Commentary on Article 386. Forgery or Destruction of the Identification Number of a Vehicle, Sale of a Vehicle with a Knowingly Forged Identification Number of the Criminal Code of the Republic of Kazakhstan
1. Forgery or destruction of an identification number, body number, chassis number, engine number, as well as forgery of a state registration plate of a vehicle, use of a knowingly forged or counterfeit state registration plate, as well as the sale of a vehicle with a knowingly forged identification number, body number, chassis number, engine number or with a knowingly forged state registration plate, or the sale of a body, chassis or engine with a knowingly forged number —
shall be punishable by a fine in an amount 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 deprivation of liberty for the same period.
2. The same acts committed by a group of persons upon prior conspiracy or by a criminal group —
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 deprivation of liberty for the same period.
The public danger of the crime provided for in Article 386 of the Criminal Code lies in the fact that it encroaches upon the established procedure for the documentary certification of legally significant facts, the distortion of which may entail harmful consequences for individuals and legal entities, and causes moral and material harm to citizens, organisations and institutions. This act violates the procedure for identifying vehicles and often has the purpose of committing other, more serious criminal offences.
The object of the crime under consideration is public relations ensuring the activities of administrative bodies in the sphere of state registration and accounting of vehicles, as well as the established procedure for keeping records of vehicles. An additional object is represented by public relations guaranteeing the preservation of property.
The subject matter of the crime commented upon is the identification number, body number, chassis number, engine number, state registration plate of a vehicle, and the vehicle itself.
According to the Rules for State Registration and Accounting of Certain Types of Vehicles by Vehicle Identification Number, Training of Drivers of Motor Vehicles, Conducting Examinations and Issuing Driving Licences, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated December 2, 2014, a vehicle identification number is an individual serial number of a vehicle, expressed in the form of a sequence of alphanumeric characters, assigned by the vehicle manufacturer, which makes it possible to identify the vehicle in the unified information system for state registration of vehicles.
The unified information system for state registration of vehicles is a state information system that ensures the centralised recording of information about vehicles and their owners and provides for the centralised accounting of such information.
The identification number (VIN) indicates the serial number of the product and its main design characteristics.
The body number, chassis number and engine number are numbers assigned by the manufacturing plant to individual parts of a vehicle.
According to the aforementioned Rules, the body, chassis and frame of a vehicle, upon which an identification number has been applied by the manufacturer, are referred to as a numbered unit.
In accordance with the aforementioned Rules, a vehicle state registration plate (SRP) is an item that is state property and contains an individual alphanumeric designation assigned to a motor vehicle and manufactured in accordance with the requirements of the national standard. This concept also applies to the “Transit” state registration plate.
According to subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan dated September 21, 1994, “On Transport in the Republic of Kazakhstan”, transport of the Republic of Kazakhstan means railway, road, sea, inland waterway, air, urban rail and main pipeline transport registered in the territory of the Republic of Kazakhstan, as well as transport located in the territory of the Republic of Kazakhstan.
In accordance with subparagraph 28) of Article 1 of the Law of the Republic of Kazakhstan dated April 17, 2014, “On Road Traffic”, a vehicle is a device intended for transporting people, cargo or equipment installed on it along roads.
The objective side of the crime provided for in Article 386 of the Criminal Code consists in the forgery or destruction of an identification number, body number, chassis number, engine number, as well as the forgery of a state registration plate of a vehicle, the use of a knowingly forged or counterfeit state registration plate, as well as the sale of a vehicle with a knowingly forged identification number, body number, chassis number, engine number or with a knowingly forged state registration plate, or the sale of a body, chassis or engine with a knowingly forged number.
That which is forged is understood to be something that resembles an original but is not the original, having been created for the purpose of falsification; that is, an item is considered forged if it does not correspond to reality.
Forgery of an identification number, body number, chassis number or engine number consists in their complete or partial alteration and is expressed in any changes to the genuine number or the creation (application) of an entirely fictitious number.
Forgery may be carried out by various methods, for example, by altering numbers through re-stamping, painting over, metal deposition, filing, etching, milling of individual parts, digits or letters, or by other methods that make it impossible to identify both the given vehicle and its units (parts).
Destruction means actions that have resulted in the physical elimination of the given item or have made its use impossible.
