Commentary on Article 248. Theft or Extortion of Radioactive Materials of the Criminal Code of the Republic of Kazakhstan
1. Theft or extortion of radioactive materials –
shall be punishable by a fine in the amount of seven hundred to one thousand monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of five to ten months, or by imprisonment for a term of up to five years.
2. The same acts committed:
a) by a group of persons pursuant to a prior conspiracy;
b) repeatedly;
c) by a person using his or her official position;
d) with the use of violence that is not dangerous to life or health, or with the threat of using such violence, –
3. The acts provided for in Parts One and Two of this Article, committed:
a) with the use of violence dangerous to life or health, or with the threat of using such violence;
b) by an organized group;
c) excluded –
shall be punishable by imprisonment for a term of five to ten years, with confiscation of property.
Note. Repeated commission of a crime under this Article, as well as under Articles 255 and 260 of this Code, shall be recognized where the commission of one or more crimes provided for by these Articles, as well as by Articles 175–181 of this Code, preceded it.
The public danger of the crime consists in the fact that theft or extortion of radioactive materials causes harm, or creates a threat of causing harm, to society, individuals and property.
The object of this crime is public safety in the sphere of circulation of radioactive materials. Additional objects may include the life and health of people and property.
The subject matter of the crime is radioactive materials. According to Article 1 of the Law of the Republic of Kazakhstan “On the Use of Atomic Energy”, these include nuclear materials (i.e. materials containing chemical elements whose nuclei are capable of spontaneous decay) generated in the course of economic activities and not subject to further use.
The objective aspect of the crime is expressed in the commission of such unlawful acts as theft or extortion of radioactive materials.
Theft is the unlawful and gratuitous seizure or appropriation of radioactive materials for one's own benefit or for the benefit of third parties, committed for mercenary purposes. The methods of seizure (secretly, openly, through deception or abuse of trust) do not affect the qualification of the crime.
Extortion of radioactive materials shall be understood as demanding their transfer under the threat of using violence. Or under the threat of destruction or damage to another person's property, as well as under the threat of disseminating information that discredits the victim or their close relatives. Or other information that may cause substantial harm to the rights and legitimate interests of the victim and their close relatives.
The theft of radioactive materials shall be considered a completed crime from the moment of taking possession of them, while extortion shall be considered completed from the moment the demand for the transfer of radioactive materials is made.
Taking possession shall be understood as obtaining the opportunity to dispose of radioactive materials at one's own discretion.
The subject of the crime under consideration is a person who has reached the age of 16.
The subjective aspect of this corpus delicti is characterized by direct intent. The person is aware of the public danger of their actions, foresees the possibility and inevitability of socially dangerous consequences and desires their occurrence.
The qualifying elements of the acts provided for in Part 2 of Article 248 of the Criminal Code are their commission:
a) by a group of persons pursuant to a prior conspiracy;
b) repeatedly;
c) by a person using his or her official position;
d) with the use of violence that is not dangerous to life or health, or with the threat of using such violence.
Theft or extortion of radioactive materials shall be recognized as committed by a group of persons pursuant to a prior conspiracy if two or more persons who had agreed in advance to jointly commit this crime participated in it (Part 2 of Article 31 of the Criminal Code of the Republic of Kazakhstan).
According to the Note to Article 148 of the Criminal Code of the Republic of Kazakhstan, the crime under consideration shall be recognized as committed repeatedly if it was preceded by the commission of one or more crimes provided for by this Article of the Criminal Code, as well as Articles 175–181, 255 and 260 of the Criminal Code of the Republic of Kazakhstan.
The use of official position shall be understood as theft or extortion of radioactive materials by a person employed in a state or non-state organization.
Such a person may be either an official or a non-official. For example, such persons may include employees whose professional activities are related to the handling of radioactive materials: medical personnel, security personnel, drivers, and employees of warehouses where the specified substances are stored.
Violence that is not dangerous to life or health shall be understood as physical violence expressed in the infliction of blows, beatings, restriction or deprivation of liberty, and intentional infliction of minor harm to health that does not result in a short-term health disorder or a minor permanent loss of general working capacity.
The threat is expressed in intimidation through the threatened use of such violence.
Part 3 of Article 248 of the Criminal Code constitutes the particularly qualified corpus delicti of this crime.
As particularly aggravating circumstances, the legislator has identified the commission of the acts provided for in Parts 1 and 2 of Article 248 of the Criminal Code:
a) with the use of violence dangerous to life or health, or with the threat of such violence;
b) by an organized group.
Violence dangerous to life or health shall be understood as the infliction of minor, moderate or serious harm to the health of the victim. The threat is expressed in intimidation through the threatened use of violence dangerous to life or health.
Theft or extortion of radioactive materials committed by an organized group shall be understood as the commission of this crime by a stable group of persons who have united in advance to commit one or more crimes (Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan).
Commentary of 2007 to the Criminal Code of the Republic of Kazakhstan by the Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, I.Sh. Borchashvili
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Body that adopted the act: 180000000000
Territorial scope of the act: 100000000000
Registration number of the regulatory legal act assigned by the rule-making body: 167
Status of the act: new
Sphere of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
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