Commentary on Article 291 of the Criminal Code of the Republic of Kazakhstan. Theft or Extortion of Weapons, Ammunition, Explosive Substances and Explosive Devices

Home / Codes / Commentary on Article 291 of the Criminal Code of the Republic of Kazakhstan. Theft or Extortion of Weapons, Ammunition, Explosive Substances and Explosive Devices

1. Theft or extortion of firearms, component parts thereof, ammunition, explosive substances or explosive devices –

shall be punishable by imprisonment for a term of three to seven years.

2. Theft or extortion of weapons of mass destruction, as well as materials or equipment that may be used in the creation of weapons of mass destruction –

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

3. The acts provided for in paragraphs one or two of this Article, if committed:

1) by a person using their official position;

2) repeatedly;

3) with the use of violence not dangerous to life or health, or with the threat of using such violence;

4) by a group of persons acting in prior collusion, –

shall be punishable by imprisonment for a term of five to twelve years, with or without confiscation of property.

4. The acts provided for in paragraphs one, two or three of this Article, if committed:

1) by a criminal group;

2) with the use of violence dangerous to life or health, or with the threat of using such violence, –

shall be punishable by imprisonment for a term of eight to fifteen years, with or without confiscation of property.

The theft or extortion of weapons, ammunition, explosive substances and explosive devices is characterized by a high degree of public danger due, firstly, to the potentially dangerous nature of the objects of the crime themselves; secondly, to the unlawful nature of their seizure; and thirdly, to the fact that these objects may be used in the commission of other serious and particularly serious crimes involving the loss of human life.

The object of the crime is public safety in the sphere of regulated circulation of weapons, component parts, explosive substances and explosive devices. The additional objects are human life and health, and property.

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

Component parts of firearms should be understood as their constituent parts and components – any elements or spare parts specifically designed for firearms and necessary for their functioning, including the barrel, body or receiver, bolt, cylinder, bolt axis or breech, as well as any part intended or adapted to suppress the sound of gunfire.

The concepts and characteristics of weapons of mass destruction, materials or equipment that may be used in the creation of weapons of mass destruction are set out in the commentary to Article 286 of the Criminal Code.

The objective aspect of the crime is characterized by the theft or extortion of firearms, component parts thereof, ammunition, explosive substances or explosive devices.

According to subparagraph 17) of Article 3 of the Criminal Code, theft means the unlawful and gratuitous seizure and/or conversion of another person's property for the benefit of the perpetrator or other persons, committed for mercenary purposes and causing damage to the owner or other possessor of that property.

The characteristics of theft are:

mercenary purpose. Mercenary intent means the perpetrator's desire to obtain material or property benefits, both for themselves and for other persons in whose financial position the person committing the theft is interested;

unlawfulness – the perpetrator seizes another person's property to which they have neither an actual nor an alleged right;

gratuitousness of the seizure and/or conversion – the perpetrator does not compensate for the value of the seized property, that is, when taking the property, does not leave an equivalent in its place;

seizure and/or conversion of another person's property for the benefit of the perpetrator or other persons. To seize an item from another person's possession means to destroy the victim's actual possession and create new possession on the part of the perpetrator in its place, contrary to the actual will of the owner. The same conduct that violates the existing possession must be the cause of the emergence of new possession. The term “conversion” fully emphasizes the nature of the subsequent use of the seized property in the interests of particular persons;

causing damage to the owner or other possessor of the stolen property in the form of direct actual damage. The amount of damage is determined by the value of the stolen property, expressed in its price.

The presence of all the listed characteristics is mandatory, and the absence of even one of them excludes theft.

The theft of firearms, component parts thereof, ammunition, explosive substances and explosive devices means unlawfully taking possession of them by any method with the perpetrator's intention to appropriate the stolen items or transfer them to another person, as well as otherwise dispose of them at their own discretion (Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving the Theft of Firearms, Ammunition, Armaments and Explosive Substances, Their Illegal Acquisition, Carrying, Possession, Manufacture or Sale, and Negligent Storage of Firearms”).

If a person commits the theft of another person's property without realizing that they are stealing a firearm (for example, stealing a safe in which a firearm is stored), then, if the person keeps the firearm with the intention of possessing and using it in the future, their actions are classified as theft of a firearm.