Thus, destruction of an identification number, body number, chassis number or engine number means the complete elimination of the genuine number, as a result of which the possibility of identifying the vehicle as a whole or its units (parts) is completely lost.
Forgery of a vehicle state registration plate means the manufacture of a counterfeit state registration plate or alteration of an original registration plate, that is, the introduction of changes that distort the characters applied by the official manufacturing enterprise. State registration plates shall be considered forged if they are manufactured independently or by a company that does not have a licence to do so, without complying with the parameters to which they must conform (for example, the absence of a hologram, a thermal transfer film with graphics, a non-removable serial number, a barcode, a reflective coating or a manufacturer's stamp).
Counterfeit state registration plates are registration plates manufactured by an official manufacturing enterprise holding a special licence for this purpose, in compliance with all the necessary parameters, but assigned to another vehicle, that is, a state registration plate issued during the state registration of another vehicle. Unlike a forged plate, a counterfeit plate implies that it belongs to another vehicle rather than the vehicle on which it is being used.
The use of a knowingly forged or counterfeit state registration plate implies its placement on the body of a vehicle.
Knowingly means that the guilty person was fully aware, before beginning to use the given item, that it was forged or fictitious.
The commission of other acts involving the element of knowing falsity in relation to the remaining items specified in Part 1 of Article 386 of the Criminal Code is qualified in the same manner.
The sale of a vehicle with a knowingly forged identification number, body number, chassis number, engine number or with a knowingly forged state registration plate, or of a body, chassis or engine with a knowingly forged number, means their sale through wholesale supply or retail purchase and sale, a barter transaction, as well as through gratuitous forms of alienation. That is, sale should be understood as the alienation of a vehicle and its transfer to third parties by any means, for example, exchange, gift, pledge, sale, lease, etc. The sale of a vehicle means the commission of actions only in respect of a knowingly forged identification number, body number, chassis number or engine number, or a knowingly forged state identification number.
In the case of sale, the person's legal authority in relation to the vehicle (body, chassis, engine) being alienated is irrelevant. The person carrying out the sale may own the vehicle (its units or parts) either lawfully or unlawfully.
If a person acquires a vehicle (or a part thereof) as a result of theft and subsequently sells it using forged identification numbers, the actions of the guilty person should be qualified cumulatively under Article 196 of the Criminal Code, “Acquisition or Sale of Property Knowingly Obtained by Criminal Means”, and Article 386 of the Criminal Code.
By its legal structure, the corpus delicti of the crime under analysis is formal. The act is considered completed from the moment the actions specified in the disposition of the article are committed.
Thus, in the case of forgery, the act is considered completed from the moment the identification number, body number, chassis number, engine number or state registration plate of the vehicle is completely or partially altered by any method, as a result of which the vehicle or a part thereof acquires another number that does not correspond to reality.
In the case of destruction, the act is considered completed from the moment the identification number, body number, chassis number or engine number is damaged in such a way as to make it impossible to identify the vehicle or its component parts.
In the case of the sale of a vehicle with a knowingly forged identification number, body number, chassis number, engine number or with a knowingly forged state registration plate, or the sale of a body, chassis or engine with a knowingly forged number, the criminal offence is considered completed from the moment the vehicle is alienated (sale, lease, gift, transfer as collateral, etc.).
The subjective side of the crime commented upon is characterised by direct intent. The guilty person is aware that they are forging or destroying an identification number, body number, chassis number or engine number, or forging a vehicle state registration plate, or using a knowingly forged or counterfeit registration plate, or selling a vehicle (or its parts) with a knowingly forged identification number, body number, chassis number or engine number, or with a knowingly forged registration number, and desires to do so.
The subject of the crime provided for in Article 386 of the Criminal Code may be any sane person who has reached the age of 16.
Part 2 of the article commented upon provides for liability for similar acts committed in the presence of qualifying circumstances, namely, by a group of persons upon prior conspiracy or by a criminal group. The characteristics of these elements are contained in the commentary to Articles 31 and 99 of the Criminal Code.
The act provided for in Part 1 of Article 386 of the Criminal Code is classified as a minor criminal offence.
The act provided for in Part 2 of Article 386 of the Criminal Code is classified as a criminal offence 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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