COMMENTARY ON ARTICLE 295 OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN. ILLEGAL CONDUCT OF ARCHAEOLOGICAL WORKS
1. Illegal conduct of archaeological works —
shall be punishable by a fine of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two 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. The same act, if committed:
1) by a group of persons upon prior conspiracy;
2) repeatedly;
3) by a person using their official position;
4) using special technical search equipment (metal detectors, radars, magnetic instruments and other technical devices enabling the presence of archaeological objects at their location to be determined) or earth-moving machinery, —
shall be punishable by a fine 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.
3. The acts provided for in Parts One or Two of this Article, committed by a criminal group, —
shall be punishable by imprisonment for a period of five to ten years.
Taking into account the particular importance of protecting national interests in the preservation of historical monuments, the Republic of Kazakhstan introduced criminal liability for the illegal conduct of archaeological works at a historical and cultural heritage site.
The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 proclaims in its Preamble the fundamental principles of the protection of cultural property: “Damage to the cultural property of any people means damage to the cultural heritage of all mankind, since each people makes its contribution to world culture.”
The public danger of the crime lies in the loss of historical and cultural values. Damage to or destruction of any examples of cultural heritage as a result of the commercial activities of archaeologists leads to the impoverishment of our people's heritage.
Archaeological research must be carried out in accordance with UNESCO recommendations, as well as taking into account international and national professional standards: the Recommendation defining the principles of international regulation of archaeological excavations of 5 December 1956; the Recommendation concerning the preservation of cultural property endangered by public or private works of 19 November 1968; the Recommendation concerning the protection, at national level, of the cultural and natural heritage of 16 November 1972; the Convention concerning the Protection of the World Cultural and Natural Heritage of 16 November 1972; the Recommendation concerning the safeguarding and contemporary role of historic areas of 26 November 1976; the Charter for the Protection and Management of the Archaeological Heritage of 10 October 1990; and the European Convention on the Protection of the Archaeological Heritage (revised) of 16 January 1992.
The adoption of the Convention concerning the Protection of the World Cultural and Natural Heritage resulted in the establishment of an international cultural cooperation system headed by the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage. Its responsibilities include compiling a List of outstanding monuments of world culture and providing assistance to States Parties in ensuring the preservation of the relevant sites. Today, the UNESCO World Heritage List contains 992 sites from 160 States Parties to the Convention. The following sites from Kazakhstan have been included in the UNESCO World Cultural Heritage List: the Mausoleum of Khoja Ahmed Yasawi (Turkestan Region); the petroglyphs of the Tamgaly archaeological landscape (Almaty Region); the natural monument of Saryarka — Steppes and Lakes of Northern Kazakhstan (Akmola, Karaganda and Kostanay Regions); the sites of the Great Silk Road in the Chang'an–Tianshan Corridor (Almaty and Zhambyl Regions); and Western Tien-Shan (Zhambyl and Turkestan Regions). The inclusion of a cultural monument in the World Heritage List means that it becomes an object of special protection and, where necessary, international conservation campaigns may be organised, priority assistance may be provided for its study, and experts, sophisticated equipment, etc. may be made available.
In the Republic of Kazakhstan, the regulatory legal acts governing the protection and use of historical and cultural heritage sites include the Law of the Republic of Kazakhstan dated 26 December 2019 “On the Protection and Use of Historical and Cultural Heritage Sites”; Orders of the Minister of Culture and Sports of the Republic of Kazakhstan dated 15 April 2020 No. 92 “On Approval of the Rules for the Identification, Registration, Granting and Revocation of Status, Relocation and Modification, Monitoring of the Condition and Changing the Category of Historical and Cultural Monuments”; dated 19 May 2020 No. 132 “On Approval of Qualification Requirements and Conditions Imposed in Licensing Activities Involving Scientific and Restoration Works on Historical and Cultural Monuments and/or Archaeological Works, and the List of Documents Confirming Compliance Therewith”; dated 25 June 2020 No. 188 “On Approval of the Rules for the Provision of the State Service ‘Issuance of a Licence for Activities Involving Scientific and Restoration Works on Historical and Cultural Monuments and/or Archaeological Works’”; dated 7 April 2020 No. 79 “On Approval of the Rules for the Protection and Use of Historical and Cultural Monuments”; dated 15 April 2020 No. 91 “On Approval of the Rules for the Provision and Use of Historical and Cultural Monuments and Access to Them”; dated 14 April 2020 No. 87 “On Approval of Rental Rates for the Use of Historical and Cultural Monuments Owned by the State”; dated 14 April 2020 No. 86 “On Approval of the Rules for Determining the Protection Zone, the Development Regulation Zone and the Protected Natural Landscape Zone of Historical and Cultural Monuments, and the Rules for Their Use”; dated 20 April 2020 No. 98 “On Approval of the Rules and Conditions for Conducting Scientific and Restoration Works on Historical and Cultural Monuments”; and dated 17 April 2020 No. 95 “On Approval of the Rules and Conditions for Conducting Archaeological Works”.
