Commentary on Article 384. Unlawful Seizure of Documents, Theft, Destruction, Damage or Concealment of Documents, Stamps and Seals of the Criminal Code of the Republic of Kazakhstan

1. Unlawful seizure from a citizen of a passport, identity card or other personal document –

shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days.

2. Theft from a citizen of a passport, identity card or other personal document –

shall be punishable by a fine in an amount of up to one hundred and twenty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to thirty days.

3. Theft, destruction, damage or concealment of official documents, stamps or seals committed for mercenary motives or out of other personal interest –

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

The public danger of the criminal misdemeanour provided for in Article 384 of the Criminal Code lies in the fact that, through their unlawful actions, the perpetrator violates the established procedure for maintaining official documentation. The unlawful seizure or theft of citizens' personal documents creates difficulties for them in exercising their legitimate rights and interests. For example, it deprives them of the opportunity to continue performing their official duties at an enterprise, and also creates conditions for property-related offences, etc.

The direct object of the criminal misdemeanour under consideration is the public relations governing the procedure for administration and the handling of documents, stamps and seals.

The subject matter of the criminal misdemeanour provided for in Parts 1 and 2 of Article 384 of the Criminal Code is a citizen's passport, identity card or other personal document.

A passport or identity card is an official document certifying a person's identity, issued by a state authority at the place of residence upon reaching the age of sixteen.

A passport and identity card contain photographs and basic information about a person's identity. Passports and identity cards may be domestic, foreign, diplomatic or service documents.

Pursuant to Article 1 of the Law of the Republic of Kazakhstan dated 29 January 2013, “On Documents Identifying a Person”, a passport of a citizen of the Republic of Kazakhstan is a document identifying a citizen and confirming the citizenship of the Republic of Kazakhstan both within the territory of the Republic of Kazakhstan and abroad.

A diplomatic passport of the Republic of Kazakhstan is a document identifying a citizen of the Republic of Kazakhstan when travelling outside the Republic of Kazakhstan, residing abroad for the purpose of performing the official duties assigned to them, and entering the Republic of Kazakhstan.

A service passport of the Republic of Kazakhstan is a document identifying a citizen of the Republic of Kazakhstan and confirming the official status of its holder when travelling abroad, entering the country and residing outside the Republic of Kazakhstan for the purpose of performing the official duties assigned to them.

A foreign passport is a document recognised by the Republic of Kazakhstan as a document identifying a foreign national or a stateless person and confirming their legal status.

A passport of a citizen of the Republic of Kazakhstan containing biometric data is issued to all citizens of the Republic of Kazakhstan at their request, regardless of age, and identifies a citizen of the Republic of Kazakhstan both within the territory of the Republic of Kazakhstan and abroad. A passport of a citizen of the Republic of Kazakhstan is issued for a period of ten years.

An identity card of a citizen of the Republic of Kazakhstan is a document identifying a citizen and confirming the citizenship of the Republic of Kazakhstan. An identity card is issued to citizens of the Republic of Kazakhstan from the age of sixteen. Citizens of the Republic of Kazakhstan permanently residing within its territory are required to possess an identity card. An identity card of a citizen of the Republic of Kazakhstan is issued for a period of ten years.

Personal documents are documents issued by state authorities and containing biographical information necessary to identify their holder. They are required when conducting real estate transactions, arranging loans, purchasing tickets, formalising employment relationships, etc.

Other personal documents may include a residence permit of a foreign national in the Republic of Kazakhstan, a stateless person's certificate, a refugee certificate, a seafarer's identity card of the Republic of Kazakhstan, a certificate for return, a birth certificate, a marriage certificate, an educational diploma, a driver's licence, a military ID, an employment record book, a pension certificate, etc.

The objective element of the criminal misdemeanour provided for in Article 384 of the Criminal Code consists in the unlawful seizure from a citizen of a passport, identity card or other personal document.

Unlawful means not permitted by law, not based on law, or in violation of the law. The seizure of a passport, identity card or other personal document is unlawful if such an action is committed by persons who have no right to possess the aforementioned documents.

Seizure means the compulsory and uncompensated confiscation of something from citizens under various pretexts. Unlawful seizure should be understood as obtaining a passport, identity card or other personal document without lawful grounds, for example, where a person has no authority, where the victim is not subordinate to the perpetrator, where such documents are obtained in violation of the provisions of the current legislation, etc.

The composition of the criminal misdemeanour provided for in Part 1 of Article 384 of the Criminal Code is formal in its structure. Accordingly, it is not necessary for any negative consequences to occur in order to bring a person to criminal liability; the mere fact of unlawfully seizing a citizen's passport, identity card or other personal document is sufficient.

The subjective element of the criminal misdemeanour under consideration is characterised by direct intent. The perpetrator is aware that they are unlawfully seizing a citizen's passport, identity card or other personal document and desires to do so.

The motive and purpose do not affect the legal classification of the act, but are taken into account by the court when imposing punishment.

The subject of the criminal misdemeanour provided for in Article 384 of the Criminal Code may be any sane natural person who has reached the age of sixteen.

In Part 2 of Article 384 of the Criminal Code, the legislator has provided for the theft from a citizen of a passport, identity card or other personal document as an independent criminal misdemeanour.

The objective element of the criminal misdemeanour provided for in Part 2 of Article 384 of the Criminal Code consists in the theft from a citizen of a passport, identity card or other personal document.

The theft of a passport, identity card or other personal document should be understood as the unlawful seizure of such documents from their lawful holder and their appropriation for the benefit of the perpetrator or other persons.

