On judicial practice in cases of theft of firearms, ammunition, weapons and explosives, illegal acquisition, carrying, storage, manufacture or sale, and negligent storage of firearms
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 21, 1995 No. 4.
The footnote. Title as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 5 (for the procedure of entry into force, see paragraph 2).
The footnote. Throughout the text:
numbers "253", "251", "252", "254", "255" replaced by numbers , respectively "289", "287", "288", "290", "291";
The words "crimes" and "crime" have been replaced, respectively, by the words "criminal offenses" and "criminal offense" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Having discussed judicial practice in cases of theft of firearms, ammunition, weapons and explosives, illegal acquisition, manufacture, carrying, storage or sale, and negligent storage of firearms, the plenary session of the Supreme Court of the Republic of Kazakhstan notes that the courts generally correctly resolve cases in this category.
At the same time, courts do not always take due account of the fact that these criminal offenses are classified as the most dangerous and pose a serious threat to public safety, primarily to life, health and legally protected rights and interests of citizens, and the use of encroachment objects for criminal purposes often leads to serious consequences.
In order to establish a unified judicial practice in cases of this category, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
The footnote. The preamble as amended by the regulatory decisions of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Considering that criminal offenses related to the theft of firearms, ammunition, weapons and explosives, their illegal acquisition, manufacture, carrying, storage and sale pose a serious threat to public safety, in order to prevent criminal offenses, courts need to raise the level of judicial proceedings, take effective measures provided by law to ensure the inevitability of punishment, identify sources of acquisition of firearms and ammunition, weapons and explosives, as well as the establishment and elimination of the facts of their improper protection or manufacture in production and other causes and conditions that contribute to the commission of these criminal offenses.
Courts are required by private rulings to respond in principle to every fact of negligent attitude towards the preservation of firearms by officials entrusted with their service, leaving unguarded or improperly equipped places of storage of firearms, ammunition, weapons and explosives, violations of the procedure for their accounting, issuance, transportation, improper use and use, in each case in a specific case, to discuss the issue of bringing those officials to justice, whose actions or omissions contributed to the commission of criminal offenses.
The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When deciding whether a person is guilty of committing criminal offenses provided for in Article 289, the relevant parts of articles 287, 288, 290, 291 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), it should be established whether certain items seized from the perpetrator relate to firearms, ammunition, weapons and explosives. responsibility for theft, carrying, storage, acquisition, manufacture, sale and negligent storage of which is provided for in the specified articles.
The distinctive features of these items are their special purpose for hitting, destroying or destroying various targets and objects, as well as the special procedure for their manufacture, acquisition, use and storage.
It should be borne in mind that firearms, ammunition, weapons and explosives can be either factory-made or homemade.
Making a sawn-off shotgun from a hunting rifle, i.e. changing its properties for its intended purpose to impart the qualities of a combat firearm, as well as its acquisition, carrying, storage, sale or theft, constitute a criminal offense provided for in the relevant parts of Articles 287, 288, 291 of the Criminal Code.
The footnote. Paragraph 2 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication). RCPI's note! Paragraph 3 is amended only in the text in the official language (see paragraph 14 of the Resolution of the Supreme Court of the Republic of Kazakhstan dated 21.04.2011 N 1).
With regard to Article 289, the relevant parts of Articles 287, 288, 290, 291 of the Criminal Code, firearms should be understood as machine guns, carbines, rifles, pistols, machine guns and other devices and objects structurally designed to defeat a living or other target, as well as sports, including small-caliber rifled hunting weapons, in which to produce a shot, the energy of a powder or other charge is used, regardless of the purposes for which it is actually used.
Ammunition means: missile warheads, bombs, mines, rockets, artillery, mortar, grenade launchers, hand and rocket grenades and fuses for them, small arms cartridges, explosive packages, detonators, signaling, lighting, imitation means and other products and explosive devices assembled, loaded with explosives and intended for for firing a firearm of the appropriate type or for producing an explosion.
Courts should keep in mind that airguns, signaling, launching, construction, gas pistols, rocket launchers, as well as those containing explosives and mixtures, pyrotechnic and lighting devices not intended for combat use, do not relate to firearms, ammunition, explosives, responsibility for theft, carrying, storage, acquisition, the manufacture or sale of which is provided for in Article 289, the relevant parts of articles 287, 288, 290, 291 of the Criminal Code.
Within the meaning of the law, carrying, storing, acquiring, manufacturing or selling ammunition for smoothbore hunting weapons does not constitute a criminal offense provided for in the relevant parts of Article 287 of the Criminal Code.
