Commentary on Article 284. Theft or Extortion of Radioactive Substances, Radioactive Waste or Nuclear Materials of the Criminal Code of the Republic of Kazakhstan
1. Theft or extortion of radioactive substances, radioactive waste or nuclear materials —
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to five years, or deprivation of liberty for the same term.
2. The same act, if committed:
1) by a group of persons acting by prior conspiracy;
2) repeatedly; by a person through the use of their official position; through the use of violence not dangerous to life or health, or the threat of using such violence, —
shall be punishable by deprivation of liberty for a term of four to seven years, with or without confiscation of property.
3. The acts provided for in paragraphs one or two of this Article, if committed:
1) through the use of violence dangerous to life or health, or the threat of using such violence;
2) by a criminal group, —
shall be punishable by deprivation of liberty for a term of five to ten years, with confiscation of property.
The public danger of the crime lies in the fact that the theft or extortion of radioactive substances, radioactive waste or nuclear materials causes, 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.
The additional object is the life and health of people, property, and radiation and nuclear safety.
The subject matter of the crime is radioactive substances, radioactive waste or nuclear materials (see the commentary to Article 283 of the Criminal Code).
The objective element of the crime is expressed in the theft or extortion of radioactive substances, radioactive waste or nuclear materials.
Pursuant to subparagraph 17) of Article 3 of the Criminal Code, theft is the unlawful and gratuitous seizure and (or) conversion of another person's property, committed with mercenary intent in favour of the guilty person or other persons, causing damage to the owner or another holder of the property. For the purposes of the Article under commentary, theft means the intentional, unlawful and gratuitous acquisition of radioactive substances, radioactive waste or nuclear materials, or rights thereto, by means of larceny, robbery, armed robbery, extortion, fraud, misappropriation or embezzlement.
The moment at which theft is completed depends on the method used to acquire radioactive substances, radioactive waste or nuclear materials. With the exception of armed robbery and extortion, the crime is considered completed from the moment the radioactive substances, radioactive waste or nuclear materials have been acquired and the guilty person has obtained a real opportunity to dispose of them at their own discretion. In the case of armed robbery, the crime is considered completed from the moment of the attack involving violence dangerous to the life or health of the person attacked, or the threat of using such violence, for the purpose of directly taking possession of radioactive substances, radioactive waste or nuclear materials.
Extortion of radioactive materials should be understood as a demand for their transfer under the threat of using violence or destroying or damaging another person's property, as well as under the threat of disclosing 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.
Extortion of radioactive substances, radioactive waste or nuclear materials shall be considered completed from the moment the demand for their transfer is made.
The subjective element of the crime is characterised 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 subject of the crime is a sane natural person who has attained the age of 16.
Part 2 of Article 284 of the Criminal Code establishes liability for the act provided for in Part 1, if committed:
by a group of persons acting by prior conspiracy;
repeatedly;
by a person through the use of their official position;
through the use of violence not dangerous to life or health, or the threat of using such violence.
A crime shall be recognised as having been committed by a group of persons acting by prior conspiracy if the persons participating in it had agreed in advance to commit the crime jointly.
When qualifying the actions of the perpetrators on the grounds of theft of radioactive substances, radioactive waste or nuclear materials specified in the disposition of the Article under commentary by a group of persons acting by prior conspiracy, it is necessary to establish whether there was an agreement, expressed in any form, between two or more persons to commit the theft, and whether the conspiracy between those persons took place before the commencement of actions directly aimed at taking possession of these materials, that is, before at least one perpetrator had performed the objective element of the crime.
Theft is also qualified as having been committed by a group of persons acting by prior conspiracy in cases where the joint efforts of two or more persons were combined to commit it, and the actions of each accomplice, in accordance with the prior distribution of roles, constituted a necessary condition for the actions of the other accomplices and were causally connected with the common criminal result arising from the activities of all accomplices. In such cases, the participation of two or more perpetrators in the crime is not mandatory; the presence of one perpetrator, together with other forms of accomplices, is sufficient.
A person who was not party to a prior conspiracy with the other accomplices to the theft, but joined them and participated in the course of its commission by the other persons, shall be held liable for the specific actions actually committed by that person as a co-perpetrator of the crime.
An act intentionally committed jointly with a person who has not attained the age at which criminal liability arises for this type of crime, or with a person recognised as legally insane, cannot be regarded as having been committed by a group of persons acting by prior conspiracy. In such cases, the person recognised as the subject of the crime must be considered the perpetrator of the theft and, where there are grounds for doing so, their actions must additionally be qualified under Article 132 of the Criminal Code, “Involvement of a Minor in the Commission of Criminal Offences”.
Repeated commission shall be understood as the commission, in any sequence, of two or more crimes provided for in Article 284 of the Criminal Code or in a part of this Article, provided that the person has not been released from criminal liability or convicted for the previously committed crimes.
The use of official position primarily means abusing one's official position, deriving advantages and benefits from one's official powers as defined by law or another regulatory legal act, or using official connections and the authority of one's position, regardless of the type of service (state or non-state). The person must possess certain powers of authority related to the circulation of radioactive substances, radioactive waste or nuclear materials.
Violence not dangerous to life or health shall be understood as battery or the commission of other violent acts associated with causing physical pain to the victim, which has not resulted in a short-term health disorder or a minor permanent loss of general working capacity.
Part 3 of Article 284 of the Criminal Code establishes liability for the acts provided for in Parts 1 and 2, if committed:
through the use of violence dangerous to life or health, or the threat of using such violence. This should be understood as causing bodily harm through the use of weapons or objects used as weapons and adapted to inflict bodily harm, as well as other violence resulting in the infliction of serious or moderate bodily harm on the victim. Minor bodily harm may also be recognised as dangerous to the life or health of the victim if it is inflicted in circumstances dangerous to the victim's life or health (for example, inflicting numerous other blows with the feet or hands to vital parts of the body, etc., where outpatient or inpatient treatment was required for recovery);
by a criminal group (for the types of organised crime, see the commentary to subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code).
The act provided for in Part 1 of Article 284 of the Criminal Code belongs to the category of medium-gravity crimes.
The acts provided for in Parts 2 and 3 of Article 284 of the Criminal Code belong to the category of serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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