The theft of a passport, identity card or other personal document may be committed secretly or openly, with the use of physical or psychological violence, through deception or abuse of trust.

If the theft of a passport, identity card or other personal document was accompanied by violence, the act committed should be classified under Part 2 of Article 384 of the Criminal Code and the relevant articles providing for criminal liability for criminal offences against the person.

It should be noted that extortion of a passport, identity card or other personal document does not entail criminal liability under Article 384 of the Criminal Code and, in general, falls outside the scope of criminal law, which constitutes a gap in the current criminal legislation.

The composition of the criminal misdemeanour provided for in Part 2 of the article under consideration, like that provided for in Part 1 of Article 384 of the Criminal Code, is formal in its structure. Accordingly, the mere fact of stealing a citizen's passport, identity card or other personal document is sufficient to bring a person to criminal liability.

The subjective element and the subject of the criminal misdemeanour provided for in Part 2 of Article 384 of the Criminal Code are characterised in the same manner as the corresponding elements of the act provided for in Part 1 of Article 384 of the Criminal Code.

In Part 3 of Article 384 of the Criminal Code, the legislator has provided for liability, as an independent criminal misdemeanour, for the theft, destruction, damage or concealment of official documents, stamps or seals committed for mercenary motives or out of other personal interest.

The subject matter of the criminal misdemeanour provided for in Part 3 of Article 384 of the Criminal Code consists of official documents, stamps or seals.

Unlike the criminal misdemeanour provided for in Parts 1 and 2 of Article 383 of the Criminal Code, the subject matter of the act under consideration includes any official documents, and not only those that grant rights or release a person from obligations.

The definition of the concept of “official document” is provided in Subparagraph 21) of Article 1 of the Law of the Republic of Kazakhstan “On the National Archival Fund and Archives” and Subparagraph 28-1) of Article 3 of the Criminal Code of the Republic of Kazakhstan (see the commentary to Article 383 of the Criminal Code).

Stamps are manual printing forms. As a rule, stamps are placed on papers that are not payment or monetary documents. A stamp is a rectangular form of seal, but in document circulation it has no legal force without the main seal.

A seal is a circular impression affixed to certify or authenticate something. In other words, a seal is a cliché with engraved symbols intended for making impressions on documents. It contains the details of the state authority, enterprise, institution or organisation to which it belongs.

The objective element of the criminal misdemeanour provided for in Part 3 of Article 384 of the Criminal Code consists in the theft, destruction, damage or concealment of official documents, stamps or seals committed for mercenary motives or out of other personal interest.

The elements of theft were examined in the analysis of Part 2 of the article under consideration.

Destruction means actions that result in the physical elimination of the relevant item (burning) or make its use impossible (complete erasure of the text).

Destruction of official documents, stamps or seals means their demolition, elimination or rendering them into such a condition that they cannot be restored or used for their intended purpose.

In the event of destruction, the physical medium and/or the information recorded on it cease to exist (for example, burning, pouring acid on it, tearing it into small pieces).

Damage means partial physical deterioration of the material.

Damage to official documents, stamps or seals means deterioration of the material on which they were produced, which subsequently makes their use difficult or precludes their use without restoration. In the event of damage, the physical medium and/or the information recorded on it is damaged (for example, tearing off part of a document, pouring paint over a signature, damaging the seal on a document).

Concealment of official documents, stamps or seals involves hiding them or moving them to another location without theft, as a result of which the owner is deprived of the opportunity to use the documents, stamps or seals for their intended purpose.

In some cases, a seal, stamp or document may remain where it is supposed to be, but is not presented to the relevant persons or authorities upon their request. In other cases, the item is moved without the elements of theft (the director of an enterprise personally hands the seal over to another person and asks them to keep it safe).

Concealment may take the form of either an action or an omission. It may be expressed, for example, in disguising the aforementioned items, providing false information about their location, or withholding information about certain documents.

The act provided for in Part 3 of Article 384 of the Criminal Code should be considered completed from the moment the actions specified in the disposition of the criminal law provision under consideration are committed.

The subjective element of the act provided for in Part 3 of Article 384 of the Criminal Code is characterised by direct intent. The perpetrator is aware that they are stealing, destroying, damaging or concealing official documents, stamps or seals, and desires to do so.

An obligatory feature of the subjective element of the criminal misdemeanour provided for in Part 3 of Article 384 of the Criminal Code is mercenary motive or other personal interest.

Mercenary motives consist in the perpetrator's desire to obtain material benefit or avoid material expenses.

Other personal interest consists in the desire to obtain benefits of a non-material nature (appropriating authorship of a scientific or artistic work, the desire to conceal an offence, commit another crime, take revenge on an official who had the documents in their custody, etc.).

The subject of the act under consideration, just as under Parts 1 and 2, is a sane person who has reached the age of sixteen.

If the act is committed by an official through the use of their official position, the actions of the perpetrator shall be classified under Article 361 of the Criminal Code, “Abuse of Official Powers”.

If the subject of theft consists of official documents containing information constituting banking or commercial secrets, or information constituting state secrets, the act committed shall be classified, respectively, under Part 1 of Article 223 of the Criminal Code, “Unlawful Acquisition, Disclosure or Use of Information Constituting Commercial or Banking Secrets, Tax Secrets Obtained During Horizontal Monitoring, Secrets of Microcredit Provision, Secrets of Collection Activities, as well as Information Related to the Legalisation of Property”, or under Article 175 of the Criminal Code, “High Treason”.

The acts provided for in Parts 1, 2 and 3 of Article 384 of the Criminal Code are classified as criminal misdemeanours.

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 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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