Commentary on Article 193. Theft of Items of Special Value of the Criminal Code of the Republic of Kazakhstan

1. The theft of items or documents possessing special historical, scientific, artistic or cultural value, regardless of the method of theft —

shall be punishable by deprivation of liberty for a term of three to six years, with or without confiscation of property.

2. The same act committed:

1) by a group of persons pursuant to a prior conspiracy;

2) repeatedly, —

shall be punishable by deprivation of liberty for a term of seven to ten years, with confiscation of property.

3. The acts provided for in Parts One or Two of this Article, if they:

1) are committed by a criminal group;

2) result in the destruction or damage of the items or documents specified in Part One of this Article, —

shall be punishable by deprivation of liberty for a term of ten to twelve years, with confiscation of property.

The public danger of the act under consideration is expressed in the fact that its commission may result in the irreparable loss by the owner of ownership rights to items possessing special value. In addition, such crimes are often international in nature and organized.

The object of the crime provided for in Article 193 of the Criminal Code is property relations.

An additional object of the theft of items possessing special value is public relations concerning the preservation of cultural heritage.

In accordance with the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, cultural property is understood to mean “...property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:

rare collections and specimens of flora and fauna, mineralogy, anatomy, and objects of palaeontological interest;

property relating to history, including the history of science and technology, military and social history, as well as property relating to the lives of national leaders, thinkers, scientists and artists, and to major national events;

products of archaeological excavations (including regular and clandestine excavations) and of archaeological discoveries;

elements of artistic or historical monuments or archaeological sites which have been dismembered;

antiquities more than 100 years old, such as inscriptions, coins and engraved seals;

ethnological materials;

property of artistic interest, such as:

pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);

original works of sculpture in any material;

original engravings, prints and lithographs;

original artistic assemblages and montages in any material;

rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.), singly or in collections;

postage stamps, revenue stamps and similar stamps, singly or in collections;

archives, including sound, photographic and cinematographic archives;

furniture more than 100 years old and old musical instruments” (Article 1).

In general, it should be noted that this Convention provides a fairly comprehensive list of items or documents classified as cultural property.

In accordance with Article 1 of the Law of the Republic of Kazakhstan dated December 15, 2006, “On Culture”, cultural values are understood as tangible and intangible values of a secular and religious nature that possess historical, artistic, scientific or other cultural significance.

According to Article 32 of this Law, cultural values include tangible and intangible values.

Tangible cultural values include:

archaeological finds;

rare collections and specimens of flora and fauna, mineralogy, anatomy, and objects of palaeontological interest;

property relating to history, including the history of science and technology, military and social history, the history of national culture, as well as property relating to the lives of national figures in science, culture, literature and art, thinkers, scientists, writers, poets and artists, and major national events;

rare manuscripts, old books, documents and publications of special interest (historical, artistic, scientific, literary), individually or in collections;

postage stamps, revenue stamps and similar stamps issued fifty or more years ago, individually or in collections;

coins, with the exception of coins of the national currency of the Republic of Kazakhstan, regardless of the alloy or metal from which they are made, as well as coins of other states manufactured no more than one hundred years ago, medals, seals and other collectible materials;

old and unique musical instruments;

archives, archival funds and collections, including sound, photographic, video and cinematographic archives, as well as scientific and technical documentation;

works of art possessing historical and cultural significance;

ethnographic, anthropological, ethnological and palaeontological materials;

old items more than one hundred years old possessing special historical and cultural value;

objects associated with historical events in the life of the people of the Republic of Kazakhstan, the development of society and the state, the history of science and technology, as well as the lives of outstanding figures in science, government and culture, including museum objects and museum collections;

artistic values in the form of pictures, paintings and drawings made by hand on any support and from any materials (excluding designs and industrial products decorated by hand);

original works of sculpture in any materials;

original engravings, prints and lithographs;

components of cultural monuments.

Intangible cultural values include:

oral traditions and forms of expression, including language as a vehicle of intangible cultural heritage;

performing arts;

customs;

rituals;

festivals;

knowledge and customs relating to nature and the universe;

knowledge and skills associated with traditional crafts.

The Law of the Republic of Kazakhstan “On Culture” classifies the listed items or documents as cultural values without differentiating them according to their significance or branches of science.

