstan and consists in the implementation of political, military, legal, organizational, economic, environmental, technical, operational information, scientific and other measures for:
— prevention of illegal, violent modification of the established passage of the State Border of the Republic of Kazakhstan, illegal use (development) by neighboring states or their citizens of the border areas of the territory of the Republic of Kazakhstan;
— ensuring compliance by individuals and legal entities with legal relations established by international treaties and the legislation of the Republic of Kazakhstan on the State border of the Republic of Kazakhstan, combating crimes and offenses encroaching on these legal relations;
— protection of the interests of the individual, society and the state from external and internal encroachments on the State border of the Republic of Kazakhstan. The protection of the State Border of the Republic of Kazakhstan on land, sea, rivers and other bodies of water is assigned to the Border Guard Service of the National Security Committee of the Republic of Kazakhstan, and in the airspace — to the Air Defense Forces of the Armed Forces of the Republic of Kazakhstan.
The Law of the Republic of Kazakhstan "On the Border Guard Service of the National Security Committee of the Republic of Kazakhstan" dated January 13, 1993 (as last amended and supplemented) defines that "the Border guard service of the National Security Committee of the Republic of Kazakhstan is designed to protect and protect the State border of the Republic of Kazakhstan, prevent and suppress encroachments on the sovereignty and territorial integrity of the Republic of Kazakhstan."
While guarding the State Border, the Border Guard Service is obliged to: prevent any attempts to illegally alter the passage of the State Border of the Republic of Kazakhstan on the ground; repel armed incursions into the territory of the Republic of Kazakhstan by military groups and gangs, prevent armed and other provocations on the State Border of the Republic of Kazakhstan, protect the population, state and private property from these criminal encroachments.
The border guard service is the fulfillment of a combat mission and requires the personnel to strictly comply with the requirements of laws and other regulations on the protection of the state border of the Republic of Kazakhstan, high vigilance, initiative and unyielding determination.
The direct object of encroachment in violation of the rules of border service is the established procedure for carrying out this special service, the purpose of which is to ensure the inviolability of the state border of the Republic of Kazakhstan and the security of the state.
The objective side of the crime is expressed in a violation of the rules of border guard duty, if this act entailed or could have entailed harm to the interests of the security of the State.
Harm to the security interests of the state is understood as: allowing unhindered illegal crossing of the State Border; movement of goods; entering into illegal contact with the border guard service or other representative bodies of a neighboring country and their representatives; unauthorized termination of border service for a considerable time; failure to prevent actions damaging border facilities, technical means of border protection; invasion of gangs armed groups, terrorists and extremists.
The creation of the possibility of harming the interests of State security is understood as the creation of real conditions through a socially dangerous action or inaction of the occurrence of the above-mentioned harm. For example, due to the abandonment of the post, a section of the border remained open, and an attempt to cross the state border by an offender was stopped by citizens of the border areas.
Violation of the rules of border service may be characterized by a combination of crimes. For example, in case of unauthorized departure from a border patrol, there is also unauthorized abandonment of a duty station or desertion; in case of violation of the rules of use or use of weapons, there is also a violation of the rules of handling weapons. Complicity in illegal border crossing and smuggling is also possible.
A mandatory feature of the objective side of this crime is the causal relationship between the violation of the rules of border service and the harmful consequences that have occurred.
The disposition of this article is a blank one, therefore, in order to establish the signs of this act, it is necessary to refer to the Law of the Republic of Kazakhstan "On the Border Service of the National Security Committee of the Republic of Kazakhstan" dated January 13, 1993 (as last amended) and other normative acts regulating the border service of the Republic of Kazakhstan.
The crime is considered completed from the moment of the commission of actions under the circumstances specified in the disposition of this norm, and the onset of consequences in the form of harm to the interests of the security of the state or serious consequences (Part 2 of Article 376 of the Criminal Code of the Republic of Kazakhstan) or the creation of a threat to harm the interests of the security of the state.
On the subjective side, violations of the rules of border service can be committed with direct and indirect intent. The attitude towards possible or caused harm to the interests of safety and the grave consequences that have occurred is usually careless.
The subject of the crime is a special one, i.e. it can only be a person who is part of the border protection squad, which is allocated from among the military personnel of the border outpost and is announced on the combat team. Responsibility occurs when a person commits a violation directly while serving as a security detail for the assigned section of the border.
Grave consequences (Part 2 of Article 376 of the Criminal Code) can be recognized as: the penetration of foreign citizens for hostile activities on the territory of the country, the disabling of security equipment at the border outpost, the complication of the international situation, etc.
In accordance with the note of this provision, a serviceman who has committed an act provided for in Part 1 of this article for the first time may be released from criminal liability under mitigating circumstances. The crimes provided for in Parts 1 and 2 of art. 376 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity.
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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