Comment to article 179. Robbery of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Robbery, that is, an attack for the purpose of stealing someone else's property, combined with violence dangerous to the life or health of the person being attacked, or with the threat of direct use of such violence, —
is punishable by imprisonment for a term of three to seven years with or without confiscation of property.
2. Robbery, committed:
a) a group of persons by prior agreement;
b) repeatedly;
c) with illegal entry into residential, office, industrial premises or storage;
d) the use of weapons or objects used as weapons;
e) causing serious harm to health, —
is punishable by imprisonment for a term of five to twelve years with confiscation of property.
3. Robbery, committed:
a) an organized group;
b) causing serious injury to health, resulting in the death of the victim by negligence;
c) for the purpose of stealing property on a large scale;
d) a person who has previously been convicted of embezzlement or extortion two or more times., —
is punishable by imprisonment for a term of eight to fifteen years with confiscation of property.
The public danger of robbery lies not only in encroachment on property, but also in the method of such encroachment - the use of violence dangerous to the life or health of the attacked person, as a result of which the victim suffers material damage and harm to health.
Robbery is one of the crimes with a complex object. This crime encroaches not only on property, but also on the life and health of the victim. The composition of the robbery is characterized not by the optional, but by the mandatory presence of two objects. At the same time, the two-object orientation of robbery is recognized by all authors who study this problem.
The concept of the subject of this crime is identical to the subject described in the analysis of previous crimes.
On the objective side, robbery is expressed in an attack combined with violence that is dangerous to the life or health of the victim or with the threat of direct use of such violence. In this case, the way to achieve this goal is the desire of the perpetrator to obtain material benefits through the use of violence that is dangerous to the life or health of the victim.
An assault during a robbery may be open, obvious to the person who was attacked (for example, a real threat to the collector with a weapon demanding that he immediately hand over the money he has), or unnoticeable to the victim before it begins (for example, hitting the head with a heavy object from around a corner, while the victim is sleeping, etc.).
The term "assault" is associated with the suddenness, the suddenness of the mental impact on the victim. Suddenness paralyzes to some extent the victim's ability to repel an attack or deprives him of the opportunity to resort to the help of authorities or third parties, since a sudden intrusion into the victim's sphere of behavior is expressed by the immediate realization of violence.
An attack committed with the aim of seizing someone else's property should be understood as such actions of the perpetrator that were committed suddenly for the victim, were aggressive in nature, and were combined with violence dangerous to the life or health of the victim or with the threat of direct use of such violence.
If an attack aimed at seizing property did not cause harm to health, but posed a real threat to the life or health of the victim, in the absence of aggravating circumstances, the actions of the perpetrator should be qualified under the first part of Article 179 of the Criminal Code.
When property is seized, violence can sometimes be expressed in the application of intoxicating substances or poisoning to the victim. In such cases, violence is present, but there is no attack if these actions are carried out fraudulently. An assault during robbery can be expressed in any form of violent influence on the victim's personality, as a result of which there is a danger to his life or health. The forcible introduction of highly toxic or intoxicating substances into the victim's body, against his will and consciousness, is essentially no different from a stab in the back or an ambush shot, which are recognized as robberies if they are committed with a specific purpose specified in the norm of the law (art.179 of the Criminal Code).
The Supreme Court of the Republic of Kazakhstan focuses on this circumstance in its Regulatory Resolution of July 11, 2003, where paragraph 22 states that in cases where a potent, poisonous or intoxicating substance dangerous to life or health was introduced into the victim's body against his will, the act should be classified as robbery.
If, for the above purpose, a substance that does not pose a danger to life or health was injected into the victim's body against his will, the act should be classified as robbery.
If the victim was unaware of the fact of unlawful seizure of his property due to being intoxicated or sleeping as a result of voluntary consumption of alcoholic beverages, narcotic drugs, strong, poisonous or intoxicating substances, then the actions of the perpetrator should be qualified as secret theft.
The properties and nature of the action of the substances used in the commission of these crimes must be established with the involvement of a specialist or by expert means.
Controversial in the qualification are cases when the victim's helpless state is achieved by getting him drunk with alcoholic beverages. Getting the victim drunk in order to seize his property can lead to serious pathological changes in the body, therefore, such actions, depending on the consequences, should be qualified as robbery or robbery. In cases of voluntary acceptance of alcohol or drugs by the victim, responsibility for robbery is excluded, since there is no violence in such a situation.
In practice, there are cases when an attack has begun, but violence has not yet been applied. For example, a criminal, armed, comes out of an ambush and approaches the victim from behind, who is unaware of his presence. There may be a certain gap in time between an attack and the use of violence: when the perpetrator has the opportunity to think about how best to use violence according to the situation. Assault and violence may coincide in time: striking unexpectedly for the victim.
Violence used in robbery is defined in the law as dangerous to the life or health of a person who has been attacked. Life-threatening violence is commonly understood in the criminal law and medical literature as violence that, according to its objective characteristics, should or may result in the death of the victim.
To determine whether violence is life-threatening, it is necessary to take into account all the circumstances of the case: the instruments of the crime, the nature of the violence inflicted, whether damage was caused to vital organs, the conclusion of a forensic medical examination, etc.
In paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" dated July 11, 2003, it is noted that under violence dangerous to life or health, causing harm to health with the use of weapons or objects used as weapons or other objects adapted to harm health, as well as violence which caused serious or moderate harm to the victim's health.
Minor harm can also be considered dangerous to life or health if such harm was caused in conditions dangerous to the life or health of the victim (for example, multiple kicks or punches to vital parts of the body, etc.) and outpatient or inpatient treatment was required for recovery.
The presence of robbery combined with violence should be recognized in cases where violence was a means of seizing property or for its retention. An attack with the aim of seizing property, combined with violence, which, although it did not cause harm to health, however, at the time of application created a real danger to the life or health of the victim, in the absence of aggravating circumstances, should be qualified under Part 1 of art.179 of the Criminal Code.
According to part 1 of Article 179 of the Criminal Code, the actions of the perpetrator are subject to qualification, when the victim intentionally suffered minor harm to health, causing a short-term health disorder or minor loss of general ability to work or moderate harm to health. At the same time, additional qualifications under Articles 104 and 105 of the Criminal Code are not required, since the actions of the perpetrator are covered by the robbery.
Violence can include squeezing the neck with hands or a cord, blocking the respiratory tract by throwing a bag of film, an overheated or gas-filled room, etc. At the same time, the assessment of such actions is based on the risk of damage at the time of its application, rather than the outcome of treatment.
The threat of violence dangerous to life or health is understood as the explicit intimidation of the victim by causing death or harm to his health, when he perceives this threat as real. The threat must be present, real and valid, that is, capable of immediately breaking the will to resist of a person who tried to prevent theft.
The threat of robbery can be expressed in words, threatening actions, directly or indirectly, and may be outwardly vague. If the threat is expressed vaguely, then its nature should be determined based on the specific circumstances of the case: the place and time of the crime, the number of accomplices, the mental perception of the threat to the victim, the nature of the objects being threatened, etc.
Violence in robbery (physical or mental) is always a means of seizing property, that is, it should be aimed at seizing it. If violence is used for another purpose, for example, to avoid detention, the act does not constitute robbery, but should be qualified as a corresponding crime against property, for example, the perpetrator has already managed to steal property (secretly — Article 175 of the Criminal Code or openly — Article 178 of the Criminal Code) and a crime against the person (depending on the damage caused to the victim's health). It is also impossible to talk about robbery in the case when violence was applied to the victim not for the purpose of committing theft, but for other reasons, for example, from hooligan motives, and the perpetrator, taking advantage of the situation, steals some property from him unnoticed by the victim.
In judicial practice, there are cases when the victim did not have any property of value to the criminal, or the victim actively resisted, and the criminal failed to take possession of the property. Given that the robbery by design belongs to the formal structure, it will be considered completed, even if the perpetrator did not take possession of the victim's property.
The peculiarity of the objective side of the robbery is that the legislator recognizes this crime as over from the moment of the attack with the aim of seizing someone else's property, combined with violence dangerous to the life or health of the victim, or with the threat of direct use of such violence, regardless of whether the perpetrator took possession of the property or not.
Robbery differs from robbery in the following ways: robbery is a two—object crime (property and personality), in robbery provided for in Part 1 of Article 178 of the Criminal Code, only property is encroached upon, but in Part 2 of Article 178 of the Criminal Code, health is also an additional object. Robbery is the open theft of someone else's property, which is a material structure by design. Robbery is an attack for the purpose of stealing someone else's property, by design it refers to the formal composition. Therefore, the end point of these crimes is different. In robbery, violence is used that is not dangerous to life or health, and in robbery, violence is used that is dangerous to the life or health of the victim.
The subject of the crime is a sane individual who has reached the criminally punishable age, that is, 14 years old, according to Part 2 of Article 15 of the Criminal Code.
The subjective side of robbery is characterized by direct intent and selfish purpose. Robbery involves the perpetrator committing intentional acts, not only involving violence dangerous to the life or health of the person being attacked, or with the threat of such violence, but also aimed at illegally converting property into his own property or the property of others. In the absence of intent to illegally convert property into one's own property or the property of third parties, the robbery is excluded.
It should be recognized that in relation to the ultimate goal and the choice of the method of committing a crime, robbery can be committed only with direct intent, and in relation to the possible consequences (causing serious harm to health or death), guilt can be expressed in the form of indirect intent.
The law recognizes the commission of robbery as qualifying signs.:
a) a group of persons by prior agreement;
b) repeatedly;
c) with illegal entry into residential, office, industrial premises or storage;
d) using a weapon or an object used as a weapon;
e) causing serious harm to health.
The following features are considered as particularly qualifying:
a) commission of an act by an organized group;
b) causing serious injury to health, resulting in the death of the victim by negligence;
c) for the purpose of stealing property on a large scale;
d) a person who has previously been convicted of embezzlement or extortion 2 or more times.
From this list of qualifying and especially qualifying signs inherent only in robbery (in comparison with other forms of theft) are: the use of weapons or objects used as weapons, as well as causing serious harm to health, resulting in the death of the victim by negligence. The other signs stipulated by the legislator in robbery are the same as for other forms of theft.
