Comment to Article 357. Illegal actions with respect to property subject to inventory or seizure or subject to confiscation of the Criminal Code of the Republic of Kazakhstan

     1. Embezzlement, alienation, concealment, or illegal transfer of property subject to inventory, seizure, or restricted disposal, committed by the person to whom this property is entrusted, as well as the conduct by an employee of a credit institution of banking operations with funds (deposits) that have been seized or for which expenditure operations have been suspended, —    

are punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by community service for a term of one hundred eighty to two hundred forty hours, or by arrest for a term of three to six months, or by imprisonment for a term of up to two years old.      

2. Concealment or appropriation of property subject to confiscation by a court verdict, as well as other evasion from the execution of a court verdict that has entered into legal force ordering the confiscation of property. —   

  are punishable by a fine in the amount of seven hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of seven months to one year, or by imprisonment for a term of up to three years with a fine in the amount of up to fifty monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to one month.

     During the preliminary investigation of a criminal case, in order to ensure the execution of a sentence in terms of a civil claim, other property penalties, or possible confiscation of property, the inquirer, investigator, with the approval of the prosecutor, as well as the court are required to seize the property of the suspect, the accused, or persons legally financially responsible for the actions of the suspect, the accused (art. In accordance with the first part of art. 159 of the CPC also provides for the seizure of property belonging to the defendant and held by him or other persons as a measure to secure the claim. The adoption of measures to ensure a civil claim in criminal and civil cases is also provided for in articles 170, 305 of the CPC and Articles 158 of the CPC.    

  To ensure the safety of property that has been seized or that is subject to confiscation, liability is provided for under the article of the Criminal Code under consideration. The danger of this crime lies in the fact that its commission makes it impossible to execute a court verdict on the confiscation of the perpetrator's property, and may also cause serious difficulties in securing a claim in a civil case.   

   The object of the crime, the responsibility for which is provided for in Article 357 of the Criminal Code, is the procedure for the execution of court decisions. An optional direct object may be the rights and property interests of the State, public and other organizations, or individual citizens.    

 The subject of this crime may be: 1) property that has been subject to inventory; 2) property that has been seized; 3) property that has been restricted in its disposal; 4) monetary funds (deposits) that have been seized or for which spending operations have been suspended. According to the second part of the article of the Criminal Code under consideration, the subject of a crime may be property subject to confiscation by a court verdict.    

 The objective side of the corpus delicti provided for in part one of the analyzed article of the Criminal Code is characterized by the commission of at least one of the following actions: 1) embezzlement of property subject to inventory, arrest, or restricted disposal; 2) alienation of property subject to inventory, arrest, or restricted disposal; 3) concealment of property subject to inventory, arrest, or restricted disposal; 4) illegal transfer of property, who has been subjected to inventory, arrest, or who has been restricted in his/her disposal; 5) the performance by an employee of a credit institution of banking operations with funds that have been seized or for which expenditure operations have been suspended. Part two of this article of the Criminal Code provides for liability for: 1) concealment of property subject to confiscation by a court verdict; 2) appropriation of property subject to confiscation by a court verdict; 3) other evasion from execution of a court verdict on confiscation of property.    

 Embezzlement should be understood as the sale, donation, or other alienation or transfer to third parties of entrusted property that has been subject to inventory, seizure, or restricted disposal. In case of embezzlement, the property entrusted to the perpetrator for the exercise of certain powers may be used by the subject himself.     

 Alienation in the commission of this crime should be understood as the illegal seizure of property subject to inventory, arrest, or restricted disposal from its location (storage), followed by its sale, transfer to another person for rent, temporary storage, as a gift, in exchange for other property, etc.   

  Concealment is the concealment of all or part of one's property. Concealment occurs when the perpetrator hides the property, transfers it to another place so that the relevant authorities, if necessary, cannot detect certain actions against it. Concealment can be expressed in changing the appearance of the property, labeling, making false documents for it, etc. It most often involves the seizure of property from its location, followed by hidden storage elsewhere.  

    Alienation should be understood as the transfer of property for use or ownership to another person.      The illegal transfer of property that has been subject to inventory, seizure, or restricted disposal is a special case of alienation of this property.   

