Commentary on Article 202. Intentional Destruction or Damage to Another Person’s Property of the Criminal Code of the Republic of Kazakhstan

1. Intentional destruction or damage to another person’s property that causes significant damage —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional 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 same act:

1) committed by means of arson, explosion or another generally dangerous method;

2) resulting, through negligence, in the infliction of grievous or moderate bodily harm;

3) committed in connection with the victim’s performance of official or public duties, or against the victim’s close relatives for the same motives;

4) committed on the grounds of social, national, racial or religious hatred;

5) causing large-scale damage, —

shall be punishable by a fine in an amount ranging from three thousand to seven thousand monthly calculation indices, or correctional labor in the same amount, or restriction of liberty for a period of three to seven years, or imprisonment for the same period.

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

1) the death of a person through negligence;

2) the infliction of especially large-scale damage, —

shall be punishable by imprisonment for a period of five to ten years.

The public danger of this crime is expressed in the violation of property relations concerning property. This crime infringes upon these relations by causing property damage to the owner or another lawful possessor of the property, depriving them of such property or impairing its socially useful qualities.

The object of the act under consideration is property relations.

The subject matter of the crime under consideration may be any property belonging to another person (movable or immovable), including property withdrawn from civil circulation, except in cases where the intentional destruction or damage of certain items constitutes the elements of independent crimes provided for under Article 350 of the Criminal Code, “Intentional Rendering of Vehicles or Means of Communication Unfit for Use,” Part 3 of Article 384 of the Criminal Code, “Theft, Destruction, Damage or Concealment of Official Documents, Stamps or Seals Committed for Mercenary or Other Personal Gain,” or Article 459 of the Criminal Code, “Intentional Destruction or Damage of Military Property,” and so forth. In all the above cases, independent grounds for criminal liability arise for the perpetrator, differing from the grounds provided for under Article 202 of the Criminal Code.

The objective side of the crime consists of actions expressed in the intentional destruction or damage of another person’s property. The crime in question may also be committed through omission, where the perpetrator takes advantage of a situation that, if left unchanged, will lead to the destruction or damage of another person’s property. For example, the perpetrator deliberately fails to close a water tap left open by someone before them, fails to extinguish a fire, and so forth.

The destruction of another person’s property means rendering it into such a condition that it permanently loses its economic and commercial value and cannot be restored, as a result of which it can no longer be used for its intended purpose.

Damage means causing harm to another person’s property that substantially reduces its economic and commercial value, while making it impossible to use the property for its intended purpose without restoration or repair. At the same time, provided that the necessary labor and financial expenses are incurred to repair and restore the item damaged by the perpetrator, the item is capable of regaining its temporarily and partially lost useful qualities and properties, thereby allowing it to be used again, with varying degrees of efficiency, for its direct functional purpose.

The intentional destruction or damage of one’s own property does not constitute this crime, since it does not infringe upon property relations.

By its legal construction, the crime is classified as a material offense and is considered completed from the moment significant damage is caused.

According to Subparagraph 2) of Article 3 of the Criminal Code, significant damage in relation to Article 202 of the Criminal Code means damage in an amount exceeding two hundred times the monthly calculation index.

The subjective side of the act under consideration is characterized by guilt in the form of intent, which may be either direct or indirect. A person who intentionally destroys or damages another person’s property is aware of the socially dangerous nature of their conduct, foresees that, as a result of their actions aimed at destroying or damaging another person’s property, significant damage will be caused to the lawful owner, and desires or consciously permits the occurrence of such consequences. The motives may vary: revenge, jealousy, envy, and sometimes mercenary motives (for example, the destruction or damage of another person’s property for remuneration, that is, on an “order” basis).

The subject of the basic offense of destruction or damage of another person’s property is a physically competent and sane individual who has reached the age of 16, while, in the presence of aggravating circumstances (Parts 2 and 3 of Article 202 of the Criminal Code), the subject is a person who has reached the age of 14.

The qualifying characteristics of the act under consideration include the commission of intentional destruction or damage of another person’s property:

by means of arson, explosion or another generally dangerous method;

resulting, through negligence, in the infliction of grievous or moderate bodily harm;

committed in connection with the victim’s performance of official or public duties, or against the victim’s close relatives for the same motives;

committed on the grounds of social, national, racial or religious hatred;

causing large-scale damage.

