Commentary to article 180. Theft of items of special value of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Theft of objects or documents of special historical, scientific, artistic or cultural value, regardless of the method of theft, —    

is punishable by imprisonment for a term of six to ten years with or without confiscation of property.    

2. The same act:      

a) committed by a group of persons by prior agreement or by an organized group;      

b) committed repeatedly;      

c) entailing the destruction, damage or destruction of objects or documents specified in the first part of this article, —      

is punishable by imprisonment for a term of eight to fifteen years with confiscation of property.

     The establishment of criminal liability for the theft of items of special value in Article 180 of the Criminal Code is conditioned by a number of international legal acts aimed at protecting these items from criminal encroachments.       The Hague Convention of 1954 criminalized various attacks on cultural property during armed conflicts. Meanwhile, such attacks take place in reality. For example, according to Interpol, 45-500 paintings, antiques, religious worship, archaeological valuables and other works and cultural monuments of different eras and peoples are stolen every day in the world.      

In 1970, UNESCO drafted and in 1972 adopted the Convention on Measures Aimed at Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property, as well as the Convention on the Protection of the World Cultural and Natural Heritage.      

The III Congress on the Prevention of Crime and the Treatment of Offenders (1990) adopted a Model Treaty on the Prevention of Crimes related to Encroachment on the Cultural Heritage of Peoples in the Form of Movable Values.      

A number of conventions have been adopted at the regional level to combat these encroachments. These include: The European Cultural Convention of 1954, the European Convention on Crimes against Cultural Property of 1985, the Conventions on the Protection of the Architectural Heritage of Europe of 1969 and 1985, the European Convention on the Protection of the Archaeological Heritage of 1992.      

The presence of such a large number of international legal acts indicates a high degree of public danger of the analyzed act, which is expressed in the fact that as a result of their commission, it is possible to cause the owner irreparable loss of ownership of objects of special value.      

Ownership of these items can be held by both individuals and legal entities, both state and non-state spheres.      

The object of the crime provided for in Article 180 of the Criminal Code is property.      

180 of the Criminal Code refers to the theft of objects or documents of special historical, scientific, artistic or cultural value, regardless of the method of theft and the form of ownership of the property. The Hague Convention defines as cultural property movable and immovable objects of great importance to the cultural heritage of every nation, monuments of art, history, religion, archaeological finds, works of art, manuscripts, books, scientific collections or collections of books, archival materials or reproductions of valuables, museums, large libraries, antiques, etc. Therefore, Article 180 of the Criminal Code provides for liability not only for theft of objects of the material world, things, but also for theft of documents, that is, material media intended for its transmission in time and space. All these items should have a special value, which is expressed in their exclusivity and uniqueness.      

At the same time, their exclusivity and uniqueness may be associated with historical, scientific, artistic and cultural heritage, and therefore they are of special value. Thus, objects and documents found as a result of archaeological excavations have historical value, as well as values characterizing historical events in the life of a people, society, state, and individual prominent personalities. Rare collections and specimens of flora and fauna, or items of interest to anatomy and paleontology, are of scientific value. Paintings, sculptures, icons, engravings, works of decorative and applied art, products of traditional folk crafts, rare musical instruments, coins, orders and medals, and other collectibles are of artistic value. Documents of special historical, scientific, artistic or cultural value are rare manuscripts and documentary monuments, photo, film and video archives.      

In order to prevent crimes related to encroachments on cultural values, they are fully accounted for and catalogues of all artistic, historical and cultural values available in our country are compiled, regardless of their storage location (in museums, private collections, churches, mosques, etc.).      

On the objective side, the theft of items of special value is expressed in any form: by theft, embezzlement or embezzlement, fraud, robbery or robbery. The moment of the end of the crime provided for in Article 180 of the Criminal Code depends on the method of seizure of these items. In case of theft, embezzlement, embezzlement, fraud and robbery, it is considered completed from the moment of the real opportunity to use or dispose of the stolen property, and in case of robbery – from the moment of the attack, regardless of whether the guilty person managed to take possession of it or not.      

The special historical, scientific, artistic, or cultural value of stolen objects or documents is determined based on an expert opinion, taking into account not only their monetary value, but also their significance for history, science, and culture.      

When the perpetrator commits theft of objects of special historical, scientific, artistic or cultural value, as well as along with this theft of other people's property, the act as a whole should be classified according to the totality of crimes.

180 of the Criminal Code and corresponding articles 175, 176, 177, 178 or 179 of the Criminal Code, depending on the form of theft.      

The actions of the perpetrator, who stole items of special value and transported them across the state border, are subject to qualification according to the totality of crimes provided for in Articles 180 and 209 of the Criminal Code "Economic smuggling".      

On the subjective side, the analyzed crime is characterized by guilt in the form of direct intent. The motive is selfish.      

The subject is a sane individual who has reached the age of 16.      

The legislator provided for qualifying features in this article.:      

a) a group of persons by prior agreement or an organized group;      

b) repeatedly.      

The signs set out in paragraphs "a" and "b" of Part 2 of Article 180 of the Criminal Code are identical to other forms of theft.      

c) entailed the destruction, damage or destruction of objects or documents of special value. This feature will be considered in the context of Article 187 of the Criminal Code, which provides for liability for intentional destruction or damage to other people's property.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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