Commentary on Article 188. Theft of the Criminal Code of the Republic of Kazakhstan

1. Theft, that is, the secret misappropriation of another person's property, shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with or without confiscation of property.

2. Theft committed:

1) by a group of persons acting pursuant to a prior conspiracy;

2) excluded by Law of the Republic of Kazakhstan No. 217-VI dated 21 January 2019;

3) excluded by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019;

4) through unauthorised access to an information system or alteration of information transmitted via telecommunications networks, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or correctional 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 imprisonment for the same period, with confiscation of property.

3. Theft committed:

1) on a large scale;

2) repeatedly;

3) with unlawful entry into a residential, official or industrial premises, storage facility or vehicle, —

shall be punishable by restriction of liberty for a period of two to seven years or imprisonment for the same period, with confiscation of property.

4. Theft committed:

1) by a criminal group;

2) from an oil or gas pipeline;

3) on an especially large scale, —

shall be punishable by imprisonment for a period of five to ten years, with confiscation of property.

The public danger of theft lies in the fact that it violates social relations concerning ownership, irrespective of the form of ownership, in relation to property and connected with the procedure for distributing material benefits established by the State. As a result of theft, on the one hand, the owner or other holder of the property is deprived of property that belongs to or is held by them, thereby suffering pecuniary damage; on the other hand, by secretly acquiring another person's property, the offender unlawfully, that is, contrary to and in circumvention of the procedure for distributing material benefits established by the State, enriches themselves by an amount equal to the value of that property.

The object of theft is property.

The subject matter of theft is another person's property in the form of objects of the material world that objectively have a certain value (products, items, goods, etc.), the extraction, cultivation, manufacture or production of which involves human labour and which, as a result, can be assigned a monetary value.

The objective element of the act under consideration is expressed in the commission of actions. The characteristic and distinguishing feature of theft from other forms of misappropriation is the secret method of misappropriation.

The concept and elements of misappropriation were examined in detail in the commentary to Article 187 of the Criminal Code, “Petty Theft”.

Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Misappropriation” states that theft is the secret misappropriation of another person's property. When deciding whether misappropriation is secret, courts must proceed from the offender's own perception of the situation. If the offender believes that they are acting unnoticed by others, the misappropriation must be classified as theft, even if the owner or another person is observing their actions. Misappropriation must also be classified as theft in cases where any of the aforementioned persons witnesses the actual taking of the property but does not realise its criminal nature.

However, this circumstance is not always taken into account in judicial and investigative practice, which sometimes leads to the incorrect classification of a criminal offence.

Sh. met K. at a café and drank alcoholic beverages with him. They then left the café and, taking advantage of the fact that K. was heavily intoxicated, Sh. removed a gold ring from his finger under the archway of a building, put it on his own finger and attempted to flee, but was detained by police officers. The court of first instance found him guilty of open misappropriation (robbery). The appellate court concluded that Sh.'s actions had been incorrectly classified. At the time of the theft, K. was heavily intoxicated and did not remember the circumstances of what had happened. Sh., in turn, believed that the victim was unaware of the fact that his property was being stolen. His actions were accidentally noticed by three witnesses passing by. There was no evidence in the criminal case indicating that Sh. had decided to take possession of the ring while being aware that his criminal actions had been noticed by outsiders. Under such circumstances, Sh.'s actions should be classified as theft.

An incorrect criminal-law assessment was given to the actions of X. Thus, by a judgment of the Aktau City Court, as amended by a ruling of the appellate panel of the Mangystau Regional Court, X. was convicted of robbery. Having examined the case following a complaint by the convicted person X., the panel of the Supreme Court of the Republic of Kazakhstan concluded that the court had correctly established the factual circumstances of the case concerning the particular episode of the theft of items, but had given them an incorrect legal assessment and had incorrectly classified X.'s actions as open misappropriation of another person's property under the aforementioned provisions.

The guilt of X., apart from his testimony that the gold items (a ring and earrings) and remote controls that he had taken from the apartment in the absence of outsiders were in his pockets when they fled from the apartment owners who had unexpectedly arrived, was also confirmed by similar testimony given by the convicted person A.; by the victim V., concerning the discovery of the missing gold items and money in the amount of 50 thousand tenge after inspecting the apartment; by witnesses M. and M., who stated that X. and A., having pushed them aside, ran away without stealing anything; by the records of the inspection of the scene, seizure and identification of the stolen items, and other evidence examined at the court hearing. No other evidence indicating the open nature of the misappropriation of another person's property was obtained in the case. The Criminal Cases Panel of the Supreme Court of the Republic of Kazakhstan amended the judgment of the Aktau City Court and the ruling of the Criminal Cases Panel of the Mangystau Regional Court with respect to X. and reclassified his actions from robbery to theft.

If the misappropriation is committed in the presence of persons with whom the offender has family, friendly or other personal relationships, and the offender therefore expects that they will neither report nor prevent their actions, the act should also be classified as theft in such cases. If the aforementioned persons prevent actions aimed at misappropriating another person's property, the offender should be held liable for attempted theft.

It appears that, when determining the secret nature of misappropriation, the emphasis should be placed on the offender's intent, that is, on their subjective perception of the misappropriation. In order to establish the existence of theft, it is necessary that the offender seeks to commit the misappropriation secretly and that the secret nature of taking possession of another person's property is covered by their intent. Misappropriation does not cease to be secret even where the offender acts in reliance on circumstances which, in their opinion, exclude interference by outsiders who are aware of the fact that the property is being unlawfully taken.

Outsiders do not include every person who happens to be at the scene of a criminal offence, but only those from whom the offender cannot expect not merely assistance, but even passive acquiescence in the misappropriation. In this sense, accomplices of the thief cannot be classified as outsiders (otherwise, any group misappropriation would be considered open), nor can persons with whom the offender has such family, friendly or other close or confidential relationships that provide them with real grounds to believe that these persons will, at the very least, not oppose the taking of the property and, more broadly, will assist in exposing the offender afterwards.

If these persons, who are not outsiders in the offender's opinion, contrary to their expectations, attempt to prevent the theft, but the offender ignores their interference and does not cease the criminal actions, the misappropriation committed by them objectively and subjectively becomes open, that is, robbery.

In essence, persons with previous convictions, alcoholics, acquaintances and relatives should not be excluded from the category of third parties on the grounds that their past and present behaviour (relationships) gives thieves reason not to be wary and to regard theft committed in the presence of such persons as secret. Therefore, misappropriation committed in the presence of the aforementioned persons, where the offender knows that they understand the nature of their actions, constitutes robbery.

