Commentary on Article 187. Petty Theft of the Criminal Code of the Republic of Kazakhstan

1. Petty theft, that is, theft, fraud, misappropriation or embezzlement of another person's property committed in an insignificant amount, —

shall be punishable by a fine 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. Petty theft committed repeatedly —

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

The public danger of petty theft lies in the fact that, by unlawfully taking another person's property, the perpetrator causes material damage both to the owner of the property and to another person who lawfully possessed that property.

The object of petty theft is property.

According to Article 26 of the Constitution of the Republic of Kazakhstan, citizens of the Republic of Kazakhstan may privately own any property lawfully acquired by them (paragraph 1). Property, including the right of inheritance, is guaranteed by law (paragraph 2). No one may be deprived of their property except by a court decision. Compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out subject to equivalent compensation (paragraph 3).

Paragraph 1 of Article 188 of the Civil Code of the Republic of Kazakhstan defines the right of ownership as a right of a person, recognised and protected by legislative acts, to possess, use and dispose of property belonging to that person at their own discretion.

The right of possession represents a legally secured opportunity to exercise actual control over property.

The right of use allows a person, on lawful grounds, to derive the useful natural properties of property, as well as to obtain benefits from it, which may take the form of income, increase in value, fruits, offspring and other forms.

The right of disposal is a legally secured opportunity to determine the legal fate of property.

The principal criminal-law means of protecting the right of ownership is the right provided for by law to reclaim one's property from another person's unlawful possession (Article 260 of the Civil Code of the Republic of Kazakhstan). In addition, the owner may demand the elimination of any violations of their rights, even if such violations are not associated with deprivation of possession (Article 264 of the Civil Code).

In guaranteeing the protection of the right of ownership, the Civil Code of the Republic of Kazakhstan proceeds from the premise that the right of ownership may be violated both by depriving the owner of the right to possess property and by other means (Chapter 15, “Protection of the Right of Ownership and Other Rights in Rem”). In the event of unlawful deprivation of the right of possession, the owner has the right to reclaim their property from another person's possession. If, however, the violation of the right of ownership does not concern the right of possession, the owner may demand the elimination of any violations of their rights.

The law similarly protects the rights of a person who, without being the owner of property, is its lawful holder under the right of economic management, operational management, permanent land use, or on another basis provided for by legislative acts or a contract. The right of possession of such a person is also protected against unlawful actions by the owner (Article 265 of the Civil Code).

Equal protection of all forms of ownership presupposes identical grounds and limits of liability for any violation of property rights, including criminal liability.

Criminal offences against property should be understood as intentional or negligent acts (Article 204 of the Criminal Code) provided for by criminal law, involving a violation of the right of possession, or other means of causing property damage to the owner, or creating a threat of such damage.

Criminal legislation clearly differentiates liability for theft depending on the method of committing the criminal offence, identifying and establishing in the relevant articles of the Criminal Code the following forms of theft: petty theft, theft, misappropriation or embezzlement of entrusted property belonging to another person, fraud, robbery and armed robbery.

The objective aspect of the act under consideration is expressed in the commission of actions. A characteristic and distinguishing feature of petty theft, alongside its other elements, is the commission of strictly defined forms of theft.

In the science of criminal law, the term “theft” is often used in two senses. Firstly, in a generalised sense, as a legal category characterising any form and type of theft. Secondly, as a specific method of committing a criminal offence against property.

At present, the concept of “theft” has received legislative recognition in subparagraph 17) of Article 3 of the Criminal Code: “Theft is the unlawful, gratuitous taking and/or conversion of another person's property for the benefit of the perpetrator or other persons, committed with mercenary intent and causing damage to the owner or another lawful holder of such property.”

Mercenary purpose, as an element of theft, is expressly identified in the legislative definition of theft. Mercenary intent is the perpetrator's desire “to obtain material or property benefits, either for themselves or for other persons in whose financial circumstances the person committing the theft is interested. From the perspective of the Russian language, a purpose is “an ultimate desire, aspiration or intention to achieve something”.