At the same time, Part 1 of Article 291 of the Criminal Code of the Republic of Kazakhstan does not cover methods of theft involving the use of violence not dangerous to life or health, or the threat of using such violence, as well as the use of violence dangerous to life or health, or the threat of using such violence. Where firearms, component parts thereof, ammunition, explosive substances or explosive devices, or weapons of mass destruction, as well as materials or equipment that may be used in the creation of weapons of mass destruction, are stolen by such methods, the actions of the perpetrators should be classified under subparagraph 3) of Part 3 and subparagraph 2) of Part 4 of Article 291 of the Criminal Code of the Republic of Kazakhstan.

The destruction, abandonment at the crime scene or return of stolen weapons after their use in committing other unlawful acts or for other purposes does not constitute grounds for exempting a person from liability for the theft of weapons.

Criminal liability under Article 291 of the Criminal Code arises in cases where the subject matter of the crime is stolen both from state or other enterprises or organizations and from individual citizens who possessed the subject matter lawfully or unlawfully.

The theft of constituent parts and components of ammunition containing explosive substances (primers, detonators, fuzes, grenades without fuzes, etc.) should be classified under Article 291 of the Criminal Code as completed theft of explosive substances or explosive devices.

Possession of individual components, in the absence of evidence indicating the perpetrator's intent to use them to manufacture firearms, does not constitute a criminal offence.

If the perpetrator steals a firearm or ammunition that is unfit for use, armaments or explosive substances, while being mistaken about their condition and believing them to be serviceable, the act should be classified as attempted theft of these items under Part 3 of Article 24 and Article 291 of the Criminal Code.

The theft of constituent parts and individual components of firearms, followed by the manufacture of the missing components necessary to assemble a firearm fit for firing, should be classified as a combination of theft of another person's property and illegal manufacture of weapons (Article 288 of the Criminal Code).

In accordance with Paragraph 5 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 21, 1995, in cases where, for the purpose of taking possession of firearms or ammunition, armaments, their constituent parts or components are stolen as a set sufficient to assemble firearms or ammunition, armaments or explosive substances suitable for their intended use, the act should be classified as a completed criminal offence under the relevant parts of Article 291 of the Criminal Code. In this regard, a sufficient set of components should be understood as such a combination of components that makes it possible to fire a shot without additional devices or modifications (for example, a rifle barrel with a trigger mechanism), while a sufficient set of constituent parts of ammunition and explosive substances means a set that allows them to be used for their intended purpose.

Possession of individual components, in the absence of evidence indicating the perpetrator's intent to use them to manufacture firearms, does not constitute a criminal offence.

The theft of constituent parts and components of ammunition containing explosive substances (primers, detonators, fuzes, grenades without fuzes, etc.) should be classified under the relevant parts of Article 291 of the Criminal Code as completed theft of explosive substances.

The theft of firearms, ammunition, armaments or explosive substances entrusted for protection should be understood as their theft from a warehouse or other storage location not only by a person performing security and guard duties, but also by an official or financially responsible person in whose charge they were placed by virtue of their official position.

In cases where firearms, ammunition, armaments or explosive substances entrusted for protection are stolen from guarded facilities by members of a military guard, the actions of such persons, in addition to Part 1 of Article 290 of the Criminal Code, should also be classified under Part 1 of Article 446 of the Criminal Code as a violation of the statutory rules governing guard duty that has entailed harmful consequences which the guard was assigned to prevent.

Given that the illegal carrying, possession, acquisition, manufacture or sale of firearms, ammunition, armaments or explosive substances constitute independent criminal offences, the theft of the listed items and their subsequent carrying, possession, acquisition, manufacture or sale constitute a real concurrence of criminal offences provided for in the relevant parts of Articles 287 and 291 of the Criminal Code.

In cases involving the theft of firearms, ammunition, armaments or explosive substances, as well as their carrying, possession, acquisition and manufacture for the purpose of committing another criminal offence, the act should be classified as a combination of preparation for the commission of another criminal offence and completed theft of firearms, ammunition, armaments and explosive substances, or their illegal carrying, possession, acquisition or manufacture.