The object of the crime is public relations in the field of protection and use of historical and cultural heritage sites.
Historical and cultural heritage sites are immovable objects, together with works of painting, sculpture, applied art, science and technology, and other items of material culture associated with them, which arose as a result of historical processes and events and are of interest from the standpoint of history, archaeology, architecture, urban planning, art, science, technology, aesthetics, ethnology, anthropology and social culture (Subparagraph 14) of Article 3 of the above-mentioned Law).
Historical and cultural heritage sites acquire the status of historical and cultural monuments from the date of their inclusion in the State List of Historical and Cultural Monuments of national or local significance.
Historical and cultural monuments are divided into the following types:
archaeological monuments;
urban planning and architectural monuments;
ensembles and complexes;
sacred sites;
monuments of monumental art (Paragraph 1 of Article 5 of the Law).
Historical and cultural monuments are divided into the following categories:
historical and cultural monuments of international significance, which are of particular importance to world history and culture;
historical and cultural monuments of national significance, which are of particular importance to the history and culture of the Republic of Kazakhstan;
historical and cultural monuments of local significance, which are of particular importance to the history and culture of the relevant administrative-territorial unit.
Archaeological monuments are sites, ancient settlements, remains of ancient buildings, settlements, fortifications, production facilities, canals, roads, burial grounds, burial mounds, necropolises, megalithic structures, stone sculptures, petroglyphs, sections of the historical cultural layer of ancient populated areas, and other places bearing traces of human life and activity (Subparagraph 2) of Article 3 of the Law).
Urban planning and architectural monuments are architectural ensembles and complexes, historical centres, neighbourhoods, squares, streets, structures of civil, residential, industrial, military and religious architecture, examples of folk architecture, as well as works of monumental, decorative and applied art and landscape gardening art associated with them, and natural landscapes (Subparagraph 6) of Article 3 of the Law).
Ensembles and complexes are groups of isolated or integrated monuments, buildings and structures intended for fortification, palace, residential, public, administrative, commercial, industrial, scientific, educational and cultural purposes, including fragments of historical layouts and development of settlements, located within historically established territories (Subparagraph 1) of Article 3 of the Law).
Sacred sites are historical and memorial places, man-made and natural cultural sites, landscapes and structures associated with outstanding historical events and personalities, as well as the spiritual values of the people (Subparagraph 4) of Article 3 of the Law).
Monuments of monumental art are works of monumental art (monuments, steles, busts) erected to commemorate outstanding personalities and significant historical events (Subparagraph 9) of Article 3 of the Law).
Archaeological works are carried out on the basis of an archaeological works plan approved by the authorised body. Conducting archaeological works outside the plan is not permitted (Paragraph 1 of Article 33 of the Law).
The objective element consists in the illegal conduct of archaeological works.
According to Subparagraph 3) of Article 3 of the Law of the Republic of Kazakhstan “On the Protection and Use of Historical and Cultural Heritage Sites”, archaeological works on historical and cultural monuments are understood as works aimed at identifying, researching and preserving historical and cultural heritage sites through archaeological excavations and surveys.
Archaeological excavations are the conduct of scientific research of archaeological heritage sites through earthworks and related activities, including the complete or partial removal of archaeological finds from excavations for the purpose of studying and preserving archaeological heritage sites.
The concept of “archaeological excavations” applies to all searches for archaeological remains, regardless of whether such searches are conducted through earthworks, systematic surface surveys, or surveys of the seabed or subsurface layers of inland or territorial waters.
Archaeological survey is the conduct of scientific research on land plots (parts of the Earth's surface) or parts of water bodies, as well as local earthworks with a total excavation area of no more than 20 square metres at each archaeological heritage site, involving the examination of the cultural layer by means of test pits or without test pits, including the complete or partial removal of archaeological finds for the purpose of identifying archaeological heritage sites, clarifying information about them, or planning measures to ensure their preservation.
According to Paragraph 1 of Article 12 of the Law of the Republic of Kazakhstan dated 26 December 2019, activities involving scientific and restoration works on historical and cultural monuments and/or archaeological works are subject to licensing in accordance with the legislation of the Republic of Kazakhstan on permits and notifications. Furthermore, pursuant to Paragraph 1 of Article 34 of the said Law, archaeological works within the territory of the Republic of Kazakhstan are permitted provided that a licence has been obtained for activities involving scientific and restoration works on historical and cultural monuments and/or archaeological works.