Another element of the subjective aspect of theft is the mercenary motive. In the Russian language, a motive is defined as the motivating reason for human action.

Another characteristic of theft is its unlawfulness. In accordance with paragraph 3 of Article 26 of the Constitution of the Republic of Kazakhstan, the right of ownership is inviolable: “...no one may be deprived of their property except by a court decision”. In this regard, this element of theft means that the perpetrator takes property belonging to another person to which they have neither an actual nor a presumed right.

An actual right is a right to receive the particular property based on law. In this case, it does not matter whether the right has been formalised in accordance with the procedure established by law; that is, the right exists in substance rather than merely in form.

A presumed right arises where the person taking the property incorrectly interprets certain provisions of the law. It follows that there is no theft where a person has lawful grounds for receiving property but merely violates the procedure established for its transfer.

Paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 July 2003, “On Judicial Practice in Cases of Theft”, states: “The subject matter of theft and other criminal offences against property is property belonging to another person, that is, property not owned by the perpetrator. At the time of the commission of the criminal offence, the stolen property may be in the possession of the owner themselves, or in the possession of other persons to whom the property was entrusted or in whose unlawful possession it was located.

The unlawful taking of property held in joint ownership with other persons, including property belonging to a legal entity among whose founders the perpetrator is one, may, depending on the direction of the intent, be classified as theft or arbitrary conduct.

The appropriation of found property belonging to another person, or property that has accidentally come into the perpetrator's possession, cannot be regarded as theft.”

The perpetrator's disposal of stolen property at their own discretion (sale or gratuitous transfer to other persons, damage, dismantling, destruction, etc.) does not constitute an independent criminal offence and does not require additional legal classification (paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan).

Property belonging to another person, as the subject matter of a criminal offence, must possess the following combination of characteristics: a) from a social perspective — it must constitute property; b) from a legal perspective — it must belong to someone other than the perpetrator; c) from an economic perspective — it must have material value and a certain monetary worth; d) from a physical perspective — it must, as a rule, be movable; e) from the perspective of the legal classification of the criminal offence — it must be in free and uncontrolled circulation.

Property as such, that is, a socio-material object of the surrounding world, means things whose creation involved socially necessary human labour, separating them from their natural state. This makes it possible to distinguish theft from certain environmental criminal offences: illegal extraction of fish resources, other aquatic animals or plants (Article 335 of the Criminal Code) and illegal hunting (Article 337 of the Criminal Code), since the subjects of the aforementioned criminal offences are created independently of the human labour referred to above.

The material value of property as one of its characteristics consists in the fact that property is recognised as commodity and material assets, as well as other valuables that have a value and a monetary expression of that value — a price. Value reflects the objective worth of a thing and its social utility. Property that has lost its material value for the state, legal entities or individuals for one reason or another (for example, items left on or in a grave, or items discarded at a landfill) cannot constitute the subject matter of theft if taken into someone's possession.

The objects of theft may represent value either in themselves, by possessing monetary worth, or by virtue of their intended purpose.

When characterising the concept of “property”, criminal law uses the definition adopted in civil legislation. In accordance with paragraph 2 of Article 115 of the Civil Code, property assets and rights (property) include: things, money, including foreign currency, financial instruments, works, services, tangible results of creative intellectual activity, company names, trademarks and other means of individualising products, property rights and other property.

Proceeding from the essence of theft, its subject matter should be recognised as things, money, securities and property rights.

A thing is any externally tangible object that may exist in a gaseous, liquid or solid state, may be animate or inanimate, and may constitute part of a whole.