With regard to arson, its public danger lies in the fact that, having caused an open flame to appear, a person subsequently loses control over it, which leads to the arson developing into a fire, thereby creating a real threat to the life and health of people or to the property interests of other persons. The public danger of arson may be determined by the very nature of the object being set on fire. Thus, setting fire to residential or industrial premises where people are present is considered generally dangerous, regardless of other circumstances.

In accordance with the Law of the Republic of Kazakhstan dated April 11, 2014, “On Civil Protection,” a fire is uncontrolled combustion that creates a threat and causes harm to the life and health of people, material damage to individuals and legal entities, and damage to the interests of society and the state.

Arson is understood as an intentional unlawful act that results in the outbreak of a fire, that is, uncontrolled combustion outside a designated combustion area, which leads to the destruction or damage of property, bodily injury or the death of people, causes substantial harm to economic, environmental and other legally protected interests of the individual, society and the state, or creates a real threat of such consequences occurring.

Intentional arson is generally committed through active actions, but may also result from omission. For example, a criminal, wishing to cause a fire, deliberately fails to eliminate a malfunction in electrical equipment.

The Great Legal Dictionary defines an explosion as a sudden release of energy based on the property of gases to expand, regardless of whether the gases existed beforehand or were formed only during the explosion process. S. I. Ozhegov defines an explosion as the instantaneous destruction of something accompanied by the formation of highly heated, high-pressure gases.

A generally dangerous method, in addition to an explosion or arson, encompasses actions possessing considerable destructive force and creating a danger of human fatalities and other grave consequences, such as flooding, poisoning animals, causing transport accidents, and so forth.

From the subjective standpoint, this act presupposes that the perpetrator is aware of the generally dangerous nature of the method chosen by them to destroy or damage another person’s property. If, as a result of arson, an explosion or the commission of another act by a generally dangerous method, the property does not suffer the damage desired by the perpetrator for reasons beyond their control, then, provided that they had the intent to cause significant damage by such means, the act should be classified as an attempted intentional destruction or damage of another person’s property committed by the aforementioned means (Part 3 of Article 24 of the Criminal Code and Subparagraph 1) of Part 2 of Article 202 of the Criminal Code).

The destruction or damage of one’s own property for the purpose of subsequently receiving insurance compensation may be regarded as preparation for fraud, provided that it constituted preparation for serious fraud (Parts 3 and 4 of Article 190 of the Criminal Code).

If, as a result of setting fire to one’s own property, significant damage is caused to another person’s property or to property that constitutes the joint ownership of the person responsible for the fire and other persons, the actions of such person, who desired the occurrence of the specified consequences or, without desiring them, consciously permitted their occurrence or remained indifferent to them, must be classified as intentional destruction or damage of another person’s property by means of arson.

The intentional destruction or damage of individual items using fire under conditions that exclude its spread to other objects and the emergence of a threat of harm to the life and health of people, as well as to another person’s property, should be classified under Part 1 of Article 202 of the Criminal Code, provided that significant damage has been caused to the victim.

Actions involving the negligent infliction of grievous or moderate bodily harm are classified under Subparagraph 2) of Part 2 of Article 202 of the Criminal Code.

To establish the degree of severity of bodily harm, when conducting a forensic medical examination, it is necessary to follow the Rules for the Organization and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017.

In the intentional destruction or damage of another person’s property, with regard to the infliction of bodily harm, the person must act negligently, that is, a dual form of guilt is present: intent with respect to the act (destruction or damage of another person’s property) and negligence with respect to the consequences that have occurred (infliction of bodily harm through recklessness or negligence). The infliction of grievous or moderate bodily harm through recklessness means that the person foresaw the possibility of socially dangerous consequences arising from their actions (inaction), but, without sufficient grounds, recklessly relied on preventing such consequences. The infliction of grievous or moderate bodily harm through negligence occurs when the person did not foresee the possibility of socially dangerous consequences resulting from their actions (inaction), although, with due attention and foresight, they should and could have foreseen such consequences.

Subparagraph 3) of Part 2 of Article 202 of the Criminal Code provides for liability for the same actions committed in connection with the victim’s performance of their official or public duties, or against the victim’s close relatives for the same motives.

Official duty means actions falling within the scope of the official or professional responsibilities of any person arising from an employment contract with state-owned or other enterprises duly registered in accordance with the established procedure, whose activities do not contradict the applicable legislation.

The performance of public duty means both the fulfillment by citizens of specially assigned public responsibilities and the commission of other actions in the interests of society or individual persons (reporting a planned crime to government authorities, preventing an offense, and so forth). In this case, the official or public activities of the victim must be lawful.