The totality of the above-mentioned items or documents must possess the characteristics of exclusivity and uniqueness. At the same time, these characteristic features may be associated with historical, scientific, artistic and cultural heritage and, by virtue of this, they represent special value.

The above-mentioned regulatory legal acts classify as cultural values, both movable and immovable, items of great importance to the cultural heritage of every nation, including monuments of art, history and religion, archaeological finds, works of art, manuscripts, books, scientific collections or collections of books, archival materials or reproductions of valuables, museums, major libraries, antiques, etc.

The disposition of Part 1 of Article 193 of the Criminal Code provides not only for the theft of items (objects of the material world, things) possessing special historical, scientific, artistic or cultural value, but also for liability for the theft of documents possessing historical, scientific, artistic or cultural value.

According to V. I. Dahl's Dictionary: “a document is any important business paper.” S. I. Ozhegov proposes understanding a document as “any business paper confirming some fact or a right to something.”

In our opinion, the presence of the above-mentioned characteristics as mandatory criteria for defining a document as the subject matter of the crime provided for in Article 193 of the Criminal Code not only restricts the content of its subject matter but also narrows the scope of application of the criminal law provision under consideration. For example, a diplomatic letter discovered during archaeological excavations (dating back to the 17th century), written to various khanates, would not be considered a document possessing special value, since in earlier times letters did not have specific formal requirements and were written in free form.

We believe that a document should be recognized as “a material carrier of information intended for its transmission through time and space.”

In accordance with Article 1 of the Law of the Republic of Kazakhstan dated December 22, 1998, “On the National Archival Fund and Archives”, a document is information recorded on a material medium that makes it possible to identify such information.

According to the Law of the Republic of Kazakhstan dated November 16, 2015, “On Access to Information”, information means data concerning persons, objects, facts, events, phenomena and processes, obtained or created by the holder of information, recorded on any medium and containing details that make it possible to identify such information.

Thus, taking into account the above, the main characteristics of a document should be identified. A document must:

constitute an object of the material world;

serve as a carrier of information in the form of written signs, images, sound, etc.;

be created as a result of human activity aimed at preserving and transmitting such information through time and space, as well as for the purpose of its subsequent use.

For example, Zhambyl's songs “About the Great Steppe” possess all the above-mentioned characteristics, since they are material in nature, convey certain information about the lives and everyday practices of our ancestors, and were created as a result of purposeful human activity. However, alongside the transmission of information, the primary purpose of the song is to awaken aesthetic feelings in a person, expressed in the form of singing.

Thus, a document possessing special value should be understood as a material carrier of information recorded by various means, purposefully created by a human being for the purpose of transmitting such information through time and space, and also possessing special cultural value for its user.

At the same time, neither the legislation of the Republic of Kazakhstan nor encyclopaedic, scientific or legal literature discloses the concept of “special value of an item or document”. In this regard, both practitioners in the field of culture and employees of law enforcement agencies may encounter difficulties in determining it. From the meaning of Article 193 of the Criminal Code, it may be assumed that “special value” means only its material worth, that is, its monetary valuation.

In our opinion, the existence of this view is, to some extent, a reflection of the provision enshrined in paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Theft”, according to which the special historical, scientific, artistic or cultural value of stolen items or documents is determined on the basis of an expert's or specialist's opinion, taking into account not only their monetary value but also their significance for history, science and culture.

The value of these items or documents is determined not so much by their high monetary price as by their social significance, rarity, etc. In other words, high monetary value is secondary in relation to the other characteristic features of an item or document possessing special value. Moreover, high monetary value is not a characteristic feature defining the specific nature of the subject matter of the crime provided for in Article 193 of the Criminal Code.

The determination of items or documents possessing special historical, scientific, artistic or cultural value is an evaluative matter. The need to conduct an appraisal examination is indicated in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Theft”, which emphasizes that the primary task of an expert or specialist appraiser is to answer the question of whether the items under examination possess special value.