The removal of a wallet from a victim's pocket, for example, should also be recognised as secret where the offender commits it in a situation in which someone notices their unlawful actions but remains indifferent to them. For secret misappropriation to be established, the taking of property must occur unnoticed not only by the owner of the item, but also by those responsible for safeguarding that property and by third parties. All such persons must either be absent at the time of the theft or, while being present at the scene of the criminal offence, fail to realise the criminal nature of the offender's actions.

The Criminal Cases Panel of the Supreme Court of the Republic of Kazakhstan recognised as secret, rather than open, misappropriation of another person's property the actions of Z., who came to apartment L. with his acquaintance M. to drink alcoholic beverages and stayed overnight there. He suggested that M. steal a tape recorder belonging to L.'s mother. After M. refused, he committed the theft alone in her presence, being aware that M. was a close person to him and being confident that she would not obstruct his actions and that the theft would remain secret.

Thus, misappropriation is secret if it is committed:

in the absence of anyone;

in the presence of the victim or outsiders, but without being noticed by them;

in the presence of the aforementioned persons, who observe the taking of the property but do not understand the nature of the actions being committed or the significance of what is happening;

in the presence of persons who observe the offender's actions, understand and correctly assess their nature, but do not reveal their presence, as a result of which the offender remains convinced that they are acting secretly;

in the presence of persons who observe the offender's actions, understand and correctly assess their nature and do not conceal their presence, but are not outsiders to the offender in the sense that would make it possible to describe their actions as open.

For example, the court of the Kazybek Bi District of Karaganda correctly identified in the actions of the offender S. a characteristic indicating direct intent and the secret nature of the act, which was committed under the following circumstances: S., while carrying out repairs in apartment A., took advantage of the latter's absence and secretly stole four boxes of ceramic tiles from the apartment, causing damage in the total amount of 10 thousand tenge.

Misappropriation shall also be considered secret where it is committed in the presence of persons who, due to their age, intellectual development or other objective or subjective reasons (for example, severe intoxication), are unable to understand the unlawful nature of the thief's actions and resist their commission. In order to recognise misappropriation as secret when it is committed in the presence of eyewitnesses, it must be established that these persons did not realise the criminal nature of the offender's actions. For example, the offender presents themselves as a person acting on behalf of the owner of the item. Those present may form the impression that the thief's actions are lawful under the influence of the offender's confident behaviour, such as when the offender gets behind the wheel of an unattended car and drives away.

On this basis, the actions of offenders who, having introduced themselves as employees of a telecommunications network, cut down and took away 40 metres of telephone cable from poles in full view of the residents of the street are recognised as secret taking.

The owner's consent to the taking of their property excludes the elements of theft only if such consent was given by a person entitled to dispose of the property being taken. It follows that if consent to the taking of property is obtained from a person who is not authorised to dispose of it, the actions of the person who took the property on the basis of such “permission” must be regarded as theft of another person's property. For example, taking property from the room of a person living in a dormitory with other persons, with the “permission” of a roommate and in the absence of the persons residing in that room, constitutes nothing other than theft of another person's property. This also includes cases where “permission” to take property is obtained from minors or mentally ill persons.

The criminal act in theft consists in the offender generally taking the property directly from the possession of the owner or another person. To take another person's property, the offender may use the actions of other persons who are not subject to criminal law (for example, pursuant to Part 2 of Article 28 of the Criminal Code, with the assistance of persons who have not reached the age of criminal responsibility or persons who are legally insane). In such cases, criminal liability arises not for the person who carried out the taking, but for the person who persuaded them to commit the theft, regardless of the method of persuasion (deception, threat, blackmail, etc.). In these cases, such a person acts as the perpetrator of the crime and is liable under Article 188 of the Criminal Code, “Theft”, and, where grounds exist, also under Article 132 of the Criminal Code for involving a minor in the commission of criminal offences.

Theft must be distinguished from robbery, which is committed openly. The actions of an offender that begin as theft and continue in the presence of the owner or other persons must be classified as robbery. If, in such cases, violence is subsequently used for the purpose of taking possession of the property or retaining it immediately after the taking, the act must be classified as robbery or armed robbery, depending on the nature of the violence.

Where an exposed offender, having realised that the secret misappropriation they began has been discovered by someone, abandons the stolen property and attempts to flee in order to avoid detention, their actions must be classified as attempted theft (Part 3 of Article 24 and Article 188 of the Criminal Code). If, for the purpose of avoiding detention, the offender uses violence against the persons detaining them, their actions must be classified as attempted theft and under the articles concerning offences against the person or as a criminal offence against the established order of administration (depending on who is detaining the offender), as well as according to the severity of the harm caused to the victim's health.

For example, I. was found guilty of attempted theft and the murder of N. in connection with the latter's performance of official duties and for the purpose of concealing another crime. While intoxicated, I. set out to commit theft of alcoholic beverages from the “Ailin” store, located on the territory of JSC “Gorvodokanal”. On the way, he picked up a metal hexagonal rod. At the electrical panel near the entrance door, he pulled out the electrical wires and disconnected the electricity not only in the store but also in the administrative building of JSC. Using the metal rod, he attempted to break the lock on the store door.

At that moment, security guard N. came out of the administrative building to find out the reason for the power outage. He approached the store door and illuminated it with a flashlight. Seeing I., he asked what he was doing there. In response, I. struck him on the head and shoulder with the metal rod. N. ran towards the office. I. caught up with him and struck him on the head with the rod, as a result of which the victim died at the scene.

The Criminal Cases Panel of the Supreme Court of the Republic of Kazakhstan upheld the judgment. The preliminary investigation authorities and the court established with sufficient completeness that I. had attempted to secretly steal another person's property, that is, he had failed to complete the criminal offence for reasons beyond his control (he was noticed by the security guard and therefore caused no material damage). Under such circumstances, there were no grounds for changing the classification of the convicted person's actions.

The secret nature of the taking distinguishes theft from robbery (Article 191 of the Criminal Code), which is characterised by the open taking of another person's property.

The method of misappropriation — secret or open — is determined at the moment the misappropriation is completed. Doubts concerning the determination of one method or the other, where they cannot be eliminated, must be interpreted in favour of the offender, that is, in such cases the misappropriation is recognised as secret. This decision is based on subparagraph 8) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, according to which any doubts concerning a person's guilt are interpreted in favour of the accused. Theft is a less dangerous crime than robbery; therefore, the act is classified as theft.

Theft is recognised as a completed crime if the property has been taken and the offender has a real opportunity to use or dispose of it at their own discretion.

Subjectively, theft is committed with direct intent and an acquisitive purpose, that is, the offender is aware of the socially dangerous nature of their actions, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence. At the same time, they understand that they are secretly and unlawfully taking another person's property without any right to do so, thereby causing material damage to the owner for the purpose of obtaining an unlawful benefit for themselves or third parties.

The acquisitive purpose in theft, as in any other form of misappropriation, is expressed in the person's desire to enrich themselves or other persons at the expense of another person's property, in violation of the procedure for distributing material benefits established by law.

The motive for theft is acquisitiveness; without an acquisitive motive, there is no theft. The acquisitive motive is the subjective cause of theft. The content of the motive, the degree of its depth, awareness and stability may vary. The purpose is what the offender seeks to achieve. Unlike the motive, the purpose of theft characterises the immediate result that the offender wishes to achieve by committing a socially dangerous act. The distinction between purpose and motive is based on the fact that they characterise the volitional process in different ways. Thus, the motive for theft answers the question of what guided the person when committing the criminal offence, while the purpose of the criminal offence determines the direction of the actions and the result that the offender seeks to achieve.

According to paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Misappropriation”, unlawful taking of another person's property without the purpose of misappropriation, for its temporary use by oneself or other persons, does not constitute misappropriation.

In cases where the unlawful taking of property is committed during hooliganism, rape or other criminal acts, it is necessary to establish the purpose for which the person took the property.

If the person pursued an acquisitive purpose, the act, depending on the method of taking possession of the property, must be classified cumulatively as the corresponding criminal offence against property and hooliganism, rape or another criminal offence.

The criminal law of the Republic of Kazakhstan does not specify the purpose of theft, but this element of the subjective side is a mandatory feature of this corpus delicti.

It appears to us that the essence of theft is conveyed most accurately and fully when its acquisitive purpose is the gratuitous and knowingly unlawful taking of the owner's property for use in accordance with its consumer or other intended purpose, in order to satisfy the needs of the offender or third parties.

The criminal result (unlawful taking of another person's property) is understood by the offender as the immediate purpose of theft, which constitutes an element of its corpus delicti and is characterised by the desire to secretly take another person's property and derive a benefit from it. The actual deriving of benefit from the stolen property, however, lies beyond the scope of the elements of theft. It is aimed at satisfying the need that gave rise to the criminal offence itself.

The subject of theft is a natural person who is sane and has reached the age of 16 (Part 1 of Article 15 of the Criminal Code). At the same time, criminal liability for committing an aggravated form of theft (Parts 2, 3 and 4 of Article 188 of the Criminal Code) arises from the age of 14 (Part 2 of Article 15 of the Criminal Code). The legislator sets the age of criminal responsibility for aggravated theft at 14 because these acts, unlike simple theft, are more socially dangerous. At this age, a person has already developed an awareness and understands that taking another person's property is impermissible and that their actions may cause certain damage to the victim.

In accordance with paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002, “On Judicial Practice in Cases Concerning Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts”, where there is information providing grounds to suspect that a minor has an intellectual disability, a comprehensive psychological and psychiatric examination must be ordered to determine the level of their mental development.

In accordance with Part 3 of Article 15 of the Criminal Code, if a minor has reached the age specified in Part 1 or 2 of Article 15 of the Criminal Code but, due to a developmental delay unrelated to a mental disorder, was unable at the time of committing the criminal offence to fully understand the actual nature and social danger of their actions (inaction) or to control them, they shall not be subject to criminal liability.

Depending on the qualifying circumstances, criminal legislation distinguishes three types of theft: simple theft of another person's property, that is, theft without qualifying features (Part 1 of Article 188 of the Criminal Code); aggravated theft (Part 2 of Article 188 of the Criminal Code); and particularly aggravated theft (Parts 3 and 4 of Article 188 of the Criminal Code).

Part 2 of Article 188 of the Criminal Code provides for the following qualifying features:

commission by a group of persons pursuant to a prior conspiracy;

commission through unauthorised access to an information system or alteration of information transmitted via telecommunications networks.

For theft to be classified under Part 2 of Article 188 of the Criminal Code, it is sufficient to establish at least one of the aforementioned circumstances.

Misappropriation should be classified as committed by a group of persons pursuant to a prior conspiracy in cases where two or more persons have joined their efforts to commit it, and the actions of each accomplice are a necessary condition for the actions of the other accomplices, in accordance with the prior distribution of roles, and are causally connected with the overall criminal result arising from the activities of all accomplices. In such cases, the participation of two or more perpetrators in the criminal offence is not mandatory; one perpetrator is sufficient, provided that there are other types of accomplices.

When classifying the actions of offenders under the feature of misappropriation of another person's property committed by a group of persons pursuant to a prior conspiracy, it is necessary to establish whether two or more persons reached an agreement, expressed in any form, to commit the misappropriation, and whether these persons reached the agreement before beginning the actions directly aimed at taking possession of another person's property, that is, before at least one perpetrator performed the objective element of the criminal offence.

A person who was not party to a prior conspiracy with the other accomplices to the misappropriation but joined them and participated in the course of its commission must be held liable for the specific actions actually committed by them as a co-perpetrator of the criminal offence.

The organiser, instigator or accessory shall be held liable under the relevant article of the Criminal Code providing for liability for the specific criminal offence, with reference to Article 28 of the Criminal Code, except where they were simultaneously co-perpetrators of the criminal offence.

An act intentionally committed jointly with a person who has not reached the age at which criminal liability arises for the relevant type of criminal offence, or with a person recognised as legally insane, cannot be regarded as having been committed by a group of persons pursuant to a prior conspiracy.

In such cases, the person recognised as a subject of the criminal offence, regardless of the form of participation, must be recognised as the perpetrator of the misappropriation and, in addition, where grounds exist, their actions must be further classified as involving a minor in the commission of criminal offences. In other cases, involving persons who, to the offender's knowledge, suffer from a serious mental disorder or persons who have not reached the age at which criminal liability arises in the commission of a criminal offence is recognised, pursuant to subparagraph 5) of Part 1 of Article 54 of the Criminal Code, as a circumstance aggravating criminal liability and punishment.

At the same time, certain courts consider the mere fact that a minor participated in a criminal offence jointly with an adult sufficient to hold the latter criminally liable under Article 132 of the Criminal Code, “Involving a Minor in the Commission of Criminal Offences”.