Individuals and legal entities conducting archaeological works are required, 10 calendar days before their commencement, to notify the local executive bodies of the regions, cities of republican significance and the capital of the commencement of archaeological works, with the exception of works on historical and cultural monuments of international and national significance, of which the authorised body must be notified.
Violation of the legislation of the Republic of Kazakhstan on the protection and use of historical and cultural heritage sites entails liability established by the Law of the Republic of Kazakhstan “On the Protection and Use of Historical and Cultural Heritage Sites” (Article 37 of the Law).
By its legal construction, the elements of the crime are formal. The crime is considered completed from the moment field research begins through archaeological excavations or surveys.
The subjective element is characterised by direct intent. The offender is aware that archaeological works are being conducted without the appropriate authorisation, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.
The subject is general: a sane natural person who has reached the age of 16.
The qualifying features of the illegal conduct of archaeological works (Part 2 of Article 295 of the Criminal Code) include the same act committed: a) by a group of persons upon prior conspiracy; b) repeatedly; c) by a person using their official position; d) using special technical search equipment (metal detectors, radars, magnetic instruments and other technical devices enabling the presence of archaeological objects at their location to be determined) or earth-moving machinery.
Illegal archaeological works are recognised as having been committed by a group of persons upon prior conspiracy if they involve persons who have previously agreed to commit the crime jointly. An agreement must be recognised as prior in all cases where it was reached before the commencement of the crime, during preparation for it, or immediately before the attempt. The time interval between the agreement and the commencement of the actions is not of decisive importance. In this case, the participation of one principal offender is sufficient, provided that other types of accomplices are present and their roles have been distributed in advance.
Repeated commission means the commission, in any sequence, of two or more crimes provided for by the same Article 295 of the Criminal Code of the Republic of Kazakhstan or by a part of Article 295 of the Criminal Code, provided that the person has not been convicted or released from criminal liability for the previously committed crimes.
The use of official position associated with the performance of official duties primarily means abuse of one's official position, obtaining advantages and benefits through one's official powers established by law or another regulatory legal act, or using official connections and the authority of one's position, regardless of whether the position is in the public or private sector.
A qualifying feature of the illegal conduct of archaeological works at a historical and cultural heritage site is the use of special technical search equipment: metal detectors, radars, magnetic instruments and other technical devices enabling the presence of archaeological objects at their location to be determined, as well as earth-moving machinery.
A metal detector is a special device designed to search for metal objects in sand, soil and water. Metal detectors are equipped with a sensitive coil capable of detecting signals from iron, copper, silver and gold objects located at depths ranging from several centimetres to 1–2 metres. Higher-level metal detectors provide information about the size of an object and the depth at which it is located, and also have functions for identifying the type of metal, ignoring metallic debris, ground balancing, etc.
A radar is a device designed to detect and determine the location of objects in space by means of radio waves or laser beams reflected from them, to which the device is tuned.
Magnetic instruments are devices that measure the magnetic field. The essence of magnetic surveying lies in detecting objects whose magnetic properties differ from those of the surrounding environment.
An electrical sounding device is an instrument designed to search for underground structures, underground passages, burial sites, etc. This is done by measuring soil resistance and subsequently constructing maps of electrical anomalies.
Earth-moving machinery comprises machines used for earthworks and the movement of soil. Depending on their design and operating principle, earth-moving machines are divided into three groups: earthmoving and transport machines, excavators, and machines and equipment for the hydromechanisation of earthworks.
Part 3 of Article 295 of the Criminal Code of the Republic of Kazakhstan provides for criminal liability for the illegal conduct of archaeological works committed by a criminal group.
Illegal archaeological works are recognised as having been committed by a criminal group if they were committed by an organised group.
The public danger of this criminal offence is explained, in particular, by the important role of the subject of the criminal encroachment in ensuring currency stability and developing industry, science and technology. The role of precious metals and stones in the economy is significant. In addition to their traditional use in jewellery production, their unique physical and chemical properties make them increasingly important in the latest knowledge-intensive technologies, including electronics, optics, instrument engineering, medicine, etc.
Precious metals form an integral part of the State Currency Fund. They are used to purchase abroad the necessary equipment, industrial and food production technologies, and finished goods that are of strategic importance to the economy.
The object of the criminal offence under consideration is public relations that establish the procedure governing the circulation of precious metals, precious stones and raw materials containing precious metals.