Completed theft of weapons, component parts thereof, ammunition, explosive substances or explosive devices means their unlawful acquisition, as well as the actual possibility of disposing of this property by any means (a material offence).

The theft of firearms, ammunition, armaments or explosive substances by means of robbery should be considered completed from the moment of the attack with the purpose of taking possession of these items.

Extortion means demanding the transfer of weapons, ammunition, explosive substances and explosive devices under the threat of using violence or destroying or damaging another person's property, as well as under the threat of disseminating information that discredits the victim or their close persons, or other information the disclosure of which may cause substantial harm to the interests of the victim or their close persons. When this type of extortion is committed, additional classification under Article 194 of the Criminal Code is not required.

When classifying the actions of persons guilty of extortion, the provisions of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006, “On Judicial Practice in Cases of Extortion,” should be followed. In extortion, although the perpetrator uses the threat of violence or violence itself, or the threat of disseminating information that discredits the victim or their close persons, they do not intend to take direct possession of the victim's weapons, ammunition, explosive substances and explosive devices by means of these actions. Instead, the perpetrator demands that the victim hand them over voluntarily. Consequently, extortion does not constitute theft of weapons, ammunition, explosive substances and explosive devices, since in theft the perpetrator directly removes the property from the possession of the victim or other persons.

The person threatened by the extortionist may be either the owner of the weapons, ammunition, explosive substances and explosive devices, or the person in whose charge or under whose protection they are located, as well as their close persons.

The threat must be real and genuine, that is, it must be perceived by the victim as entirely feasible. In extortion, the threat serves as a means of facilitating possession of the subject matter of the crime. Liability for extortion arises even where the perpetrator does not actually intend to carry out the threat. It is sufficient that the threat expressed by the perpetrator appears real to the victim and that the extortionist relies on it as a means capable of influencing the victim.

If the threat is carried out, the act should be classified as extortion of weapons, ammunition, explosive substances and explosive devices and, where grounds exist, under the Article providing for liability for the actions committed in carrying out the threat.

If it is established that the elements of extortion are present, the actions of the perpetrator should be classified under Part 1 of Article 291 of the Criminal Code as simple extortion committed under threat, and, where violence is used, as a crime provided for in Parts 3 or 4 of Article 291 of the Criminal Code, depending on whether the violence is dangerous to life or health. In this regard, the violence must take the form of physical violence or a threat to use physical violence.

A threat to destroy another person's property should be understood as a threat which, if carried out, would result either in the complete disappearance of the property or in its being rendered entirely unusable (destruction). In the event of damage, the property is subject to repair or restoration. A threat to destroy or damage another person's property may also be used by an extortionist to force the victim to transfer weapons, ammunition, explosive substances and explosive devices. The property may belong either to the victim or to their close persons.

In Paragraph 4 of the Regulatory Resolution dated June 23, 2006, the Supreme Court of the Republic of Kazakhstan explains that, in extortion committed under the threat of destruction or damage to property, it is irrelevant for the classification of the perpetrator's actions what property is involved (property entrusted to the victim for protection or their own property, movable or immovable property) and by what method the threat will be carried out.

If, during the commission of extortion, property is destroyed or damaged under the circumstances specified in the disposition of Article 202 of the Criminal Code of the Republic of Kazakhstan, the actions of the perpetrator constitute a concurrence of the specified crimes (Articles 291 and 202 of the Criminal Code).

A threat to disseminate information that discredits the victim or their close persons, or other information the disclosure of which may cause substantial harm to the interests of the victim or their close persons, should be understood as a demand to transfer weapons, ammunition, explosive substances and explosive devices accompanied by a threat to disclose any information that may harm the honour and dignity of the victim. In this regard, it is irrelevant whether the information whose disclosure is threatened in the course of extortion is true. The main point is that the victim seeks to keep such information secret and that the threat of its disclosure is used by the perpetrator to compel the victim to comply with the demands made.

When determining substantial harm, both the victim's subjective assessment of the severity of the moral damage caused to them and objective data indicating the degree of the victim's moral and physical suffering are taken into account. For the completed offence of extortion to be established, it is sufficient that there is a threat to disclose such information to at least one person.

