Commentary on Article 203 of the Criminal Code of the Republic of Kazakhstan. Intentional Destruction, Removal or Damage of Items of Special Value
1. The intentional destruction or damage of historical or cultural monuments, natural complexes or objects protected by the state, as well as items or documents having special historical, scientific, artistic or cultural value, —
shall be punishable by imprisonment for a term of three to seven years.
1-1. The unlawful export of cultural property and objects of national cultural heritage outside the Republic of Kazakhstan or failure to return them to the Republic of Kazakhstan, —
shall be punishable by imprisonment for a term of three to seven years.
2. An act provided for in Part One of this Article:
1) committed by arson, explosion or any other generally dangerous method;
2) resulting, through negligence, in the infliction of serious or moderate bodily harm;
3) committed on the grounds of social, national, racial or religious hatred, —
shall be punishable by imprisonment for a term of five to ten years.
3. Acts provided for in Parts One or Two of this Article that have resulted, through negligence, in the death of a person, —
shall be punishable by imprisonment for a term of seven to twelve years.
The public danger of the act under consideration is expressed in the irreparable loss or damage to items of special value resulting from its commission. The role of historical and cultural monuments in the revival and development of the spiritual and cultural traditions of the peoples of Kazakhstan, as well as in science and the education of young people, is also lost.
The territory of Kazakhstan contains such unique monuments as the architectural complex of Khoja Ahmed Yasawi and the ancient settlement of Yasy-Turkestan in the Turkestan Region, the archaeological complex and petroglyphs of Tamgaly in the Almaty Region, the Merke Turkic sanctuary in the Zhambyl Region, the megalithic monuments of the Begazy-Dandybai culture in the Karaganda Region, the Paleolithic and geomorphological complex of Karatau in the Turkestan Region, the burial mounds with stone rows of the Tasmola culture in the Karaganda, Akmola and Pavlodar Regions, and others. A number of them are included in the UNESCO World Heritage List.
Taking into account such a rich heritage of ancient Kazakhstan, the establishment of criminal liability for this act under a special provision may be considered justified.
The object of the act under consideration is property relations. Due to the specific nature of the subject matter of the crime, an additional object is represented by relations in the field of preservation of cultural heritage, which suffers irreparable damage in the event of its irreversible loss (whether the subject matter of the crime is lost in whole or in part).
The special structural feature of this act, which served as the basis for the legislator to formulate an independent corpus delicti, should be recognized as its subject matter. The disposition of Part 1 of Article 203 of the Criminal Code refers to the intentional destruction or damage of historical and cultural monuments, natural complexes or objects protected by the state, as well as items or documents having special historical, scientific, artistic or cultural value.
Article 3 of the Law of the Republic of Kazakhstan dated July 2, 2019, “On the Protection and Use of Historical and Cultural Heritage Objects”, explains that historical and cultural monuments are historical and cultural heritage objects included in the State List of Historical and Cultural Monuments.
Historical and cultural heritage objects are immovable objects together with associated works of painting, sculpture, applied art, science, technology and other items of material culture that emerged as a result of historical processes and events and are of interest from the perspective of history, archaeology, architecture, urban planning, art, science, technology, aesthetics, ethnology, anthropology and social culture.
The State List of Historical and Cultural Monuments is a list of historical and cultural heritage objects recognized as historical and cultural monuments, indicating their type, category and coordinates.
Historical and cultural monuments are divided into the following types:
- urban planning and architectural monuments; 2) archaeological monuments; 3) ensembles and complexes; 4) sacred sites; 5) structures of monumental art (Article 5 of the Law).
Ensembles and complexes are groups of isolated or interconnected monuments, buildings and structures intended for fortification, palace, residential, public, administrative, commercial, industrial, scientific, educational and religious purposes, including fragments of historical layouts and buildings of settlements, located within historically established territories.
Archaeological monuments are sites, ancient settlements, remains of ancient structures, settlements, fortifications, production facilities, canals, roads, burial grounds, burial mounds, necropolises, megalithic structures, stone sculptures, petroglyphs, sections of the historical cultural layer of ancient settlements and other places containing traces of human life and activity.
Sacred sites are historical and memorial places, man-made and natural religious objects, landscapes and structures associated with outstanding historical events and personalities, as well as the spiritual values of the people.