A security is a set of certain records and other designations certifying property rights (paragraph 1 of Article 129 of the Civil Code). Subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan dated 2 July 2003, “On the Securities Market”, also provides a similar definition of securities: “A security is a set of certain records and other designations certifying property rights”. Securities include shares, bonds and other types of securities specified by legislative acts of the Republic of Kazakhstan (paragraph 2 of Article 129 of the Civil Code). Paragraph 1 of Article 136 of the Civil Code defines a bond as a security with a circulation period established in advance at the time of its issuance, certifying, in accordance with the terms of issue, the right to receive remuneration from the person who issued the bond and, upon expiration of its circulation period, the nominal value of the bond in money or another property equivalent. A share is a security issued by a joint-stock company and certifying the rights to participate in the management of the joint-stock company, receive dividends on the share and receive a portion of the joint-stock company's property upon its liquidation, as well as other rights provided for by legislative acts of the Republic of Kazakhstan (paragraph 1 of Article 139 of the Civil Code).

In order to meet the requirements for the subject matter of a criminal offence, property must possess the following characteristics:

• be movable or immovable;
• be an object of the material world that has been extracted from its natural state and into which human labour has been invested;
• possess a certain economic value;
• belong to another person.

According to paragraph 1 of Article 117 of the Civil Code, immovable property (immovable things, real estate) includes: land plots, buildings, structures, perennial plantations and other property firmly attached to land, that is, objects whose relocation without disproportionate damage to their intended purpose is impossible. Apartments and other residential premises, as well as non-residential premises forming part of a condominium property, are recognised as independent objects (types) of real estate if they are individually (separately) owned.

The following are also equated with immovable property: aircraft and sea vessels, inland waterway vessels, river-sea vessels, space objects and the linear sections of main pipelines, provided that they are subject to state registration. Other property may also be classified as immovable property by legislative acts (paragraph 2 of Article 117 of the Civil Code).

Property that does not qualify as real estate, including money and securities, is recognised as movable property (paragraph 3 of Article 117 of the Civil Code).

Thus, civil legislation determines whether property is movable or immovable depending on whether it can, by its nature, be moved. In criminal law, however, the concept of movable property is interpreted more broadly and is not relevant to establishing the existence of theft. Any property that can be moved in space or seized, that is, separated from a whole, is recognised as such. At the same time, certain types of immovable property, due to their objective characteristics, cannot be secretly stolen (a house, apartment or land plot), but rights to such property may be stolen or acquired through deception, violence or threats. In certain cases, immovable property may also be converted into movable property (for example, dismantling a building into construction materials and transporting them, or dismantling and transporting a residential house, etc.).

Property as the subject matter of theft must necessarily possess certain physical, economic and legal characteristics.

The physical characteristic of property means that it must be a material object of the external world occupying a defined space. These are material resources obtained through the process of social production. Precisely because this characteristic of the subject matter is absent, the appropriation of ideas or thoughts, or the acquisition of various benefits and property rights without taking possession of property, will not be recognised as theft. For example, the use of a counterfeit preferential travel ticket for public transport.

Electricity and thermal energy cannot constitute the subject matter of theft due to the absence of the material-object characteristic. The unlawful use of these types of energy for mercenary purposes without authorisation may constitute a criminal offence under Article 195 of the Criminal Code, “Causing Property Damage by Deception or Abuse of Trust”.

The economic characteristic of property as the subject matter of theft means that it always has a certain economic value.

Due to the absence of this economic characteristic, natural resources and animate or inanimate objects that are not carriers of human material labour (forests, wild animals, fish in the ocean) cannot be recognised as the subject matter of criminal offences against property. Illegal extraction of fish resources, other aquatic animals or plants (Article 335 of the Criminal Code), illegal hunting (Article 337 of the Criminal Code), and illegal felling, destruction or damage of trees and shrubs (Article 340 of the Criminal Code) may entail criminal liability only under the provisions of Chapter 13 of the Criminal Code, “Environmental Criminal Offences”.

The situation is different when the perpetrator takes possession of timber already harvested by people; fish that have been caught or bred in an artificial reservoir; wild animals that have been captured and are kept in a zoo; fir trees, ornamental shrubs and other trees planted in a park. All these objects may be recognised as the subject matter of criminal offences against property because human labour has been embodied in them.