For the correct legal classification of the act under consideration, it is important to precisely define precious metals, precious stones and raw materials containing precious metals as the subject matter of the offence.
According to Subparagraph 7) of Article 1 of the Law of the Republic of Kazakhstan dated 14 January 2016 “On Precious Metals and Precious Stones”, precious metals are gold, silver, platinum and platinum-group metals (palladium, iridium, rhodium, ruthenium and osmium) in any state and form.
Precious stones are natural diamonds, emeralds, rubies, sapphires and alexandrites, as well as natural pearls in their raw (natural) and processed forms. Unique amber formations are also equated with precious stones (Subparagraph 1) of Article 1 of the said Law).
Raw materials containing precious metals are unprocessed precious metals (including Doré alloy in the form of ingots and cathode metals), zinc precipitates, scrap and waste of precious metals, ores and concentrates of precious metals, ores, concentrates and ash of non-ferrous metals, and semi-finished products of non-ferrous metal production containing precious metals (Subparagraph 16) of Article 1 of the said Law).
The objective element of the criminal offence provided for by Article 295-1 consists in the illegal extraction, acquisition, sale, storage, transportation or shipment of precious metals or precious stones, or raw materials containing precious metals.
The disposition of the criminal law provision under consideration is of a blanket nature and does not define the elements of illegal extraction, acquisition, sale, storage, transportation or shipment of precious metals or precious stones, or raw materials containing precious metals. In this regard, it is necessary to identify departmental regulatory acts (orders, instructions and regulations) issued by ministries, departments or other entities that regulate the legality of the actions listed in the disposition of the Article. Accordingly, these regulatory legal acts contain rules (instructions and methodological recommendations) governing the circulation of precious metals or precious stones and raw materials containing precious metals. Such regulatory legal acts include: the Law of the Republic of Kazakhstan dated 14 January 2016 “On Precious Metals and Precious Stones”; Orders of the Minister for Investment and Development of the Republic of Kazakhstan dated 29 March 2016 “On Approval of the Rules for Forming the List of Precious Metal Production Entities” and dated 28 April 2016 “On Approval of the Rules for Conducting Examinations of Precious Stones, Jewellery and Other Items Made of Precious Metals and Precious Stones”; the Order of the Minister of Finance of the Republic of Kazakhstan dated 12 May 2015 “On Approval of the Rules for the Transportation, Acceptance, Registration, Valuation, Storage and Sale of Precious Metals, Precious Stones and Items Made Therefrom Converted into (Received into) State Ownership on Certain Grounds”; Decision of the Board of the Eurasian Economic Commission dated 21 April 2015 “On Non-Tariff Regulation Measures”; Resolution of the Government of the Republic of Kazakhstan dated 20 June 2016 “On Approval of the Rules for the Import into the Territory of the Republic of Kazakhstan from Countries That Are Not Members of the Eurasian Economic Union, and the Export from the Territory of the Republic of Kazakhstan to Those Countries of Precious Stones, Jewellery and Other Items, the Import into the Territory of the Republic of Kazakhstan and Export from the Territory of the Republic of Kazakhstan of Unworked Natural Diamonds, Taking into Account the Kimberley Process Certification Scheme, and on Declaring Certain Decisions of the Government of the Republic of Kazakhstan Invalid”; and others.
To extract means to obtain, acquire or get something through a trade or occupation. Illegal extraction of precious metals or precious stones, or raw materials containing precious metals, means extraction carried out without the appropriate authorisation, at a prohibited time or in unauthorised places, or by a prohibited method.
Illegal acquisition of precious metals or precious stones, or raw materials containing precious metals, constitutes any action not authorised by law as a result of which the offender becomes the owner of precious metals or precious stones, or raw materials containing precious metals, including purchase, exchange, receipt as a gift, receipt as repayment of a debt, etc.
An exception is the method of acquiring precious metals or precious stones, or raw materials containing precious metals, by theft, which constitutes an independent criminal offence provided for by the relevant Article of Chapter 6 of the Criminal Code, “Criminal Offences Against Property”.
The sale of precious metals or precious stones, or raw materials containing precious metals, consists in their intentional provision to other persons, for consideration or free of charge, by any means (for example, by sale, rental, free distribution for advertising purposes, gifting, or posting works on the Internet). The existence of an intention to sell on the part of a person may be confirmed, in particular, by the fact that the seized precious metals or precious stones, or raw materials containing precious metals, are found at trading locations, rental outlets, warehouses, etc., as well as by the quantity of the specified items.