  In accordance with Article 30 of the Law of the Republic of Kazakhstan dated August 31, 1995 "On Banks and Banking Activities in the Republic of Kazakhstan", banking is the conduct of banking operations, as well as other operations by banks and organizations engaged in certain types of banking operations. Banking operations include:     

 a) accepting deposits, opening and maintaining bank accounts of legal entities;     

 b) accepting deposits, opening and maintaining bank accounts of individuals;     

 c) opening and maintaining correspondent accounts of banks and organizations engaged in certain types of banking operations;      

d) opening and maintaining metal accounts of individuals and legal entities, which reflect the physical quantity of refined precious metals owned by this person;    

  e) cash operations: acceptance, issuance, recalculation, exchange, exchange, sorting, packaging and storage of banknotes and coins;   

   f) transfer operations: execution of orders of legal entities and individuals for money transfer;     

 g) accounting operations: accounting (discount) of promissory notes and other debt obligations of legal entities and individuals;  

   h) making settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts;   

  i) trust operations: management of money, claims on mortgage loans and refined precious metals in the interests and on behalf of the principal;   

  k) interbank clearing: collection, reconciliation, sorting and confirmation of payments, as well as carrying out their offsetting and determining the net positions of clearing participants - banks and organizations engaged in certain types of banking operations; l) safe deposit operations: services for storing securities issued in documentary form, documents and valuables of clients, including depositing safe deposit boxes, cabinets and rooms for rent;   

  m) opening (issuing) and confirmation of a letter of credit and fulfillment of obligations under it;     

h) issuance of bank guarantees providing for execution in monetary form;   

  o) the issuance of bank guarantees and other obligations for third parties, providing for the execution in cash.    

 Appropriation is the active activity of a subject, expressed in the seizure, separation of inventory entrusted to the perpetrator and the establishment of his illegal possession of them. Upon appropriation, the property entrusted to the guilty person passes to him illegally for the purpose of converting it into his own property or transferring it to the property of third parties.    

  Other evasion from the execution of a court verdict on the confiscation of property should be understood as various ways of preventing the confiscation of property: alienation, substitution, imitation of abduction, imitation of destruction of property subject to confiscation, etc.  

  Thus, parts one and two of the considered article of the Criminal Code differ both on the objective side and on the subject of the crime. The first part of Article 357 of the Criminal Code provides for liability for an act that is committed in relation to property that has been subject to inventory, seizure, or restricted in its disposal, or a deposit that has been seized or for which spending operations have been suspended. The acts, the responsibility for which is provided for in the first part of Article 357 of the Criminal Code, are committed in relation to property, the fate of which has not yet been definitively decided. This may take place during the preliminary investigation of a criminal case and after its completion (before the verdict on confiscation of property comes into force), as well as in a civil case (if property is seized to secure a claim). In the second part of this article of the Criminal Code, the subject of a crime may be property (in any form), in respect of which there is a court verdict on its confiscation that has entered into legal force.    

The crimes specified in the analyzed article of the Criminal Code are considered completed from the moment of the commission of these acts, regardless of the further fate of the subject of the crime, as well as regardless of whether any consequences have occurred from the crime committed or not. Therefore, the elements of the crimes under consideration should be classified as formal.    

 On the subjective side, the acts responsible for which are provided for in the analyzed article of the Criminal Code are committed intentionally. The perpetrator is aware that he is committing the listed actions with respect to property or contributions that have been subject to inventory, seizure, or restricted disposal, for which spending operations have been suspended, or a court verdict has been issued on their confiscation. If the property is destroyed by negligence, it is legitimate to raise the issue of liability under Article 188 of the Criminal Code (Reckless destruction or damage to someone else's property).   

  The subject of the crime provided for in the first part of Article 357 of the Criminal Code may be persons to whom the specified property has been entrusted by a law enforcement officer. In accordance with Part 12 of Article 161 of the CPC, the seized property may be seized or transferred, at the discretion of the person who made the arrest, for safekeeping to a representative of the local administration, a housing maintenance organization, the owner of this property, or another person who must be warned about responsibility for the safety of the property, and a subscription is selected. When conducting banking operations with funds that have been seized or for which spending operations have been suspended, an employee of a credit institution may be recognized as the subject of a crime. Thus, according to the first part of Article 357 of the Criminal Code, a special entity is provided for. It can be a person who has been entrusted with the property for storage. According to the second part of the specified article of the Criminal Code, any sane person who has reached the age of 16 can be the subject of a 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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases