Comment to article 255. Theft or extortion of weapons, ammunition, explosives and explosive devices of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Theft or extortion of firearms, their components, ammunition, explosives or explosive devices –      

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

2. Theft or extortion of weapons of mass destruction, as well as materials or equipment that can be used in the creation of weapons of mass destruction, -    

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

3. The acts provided for in the first or second parts of this Article, if they are committed:      

a) a person using his official position;      

b) repeatedly;      

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

d) a group of persons by prior agreement, -      

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

4. The acts provided for in the first, second or third parts of this Article, if they are committed:      

a) an organized group;      

b) with the use of violence dangerous to life or health, or with the threat of such violence;      

c) Excluded in accordance with the Law of the Republic of Kazakhstan No. 363-II dated December 21, 2002.      

is punishable by imprisonment for a term of eight to fifteen years with confiscation of property.

     The elements of crimes specified in this norm are special in relation to the elements of theft or extortion of other people's property provided for in Articles 175-181 of the Criminal Code of the Republic of Kazakhstan.      

The commented article contains two main elements – parts 1 and 2, which differ in the subject of the crime. Parts 3 and 4 of this article contain the qualifying features of both compounds.      

Theft or extortion of weapons, ammunition, explosives and explosive devices has a high degree of public danger due, firstly, to the potentially dangerous nature of the items themselves, secondly, to the illegal nature of their seizure and, thirdly, to the fact that these items can be used in the commission of crimes.      

The object of the crime is public safety in the field of orderly trafficking of weapons, components, explosives and explosive devices. An additional object is someone else's property.      

The subject of the crime is firearms, their components, ammunition, explosives and explosive devices (see commentary to art. 251 of the Criminal Code).      

The objective side of the crime is characterized by the commission of actions aimed at seizing weapons – theft or extortion.      

The theft of firearms, their components, ammunition, explosives and explosive devices is understood as the unlawful taking of them in any way with the intention of the perpetrator to appropriate the stolen goods or transfer them to another person, as well as to dispose of them at his discretion in another way.      

If a person has stolen a firearm, its components, ammunition, explosives or explosive devices unsuitable for functional use, being mistaken about their quality and believing that they are serviceable, the act should be qualified as an attempted theft of firearms, their components, ammunition, explosives or explosive devices under Part 3 of Art. 24 and Article 255 of the Criminal Code.      

Theft of ammunition components and parts containing explosives (fuses, detonators, fuses, etc.) should be classified under Article 255 of the Criminal Code as complete theft of explosives and explosive devices.      

Theft of components and individual parts of firearms and the subsequent manufacture of missing items necessary for the assembly of a fireable weapon should be classified as a combination of theft of other people's property and illegal manufacture of weapons Articles 255 and 252 of the Criminal Code.      

Criminal liability under this rule occurs in the case of theft of items specified in the disposition of the article, both from state institutions or public cooperative-commercial organizations, and from individual citizens who owned them lawfully or illegally.      

The theft of firearms, their components, ammunition, explosives, and explosive devices is completed from the moment they are seized and seized for the purpose of appropriation by the perpetrators themselves or others, and extortion – from the moment the demand for the transfer of weapons is presented.    

The subjective side of the crime is characterized by intentional guilt in the form of direct intent. The perpetrator is aware that he is stealing or extorting weapons and similar items and desires this.      

The subject of the crime is a sane individual who has reached the age of 14.      

Part 2 of Article 255 provides for liability for theft or extortion of weapons of mass destruction, as well as materials or equipment that can be used in the creation of weapons of mass destruction (see commentary to Article 158 of the Criminal Code). Part 3 of Article 255 establishes liability for acts provided for in Parts 1 and 2 of Article 255 of the Criminal Code if they are committed: a) a person using his official position;      

b) repeatedly;     

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

d) a group of persons by prior agreement.      

The use of official position should be understood as theft or extortion of weapons, ammunition, explosives and explosive devices by a person serving in State or non-State organizations.    

 It can be either an official or a non-official. For example, such persons may include employees who, by their occupation, are related to the handling of weapons, ammunition, explosives and explosive devices: security guards, drivers, employees of warehouses where these substances are stored.      

According to Part 3 of the note to Article 175 of the Criminal Code of the Republic of Kazakhstan, the crime in question is considered to have been committed repeatedly if it was preceded by the commission of one or more crimes provided for in this article of the Criminal Code, as well as Articles 175-181, 248, 260 of the Criminal Code of the Republic of Kazakhstan.     

Violence that is not dangerous to life and health is understood as physical violence, expressed in blows, beatings, restriction or deprivation of liberty, intentional infliction of minor harm to health that did not result in a short-term health disorder or minor permanent loss of general ability to work.      

The threat is expressed in intimidation of the use of such violence.      Theft or extortion of weapons, ammunition, explosives and explosive devices is recognized as committed by a group of persons by prior agreement if they involved persons who had previously agreed to jointly commit this crime.      

Part 4 of Article 255 of the Criminal Code of the Republic of Kazakhstan provides for liability for acts provided for in Parts 1, 2, 3 of Article 255 of the Criminal Code, committed:     

a) an organized group;      

b) with the use of violence dangerous to life or health, or with the threat of such violence.      

Theft or extortion of weapons, ammunition, explosives and explosive devices committed by an organized group should be understood as the commission of this crime by a stable group of persons who had previously united to commit one or more crimes (Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan).      

Violence that is dangerous to life or health should be understood as causing mild, moderate, or serious harm to the victim's health. At the same time, additional qualifications under Articles 103 and 104 of the Criminal Code of the Republic of Kazakhstan are not required.      

The threat of violence dangerous to life and health is understood as actions that directly endanger the life and health of the victim (intimidation of the victim, threat of weapons, etc.).   

  Theft of the listed items and their subsequent carrying and storage constitute a real set of crimes provided for in Articles 255 and 251 of the Criminal Code of the Republic of Kazakhstan. In cases of theft or extortion of firearms, their components, ammunition, explosives and explosive devices, as well as their carrying, storage, acquisition and manufacture for the purpose of committing another crime, the act must be qualified as a combination of completed theft of weapons, their components, ammunition, explosives and explosive devices, illegal their carrying, storage, acquisition or manufacture and preparation for the commission of another crime, if the responsibility for this is provided for by law (Part 1 of Article 24 of the Criminal Code).

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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