Commentary on Article 290. Improper Performance of Duties for the Protection of Weapons, Ammunition, Explosive Substances or Explosive Devices of the Criminal Code of the Republic of Kazakhstan

1. Improper performance of one's duties by a person entrusted with the protection of firearms, ammunition, explosive substances or explosive devices, if this results in their theft or destruction or the occurrence of other grave consequences, —

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 community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five 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 or without such deprivation.

2. Improper performance of duties for the protection of weapons of mass destruction or materials or equipment that may be used in the creation of weapons of mass destruction, if this results in grave consequences or creates a threat of their occurrence, —

shall be punishable by imprisonment for a period of two to seven years, 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 this crime lies in the fact that improper performance of duties for the protection of weapons, ammunition, explosive substances or explosive devices, weapons of mass destruction, or materials or equipment that may be used in the creation of weapons of mass destruction creates conditions for other persons to use such weapons to commit crimes and cause harm to the interests of individuals, society and the State.

The object of the crime under consideration is public security in the sphere of circulation of firearms, ammunition, explosive substances or explosive devices, as well as weapons of mass destruction or materials or equipment that may be used in the creation of weapons of mass destruction.

The subject matter of the crime provided for in Part 1 is firearms, ammunition, explosive substances and explosive devices (see the commentary to Article 287 of the Criminal Code); under Part 2 — weapons of mass destruction, materials or equipment that may be used in the creation of weapons of mass destruction (see the commentary to Article 286 of the Criminal Code).

The objective side of the crime is characterized by omission — the improper performance of duties by a person entrusted with the protection of firearms, ammunition, explosive substances or explosive devices, if this results in their theft or destruction or the occurrence of other grave consequences.

Improper performance of the duty to protect the specified items may be committed through omission, that is, the failure of a person to perform actions that they were obliged to perform by virtue of the work entrusted to them in order to ensure the safekeeping of firearms, ammunition, explosive substances and explosive devices, or through omission in the form of a dishonest attitude towards the performance of the duties imposed upon them.

The crime may be committed both during the protection of stationary storage facilities (warehouses of enterprises manufacturing weapons) and during the protection of mobile temporary storage facilities while the subject matter of the crime is being transported.

A mandatory condition for criminal liability is the existence of a causal link between the actions of the person protecting the weapons and the consequences that have occurred.

The concept of theft of weapons, ammunition, explosive substances and explosive devices is considered in the commentary to Article 291 of the Criminal Code.

Destruction means rendering the subject matter of the crime completely unusable.

Other grave consequences include causing the death of a person or harm to health, causing property damage, committing a crime using stolen weapons, etc.

By its structure, the corpus delicti is material. Improper performance of duties for the protection of firearms, ammunition, explosive substances or explosive devices shall be considered a completed crime from the moment of their theft, that is, unlawful acquisition of possession of them, provided that there is a real possibility of disposing of these items, or from the moment of their destruction or the occurrence of other grave consequences.

The subjective side is characterized by an intentional form of negligence, expressed either as recklessness or negligence.

The offender is aware that they are improperly performing their duties for the protection of weapons, ammunition, explosive substances or explosive devices and foresees the possibility of socially dangerous consequences occurring; however, without sufficient grounds, they recklessly count on preventing these consequences, or they do not foresee the possibility of socially dangerous consequences occurring, although, with due attention and foresight, they should and could have foreseen such consequences.

The subject of the crime is special — a person who has reached the age of 16 and upon whom duties for the protection of firearms, explosive substances and explosive devices have been imposed. This duty may be assigned to a person by virtue of their position, the work performed, a contract, a special assignment, etc. A special subject may be not only a person performing security and guarding functions, but also an official, as well as a financially responsible person in whose charge the specified items were placed by virtue of their official position.

Part 2 of Article 290 of the Criminal Code provides for liability for improper performance of duties for the protection of weapons of mass destruction or materials or equipment that may be used in the creation of weapons of mass destruction, if this results in grave consequences or creates a threat of their occurrence.

A threat of grave consequences occurring means the creation of a situation in which there is a possibility of a criminal result arising as a consequence of improper performance of duties for the protection of weapons of mass destruction or materials or equipment that may be used in the creation of weapons of mass destruction.

Grave consequences should be understood to include the theft of weapons of mass destruction by third parties; their use for their intended purpose, resulting in the death of people, harm to health, environmental disasters, etc.

By its structure, the corpus delicti provided for in Part 2 is formal-material. The crime shall be considered completed both from the moment grave consequences occur and when a real threat of their occurrence is created.

The act provided for in Part 1 of Article 290 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 2 of Article 290 of the Criminal Code is classified as a crime of medium gravity.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich 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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