Commentary on Article 191. Robbery of the Criminal Code of the Republic of Kazakhstan

1. Robbery, that is, the open theft of another person's property, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period, with or without confiscation of property.

2. Robbery committed:

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

2) excluded by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019;

3) by a group of persons acting in prior conspiracy;

4) excluded by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019;

— shall be punishable by restriction of liberty for a period of three to seven years or imprisonment for the same period, with confiscation of property.

3. Robbery committed:

1) on a large scale;

2) repeatedly;

3) with unlawful entry into a residential, office or industrial premises, or storage facility, —

shall be punishable by imprisonment for a period of five to ten years, with confiscation of property.

4. Acts provided for in Parts One, Two or Three of this Article, if committed:

1) by a criminal group;

2) on an especially large scale, —

shall be punishable by imprisonment for a period of seven to twelve years, with confiscation of property.

The public danger of the act under consideration is expressed in the fact that, as a result of open theft, the right of ownership is violated and material damage is caused to the victim, while, in the presence of aggravating circumstances, an encroachment is also made upon the victim's health.

The object of the crime under consideration is property. The health of the victim may constitute an additional object (in cases of violent robbery).

The subject matter of robbery — property — is characterised by the features inherent in every form of theft.

From the objective side, robbery is the open theft of another person's property. Open theft means theft committed in the presence of the victim or persons in whose custody or under whose protection the property is held, or in plain sight of bystanders, where the person committing the theft is aware that the said persons understand the unlawful nature of their actions but disregards this circumstance. In this regard, it is irrelevant whether the eyewitnesses to the crime took any measures to prevent the actions of the perpetrator. Depending on the degree of danger of the violence used, the actions of the perpetrator must be classified as robbery or armed robbery.

The open method of theft can be divided into two criteria: objective and subjective.

The objective criterion presupposes theft committed in the presence of the owner or persons in whose custody or under whose protection the property is held, or in plain sight of other persons, who must be aware of the criminal nature of the perpetrator's actions and condemn such conduct. It is irrelevant whether the eyewitnesses to the crime took measures to prevent the perpetrator's actions.

The subjective criterion means that the person is aware of the fact that they are acting openly, disregarding the presence of the owner or other persons. Even if the offender believed that they were acting openly, while in fact the persons present during the taking of the property did not understand the unlawful nature of the perpetrator's actions, the act committed by that person should be classified as robbery based on the direction of their intent.

It follows from this that, in the event of a conflict between the subjective and objective criteria, the actions of the perpetrator in robbery are classified on the basis of the subjective criterion.

The process of taking property in robbery most often remains open from beginning to end. However, if the perpetrator, having initially begun to take property secretly, consciously continues their criminal actions after this act has been discovered by other persons, this constitutes the transformation of theft into robbery.

The use of violence during the taking of property is not covered by Part 1 of Article 191 of the Criminal Code of the Republic of Kazakhstan. The legislator has provided for violent robbery as an aggravating circumstance (subparagraph 1) of Part 2 of Article 191 of the Criminal Code of the Republic of Kazakhstan). Nevertheless, the open method of taking property still presupposes the application of certain physical force by the perpetrator in order to obtain possession of the property (snatching, pushing, etc.), which falls within the characteristics provided for in Part 1 of Article 191 of the Criminal Code of the Republic of Kazakhstan.

Robbery is recognised as a completed crime from the moment the property is taken and the perpetrator has a real opportunity to use or dispose of it at their own discretion as if it were their own.

There must be a direct causal link between the fact of causing damage to the victim and the actions of the perpetrator expressed in the open method of taking possession of the property.

From the subjective side, robbery is characterised by guilt in the form of direct intent and an acquisitive purpose. The perpetrator is aware of the open method of taking possession of another person's property, foresees that, as a result of the actions undertaken, the property will pass into their possession, and desires this for the purpose of enrichment. In this regard, open actions aimed at taking possession of another person's property for the purpose of destroying it on grounds of revenge, envy or hooligan motives, as well as for the purpose of temporarily borrowing it or exercising an actual or presumed right, do not constitute the elements of robbery.

The subject of robbery under Part 1 of Article 191 of the Criminal Code of the Republic of Kazakhstan is a sane natural person who has reached the age of 16, while under Parts 2–4 of Article 191 of the Criminal Code of the Republic of Kazakhstan, the age is 14.

The qualifying features of robbery provided for in Part 2 of Article 191 of the Criminal Code of the Republic of Kazakhstan are:

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

2) commission by a group of persons acting in prior conspiracy.

The features specified in subparagraph 3) of Part 2 of Article 191 of the Criminal Code of the Republic of Kazakhstan coincide with the features examined in Article 188 of the Criminal Code.

Robbery committed with violence that is not dangerous to life or health should be understood as beatings or the commission of other violent acts associated with causing physical pain to the victim, which has not resulted in a short-term health disorder or a minor permanent loss of general working capacity.