Urban planning and architectural monuments are architectural ensembles and complexes, historical centres, blocks, squares, streets, structures of civil, residential, industrial, military and religious architecture, structures of folk architecture, as well as works of monumental, decorative and applied art and landscape gardening art associated with them, and natural landscapes.
Structures of monumental art are works of monumental art (monuments, steles, busts) erected to commemorate outstanding personalities and significant historical events.
Recognition of historical and cultural heritage objects as historical and cultural monuments is formalized by their inclusion in the State List of Historical and Cultural Monuments of international, national and local significance, which is subject to mandatory official publication. Archaeological monuments acquire the status of historical and cultural monuments from the moment they are discovered.
Historical and cultural monuments in the Republic of Kazakhstan are subject to mandatory protection and preservation in accordance with the procedure established by the Law “On the Protection and Use of Historical and Cultural Heritage Objects”. They are subject to a special legal regime governing their use, changes in ownership rights and deprivation of their status.
A historical and cultural monument may be deprived of its status and excluded from the State List of Historical and Cultural Monuments only in the event of the complete physical loss of the object and (or) the loss of its historical and cultural significance (Article 5 of the Law).
The owner has the rights to possess, use and dispose of historical and cultural monuments as objects of property, with the exception of the right to destroy them independently (Article 12 of the Law). In this regard, it can be stated that liability for this crime (Article 203 of the Criminal Code) may also be borne by the owner of property having special value.
Natural complexes or objects protected by the state are typical and rare landscapes, nature reserves, natural sanctuaries, national natural parks and natural monuments, that is, complexes withdrawn from economic use and comprising land, subsoil, water, flora and fauna in all their species diversity.
Destruction or damage of natural complexes and objects protected by the state means their complete loss of their original natural appearance or disruption of the corresponding ecological balance.
Destruction or damage of historical and cultural monuments occurs when an object of material culture is rendered completely unusable or is altered to such an extent as a result of the removal of certain parts or fragments that its artistic and cultural value is significantly reduced. Making offensive inscriptions, etc., on monuments entails liability for vandalism under Article 294 of the Criminal Code.
Criminal encroachment upon historical and cultural monuments having special historical, scientific, artistic or cultural value, which constitute the specific subject matter of the act, is characterized by an increased degree of public danger, resulting in the actual loss of cultural property or the loss of its unique properties, thereby causing irreparable damage to cultural heritage. In other words, the socially dangerous acts under consideration result in an affront to spiritual ideals and the positive moral principles that have developed in society over several generations.
The objective side of the crime consists of actions expressed in the intentional destruction or damage of items having special value. The corpus delicti under consideration may also be committed through omission. This occurs when the offender takes advantage of a situation which, if left unchanged, leads to the destruction or damage of such property.
The elements of destruction and damage of another person's property are examined in the commentary to Article 202 of the Criminal Code.
By its construction, this provision belongs to the category of material offences, that is, the actions specified therein should be considered criminally punishable only if the items having special value are destroyed or damaged.
The subjective side of the act under consideration is characterized by guilt in the form of intent, both direct and indirect. A person who intentionally destroys or damages items having special value is aware of the socially dangerous nature of their act, foresees that, as a result of the actions undertaken by them to destroy or damage such property, irreparable loss will be caused to cultural heritage, and wishes or consciously allows such consequences to occur. The motives may vary: revenge, jealousy, envy, hooliganism, and sometimes financial gain (for example, the destruction or damage of another person's property for remuneration, that is, on a “contract” basis).
The subject is a sane individual who has reached the age of 16.
The qualifying features of the act under consideration are the commission of destruction or damage of another person's property:
by arson, explosion or any other generally dangerous method;
resulting, through negligence, in the infliction of serious or moderate bodily harm;
committed on the grounds of social, national, racial or religious hatred (Part 2 of Article 203 of the Criminal Code).
Part 3 of Article 203 of the Criminal Code recognizes the commission of these acts resulting, through negligence, in the death of a person as a particularly qualifying feature.
These features were examined in the commentary to Article 202 of the Criminal Code, “Intentional Destruction or Damage of Another Person's Property”.
The acts provided for in Parts 1, 1-1, 2 and 3 of Article 204 of the Criminal Code are classified as serious crimes.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamилovich 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 the 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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