Explosives should be understood as gunpowder, TNT, nitroglycerin, pyroxylin, ammonal and other chemicals and their mixtures capable of explosive reactions, for the purchase and storage of which a special permit is required.
Weapons include land-based, air-based, sea-based and river-based military equipment with standard means of destroying targets, mining and mine clearance installed on it and ensuring its intended use (optical devices, radar and radiotelephone stations, etc.).
The footnote. Paragraph 3, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Courts need to take into account that responsibility under the relevant parts of Articles 287, 291 of the Criminal Code comes for theft, carrying, storage, purchase or sale of usable firearms and ammunition, weapons and explosives, as well as defective or educational, which the perpetrator had a real opportunity to bring into a suitable condition.
If the perpetrator stole unusable firearms or military supplies, weapons, explosives and was mistaken about their quality, believing that they were serviceable, the deed should be qualified as an attempted theft of these items.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 5 (for the procedure of entry into force, see paragraph 2)
In cases where, in order to seize firearms or ammunition, weapons have stolen their components or parts in a set sufficient to assemble usable firearms or ammunition, weapons, explosives for their intended purpose, the act should be qualified as a completed criminal offense under the relevant parts of Article 291 of the Criminal Code. At the same time, a sufficient set of parts should be understood as a combination of them that allows you to fire a shot without additional devices and modifications (for example, a rifle barrel with a trigger mechanism), and a sufficient set of components of ammunition and explosives is a set that allows them to be used for their intended purpose.
Theft of components and individual parts of firearms and the subsequent manufacture of missing parts necessary for the assembly of a fireable weapon should be classified as a combination of theft of other people's property and illegal manufacture of weapons.
The storage of individual parts, in the absence of data indicating the intention of the perpetrator to use them for the manufacture of firearms, does not constitute a criminal offense.
Theft of components and parts of military supplies containing explosives (fuses, detonators, fuses, grenades without fuses, etc.) should be qualified under the relevant parts of Article 291 of the Criminal Code as complete theft of explosives.
The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The manufacture of firearms, ammunition, weapons or explosives, which entails criminal liability, should be understood as their creation or restoration of lost destructive properties, as well as the alteration of any household items, as a result of which they acquire the properties of firearms.
In cases where special knowledge is required to determine whether the items that the perpetrator stole, illegally carried, stored, acquired, manufactured or sold are firearms, ammunition, weapons or explosives, it is necessary to obtain an expert or specialist opinion.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The theft of firearms, ammunition, weapons or explosives should be understood as the unlawful taking of them in any way with the intention of the perpetrator to appropriate the stolen goods or transfer them to another person, as well as dispose of them at his discretion in another way.
If a person has committed theft of other people's property without realizing that he is committing theft of firearms (for example, theft of a safe with a firearm stored in it), then if the person leaves the weapon for further possession, use, his actions are qualified as theft of firearms.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Criminal liability under the relevant parts of Article 291 of the Criminal Code occurs in cases of theft of firearms, ammunition, weapons or explosives from government agencies or public, cooperative and commercial organizations, as well as from individual citizens who owned them lawfully or illegally.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 5 (for the procedure of entry into force, see paragraph 2).
A previously committed theft of other property does not constitute a sign of repetition provided for in paragraph 2) the third part of Article 291 of the Criminal Code.
The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The qualifying attribute - theft of firearms, ammunition, weapons or explosives entrusted to protection - should be understood as theft from a warehouse or other storage location not only by a person performing security and guard functions, but also by an official and financially responsible person in charge of whom they were by virtue of their official position.
In the case of theft of firearms, ammunition, weapons or explosives entrusted to protection from protected objects by members of the military guard, the actions of these persons, in addition to the first part of Article 290 of the Criminal Code, should also be qualified under the first part of Article 446 of the Criminal Code as a violation of the statutory rules of the guard service, entailing harmful consequences, for the prevention of which this guard is appointed.
The qualifying attribute - theft of firearms, ammunition, weapons or explosives using official position - should be understood as theft by an official who, by virtue of his official position, had certain authority to control, supervise, verify the accounting and storage, use and disposal of these items.
The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The theft of firearms, ammunition, weapons or explosives by robbery should be considered completed from the moment of the attack with the aim of seizing these items.
Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 5 (for the procedure of entry into force, see paragraph 2 )
Considering that the illegal carrying, storage, acquisition, manufacture or sale of firearms, ammunition, weapons or explosives are independent elements of criminal offenses, the theft of the listed items and their subsequent carrying, storage, acquisition, manufacture or sale form a real set of criminal offenses provided for in the relevant parts of Articles 287, 291 of the Criminal Code.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 5 (for the procedure of entry into force, see paragraph 2)
In cases of theft of firearms, ammunition, weapons or explosives, as well as their carrying, storage, acquisition and manufacture for the purpose of committing another criminal offense, the act must be qualified as a combination of preparation for the commission of another criminal offense and the completed theft of firearms, ammunition, weapons and explosives or their illegal carrying, storage, purchase, or manufacture.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Negligent possession of firearms in the possession of the perpetrator unlawfully, if this entailed their use by another person with the onset of death or serious consequences, is covered by the signs of the first part of Article 287 of the Criminal Code and does not require additional qualifications under Article 289 of the Criminal Code.
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
16-1. Courts should distinguish between the voluntary surrender of weapons, ammunition, explosives and explosive devices provided for in the Note to Article 287 of the Criminal Code from the voluntary surrender of these items before the start of the search in cases provided for in part eight of Article 254 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter -CPC).
The voluntary surrender of these items before the start of the search in the cases provided for in part eight of Article 254 of the CPC is not a voluntary surrender and does not entail exemption from criminal liability on the basis of a Note to Article 287 of the Criminal Code, but may be recognized by a court on the basis of part two of Article 53 of the Criminal Code as a circumstance mitigating criminal liability and punishment.
If, during the search, a person has stated that he has weapons or other items specified in Article 287 of the Criminal Code, which are stored outside the place of search (on another territory, at other persons, etc.), the detection of which would be impossible without his indication, then these actions are recognized as voluntary surrender and the person in accordance with the Note to Article 287 of the Criminal Code exempts from criminal liability under this article.
In the event that the items sought were not found during the search, but after the search was completed, the person indicated their location, which was not found during the search and from where they were subsequently seized, such actions of the person should also be recognized as voluntary surrender.
The above-mentioned clarifications on the voluntary issuance and surrender of items also apply to cases of personal search, seizure and inspection.
The footnote. The regulatory resolution was supplemented by paragraph 16-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
When assessing the degree of public danger of what has been done and determining the measure of punishment, it is necessary to take into account the goals and motives of the perpetrator's actions, the source of acquisition and method of seizure, the type, quantity, combat properties and cost of stolen firearms, ammunition, weapons, explosives.
When imposing penalties for theft of firearms, ammunition, weapons or explosives committed in a state of emergency, an emergency situation, as well as during mass riots, the courts must bear in mind that, by virtue of paragraph 11) of the first part of Article 54 of the Criminal Code, these circumstances should be considered as aggravating liability.
The footnote. Paragraph 17, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 5 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When considering cases in this category, courts should also find out and indicate in the verdict whether the guilty person acquired property with funds obtained by criminal means.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 5 (for the procedure of entry into force, see paragraph 2)
In cases of this category, cars, motorcycles and other vehicles recognized as instruments and (or) means of criminal offenses and material evidence belonging to the person who committed the criminal offense, in accordance with the requirements of paragraph 1) of the third part of Article 118 of the Criminal Procedure Code, are subject to confiscation by the court on the basis of Article 48 of the Criminal Code in the ownership of the state.
Illegally acquired, stolen, transferred to the ownership of other persons firearms, military supplies, weapons and explosives in accordance with paragraph 1) The second part of Article 48 of the Criminal Code is subject to confiscation. In other cases, they are transferred as physical evidence to specialized divisions of the internal affairs bodies to resolve the issue of their secondary turnover in determining their suitability and value or for destruction.
The footnote. Paragraph 19 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
In connection with the adoption of this resolution, to invalidate the Resolution of the Plenum of the Supreme Court of the USSR "On judicial practice in cases of theft of firearms, ammunition or explosives, illegal carrying, storage, acquisition, manufacture or sale of weapons, ammunition or explosives and negligent storage of firearms" No. 7 dated September 20, 1974 with changes and additions, as amended by Resolution No. 2 of the Plenum of the Supreme Court of the USSR dated March 29, 1991 "On the implementation by Courts of Resolution No. 7 of the Plenum of the Supreme Court of the USSR dated September 20, 1974 "On Judicial practice in cases of theft of firearms, Ammunition or Explosives, illegal Carrying, Storage, acquisition, manufacture or sale of weapons, ammunition or explosives and negligent possession of firearms."
21.According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
The footnote. The regulatory resolution was supplemented by paragraph 21 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
President
Republic of Kazakhstan
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