L. was convicted of theft and of involving 16-year-old M. in its commission. The court based its conclusion that L. was guilty of involving a minor in the commission of a criminal offence solely on the fact that L. knew that M. was a minor. Meanwhile, the case materials showed that M. himself was interested in the theft and had suggested committing it. Minor M. found the keys to the garage and brought L. there. M. took the stolen bicycle and petrol for himself. All these circumstances indicated that L. had committed no actions aimed at involving M. in the commission of criminal offences. Therefore, the panel of the East Kazakhstan Regional Court reasonably quashed the district court's judgment insofar as it convicted L. and terminated the case.

In accordance with paragraph 24 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Concerning Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts”, involving a minor in the commission of criminal offences means purposeful actions by the person doing the involving aimed at forming in the minor a desire (intention, aspiration) and readiness to participate in the commission of criminal offences. At the same time, the adult's actions must be active in nature and may be accompanied by the use of psychological or physical influence (beatings, persuasion, threats and intimidation, bribery, deception, arousing feelings of revenge, envy and other base motives, assurances of impunity, giving advice on the place and method of committing or concealing traces of criminal offences, promises of payment for the actions committed or assistance in the disposal of stolen property, and others).

Pre-trial investigation authorities and courts are obliged to indicate what specific actions were committed by the adult for the purpose of involving a minor in the commission of criminal offences or other antisocial acts.

A mere proposal by an adult to a minor to commit a criminal offence, without exerting psychological or physical influence on them, cannot in itself be regarded as involving a minor in the commission of criminal offences.

A conspiracy must be recognised as prior in all cases where it is reached before the commencement of the criminal offence, during its preparation or immediately before an attempt. The time interval between the conspiracy and the beginning of the misappropriation is of no decisive importance. The conspiracy may be oral, written, expressed through gestures, etc. If the actions directly aimed at taking another person's property have already been initiated by the perpetrator, the subsequent joining of another co-perpetrator does not constitute this qualifying feature, since these persons cannot be considered to have “agreed in advance” to commit the misappropriation jointly. The criminal activity of several persons, each of whom began acting independently, cannot be classified under this feature merely because their activities subsequently coincided by chance and became joint criminal activity. In such cases, it may be said that the misappropriation was committed by a group of persons without a prior conspiracy.

Investigative authorities often encounter difficulties when establishing this qualifying feature. P., the father, and P., the son, heard loud conversations between their neighbours, S. and B. The father, P., went out into the entrance hall, after which S. wanted to enter P.'s apartment, while B. objected. This led to an argument between the neighbours, which escalated into a fight. Subsequently, for the purpose of taking possession of another person's property, the father, P., snatched a mink hat worth 45 thousand tenge from S.'s head. Having heard that the neighbours had called the police, the father, P., and the son, P., fled the scene. The father's actions were classified cumulatively as hooliganism committed by a group of persons pursuant to a prior conspiracy and robbery committed by a group of persons pursuant to a prior conspiracy. During the court proceedings, it was established that there had been no conspiracy between the father, P., and the son, P., to commit the misappropriation, as confirmed by the materials of the criminal case. Therefore, the father's actions were reclassified from robbery committed pursuant to a prior conspiracy to simple robbery (Part 1 of Article 191 of the Criminal Code).

Persons who did not directly commit the misappropriation but merely assisted in preparing for the criminal offence or concealing its traces are held liable as accomplices to the criminal offence under Part 5 of Article 28 and Article 188 of the Criminal Code.

The issue of the rules for classifying group misappropriations involving large amounts of stolen property, as well as the principles for determining the amount stolen by a group or by individual members and accomplices, is of great importance.

Given that the social danger of misappropriation is determined primarily by the amount of pecuniary damage caused, it must be concluded that, in cases of group misappropriation, the amount of damage should be determined on the basis of the total value of the property stolen by the group as a whole.

If all accomplices formed a single criminal group committing misappropriation pursuant to a prior conspiracy by a group of persons and participated in all episodes of the criminal activity, the classification of the actions of each participant must be based not on the amount that the particular accomplice received or could have received as a result of the misappropriation, but on the total amount stolen by the entire group.

The actions of offenders should not be classified as misappropriation on a large scale if they did not form a single criminal group but acted independently and the value of the property stolen by each of them was less than an amount five hundred times greater than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of commission of the criminal offence.

Accomplices who participated only in individual episodes of misappropriations committed by a group or by one person, but did not facilitate the commission of misappropriation on a large scale, should not be held liable for large-scale misappropriation either.

If a person who committed misappropriations in the same form entered into separate conspiracies with different persons but thereby participated overall in the misappropriation of large sums, their actions should be classified on the basis of the total amount stolen rather than the individual amounts stolen jointly with the various accomplices.

Practice shows that preliminary investigation authorities and courts do not always correctly classify a criminal offence where the actions of the offenders contain features of a criminal offence provided for in different parts of the same article. P. and M., having entered into a prior conspiracy, committed open misappropriation of gold items in the amount of 1 million 132 thousand 243 tenge. The actions of these persons were classified as robbery committed by a group of persons pursuant to a prior conspiracy and on a large scale.

However, in accordance with paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006, “On the Classification of Repeated Criminal Offences and the Aggregation of Criminal Offences”, where repetition is specified in a criminal-law provision as a qualifying feature, the commission by the same person of several identical criminal offences must be classified as a whole under the relevant article (part of an article) of the Criminal Code providing for liability for repeated commission of that criminal offence.

Where several criminal offences provided for in different parts of the same article of the Criminal Code, containing different qualifying features, are committed, these acts as a whole are subject to classification only under that part of the article which provides for a more severe punishment and encompasses the qualifying features. In such cases, the qualifying features of the criminal offence established in relation to acts specified in other parts of that article of the criminal law must also be attributed to the offender and indicated in the judgment.

In this regard, the act should have been classified as robbery committed on a large scale, with all qualifying features of the criminal offence committed being indicated.

The actions of a security guard who, pursuant to an agreement with a group of thieves, allowed the stolen property to be removed from the factory premises must be classified as aiding and abetting misappropriation (Part 5 of Article 28 of the Criminal Code).

The issue of the criteria for distinguishing complicity in misappropriation from receiving stolen property where such concealment was not promised in advance, as well as the acquisition and participation in the disposal of stolen property, is important for the correct classification of criminal offences.

Article 27 of the Criminal Code provides an extensive definition of complicity, according to which complicity in a criminal offence is the intentional joint participation of two or more persons in the commission of an intentional criminal offence.