According to paragraph 383 of the Rules for the Organisation and Conduct of Forensic Examinations and Research in Forensic Examination Bodies, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated 27 April 2017, harm to health means a violation of the anatomical integrity of organs (tissues) or their physiological functions (bodily injuries), or diseases or pathological conditions arising as a result of exposure to various environmental factors: mechanical, physical, chemical, biological and psychogenic factors, as well as consequences arising from defects in the provision of medical care, which have resulted in a health disorder or death.

A health disorder should be understood as a condition of the body in which clinically pronounced pathological changes of a local and (or) general nature are identified, caused by a specific injury or disease, where there is a violation of the anatomical integrity or physiological function of organs.

General working capacity should be understood as the totality of a person's innate and acquired abilities to perform activities aimed at obtaining a socially significant result in the form of a particular product, item or service.

Professional working capacity is the ability to work in one's own profession or in another type of activity equal to it in terms of remuneration and qualifications.

Permanent loss of general working capacity is an irreversible loss of function (functions) that deprives a person of the ability to perform unskilled work, either fully or partially, and to provide self-care.

If the final outcome has not been determined within 120 days, the amount of lost function that has developed in the injured person after the expiry of the specified period is conditionally considered a permanent (irreversible) loss of general working capacity.

The criterion of loss of general working capacity is applied in cases of unfavourable occupational and clinical prognoses, or where the outcome has been determined regardless of the duration of the limitation of working capacity, or where the health disorder lasts for more than 120 days (hereinafter referred to as permanent loss of general working capacity).

The following actions of the perpetrator, used to obtain possession of another person's property, should be assessed as violence that is not dangerous to the life or health of the victim: depriving or restricting the victim's liberty, tying them up, restraining them, and other similar actions.

The nature, intensity and degree of violence used during the open taking of another person's property must be established at the initial stages of the investigation, since the proper classification of the act directly depends on this. Failure to record the degree of severity of harm caused to the victim's health at the time of taking or attempting to take the property significantly complicates the classification of crimes.

It is hardly possible to recognise as justified the position whereby cases of taking possession of another person's property through physical assault or threats of physical assault are classified solely as robbery, since armed robbery may also be present in such circumstances. For example, without establishing the nature of the threatened reprisal, it is impossible to give an unequivocal answer regarding the classification of the acts in such situations as, for instance: L. and B., threatening physical reprisal, took possession of property worth 20,750 tenge; S., threatening physical reprisal, took possession of a mink fur hat.

Taking into account the priority of ensuring personal interests, the use of violence presupposes not only the direct use of violence that is not dangerous to the life or health of the victim, but also the creation of a real threat of using such violence. If the threat implied the possibility of using violence dangerous to life or health (causing death or grievous bodily harm), then the elements of armed robbery, rather than robbery, are present. The true nature of the threat can be assessed by the degree of aggressiveness of the perpetrator's actions, the circumstances in which the crime was committed, and the type and properties of the objects used by the perpetrator to make the threat. The threat must create in the victim a fully justified perception of the danger facing them, which is precisely what the perpetrator intends. Moreover, in all cases, both physical and psychological violence must be used by the perpetrator for the purpose of taking possession of another person's property or retaining it. Therefore, if, after the completion of a theft, the perpetrator uses violence that is not dangerous to life or health for the purpose of avoiding detention, the theft committed by that person does not transform into robbery.

Parts 3 and 4 of Article 191 of the Criminal Code of the Republic of Kazakhstan increase liability in cases where robbery is committed on a large scale; repeatedly; with unlawful entry into a residential, office or industrial premises, or storage facility; by a criminal group; or on an especially large scale.

The above-mentioned especially qualifying features of robbery fully coincide with the features examined in the analysis of the elements of theft (see the commentary to Article 188 of the Criminal Code of the Republic of Kazakhstan, "Theft").

Robbery differs from armed robbery in terms of the object of the crime. In robbery, the principal object is the right of ownership, while the health of the victim is involved in cases of violent robbery. Armed robbery belongs to the category of crimes with a complex object, since it encroaches not only upon property but also upon the health of the victim. In this regard, the composition of armed robbery is characterised not by the optional, but by the mandatory presence of two objects.

Robbery is the open theft of another person's property, and its legal composition is material in nature. Armed robbery is an attack for the purpose of stealing another person's property and is a crime with a formal composition. Consequently, the moment of completion of these crimes differs. In robbery, violence that is not dangerous to life or health may be used, or a threat to use such violence may be made, whereas in armed robbery, violence dangerous to the life or health of the person subjected to the attack is used, and there is also a threat of the immediate use of such violence. In this case, health is the second important object of the encroachment.

The subject of armed robbery is a person who has reached the age of 14, whereas criminal liability for robbery begins at the age of 16, and at the age of 14 where qualifying circumstances are present.

The act provided for in Part 1 of Article 191 of the Criminal Code of the Republic of Kazakhstan belongs to the category of medium-gravity crimes.

The acts provided for in Parts 2, 3 and 4 of Article 191 of the Criminal Code of the Republic of Kazakhstan belong to the category of serious crimes.

Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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