For this qualifying characteristic to be applied, it must be established that the property of the person specified in the disposition of the Article was destroyed or damaged by the perpetrator precisely in connection with that person’s performance of their official or public duty. At the same time, the perpetrator must be aware that they wish to destroy or damage the property belonging specifically to that person.

Subparagraph 4) of Part 2 of Article 202 of the Criminal Code provides for liability for committing these acts on the grounds of social, national, racial or religious hatred. The introduction of this qualifying characteristic is обусловлено by the tolerance and mutual respect that should prevail in the social, national, racial or religious life of our people. The legal basis for introducing this characteristic is Article 6 of the Constitution of the Republic of Kazakhstan, which proclaims the recognition and equal protection of all forms of ownership. Furthermore, Paragraph 2 of Article 14 of the Constitution of the Republic of Kazakhstan states: “No one shall be subjected to any discrimination on the grounds of origin, social, official or property status, sex, race, nationality, language, attitude towards religion, beliefs, place of residence or on any other grounds.”

In the intentional destruction or damage of another person’s property committed on the basis of this qualifying characteristic, the predominant motive is the perpetrator’s rejection, disrespect or hatred of the victim’s belonging to a particular social status, nationality, race or religion, or, conversely, the assertion of the exclusivity of the perpetrator’s own social, national, racial or religious affiliation.

For the intentional destruction or damage of another person’s property to be classified under Article 202 of the Criminal Code, the absence of a hooligan motive is required. Hooligan motives are understood as an especially brazen violation of public order expressing clear disrespect for society, accompanied by the use of violence against citizens or the threat of its use, as well as the destruction or damage of another person’s property or the commission of indecent acts distinguished by exceptional cynicism, since such a motive constitutes an element of the crime of hooliganism (Part 1 of Article 293 of the Criminal Code).

An especially qualifying characteristic of the act under consideration is the commission of intentional destruction or damage of another person’s property (Part 3 of Article 202 of the Criminal Code), resulting in:

1) the death of a person through negligence;

2) the infliction of especially large-scale damage.

Under Subparagraph 1) of Part 3 of Article 202 of the Criminal Code, the actions of a perpetrator who, in the course of intentionally destroying or damaging another person’s property, negligently causes the death of any person should be classified accordingly. The danger of this crime lies in the perpetrator’s disregard for precautionary rules and their reckless attitude towards the lives of other people when using sources of increased danger. The additional object of this crime is the life of another person. An obligatory element of the objective side of the crime in question is the establishment of a causal link between the criminal actions of the perpetrator and the resulting consequence — the death of a person. From the subjective standpoint, an act committed under this qualifying characteristic is characterized by a dual form of guilt. The perpetrator’s mental attitude towards the consequences provided for in Subparagraph 1) of Part 3 of this Article can only be expressed in the form of negligence. If death or other grave consequences are caused with direct or indirect intent, the act is classified cumulatively with the relevant Articles of the Criminal Code concerning criminal offenses against the person.

According to Subparagraph 2) of Part 3 of Article 202 of the Criminal Code, liability arises for acts provided for in Parts 1 or 2 of the Article under consideration that result in the infliction of especially large-scale damage, that is, damage in an amount exceeding four thousand times the monthly calculation index.

Intentional destruction or damage of another person’s property must be distinguished from an act of terrorism (Article 255 of the Criminal Code) and mass riots (Article 272 of the Criminal Code). The object of an act of terrorism and mass riots is public security, whereas the object of intentional destruction or damage of another person’s property is property relations. The objective side of an act of terrorism (Article 255 of the Criminal Code) also includes the commission of an explosion, arson or other actions creating a danger of human fatalities, significant property damage or the occurrence of other socially dangerous consequences. The distinction should primarily be made based on the characteristics of the subjective side. Terrorist acts are committed for the purpose of disrupting public security, intimidating the population, influencing decision-making by state bodies of the Republic of Kazakhstan, a foreign state or an international organization, provoking war or complicating international relations, as well as threatening to commit the aforementioned acts for the same purposes. In cases of intentional destruction or damage of property, the motives are personal and domestic in nature.