Thus, only a person whose actions are causally and culpably connected with the criminal offence may be recognised as an accomplice. It follows that persons who did not facilitate the commission of the criminal offence or did not promise in advance to provide the offenders with any assistance cannot be regarded as accomplices.

Persons who systematically purchase stolen property from the persons who directly committed the theft are accomplices to the criminal offence; however, since they cannot be considered co-perpetrators, their actions are classified under the appropriate provision establishing liability for accomplices to criminal offences and the relevant part of Articles 187 and 188 of the Criminal Code.

In accordance with paragraph 29 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Misappropriation”, the acquisition or sale of property knowingly obtained by criminal means may be recognised as complicity in misappropriation if such actions were promised to the perpetrator before or during the commission of the criminal offence or for other reasons (for example, because they were committed systematically) and provided the perpetrator with grounds to expect such assistance. In other cases, the acquisition or sale of property obtained by criminal means must be classified under Article 196 of the Criminal Code.

The actions of officials who acquire property knowingly stolen for the purpose of its subsequent sale using their official position, where such actions were promised to the thief in advance or were committed systematically, thereby giving the thief grounds to expect such assistance from the official, are subject to classification as abuse of authority (Article 250 of the Criminal Code) and complicity in misappropriation (Part 5 of Article 28 and subparagraph 3) of Part 2 of Article 189 of the Criminal Code).

If an official did not systematically purchase stolen property from the same persons and such actions were accidental in nature, they cannot be classified as complicity in misappropriation.

Concealment of misappropriation (a serious or especially serious crime) that was not promised in advance, as well as the acquisition or sale of property knowingly obtained by criminal means that was not promised in advance, must be classified under Article 196 or Article 432 of the Criminal Code.

If a group of persons pursuant to a prior conspiracy intended to commit theft or robbery, but one of the participants, during the commission of the criminal offence, used or threatened to use violence dangerous to the life or health of the victim (an excess of an accomplice to the criminal offence), the actions of that participant must be classified as armed robbery, while the actions of the other participants in the criminal offence must be classified, respectively, as theft or robbery, provided that they did not directly facilitate the use of violence or take advantage of it to take possession of the victim's property.

The next qualifying feature, provided for in subparagraph 4) of Part 2 of Article 188 of the Criminal Code, is the commission of theft through unauthorised access to an information system or alteration of information transmitted via telecommunications networks.

According to subparagraph 12) of Article 1 of the Law of the Republic of Kazakhstan dated 24 November 2015 “On Informatization”, an information system is an organisationally ordered set of information and communication technologies, service personnel and technical documentation that implement certain technological operations through information interaction and are intended to solve specific functional tasks. According to subparagraph 55) of Article 2 of the Law “On Communications”, a telecommunications network is a set of telecommunications facilities and communication lines ensuring the transmission of telecommunications messages, consisting of switching equipment (stations, substations, concentrators), linear cable structures (subscriber lines, connecting lines and communication channels), transmission systems and subscriber devices.

In accordance with Article 32 of the Law “On Informatization”, electronic information resources are classified by ownership as state and non-state, and by access level as publicly accessible and restricted-access resources. Electronic information resources created, acquired and accumulated using budget funds, as well as those obtained by state bodies through other methods established by the laws of the Republic of Kazakhstan, are state resources. Electronic information resources created and acquired using the funds of individuals and legal entities, as well as those obtained by them through other methods established by the laws of the Republic of Kazakhstan, are non-state resources. Electronic information resources provided or distributed by their owner or holder without specifying access or use conditions, as well as information to which access is free and does not depend on the form in which it is presented or the method of distribution, are publicly accessible. Electronic information resources containing information to which access is restricted by the laws of the Republic of Kazakhstan or by their owner or holder in cases established by the legislation of the Republic of Kazakhstan are restricted-access electronic information resources (paragraphs 3, 4 and 5 of Article 32 of the Law).

The particularly qualifying feature provided for in subparagraph 1) of Part 3 of Article 188 of the Criminal Code is the commission of theft on a large scale. The scale of misappropriation indicates an increased degree of public danger of this crime, since the owner or other lawful holder of the stolen property often suffers significant pecuniary damage. The establishment by law enforcement authorities of the large scale of the damage caused is of qualifying significance and directly affects the application to the offender of one or another part of the legal provision; it falls within the scope of matters to be proved and is an essential condition for ensuring legality in the administration of justice in cases involving the misappropriation of another person's property. Establishing the large scale of the misappropriation is also necessary to ensure full compensation of the material damage suffered by the victim.

According to subparagraph 38) of Article 3 of the Criminal Code, a large scale is the value of property or the amount of damage exceeding the monthly calculation index by five hundred times. A single continuing crime consisting of several episodes of misappropriation committed with a single intent must also be classified as misappropriation on a large scale if the total value of the stolen property exceeds the monthly calculation index by five hundred times.

If the offender's intent was directed at taking possession of property on a large scale and this was not achieved for reasons beyond their control, the act must be classified as attempted large-scale misappropriation, regardless of the amount actually stolen.

The value of stolen property may not be aggregated if the offender committed not one but several acts of misappropriation in which the offender's independently formed intent to take another person's property was realised in each episode.

When determining the value of property that constitutes the subject matter of a crime, it is necessary, depending on the circumstances in which the owner acquired it, to proceed from the retail, market or commission prices in effect at the time the criminal offence was committed and confirmed by the relevant documents. If no price is available and a dispute arises concerning the amount stolen, the value of the property shall be determined on the basis of an expert opinion.

The amount of stolen property is determined on the basis of its value even in cases where the offender, for the purpose of concealing the theft, provided other property of lesser value in exchange for 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, the question of whether losses causally connected with the crime in the form of lost profits may be included in the amount of material damage is of great importance.

The defining feature of misappropriation in any of its forms is the taking of material assets from another person's possession. As a result, the owner of the property is deprived of a certain portion of it, which, once assigned a monetary value, constitutes the amount of material damage taken into account when differentiating liability for various types of misappropriation. Therefore, the principal consequence of misappropriation consists only of such violations of ownership relations as can be recorded through an economic (monetary) valuation of the property subjected to criminal interference.

Such valuation is possible only in respect of items that have already been created and actually exist. Lost profits are merely anticipated income which, at the time the criminal offence is committed, is not yet in the actual possession of the owner and, for that reason, the material titles to such income (property, money) cannot be taken, appropriated or transferred to third parties by the offender. This is why including lost profits in the structure of pecuniary damage essentially creates a fiction that criminal interference is possible with material assets that do not yet actually exist. On this basis, lost profits cannot be used as the basis for classification in cases involving the misappropriation of another person's property.