The close persons of the victim should be understood as close relatives, as well as other persons whose lives, health and well-being are important to the victim due to the circumstances of their established personal relationships.

Extortion is considered completed from the moment a demand is made to transfer the subject matter of the crime under the threat of committing certain actions.

The subjective aspect of the crime is characterized by intentional guilt in the form of direct intent. The perpetrator realizes that they are stealing or extorting weapons, ammunition, explosive substances and explosive devices, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

The subject of the crime is a sane individual who has attained the age of fourteen.

Part 2 of Article 291 of the Criminal Code of the Republic of Kazakhstan provides for liability for the theft or extortion of weapons of mass destruction, as well as materials or equipment that may be used in the creation of weapons of mass destruction.

Part 3 of Article 291 of the Criminal Code establishes liability for the acts provided for in Parts 1 and 2 when committed:

by a person using their official position. The qualifying circumstance of theft of firearms, ammunition, armaments or explosive substances using official position should be understood as theft committed by an official who, by virtue of their official position, possessed certain authority to exercise control, supervision, inspection, accounting and storage, use and disposal of these items;

repeatedly, that is, the commission of two or more acts provided for in Article 291 of the Criminal Code or a part of this Article, provided that the person has not been convicted of the previously committed crime or released from criminal liability on grounds established by law. Previous theft of other property does not constitute the element of repeated commission provided for in subparagraph 2) of Part 3 of Article 291 of the Criminal Code;

with the use of violence not dangerous to life or health, or with the threat of using such violence, which should be understood as beating or other violent acts involving the infliction of physical pain on the victim that did not cause a short-term health disorder or a minor permanent loss of general working capacity;

by a group of persons acting in prior collusion, that is, by persons who had agreed in advance to jointly commit this crime (see the commentary to subparagraph 1) of Part 2 of Article 284 of the Criminal Code).

Part 4 of Article 291 of the Criminal Code of the Republic of Kazakhstan establishes liability for the acts provided for in Parts 1, 2 and 3 when committed:

by a criminal group (the definition of the concept of a criminal group is contained in subparagraph 24) of Article 3 of the Criminal Code of the Republic of Kazakhstan);

with the use of violence dangerous to life or health, or with the threat of using such violence, which should be understood as violence that, by its objective characteristics, must or may result in the death of the victim, for example, causing bodily harm through the use of weapons or objects used as weapons and adapted to cause bodily harm, as well as other violence resulting in the infliction of serious or moderate bodily injury on the victim.

According to the second paragraph of Paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, “On Judicial Practice in Cases of Theft,” minor bodily injury may also be recognized as dangerous to the life or health of the victim if it is inflicted under circumstances dangerous to the victim's life or health (for example, multiple blows with the feet or hands to vital parts of the body, etc.) and recovery requires outpatient or inpatient treatment.

When assessing the degree of public danger of the act and determining the measure of punishment, it is necessary to take into account the purposes and motives of the perpetrator's actions, the source from which the items were obtained and the method of taking possession of them, as well as the type, quantity, combat characteristics and value of the stolen firearms, ammunition, armaments and explosive substances.

When imposing punishment for the theft of firearms, ammunition, armaments or explosive substances committed under a state of emergency, an emergency situation, or during mass riots, pursuant to subparagraph 11) of Part 1 of Article 54 of the Criminal Code, these circumstances must be considered by the court as aggravating circumstances. In addition, the court should establish and indicate in the judgment whether the perpetrator acquired the property using funds obtained through criminal means.

In cases of this category, automobiles, motorcycles and other vehicles recognized as instruments of criminal offences and material evidence, in accordance with the requirements of subparagraph 1) of Part 3 of Article 118 of the Criminal Procedure Code, are subject to confiscation, transfer to the relevant institutions or designated persons, or destruction.

Firearms, ammunition, armaments and explosive substances illegally acquired, stolen or transferred into the ownership of other persons are subject to confiscation in accordance with subparagraph 1) of Part 2 of Article 48 of the Criminal Code.

The acts provided for in Parts 1, 2 and 3 of Article 291 of the Criminal Code are classified as serious crimes.

The act provided for in Part 4 of Article 291 of the Criminal Code is classified as a particularly serious crime.

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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