Pre-trial investigation bodies and courts do not always order examinations in criminal cases for the purpose of determining whether a stolen item or document possesses special historical, scientific, artistic or cultural value. This is demonstrated by the following criminal case. Z., acting pursuant to a prior conspiracy with P., stole commodity and material assets and personal documents granting the right to drive and sell a vehicle from a garage belonging to Zh. The pre-trial investigation authorities and the court of the Akkayyn District of the North Kazakhstan Region classified the actions of Z. and P. as the theft of items possessing special value, committed by a group of persons pursuant to a prior conspiracy. The basis for this classification was the statement of the victim, Zh., who claimed that the stolen items (the driver's licence and the vehicle registration certificate) possessed special value for him. As a result, following the issuance of a guilty verdict, the court sentenced Z. to eight years of imprisonment with confiscation of property.

Following a protest by the prosecutor, the North Kazakhstan Regional Court, in our opinion, reasonably overturned the judgment of the lower court and reclassified the actions of the perpetrators as “the theft or damage of documents, stamps and seals”.

From the objective side, the theft of items possessing special value may be expressed in any form: through theft, misappropriation or embezzlement of entrusted property belonging to another person, fraud, robbery or bandit-style armed robbery.

The moment of completion of the crime provided for in Article 193 of the Criminal Code depends on the method of committing the crime chosen by the perpetrator. In cases of theft, misappropriation, embezzlement, fraud and robbery, the act should be considered completed from the moment the items or documents possessing special value are seized and/or converted to the perpetrator's benefit and the perpetrator obtains a real opportunity to dispose of them.

The commission of this crime in the form of armed robbery is considered completed from the moment of an attack involving violence dangerous to the life or health of the victim, or the threat of the immediate use of such violence, regardless of whether the perpetrator managed to steal the item or document possessing special value.

According to paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Theft”, where the perpetrator steals items possessing special historical, scientific, artistic or cultural value, as well as other property belonging to another person, the act as a whole must be classified according to the aggregate of criminal offences — as the theft of items possessing special value and under the relevant Articles (188, 189, 190, 191 or 192), depending on the method of theft.

From the subjective side, the act under consideration is characterized by guilt in the form of direct intent, meaning that the perpetrator is aware that they are stealing an item or document possessing special value, foresees that, as a result of the method of theft chosen by them, the specified property will be seized and/or converted to their benefit, and desires this outcome.

If the perpetrator's awareness does not encompass the fact that they are stealing items or documents possessing special historical, scientific, artistic or cultural value, the act cannot be classified under Article 193 of the Criminal Code and must instead be classified according to the method of theft chosen.

The subject of the crime is a sane natural person who has reached the age of 16. If items or documents possessing special value were stolen by a person who had reached the age of 14, their actions must be classified, depending on the method of seizure chosen, as theft, fraud, robbery or armed robbery. If they were stolen through misappropriation or embezzlement, the subject of the crime is a special subject.

The qualifying characteristics provided for in Part 2 of Article 193 of the Criminal Code are:

commission by a group of persons pursuant to a prior conspiracy;

repeated commission.

The particularly qualifying characteristics include:

commission by a criminal group;

the occurrence of consequences in the form of destruction or damage to the items or documents specified in Part 1 of Article 193 of the Criminal Code.

Of the above list, the specific qualifying characteristic inherent exclusively in the theft of items possessing special value (in comparison with other forms of theft) is “resulting in the destruction or damage of the items or documents specified in Part One of this Article”.

Destruction means the physical elimination of an item or physical impact upon it resulting in the irreversible loss of the possibility of using it for its intended purpose. As a result of destruction, the item loses its economic, consumer and cultural value and is no longer capable of serving to satisfy the owner's spiritual and material needs in the capacity in which it was used prior to destruction. Consequently, in the event of the destruction of an item or document possessing special value, the destroyed property automatically ceases to be part of property relations.

In criminal law scholarship, certain scholars have classified the destruction of national culture as genocide.

The word “damage” means rendering something unfit for use. Damage is a synonym for the term “impairment”, which is used when describing the offences provided for in Articles 202, 203 and 204 of the Criminal Code. In S. I. Ozhegov's Explanatory Dictionary of the Russian Language, the meaning of the word “damage” is given as “to spoil (to break)”. Consequently, damage and impairment mean the infliction of recoverable harm, partial loss or deterioration of the qualities of items or documents possessing special value. These characteristic qualities may be restored by specialists through restoration or repair.

The acts provided for in Parts 1, 2 and 3 of Article 193 of the Criminal Code belong to the category of serious crimes.

Commentary to 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 reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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