The particularly qualifying feature provided for in subparagraph 2) of Part 3 of Article 188 of the Criminal Code is the commission of theft repeatedly.

In order to establish whether the qualifying feature of “repetition” is present in a committed criminal offence, it is necessary to determine the general features of multiple criminal offences. First, there must be unity of the subject, that is, the same subject must be involved in all episodes of misappropriation.

Second, that person must have committed at least two criminal offences, and the fact that they were committed at different times is important. Third, each of them must be punishable under criminal law. Fourth, each act committed must constitute an independent corpus delicti. Only identical criminal offences may constitute the structural element of repetition. At the same time, repetition of several individual acts of misappropriation must be distinguished from continuing misappropriation. Fifth, at least two of the episodes committed must retain their legal significance.

The qualifying feature under consideration applies regardless of how many of the aforementioned criminal offences were committed previously and in what combination. The previous criminal offence does not require separate classification if it was identical to the newly committed offence, which follows from paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006, “On the Classification of Repeated Criminal Offences and the Aggregation of Criminal Offences”: “If repetition is specified in a criminal-law provision as a qualifying feature, the commission by the same person of several identical criminal offences shall be classified as a whole under the relevant article (part of an article) of the Criminal Code providing for liability for repeated commission of that criminal offence.”

Repetition is constituted only by identical criminal offences. Therefore, the commission of several similar criminal offences cannot be recognised as repetition of criminal offences and must be classified as an aggregate of criminal offences. For example, where a person commits theft and robbery, their acts must be classified cumulatively under Articles 188 and 191 of the Criminal Code without the qualifying feature of “repetition”.

For misappropriation to be recognised as repeated, it is irrelevant whether the criminal offences constituting the repetition were completed or whether only preparation for a criminal offence or an attempt to commit one was established in respect of one of them. The forms of complicity and the role played by the accomplice in the criminal offences constituting the repetition are also irrelevant. Thus, in one offence the person may have acted as a perpetrator and in another as an accessory, etc.

Repeated and continuing misappropriations are similar in the objective element of the criminal offence (two or more independent acts are committed); therefore, difficulties arise in distinguishing between them. The features of continuing misappropriation should be identified. First and foremost, this is a series of identical actions, that is, several acts of misappropriation committed using the same method (several thefts, several robberies).

If misappropriation is committed by a person who previously committed not an identical crime (theft), but a similar crime (for example, fraud or extortion), for which they have not been convicted, each crime is classified separately.

Continuing misappropriation differs in that there is an internal organic connection between the individual criminal acts that constitute it. Their inseparable connection is manifested in the fact that each such act represents merely one link in a single criminal chain. The interconnection between the individual episodes of criminal activity that make up continuing misappropriation is manifested not only in the fact that each of them is directed against the same object, but also in the similarity of the methods used to commit them and the unity of the socially dangerous consequences that ensue.

In legal literature, the opinion has been expressed that, alongside a single intent and a common purpose, the following circumstances should be recognised as defining features of continuing misappropriation: commission of the misappropriation from a single source, by the same method and on the condition that there is only a short interval between individual episodes. These features are undoubtedly of great importance, but they should all serve as objective indicators of the unity of intent and purpose, which constitute the principal feature of continuing misappropriation. It should also be noted that other objective and subjective circumstances of a particular misappropriation may serve as indicators of a single intent and common purpose.

Thus, summarising the distinction between continuing and repeated misappropriations, the following conclusion must be drawn: misappropriations (two or more) should be recognised as repeated if they contain the elements of independent criminal offences, provided that each act of misappropriation was separated from the other by a certain period of time and the offender formed an independent intent to commit each of them.

Paragraph 12 of the previously mentioned Regulatory Resolution dated 11 July 2003 states that the decisive factor in distinguishing a repeated criminal offence from a continuing one is the direction of the offender's intent. In continuing misappropriation, the offender, through repeated takings of another person's property from the same source, implements a single intent aimed at taking possession of the property and achieves a predetermined purpose, which together constitute one criminal offence.

Unlike continuing misappropriation, repeated infringements of another person's property are characterised by the absence of a single intent to commit several acts of misappropriation. In this case, the offender commits not one but several criminal offences, in each of which they realise an independently formed intent to take another person's property.

Misappropriation is not recognised as repeated if the person was convicted for the previously committed misappropriation or was released from criminal liability on grounds established by law.

Subparagraph 3) of Part 3 of Article 188 of the Criminal Code provides for the commission of acts with unlawful entry into a residential, official or industrial premises, storage facility or vehicle as a particularly qualifying feature.

In accordance with paragraph 1 of Article 25 of the Constitution of the Republic of Kazakhstan, the home is inviolable. No one may be deprived of their home except by a court decision. Entry into a home, its inspection and search are permitted only in cases and in accordance with the procedure established by law.

The increased public danger of misappropriation committed through unlawful entry into a residential, official or industrial premises, storage facility or vehicle is determined by the fact that, in order to commit the crime, the offender makes certain efforts to overcome obstacles and gain access to property, breaks doors, ceilings, breaks locks, etc. Seeking to steal property in respect of which the victim takes special measures to ensure its safety, the offender demonstrates particular persistence in achieving their purpose and often uses techniques and means that render the owner's precautionary measures ineffective.

The danger of misappropriation committed through such unlawful entry also lies in the fact that it tends to involve multiple episodes, particularly where theft of another person's property is concerned.

Nor should the circumstance be overlooked that misappropriation involving unlawful entry is generally committed with prior deliberation and may be accompanied by damage to or destruction of another person's property.

The particularly qualifying feature under consideration characterises the objective element of the crime, in particular, the method and place of its commission.

According to subparagraph 49) of Article 7 of the Criminal Procedure Code, a dwelling means a room or structure intended for temporary or permanent residence by one or more persons, including: privately owned or rented apartments, houses, garden houses, hotel rooms, cabins, railway compartments; verandas, terraces, galleries, balconies, attic structures, basements and attics of residential buildings directly adjoining them, except in multi-apartment residential buildings, as well as river or sea vessels and others.

Premises that are not intended or adapted for permanent or temporary residence (for example, cellars, barns, garages and other utility premises separated from residential buildings) are not classified as residential premises.

