Commentary on Article 454. Abandonment of a Sinking Warship of the Criminal Code of the Republic of Kazakhstan

1. Abandonment of a sinking warship by its commander, who has not fully performed his official duties, as well as by a member of the ship's crew without the proper order of the commander —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to two years, or imprisonment for the same term.

2. The same act committed in wartime or in a combat situation —

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

The Instructions on the Organization of Shipboard Service on Ships of the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan, approved by a joint Order of the Minister of Defense and the Chairman of the National Security Committee of the Republic of Kazakhstan dated May 10, 2007, establish the procedure for actions by the commander and crew of a warship in the event of a situation in which the ship is threatened with sinking.

This procedure is established for the purpose of ensuring that the ship's crew uses all available means to accomplish the assigned mission, ensure the ship's survivability and rescue it, prevent the ship from falling into enemy hands, and save personnel, passengers, documentation and military property.

The public danger of this act lies in the fact that it reduces the country's defense capability and security at sea, threatens the lives and health of persons aboard the military vessel, creates a risk of environmental pollution of the waters, and disrupts naval operations and the implementation of decisions made.

Abandonment of a sinking ship may cause panic and fear among personnel, weaken or paralyze efforts to save the ship, lead to casualties, loss of combat capability, the sinking of the warship or its capture by the enemy.

The public danger is also characterized by the fact that the commander abandons a sinking warship without having fully performed his official duties, as does a member of the ship's crew who abandons it without the proper authorization or order of the commander.

The protected legal interest of the crime under consideration is the established procedure for performing military service aboard a warship in circumstances threatening its sinking. This procedure ensures the adoption of measures to maintain the ship's survivability, efforts to save it and its organized abandonment when there is a threat of sinking, as well as the protection of the lives and health of persons aboard the warship.

The subject matter of the crime is a sinking warship.

A warship means any watercraft that forms part of the Naval Forces of the Republic of Kazakhstan and is under responsible military command.

The causes of a threat to the ship's sinking may include damage to the ship, for example, resulting from a collision with another vessel, an underwater or other object, or as a result of shelling, a fire aboard the ship, a natural disaster, etc. The circumstances must be characterized by a threat, that is, a danger of sinking. This means that there is still an opportunity to take certain actions to prevent particular consequences. If no such opportunity existed, criminal liability under this Article is excluded.

The commander of a warship, like any other serviceman belonging to the ship's crew, must spare neither his strength nor even his life in the performance of military duty and must fulfill his military duty to the Motherland to the very end. He may not abandon a sinking ship without having fully performed all his official duties and, first and foremost, without having taken measures to save the personnel, passengers and valuable military property.

In accordance with paragraph 150 of the Instructions, in circumstances threatening the ship with sinking, the ship's commander must take timely measures to ensure the organized evacuation of personnel from the ship. First, the sick are evacuated from the ship; if passengers are present, women and children are evacuated next, followed by servicemen who are not engaged in combating the emergency.

Having become convinced that the ship cannot be saved, the commander makes a decision to abandon the ship together with the remaining personnel.

The commander abandons the ship last.

The objective element is characterized by the unlawful abandonment of a sinking warship by its commander, who has not fully performed his official duties, as well as by a member of the ship's crew without the proper order of the commander.

Abandonment of a sinking warship means any form of departure from a ship that is threatened with sinking. This may include transferring to another vessel, using the ship's rescue and evacuation equipment (lifeboats, helicopters, etc.), escaping by swimming, and so forth. The method of leaving the ship does not affect the legal classification of the act.

An essential element of the corpus delicti is the existence of circumstances threatening the ship with sinking, arising as a result of combat operations or an emergency situation.

A ship's commander is deemed not to have fully performed his duties if he abandons a sinking ship without taking all possible measures to save the ship and, where possible, its equipment, weapons and ammunition, documentation and other valuable property, and without evacuating the ship's passengers and personnel.

It should be noted that the existence of an opportunity to perform the aforementioned duties is also a mandatory condition for liability. This refers to the commander's physical capabilities, the availability of time, resources, etc. To establish whether such an opportunity existed, an appropriate expert examination is generally conducted. If the commander had no real opportunity to perform all the prescribed actions, liability for abandoning a sinking warship is excluded.

With regard to members of the crew who abandon the ship without the proper order of the commander, it is likewise necessary to establish whether they had an opportunity to obtain such an order.

By its legal structure, the corpus delicti is formal. The crime is deemed completed from the moment the commander or a member of the crew unlawfully or without authorization abandons a sinking warship without the proper order of the commander, regardless of whether any harmful consequences actually occur.

From the subjective perspective, abandonment of a sinking ship by a commander who has not fully performed his duties is committed only intentionally.

The offender is aware that he has not fully performed his duties in circumstances threatening the ship with sinking, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

Abandonment of a sinking warship by a member of the crew without the proper order of the ship's commander is also committed intentionally: the offender is aware that he is leaving the sinking ship without the commander's permission. Such an order may be issued only by the ship's commander.

Motives and purposes do not affect the legal classification of the act but are taken into account by the court when determining the punishment.

The subject is special, namely, the ship's commander or a member of the ship's crew.

Other persons (passengers, personnel of military units being transported aboard the ship, etc.) cannot be subjects of this crime. Depending on the circumstances, servicemen who are not members of the ship's crew may be held liable for another military criminal offense, such as failure to obey an order or unauthorized abandonment of their place of service.

Part 2 of Article 454 of the Criminal Code provides for increased criminal liability where the act is committed in wartime or in a combat situation, the definitions of which are given in the analysis of Article 437 of the Criminal Code.

The act provided for in Part 1 of Article 454 of the Criminal Code is classified as a minor offense.

The act provided for in Part 2 of Article 454 of the Criminal Code is classified as a serious offense.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Regulations