When qualifying the actions of the perpetrator under paragraph "d" of Part 2 of Article 179 of the Criminal Code, it should be taken into account whether the object used in the attack is a weapon or an object used as a weapon or other object to cause harm to health.
Weapons should be understood as devices and objects designed to destroy a living or other target, classified as weapons in accordance with the Law of the Republic of Kazakhstan "On State Control over the Turnover of Certain Types of Weapons" dated December 30, 1998 (with amendments and additions) and recognized as weapons by an expert opinion. The law defines the following types of weapons: firearms, cold, gas, electric, and pneumatic.
In the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of theft of firearms, ammunition, weapons and explosives, illegal acquisition, carrying, storage, manufacture or sale, negligent storage of firearms" dated July 21, 1995 It is noted that firearms should be understood as submachine guns, carbines, rifles, machine guns, pistols and other devices, objects structurally designed to destroy manpower, equipment, as well as sports, including small-caliber hunting weapons, in which the force of powder gases is used to produce a shot, regardless of which for the purposes it is actually applied.
Air guns, signal guns, starting guns, construction guns, gas pistols, rocket launchers, as well as pyrotechnic and lighting devices containing explosives and mixtures that are not intended for combat use, do not belong to firearms, but are recognized as the subject of a crime under Article 179 of the Criminal Code.
Objects used as weapons are those that could have caused harm to the victim's health, dangerous to life or health (household knives, razors, axes, screwdrivers, adapted objects: batons, etc.), as well as objects intended for temporary destruction of a living target (gas canisters and other devices equipped with tear and irritating substances), regardless of whether they were prepared in advance.
For the qualification of robbery, it does not matter whether these items were prepared in advance specifically for a robbery or accidentally turned out to be at the hand of the perpetrator and were taken by him at the scene of the crime.
In case of robbery, possession of a weapon is not enough: it is required that it be used. The use of weapons or objects used as weapons should be understood as their actual use with the aim of harming the life or health of the victim (firing a shot, stabbing, etc.), that is, using the ability of a weapon or object to hit a living target. Therefore, if the perpetrator uses a weapon other than for its intended purpose (for example, using a weapon to strike various parts of the body), the actions of the perpetrator cannot be qualified under paragraph "d" part 2 of Article 179 of the Criminal Code, as with the use of weapons. In such cases, it should be qualified according to Part 1 of Article 179 of the Criminal Code.
When using gas weapons (gas pistols, aerosol and other devices equipped with tear or irritating substances), the degree of their danger to the life or health of the victim is determined by an expert opinion, taking into account the composition of the substance used, and depending on what is established, the act qualifies as robbery or robbery.
If the perpetrator threatened with a deliberately unsuitable weapon or an unloaded weapon or an object imitating a weapon (a model pistol, a toy dagger, etc.), without intending to use these objects to cause harm to health, dangerous to life or health, the courts should proceed from the victim's awareness of the nature, reality and degree of danger of an attack on him.. If the victim understood that he was being threatened with an unusable or unloaded weapon or an imitation weapon, the actions of the perpetrator should be qualified as robbery, provided for in Part 1 of Article 179 of the Criminal Code, if violence dangerous to life and health was actually used.
The threat of a deliberately unusable weapon or a mock-up weapon does not give grounds for considering robbery as qualified. These items may give the victim the appearance of using real weapons, but they are not evidence of increased danger to the perpetrator, as they do not pose a danger to the life and health of the victim. Therefore, in such cases, the actions of the perpetrator still fall under the signs of Part 1 of Article 179 of the Criminal Code, as a threat of violence dangerous to the life and health of the victim.
The use of weapons in a robbery should be qualified according to the totality of the crimes provided for in paragraph "d" of Part 2 of Article 179 of the Criminal Code and the corresponding part of Article 251 of the Criminal Code, if the perpetrator did not have the appropriate permit for the weapon used.
Infliction of serious harm to health should be understood as infliction of such damage, which is specified in art. 103 of the Criminal Code. This type of robbery means that serious harm to health is inflicted on the owner, another owner of the property or other persons in order to overcome their resistance or in order to retain the property immediately after its seizure.
The infliction of serious injury to health or serious injury to health resulting in the death of the victim during a robbery is covered, respectively, by Part 2 or Part 3 of Article 179 of the Criminal Code, therefore, additional qualification of the act under Article 103 of the Criminal Code is not required.
If, when using violence during a robbery, the perpetrator intentionally caused the death of a person, then the deed should be classified as a set of crimes – according to the relevant parts of Article 179 of the Criminal Code and paragraph "h" of part 2 of Article 96 of the Criminal Code.
Intentional infliction of death in order to facilitate the subsequent theft of other people's property, form a set of crimes provided for in paragraph "k" of part 2 of Article 96 of the Criminal Code and the corresponding part of Article 175 of the Criminal Code.
The crimes provided for in Parts 1 and 2 of art. 179 of the Criminal Code of the Republic of Kazakhstan are serious crimes.
The crime provided for in Part 3 of Article 179 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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