At the same time, Article 202 of the Criminal Code provides for a material crime, which is completed at the moment significant damage is caused to the victim. The crime of an act of terrorism is considered completed from the moment the perpetrator performs the actions specified in the disposition of Part 1 of Article 255 of the Criminal Code. The occurrence of consequences in the case of terrorism is not mandatory; it is sufficient that an actual danger of human fatalities, significant property damage or other socially dangerous consequences is created. Pogroms, arson, destruction and demolition of property are also included in the objective side of mass riots provided for under Article 272 of the Criminal Code. In this crime, they constitute an integral part of mass riots. The latter represent a form of expression of public dissatisfaction with the activities of government authorities, that is, the motives behind mass riots are political in nature. If the destruction or damage of another person’s property was committed in the course of hooligan actions, the perpetrator’s conduct does not require additional classification under Article 202 of the Criminal Code.

Criminal liability for the intentional destruction or damage of another person’s property is established not only under Article 202 of the Criminal Code and the criminal law provisions discussed above, but also under a number of other Articles of the Criminal Code, in particular: Article 184, “Sabotage”; Article 293, “Hooliganism”; Article 294, “Vandalism”; Article 314, “Desecration of the Bodies of the Dead and Places of Their Burial”; Part 2 of Article 341 (intentional damage or destruction of trees and shrubs, both included and not included in the forest fund, except for trees and shrubs located on private residential, summer cottage and garden plots, committed by means of arson or another generally dangerous method, or as a result of contamination with harmful substances, waste, emissions or discharges); Part 2 of Article 342 (intentional damage or destruction of objects of the state nature reserve fund in specially protected natural areas, resulting in significant damage); Article 350, “Intentional Rendering of Vehicles or Means of Communication Unfit for Use”; Article 372, “Desecration of State Symbols”; Part 3 of Article 384 (theft, destruction, damage or concealment of official documents, stamps or seals committed for mercenary or other personal gain); Part 1 of Article 396 (removal, relocation or destruction of border markers for the purpose of unlawfully changing the State Border of the Republic of Kazakhstan); Article 459, “Intentional Destruction or Damage of Military Property.”

The distinction should be made, first of all, based on the object of the offense. Thus, the object of sabotage is the security and defense capability of the Republic of Kazakhstan; the object of hooliganism is public order; the object of vandalism is social relations governing the norms of public morality and public order; the object of desecration of the bodies of the dead and places of their burial is public morality; the object of intentional destruction or damage of forests, as well as plantations not included in the forest fund, by means of arson, another generally dangerous method or as a result of contamination with harmful substances, waste, emissions or discharges, is social relations in the field of forest and other natural vegetation protection; the object of intentional damage or destruction of objects of the state nature reserve fund in specially protected natural areas resulting in significant damage is social relations in the field of protection and use of specially protected natural areas; the object of desecration of state symbols is social relations in the field of public administration; the object of intentional rendering of vehicles or means of communication unfit for use is social relations in the field of ensuring the safety of traffic and the operation of vehicles; the object of theft, destruction, damage or concealment of official documents, stamps or seals committed for mercenary or other personal gain is the administrative order and the established procedure for handling documents, stamps and seals; the object of the removal, relocation or destruction of border markers for the purpose of unlawfully changing the State Border of the Republic of Kazakhstan is the procedure governing the State Border regime of the Republic of Kazakhstan in the interests of its inviolability, as well as the territorial integrity of the Republic of Kazakhstan; the object of intentional destruction or damage of military property is the established procedure for the preservation of military property.

The distinction between the compared elements of crimes in terms of their objective side is constituted by the commission by the perpetrator of one or more actions listed in the dispositions of the relevant provisions.

The subjective side of the compared criminal offenses is characterized by guilt in the form of direct intent. At the same time, the subjective side of the basic offense under Article 350 of the Criminal Code and Subparagraph 2) of Part 3 of Article 255 of the Criminal Code is characterized by a mixed (dual) form of guilt. As follows from the disposition of Part 1 of Article 350 of the Criminal Code, the perpetrator’s mental attitude towards the immediate consequences of the socially dangerous act is expressed in the form of direct intent, while their attitude towards more remote consequences is expressed in the form of criminal recklessness or criminal negligence.

The aforementioned Articles of the Criminal Code contain provisions that constitute special rules in relation to the general rule established under Article 202 of the Criminal Code. Intentional destruction or damage of another person’s property under the circumstances specified in these special provisions is classified exclusively under the Article of the Criminal Code containing the special rule. This follows from the legal provision established in Part 3 of Article 13 of the Criminal Code.

The act provided for in Part 1 of Article 202 of the Criminal Code belongs to the category of minor offenses.

The acts provided for in Parts 2 and 3 of Article 202 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, 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 the 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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