In addition to the above characteristics, the subject matter of theft must also possess a legal characteristic. This means that the property being stolen must always belong to someone other than the perpetrator. The perpetrator of the criminal offence must have neither an actual nor a presumed right to the property being taken. A person's own property cannot constitute the subject matter of theft; therefore, the unlawful taking of one's own property does not constitute theft. Under certain circumstances, such actions may be classified under Article 389 of the Criminal Code, “Arbitrary Conduct”, or under Part 1 of Article 24 and Article 190 of the Criminal Code (preparation for fraud), if the perpetrator's intent was directed towards obtaining compensation for an item that may have been lost.

The legal nature of property found on or carried by a deceased person has its own specific features. Until the deceased person is buried, the owner of such property is determined in accordance with inheritance law; therefore, this property may constitute the subject matter of criminal offences against property. After burial, when relatives or other heirs have voluntarily excluded the items left with the deceased from their property, an infringement of ownership is no longer possible. The theft of items located in a grave is classified as a criminal offence against public health and morality under Article 314 of the Criminal Code, “Desecration of the Bodies of the Dead and Places of Their Burial”.

As a general rule, the subject matter of criminal offences against property may be property that is in free civil circulation. In this regard, for example, theft or extortion of radioactive substances, radioactive waste or nuclear materials (Article 284 of the Criminal Code); theft or extortion of weapons, ammunition, explosives and explosive devices (Article 291 of the Criminal Code); and theft or extortion of narcotic drugs, psychotropic substances or their analogues (Article 298 of the Criminal Code) are classified not as criminal offences against property, but as independent criminal offences against public safety and public order (Chapter 10 of the Criminal Code) or criminal offences against public health and morality (Chapter 11 of the Criminal Code). At the same time, it should be taken into account that, in the absence of a specific criminal-law prohibition, the relevant unlawful acts involving the theft or extortion of items partially withdrawn from civil circulation may be classified as criminal offences against property (for example, theft or extortion of poisonous substances that are not narcotic drugs or psychotropic substances but whose acquisition requires special authorisation from the competent state authorities, etc.).

The characteristic of theft referred to as “gratuitousness” means that the perpetrator does not compensate for the value of the property taken; that is, when taking the property, the perpetrator does not provide an equivalent in return. If, in the course of taking property, the owner is provided with corresponding compensation, the perpetrator's actions do not fall within the characteristics of theft, since they do not cause property damage. The equivalent may be monetary, in kind or in the form of labour. In the case of a monetary equivalent, the owner or lawful holder receives, in exchange for the property taken, a sum of money that fully or substantially compensates for the value of the stolen property. In the case of an equivalent in kind, the owner is given another thing. If that thing is equal in value, there is no theft due to the absence of the characteristic of gratuitousness. If the thing is of lesser value, the taking is considered gratuitous.

Furthermore, the characteristic of gratuitousness distinguishes theft from so-called “temporary borrowing”, in which a person unlawfully retains or uses up property but does so on a compensatory basis, returning either the same property or an equivalent after a certain period of time. Such conduct does not constitute theft.

When analysing the characteristic of theft expressed by the terms “taking and/or conversion”, attention should be drawn to the fact that theft presupposes not only a violation of the right of ownership of a thing but also a violation of actual possession of that thing. To take a thing out of another person's possession means to destroy the victim's actual possession and establish new possession on the part of the perpetrator, contrary to the actual will of the owner. The same activity that disrupts the previously existing possession must be the cause of the emergence of new possession. To steal means to take or move an item of property from the possession of the victim into the possession of the perpetrator.

The term “conversion” fully emphasises the nature of the subsequent use of the property taken in the interests of particular persons. Taken together, these two terms define the action involved in this offence in exact accordance with its substance, since, by complementing one another, the terms narrow their semantic meaning to the scope of theft.

