Commentary on Article 201. Violation of Property Rights to Land of the Criminal Code of the Republic of Kazakhstan

1. Unlawful entry into another person's land plot, resulting in substantial harm to the rights or legally protected interests of individuals or organizations, or to the legally protected interests of society or the state, committed through the use of violence or the threat of its use, or by a group of persons, or accompanied by an unlawful search, as well as unlawful seizure of another person's land plot —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

2. The acts provided for in the first part of this Article, committed by a person through the use of their official position, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

The public danger of the criminal act under consideration is expressed in the violation of the property rights to land of citizens, organizations, the state, or society as a whole, while the victim suffers both physical and substantial material harm, or is deprived of the opportunity to possess the land plot.

The object of the crime is the property right to land. Property rights to land should be understood as the right of ownership, the right of land use, the right of temporary use of a land plot in private ownership, an easement, and other property rights.

Such a broad understanding of property rights to land is обусловлено the constitutional provision that state and private property are recognized and equally protected in the Republic of Kazakhstan (Clause 1 of Article 6 of the Constitution of the Republic of Kazakhstan).

Ownership of a land plot arises through: 1) the granting of ownership rights; 2) the transfer of ownership rights; 3) the transfer of ownership rights by way of universal succession (inheritance, reorganization of a legal entity) (Clause 1 of Article 22 of the Land Code of the Republic of Kazakhstan dated June 20, 2003).

In accordance with Clause 2 of Article 23 of the Land Code of the Republic of Kazakhstan, citizens of the Republic of Kazakhstan may own land plots privately for conducting peasant or farming enterprises, maintaining personal subsidiary farms, afforestation, gardening, individual housing and summer cottage construction, as well as land plots allocated (to be allocated) for construction or occupied by constructed industrial and non-industrial buildings (structures, facilities), including residential buildings, and their complexes, including land intended for servicing buildings (structures, facilities) in accordance with their designated purpose.

If a citizen who owns a land plot allocated for conducting a peasant or farming enterprise, maintaining a personal subsidiary farm, afforestation, gardening, or summer cottage construction renounces the citizenship of the Republic of Kazakhstan, the ownership right shall be subject to alienation or re-registration in accordance with the provisions of Article 66 of the Land Code.

The owner of a land plot exercises the rights of possession, use, and disposal of the land plot at their own discretion without obtaining any permits from state authorities, unless otherwise provided for by the Land Code and other legislative acts of the Republic of Kazakhstan.

The owner has the right to enter into any transactions concerning their land plot without changing its designated purpose, provided that such transactions are not prohibited by the legislative acts of the Republic of Kazakhstan (Clauses 1 and 2 of Article 25 of the Land Code of the Republic of Kazakhstan).

Clause 1 of Article 26 of the Land Code of the Republic of Kazakhstan establishes that land plots allocated to state authorities, state organizations and institutions, used for the needs of defense and national security, occupied by specially protected natural areas for health-improving and historical-cultural purposes, lands of the forest and water funds, public-use lands within populated areas, reserve lands, including the special land fund, pasture and hayfield lands, as well as distant pastures and other lands not transferred into private ownership, are in state ownership.

Land plots occupied for the needs of defense and state security, the defense industry in state ownership; by engineering and technical structures and communications constructed for the protection and security of the State Border of the Republic of Kazakhstan; for customs needs; by specially protected natural areas; by forest fund lands, with the exception of land plots listed in Clause 4 of Article 128 of the Land Code of the Republic of Kazakhstan; by water fund lands, with the exception of land plots listed in Clause 2 of Article 133 of the Land Code of the Republic of Kazakhstan; by main railway networks and public roads, with the exception of land plots occupied by public roads sold to the state Islamic special financial company by decision of the Government of the Republic of Kazakhstan in accordance with the legislative acts of the Republic of Kazakhstan; and by public-use areas in populated localities, with the exception of land plots occupied by buildings and structures owned privately and necessary for their maintenance, may not be privately owned.

The classification of land into a particular category is determined on the basis of its designated purpose and permitted use in accordance with land zoning.

Land plots occupied by pasture and hayfield lands used and intended for the needs of the population, including those located within the boundaries of cities of regional and district significance, settlements, and rural populated localities; public roads, including inter-farm and inter-settlement roads, as well as roads intended to provide access to public-use land plots; and shared water supply structures (irrigation canals, drainage facilities, wells, livestock watering points) used jointly by two or more owners of land plots or land users, shall not be allocated into separate ownership or land use to citizens and non-state legal entities (Parts 2 and 3 of Article 26 of the Land Code of the Republic of Kazakhstan).

Land plots from lands in state ownership may be:

«1) sold or transferred free of charge into private ownership;

1-1) contributed as payment to the authorized capital (ownership) of social-entrepreneurial corporations;

provided for permanent or temporary land use;

implemented in other legal forms in cases provided for by the Land Code, other legislative acts of the Republic of Kazakhstan, or international treaties» (Article 27 of the Land Code of the Republic of Kazakhstan).

The objective element of the act under consideration is expressed in unlawful entry into another person's land plot, resulting in substantial harm to the rights or legally protected interests of individuals or organizations, or to the legally protected interests of society or the state, committed through the use of violence or the threat of its use, or by a group of persons, or accompanied by an unlawful search, as well as unlawful seizure of another person's land plot.

Unlawful entry into another person's land plot should be understood as the actions of the perpetrator consisting of intrusion into a land plot that does not belong to them without lawful grounds and remaining there against the will of the owner of the land plot. Such entry is recognized by the legislator as a criminally punishable act only in the following cases: 1) where substantial harm is caused to the rights or legally protected interests of individuals or organizations, or to the legally protected interests of society or the state, which presupposes a significant restriction of, or impossibility of exercising, lawful property rights to land; 2) where it is committed through the use of violence or the threat of its use, or by a group of persons, or where it is accompanied by an unlawful search, as well as in the case of unlawful seizure of another person's land plot.

The use of violence or the threat of its use should be understood as the infliction of beatings, minor bodily injury, or psychological violence against the owner of the land plot. The infliction of bodily injury of moderate severity or grievous bodily harm on the victim requires additional qualification under Articles 107 and 106 of the Criminal Code.

Entry into a land plot is recognized as having been committed by a group of persons if it is carried out by two or more persons who are sane and have reached the age of 16 at the time of committing the crime.

The degree of public danger of the crime increases when entry into another person's land plot is accompanied by an unlawful search, that is, a search conducted without lawful grounds.

At the same time, pursuant to Clause 1 of Article 68 of the Land Code of the Republic of Kazakhstan, individuals have the right to freely stay, without any permits, on land plots that are not closed to public access. If a land plot in private ownership or land use is not fenced off, or if the private owner or land user has not otherwise indicated that entry onto the plot without their permission is prohibited, any person may pass through such plot, provided that this does not cause harm to the private owner or land user (Clause 2 of Article 68 of the Land Code of the Republic of Kazakhstan).

Unlawful seizure of another person's land plot means any form of unlawful taking possession of such plot. It should be noted that property rights to land do not arise in this case and, even if the person who has seized another person's land plot possesses it for a certain period of time, such person remains a possessor without legal title.

By its legal construction, the elements of this crime constitute a material composition, meaning that substantial harm must be caused to the rights or legally protected interests of individuals or organizations, or to the legally protected interests of society or the state, as discussed above.

According to Subparagraph 14) of Article 3 of the Criminal Code, substantial harm is recognized as the following consequences, where they are not specified as an element of a criminal offense provided for by the Criminal Code: violation of the constitutional rights and freedoms of individuals and citizens, the rights and legitimate interests of organizations, and the legally protected interests of society and the state; causing significant damage; the occurrence of a difficult life situation for the victim; disruption of the normal operation of organizations or state bodies; disruption of important military activities or a short-term decrease in the level of combat readiness and combat capability of military units and subdivisions; untimely detection or repulsion of an attack by armed groups or individual armed persons, land, air, or naval military equipment; allowing the unhindered illegal crossing of the State Border of the Republic of Kazakhstan by persons and vehicles, the movement of contraband goods, or tolerating actions that cause damage to border structures and technical means of border protection; and other consequences indicating the substantial nature of the harm caused.

From the subjective perspective, the act is characterized by guilt in the form of either direct or indirect intent. The person is aware that they are unlawfully entering another person's land plot, foresees the occurrence of the consequences specified in the disposition of Article 201 of the Criminal Code, desires their occurrence or consciously allows them to occur.

The subject of the crime under consideration is a general subject, namely a sane natural person who has reached the age of 16.

In Part 2 of Article 201 of the Criminal Code, the legislator provides for a qualifying circumstance consisting of the commission of the actions specified in Part 1 of the commented Article by a person using their official position. In order to apply this qualifying circumstance, it must be established that the violation of property rights to land became possible because the guilty person used their official position to commit the act under consideration.

The act provided for in Part 1 of Article 201 of the Criminal Code belongs to the category of minor crimes.

The act provided for in Part 2 of Article 201 of the Criminal Code belongs to the category of crimes of medium gravity.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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