Sale also includes sales through wholesale supply or retail purchase and sale, barter transactions, as well as gratuitous forms of alienation.
The sale is completed at the moment the precious metals or precious stones, or raw materials containing precious metals, come into the possession of the purchaser.
Storage means any intentional actions associated with actual possession of the specified items and ensuring their preservation, regardless of their specific location (in a warehouse, at trading, manufacturing or rental premises, in a dwelling, hiding place, etc.).
The storage of the specified items is considered completed from the moment storage begins, regardless of its duration.
Transportation means the movement of the items by the offender from one place to another using any type of transport (for example, by car, train or aircraft).
Shipment means the movement of precious metals or precious stones, or raw materials containing precious metals, in the form of postal or baggage consignments. Shipment by post means sending them as a parcel or printed matter through communication channels. Shipment as baggage means sending them in a transport vehicle's baggage compartment, by courier or by another method without the accompaniment of the guilty person, that is, in the absence of the sender.
Shipment is completed at the moment the consignment containing precious metals or precious stones, or raw materials containing precious metals, is accepted by a communications enterprise, transport organisation or courier.
Thus, by its legal construction, the elements of the criminal offence provided for by Article 295-1 are formal. Therefore, the occurrence of any negative consequences is not required in order to bring a person to criminal liability; the very fact of illegal extraction, acquisition, sale, storage, transportation or shipment of precious metals or precious stones, or raw materials containing precious metals, is sufficient.
If a person sells (exchanges, etc.) metal or stones presented as precious when they are not in fact precious, that person is subject to liability for fraud (Article 190 of the Criminal Code of the Republic of Kazakhstan).
An act involving the theft of valuables and associated with their subsequent sale, storage, transportation and shipment must be classified cumulatively under Article 295-1 of the Criminal Code.
The conduct of illegal entrepreneurial activity involving the extraction and production of precious metals and precious stones, followed by their illegal circulation, where there are sufficient grounds, is classified cumulatively as a set of crimes (under Articles 214 and 295-1).
The subjective element of the criminal offence provided for by Article 295-1 of the Criminal Code is characterised by an intentional form of guilt in the form of direct intent. The person is aware that they are illegally extracting, acquiring, selling, storing, transporting or shipping precious metals or precious stones, or raw materials containing precious metals, and desires to do so.
With regard to the criminal offence under consideration, motive and purpose have the status of optional features of the subjective element and, accordingly, do not affect legal classification. Motives may vary and must be taken into account when imposing punishment.
The subject of the criminal offence under consideration is a sane natural person who has reached the age of 16.
Part 2 of Article 295-1 of the Criminal Code provides for qualifying features of the illegal extraction, acquisition, sale, storage, transportation or shipment of precious metals or precious stones, or raw materials containing precious metals, such as commission on a large scale or causing substantial damage.
According to Subparagraph 38) of Article 3 of the Criminal Code, a large scale and substantial damage under Article 295-1 of the Criminal Code mean a value of precious metals or precious stones, or raw materials containing precious metals, exceeding one thousand monthly calculation indices.
When determining the value of precious metals and precious stones, the prices for these metals and stones prevailing at the time the illegal transactions involving them were committed, or at the time of their transportation or shipment, must be taken into account. In the case of illegal storage, the relevant prices are those prevailing when the act was terminated by the person themselves or suppressed by law enforcement authorities. In this regard, the purchase prices for non-ferrous metals quoted daily by the National Bank of the Republic of Kazakhstan are used, while the value of precious stones is determined on the basis of a gemological examination report.
Gemological examination is the study of precious, jewellery and ornamental stones for the purpose of identifying them and determining their qualitative characteristics, as well as establishing the value of an item.
Part 3 of Article 295-1 of the Criminal Code establishes criminal liability for the acts provided for in Parts 1 and 2 of this Article, where they are committed by a criminal group, on an especially large scale or cause especially substantial damage.
The definition of the concept of a criminal group is contained in Subparagraph 24) of Article 3 and Paragraph 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan.
According to Subparagraph 3) of Article 3 of the Criminal Code, an especially large scale and especially substantial damage under Article 295-1 mean the value of precious metals or precious stones, or raw materials containing precious metals, or the amount of damage, exceeding the monthly calculation index by two thousand times.
The act provided for in Part 1 of Article 295-1 of the Criminal Code of the Republic of Kazakhstan is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 295-1 of the Criminal Code of the Republic of Kazakhstan is classified as a crime of medium gravity.
The act provided for in Part 3 of Article 295-1 of the Criminal Code of the Republic of Kazakhstan is classified as a serious crime.
Commentary on the 2021 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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