Theft is also characterised by such an element of the objective aspect of a criminal offence as causing damage to the owner or another lawful holder of the stolen property. When theft is committed, material damage must be expressed in the form of direct actual damage. The amount of property damage caused by theft is determined by the value of the stolen property, as expressed in its price.

The importance of establishing the actual value of the stolen property is also explained by the need to determine the degree of public danger of the theft. Obviously, the higher the monetary value of the property taken and the greater the material damage caused to the owner, the higher the degree of public danger of the criminal offence committed.

Thus, the presence of all the characteristics examined above is mandatory for an act to be recognised as theft, and the absence of even one of them excludes the existence of theft.

It should be noted that the Criminal Code of 2014, for the first time, provided for criminal liability for petty theft. At the same time, this offence was classified as a criminal misdemeanour, meaning that it excludes the imposition of punishment in the form of restriction or deprivation of liberty, as well as the occurrence of other criminal-law consequences associated with being held criminally liable (Article 79 of the Criminal Code).

The distinguishing feature of petty theft compared with other forms of theft is the value of the stolen property, namely, its insignificant amount.

Subparagraph 10) of Article 3 of the Criminal Code defines an insignificant amount as the value of property belonging to an organisation that does not exceed ten monthly calculation indices, or the value of property belonging to an individual that does not exceed two monthly calculation indices. Thus, in the offence of theft under consideration, this circumstance acquires qualifying significance because the amount of material damage caused, as a criminal result, is provided for as a characteristic distinguishing petty theft from theft, cattle theft, misappropriation or embezzlement of entrusted property belonging to another person, and fraud, which are classified under Articles 188–190 of the Criminal Code.

Based on this interpretation of the law, the following combination of characteristics should be recognised as the principal conditions for classifying an act as petty theft:

— the theft must be committed in the form of theft, fraud, misappropriation or embezzlement;

— the value of the stolen property belonging to an organisation must not exceed ten times the monthly calculation index, or the value of property belonging to an individual must not exceed two monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time of the commission of the act.

If all the above characteristics are present, the person guilty of committing the act shall incur criminal liability for petty theft, that is, for committing a criminal misdemeanour. However, if theft committed in an insignificant amount takes the form of robbery or armed robbery, the actions of the perpetrators must be classified under the relevant Articles 191 or 192 of the Criminal Code as a crime.

Thus, the value of property serves as the principal criterion when deciding questions concerning the criminal nature of theft, punishability and the degree of public danger.

Paragraph 6 of paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, “On Judicial Practice in Cases of Theft”, states: “When determining the value of property that constitutes the subject matter of a criminal offence, depending on the circumstances under which the owner acquired it, the retail, market or commission prices in effect at the time of the commission of the criminal offence and confirmed by relevant documents should be used. In the absence of an established price and where a dispute arises concerning the amount stolen, the value of the property shall be determined on the basis of an expert or specialist's opinion.

The amount of stolen property shall be determined on the basis of its value, including in cases where the perpetrator, for the purpose of concealing the theft, has provided other property of lesser value in place of the stolen property. In this case, the value of the property provided in exchange for the stolen property may be taken into account when determining the amount of damage.”

At the same time, failure by the investigative authorities to appoint an appropriate expert examination results in the review of the court's judgment.

Thus, by a judgment of the Kokpekty District Court, which was upheld by a ruling of the Judicial Panel for Criminal Cases of the East Kazakhstan Regional Court, M., who had no previous convictions, was sentenced to two years of imprisonment in a general-regime correctional colony for theft. The circumstances of the case were as follows: M. entered a bathhouse in the village of Kokpekty and stole wall boards, a door and one table, causing material damage to the Kokpekty Municipal Enterprise in the amount of 44,992 tenge.