A storage facility means buildings, special devices, places or areas of land designated for the permanent or temporary storage of material assets and specially equipped with fencing or technical means or provided with security (for example, vehicle interiors and other enclosed parts intended for storing property or used for that purpose, mobile shops, refrigerated vehicles, containers, safes, storerooms, railway platforms carrying cargo and under security, fenced or unfenced guarded areas, and others).

Areas of land (water areas) and containers not intended for storage but used for such purposes (for example, combine harvester hoppers, open vehicle bodies, platforms and open freight wagons that are not guarded or do not have devices preventing entry into them) do not fall within the concept of a “storage facility”.

For example, the Supreme Court of the Republic of Kazakhstan amended the judgment of the Taraz City Court and the ruling of the Criminal Cases Panel of the Zhambyl Regional Court in the case of B., who attempted to steal money and food from D.'s yard. The judgment was amended because the qualifying feature of “entry into a storage facility” had been unjustifiably attributed to the convicted person, since the case materials established that B. had attempted to commit the theft from a table temporarily placed in the yard for the purpose of selling food products. In view of this circumstance (a table located in a yard cannot be recognised as a “storage facility”), B.'s actions were reclassified as theft without the qualifying feature.

The actions of an offender who steals components of a car (a car radio and other built-in parts of the vehicle) constitute the qualifying feature of misappropriation involving unlawful entry into a vehicle.

A storage facility must be artificially created and specially constructed for storing items. Natural obstacles formed by natural forces are not covered by the concept of a “storage facility” (for example, a ravine in which property is located or ice covering an ice hole in which property is concealed). A storage facility presupposes the existence of structures that prevent access to an item, which can be gained only after overcoming an obstacle. Such structures may surround the item on all sides or only from the side of ordinary access (a fence surrounding a yard). Structures and devices intended for storing items but not surrounding them are not storage facilities (for example, a chain or lock used to secure a boat left in a river). The degree of strength of the structure is irrelevant, and it does not matter whether any tools are required to destroy it or whether it can be dismantled with bare hands. It is not necessary for the obstacle to be made of a uniform material or to be continuous: it is sufficient that, at the point through which the offender entered, there was a barrier in the form of a construction that prevents outsiders from accessing the protected area. Its continuation may consist of any artificial obstacles that make access to the property through them impossible or inconvenient.

Questions may arise as to whether cash-register drawers located in the premises of shops, canteens, etc. should be classified as storage facilities. The point is that offenders may enter these premises freely, without overcoming any obstacles, and then steal from cash registers. It appears that such containers should be classified as storage facilities, since cash registers in premises are separated, often have locking devices and are guarded by financially responsible persons.

A study of judicial and investigative practice shows that there are differing approaches to the classification of thefts of money from cash registers. For example, E. and G. entered a supermarket for the purpose of buying food. Taking advantage of the fact that the shop assistant had gone to another department, leaving the cash-register drawer open, they decided to steal the money. The investigative authorities and the Auezov District Court of Almaty classified the act as theft involving entry into a storage facility. The Criminal Cases Panel of the Almaty City Court, having examined the case following a cassation appeal by the defence lawyer, excluded this feature, finding that the cash register could not be regarded as a storage facility.

The issue was resolved differently at one time in the case of V. The circumstances of the case were as follows: V., while intoxicated, entered the interior of a bus by forcing the doors open for the purpose of committing theft. The driver was absent at that time. Using a metal plate, he broke open the cash-box lock and stole the money. The investigative authorities and the court of the Kazybek Bi District of Karaganda classified his actions as theft involving entry into a storage facility. Consequently, the court recognised the cash register as a storage facility, since the case was not considered on cassation.

A storage facility must be distinguished from a container, receptacle or packaging for items. Unlike a storage facility, a container or receptacle is a structure required by the nature of the item itself to ensure its preservation or to facilitate its transportation or carrying (cans, barrels, boxes, suitcases, etc.). Therefore, breaking open such containers and receptacles, as well as taking the property contained in them, does not constitute this qualifying feature.

This qualifying feature may exist in cases where the intent to commit misappropriation arose before the actual secret or open unlawful entry.

The actions of a person who enters a residential, official or industrial premises, storage facility or vehicle by deceiving the victim, for example, by impersonating a representative of the authorities or presenting a forged document for the purpose of gaining entry, must also be classified as unlawful entry. Where grounds exist, these actions must also be classified under the articles of the Criminal Code providing for liability for impersonating an official or using a knowingly forged document.

Entry also occurs where the offender removes the items being stolen without entering the aforementioned premises, using technical means and other devices.

If the offender entered a residential, official or industrial premises or storage facility with the voluntary consent of the victim or the persons responsible for guarding the property, by virtue of family relationships, acquaintance or other circumstances, or if the intent to take possession of the property arose only while the offender was already present in the aforementioned premises, their actions do not constitute this qualifying feature.

This qualifying feature of the crime is also absent where the offender, while lawfully present in the premises or storage facility, commits theft from rooms, departments or other parts of the premises or storage facility that are open to access.

Violation of the inviolability of the home through unlawful entry in the commission of misappropriation, where such entry is recognised as a qualifying feature of the crime, constitutes the method of committing the crime and does not require additional classification under Article 149 of the Criminal Code as a violation of the inviolability of the home.

In committing robbery and armed robbery, entry into premises may also be secret, followed by the open taking of property (with or without violence). However, this does not exclude the possibility that the commission of misappropriation by robbery or armed robbery and the entry into the premises itself may be carried out openly or through the use of violence to overcome resistance from a security guard or other persons present in the premises.

When committing misappropriation involving entry into a residential, official or industrial premises, storage facility or vehicle, the offender often resorts to breaking in, thereby damaging another person's property. If, when committing theft, robbery or armed robbery, a person unlawfully enters the objects specified in the law by breaking doors, locks, bars, etc., the act must be classified under the relevant subparagraphs and parts of Articles 188, 191 or 192 of the Criminal Code. Additional classification under Article 202 is not required, since the intentional destruction of the victim's property in such cases, as in the case of unlawful entry into a dwelling, constitutes a method of committing the misappropriation. The situation changes if, during the commission of theft, robbery or armed robbery, the offender intentionally destroys or damages the victim's property that is not the subject matter of the misappropriation (for example, furniture and other items). Under such circumstances, where grounds exist, the offender's actions must additionally be classified under Article 202 of the Criminal Code.

If the material damage caused by entry into the premises or storage facility is insufficient to justify additional classification under Article 202 of the Criminal Code, that is, if it does not contain the elements of a criminally punishable act, the court, when imposing punishment, must take these circumstances into account and oblige the offender, by way of a civil claim, to compensate for the material damage caused.

