Comment to Article 178. Robbery of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Robbery, that is, open theft of other people's property, —      

is punishable by restriction of liberty for a term of up to three years, or by arrest for a term of up to six months, or by imprisonment for a term of up to four years.      

2. Robbery committed:      

a) with the use of violence that is not dangerous to the life or health of the victim, or with the threat of such violence;      

b) repeatedly;      

c) a group of persons by prior agreement;      

d) with illegal entry into residential, office, industrial premises or storage, —   

  is punishable by imprisonment for a term of three to seven years with or without confiscation of property.      

3. Robbery committed:      

a) an organized group;      

b) on a large scale;      

c) a person who has previously been convicted of embezzlement or extortion two or more times, —    

is punishable by imprisonment for a term of six to twelve years with confiscation of property.

     The social danger of the act under analysis is expressed in the fact that as a result of open theft, property rights are violated and material damage is caused to the victim as a result, and under aggravating circumstances, his health is violated.      

The object of the robbery is property. An additional object, if the robbery is combined with the use or threat of violence, may be the victim's health.      

The object of robbery has the same characteristics as any form of theft. In contrast to non-violent methods of seizing other people's property, which include theft, embezzlement or embezzlement, fraud, in violent forms of theft (robbery and robbery) the very method of seizure allows them to be recognized as a criminal offense, even at a low cost of the stolen.      

From the objective side, the act is expressed in actions, the consequences that have occurred and in their causal relationship, therefore, by design, the robbery is material. The main distinguishing and defining feature of robbery is the "method of its commission", which in many other criminal acts acts as an optional feature, and as part of the robbery it acquires the meaning of the main feature of the objective side. Socially dangerous actions during robbery are aimed at an open method of stealing other people's property.      

Open theft is such theft that is committed in the presence of the victim or persons in charge or under whose protection the property is located, or in full view of outsiders, when the person committing the theft is aware that these persons understand the unlawful nature of his actions, but ignores this circumstance. It does not matter whether the eyewitnesses of the crime took measures to stop the actions of the perpetrator. Depending on the degree of danger of the violence used, the actions of the perpetrator should be classified as robbery or robbery.       Thus, the open method is characterized by two criteria: objective and subjective. The objective criterion presupposes such theft, which is committed in the presence of the owner or unauthorized persons, in full view of them, and they are aware of the criminal nature of the perpetrator's actions. A subjective criterion means that a person is aware of the fact that he is acting openly, ignoring the presence of the owner or other persons. In cases where the perpetrator believed that he was acting openly in the presence of the owner or other persons, but in fact those present during the seizure process were not aware of the unlawful nature of the perpetrator's actions, what he had done should be classified by intent as robbery or attempted robbery. It follows that when subjective and objective criteria collide, the actions of the perpetrator of a robbery are qualified based on the subjective criterion.      

The process of seizure of property during a robbery is often open from beginning to end. However, if the perpetrator, who began to seize property secretly, still continues his actions upon detection, then there is a fact that the theft has escalated into robbery. The Supreme Court of the Republic of Kazakhstan, in its Regulatory Decision of July 11, 2003, in paragraph 23, clarifies that the actions of the perpetrator initiated as theft when further violence was applied to the victim in order to restrain the abducted person should be qualified as robbery or robbery, depending on the nature of the use of violence.      

The legislator provided for violent robbery as an aggravating circumstance (paragraph "a" of part 2 of Article 178 of the Criminal Code). However, if, in an open method of robbery, the perpetrator uses physical efforts (jerk, push, etc.) to seize property and does not use violence, then his actions fall under the signs provided for in Part 1 of Article 178 of the Criminal Code.      

The actions of the perpetrator, who committed petty theft of other people's property belonging to the organization or under its jurisdiction, entail criminal liability if they are committed by robbery or robbery. The concept of petty theft of other people's property is given in paragraph 5 of the note to art.175 of the Criminal Code.      

The socially dangerous consequences of a robbery are expressed in causing damage to the victim, by design, the corpus delicti under consideration is material. Consequently, robbery is recognized as a completed crime from the moment of taking possession of someone else's property, when it is seized and the perpetrator has a real opportunity to use or dispose of it at his discretion.      

The actions of the perpetrator, initiated as theft and continued in the presence of the owner or other persons, should be qualified as robbery. If further violence is used in these cases in order to seize property or keep it immediately after seizure, it should be classified as robbery or robbery combined with violence.      

On the subjective side, robbery is characterized by guilt in the form of direct intent and selfish purpose. So, for example, the actions of the perpetrator, expressed in seizing the victim's property at a bus stop, should be recognized as open theft, since the perpetrator is aware of the fact that he is acting in the presence of unauthorized persons who are aware of the illegal nature of his actions. At the same time, actions that are aimed at destroying this property for revenge, hooligan motives, for the purpose of temporarily borrowing it, or for the purpose of exercising one's actual or alleged right do not constitute robbery.      

A natural, sane person who has reached the age of 14 is recognized as the subject of robbery.      

The qualifying signs of robbery provided for in Part 2 of Article 178 of the Criminal Code are:      

a) the use of violence that is not dangerous to the life or health of the victim, or the threat of such violence; b) repeatedly (art.11 of the Criminal Code);      

c) a group of persons by prior agreement (Part 2 of Article 31 of the Criminal Code);      

d) illegal entry into residential, office, industrial premises or storage.      

The signs indicated in paragraphs "b", "c" and "d" of Part 2 of Article 178 of the Criminal Code completely coincide with the signs considered by us in the analysis of theft.      

It is quite obvious that the violence used in the robbery, even if it does not pose a danger to life or health, significantly increases the degree of public danger of the act, since there is an encroachment not only on property, but also on health.      

The Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" dated July 11, 2003, states that violence that is not dangerous to the life or health of the victim should be understood as beatings, or the commission of other violent acts related to causing physical pain to the victim, which did not cause a short-term health disorder or minor permanent loss. general ability to work.      

Minor permanent disability refers to the loss of total disability of less than 10%.       As violence that is not dangerous to the life or health of the victim, actions such as deprivation or restriction of liberty, tying, holding, etc. should also be assessed. Thus, the nature, intensity and degree of violence used in the open seizure of other people's property must be established already at the initial stages of the investigation, since the correct qualification of the act directly depends on this.      

Taking into account the priority of ensuring personal interests, the "use of violence" implies not only the use of violence that is not dangerous to the life or health of the victim, but also the threat of such violence. If the threat carried the possibility of using violence that was dangerous to life or health (causing death or serious harm to health), then there is no robbery, but robbery. The true nature of the threat can be judged by the degree of aggressiveness of the perpetrator's actions, the circumstances of the crime, and the type and properties of the objects that the perpetrator threatened. The threat should give the victim a well-founded idea of the danger that threatens him, which is what the perpetrator expects. Moreover, it is necessary that in all cases both physical and mental violence be used by the perpetrator to seize other people's property or to keep it. Therefore, if, after the theft is completed, the perpetrator uses violence that is not dangerous to life or health in order to avoid arrest, the theft he committed does not escalate into robbery.      

The legislator attributed the following to the particularly qualifying signs of robbery (Part 3 of Article 178 of the Criminal Code)::      

a) an organized group (Part 3 of Article 31 of the Criminal Code);      

b) on a large scale;      

c) a person who has previously been convicted of embezzlement or extortion 2 or more times.      

The above-mentioned qualifying signs of robbery completely coincide with similar signs of theft.      The crime provided for in Part 1 of Article 178 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.      

The crimes provided for in Parts 2 and 3 of art. 178 of the Criminal Code of the Republic of Kazakhstan are 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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