It follows from the case materials that the property stolen from the bathhouse had been in use for ten years under damp conditions. Therefore, its value should have been determined taking these circumstances into account, through the appointment of a construction and technical expert examination or the involvement of a specialist. However, the preliminary investigation body and the court limited themselves to a certificate issued by the municipal enterprise. Meanwhile, the correct legal classification of the act depended on the proper determination of the value of the stolen property. In view of the circumstances set out above, the Criminal Panel of the Supreme Court of the Republic of Kazakhstan quashed the judgment and the court ruling due to the incompleteness of the judicial examination and remitted the case for a new judicial consideration.

From the subjective aspect, petty theft is committed only with direct intent and mercenary purpose; that is, the perpetrator is aware of the socially dangerous nature of their actions, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence; understands that they are secretly and without any legal right taking another person's property, thereby causing material damage to the owner, for the purpose of obtaining an unlawful benefit for themselves or third parties. The motive for petty theft is mercenary intent. The mercenary motive is the subjective reason for committing theft. The purpose is what the perpetrator seeks to achieve. Unlike the motive, the purpose in theft characterises the immediate result that the perpetrator wishes to achieve by committing a socially dangerous act. Thus, the motive for petty theft answers the question of what prompted the person to commit the criminal offence, whereas the purpose of the criminal offence determines the direction of the actions and the criminal result that the perpetrator seeks to achieve.

The essence of petty theft is conveyed most accurately and fully when its mercenary purpose is defined as the purpose of gratuitous and knowingly unlawful taking of the owner's property for its use in accordance with its consumer or other intended purpose, in order to satisfy the needs of the perpetrator or third parties.

Alongside Part 1 of Article 187 of the Criminal Code, criminal legislation provides for qualified petty theft (Part 2), committed repeatedly, for which more severe liability is established.

In accordance with Article 12 of the Criminal Code, repetition of criminal offences is recognised as the commission of two or more acts provided for by the same article or the same part of an article of the Special Part of the Criminal Code. A crime and a criminal misdemeanour do not constitute repetition in relation to one another.

A criminal offence shall not be recognised as having been committed repeatedly if the person has previously been convicted of the earlier criminal offence or has been released from criminal liability on grounds established by law (Part 2 of Article 12 of the Criminal Code). At the same time, according to Parts 3–5 of Article 12 of the Criminal Code, a continuing criminal offence is not recognised as repeated. A continuing criminal offence is a criminal offence consisting of a series of identical unlawful acts covered by a single intent and purpose and constituting one criminal offence as a whole.

In cases where repetition of criminal offences is provided for by the Criminal Code as a circumstance entailing a more severe punishment, the criminal offences committed by a person shall be classified under the relevant part of the article of the Special Part of the Criminal Code providing for punishment for repeated criminal offences.

In cases where repetition of criminal misdemeanours is regarded by the Criminal Code as a circumstance entailing a more severe punishment, the criminal misdemeanours committed by a person shall be classified under the relevant part of the article of the Special Part of the Criminal Code providing for punishment for repeated criminal misdemeanours.

In order to establish whether the characteristic of repetition is present in a committed criminal misdemeanour, it is necessary to establish the elements of multiplicity. Firstly, the same guilty person, possessing the characteristics of a subject of a criminal misdemeanour, must be involved in all episodes of theft. Secondly, that person must have committed at least two criminal misdemeanours; the fact that they were committed at different times is also important. Thirdly, each of them must be identical in nature. If one episode of theft is recognised as petty theft and the second constitutes theft under another provision, repetition is absent. Fourthly, at least two of the episodes of theft committed must retain their legal significance.

The decisive factor in distinguishing a repeated criminal offence from a continuing criminal offence is the direction of the perpetrator's intent. In the case of continuing theft, the perpetrator, through repeated takings of another person's property from the same source, implements a single intent aimed at taking possession of the property, achieving a predetermined objective, which together constitutes one criminal misdemeanour.

The subject of petty theft is a physically competent individual who has reached the age of sixteen.

The acts provided for in Parts 1 and 2 of Article 187 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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