Entry into a residential, official or industrial premises or storage facility may be committed by one or more persons. It should be borne in mind that the actions of an offender who did not enter the premises or storage facility but, in accordance with an agreement on the distribution of roles, participated in breaking doors, locks or window bars, or performed other actions in the course of committing the crime connected with another person's entry into the premises or storage facility or with the taking of property from there, constitute co-perpetration and do not require additional classification under Article 28 of the Criminal Code. Those accomplices who did not directly participate in the misappropriation but instigated the entry, gave advice and instructions on methods of entry or promised in advance to acquire the stolen property are liable as accomplices to the misappropriation in the form of aiding and abetting under Article 28 and subparagraph 3) of Part 3 of Article 188 of the Criminal Code. However, in any event, the intent of the accomplices must encompass the circumstance that the misappropriation is being committed through entry into premises or a storage facility; otherwise, their actions cannot be classified under the feature of “entry”.

Thus, all constituent elements of the particularly qualifying feature under consideration (the place from which the property is taken — a dwelling, premises, storage facility or vehicle; the method — by entry; and the unlawfulness of the entry — unlawful) are equally mandatory and must be assessed as a whole. If even one of the aforementioned elements is absent, this qualifying feature must not be applied.

Part 4 of Article 188 of the Criminal Code provides for liability for theft committed:

by a criminal group;

from an oil or gas pipeline;

on an especially large scale.

The concept of a crime committed by a criminal group is set out in subparagraph 24) of Article 3 of the Criminal Code, which states that a criminal group is an organised group, criminal organisation, criminal community, transnational organised group, transnational criminal organisation, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation.

It should be noted that practically all forms of organised crime are included in the concept of a criminal group under consideration.

If misappropriation is committed by a criminal group, the actions of the organiser, leader and members of the criminal group must be classified cumulatively under the provision establishing liability for misappropriation committed by a criminal group, namely Part 4 of Article 188 of the Criminal Code, and the relevant part of Articles 182, 257 and 262–265 of the Criminal Code, as the creation of, or leadership of, an extremist group, terrorist group and participation in their activities, or the creation of and leadership of an organised group, criminal organisation, criminal community, transnational organised group, transnational criminal organisation or transnational criminal community, as well as participation in them.

This conclusion follows from an analysis of Article 31 of the Criminal Code, Parts 4 and 5 of which state that a person who creates a criminal group or leads it is subject to criminal liability for organising the criminal group and leading it in cases provided for by the relevant articles of the Special Part of the Criminal Code, as well as for all crimes committed by the criminal group if they were covered by that person's intent.

Other participants in the criminal group are criminally liable for participation in it in cases provided for by the relevant articles of the Special Part of the Criminal Code, as well as for crimes in the preparation or commission of which they participated.

The Supreme Court adheres to the same position in paragraph 11 of the aforementioned Regulatory Resolution, where paragraph 2 states that, in appropriate cases, the acts of the offenders must additionally be classified under the articles of the Criminal Code providing for liability for the creation of a criminal group or participation in one.

The correct distinction between misappropriation committed by a group of persons pursuant to a prior conspiracy and misappropriation committed by a criminal group is of great importance. To distinguish between these features, it is necessary to be guided by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 21 June 2001, “On Certain Issues Concerning the Application by Courts of Legislation on Liability for Banditry and Other Criminal Offences Committed with Complicity”. Paragraph 11 of the Resolution states:

“The fact that a group of persons acting pursuant to a prior conspiracy commits a series of crimes over a certain period of time through coordinated actions and consistent forms and methods of criminal activity does not constitute sufficient grounds for recognising the existence of a criminal group.

A criminal group differs from a group of persons acting pursuant to a prior conspiracy by its higher degree of organisation and stability. Its features may include, in particular: the existence of a leader (or leaders) and the subordination of other members to them; the awareness of other participants of their membership in the group; the existence of a certain hierarchy and common material and financial resources; compliance with the rules (discipline) established within the criminal group, etc.

In accordance with the requirements of Article 113 of the Criminal Procedure Code of the Republic of Kazakhstan, the features of a criminal group must be proved alongside the other elements of the corpus delicti.”

Another particularly qualifying feature is the commission of theft from an oil or gas pipeline.

Oil means crude oil, gas condensate, as well as hydrocarbons obtained after the purification of crude oil and the processing of combustible shale, oil-bearing rocks or tar sands.

Paragraph 2 of Article 10 of the Code of the Republic of Kazakhstan dated 27 December 2017, “On Subsoil and Subsoil Use”, stipulates that this Code regulates the use of subsoil in relation to the following resources: 1) mineral resources; 2) technogenic mineral formations; 3) subsoil space.

At the same time, mineral resources are divided into the following groups: 1) groundwater; 2) hydrocarbon mineral resources (hydrocarbons); 3) solid mineral resources (paragraph 2 of Article 12 of the Code).

Paragraph 3 of Article 12 of the aforementioned Code explains that hydrocarbons are oil, raw gas and natural bitumen. The same provision also provides explanations of these concepts.

In addition, subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan dated 9 January 2012, “On Gas and Gas Supply”, states that gas means raw, commercial, liquefied petroleum and liquefied natural gas. Subparagraphs 34), 31) and 32) of Article 1 of the aforementioned Law also provide explanations of the concepts of raw gas, commercial gas and liquefied natural gas.

On the basis of the foregoing, it may be concluded that the subject matter of the crime provided for in subparagraph 2) of Part 4 of Article 188 of the Criminal Code may only be hydrocarbons, namely oil, raw gas and natural bitumen, as well as raw, commercial, liquefied petroleum and liquefied natural gas.

The Criminal Code does not define the concept of an “oil pipeline”. Only subparagraph 20) of Article 3 of the Criminal Code, when defining transport, states that it includes railway, road, sea, inland water transport, including small sea and river vessels, air transport, urban electric transport, including the underground railway (metro), as well as main pipeline transport located within the territory of the Republic of Kazakhstan. On the basis of this definition, it may be concluded that a main pipeline is one of the types of transport.

According to subparagraph 2) of paragraph 1 of Article 5 of the Law of the Republic of Kazakhstan dated 27 December 2018, “On Natural Monopolies”, regulated services for the transportation of oil and/or petroleum products through main pipelines, except for their transportation for the purposes of transit through the territory of the Republic of Kazakhstan and export outside the Republic of Kazakhstan, fall within the areas of natural monopolies in the Republic of Kazakhstan.

Subparagraphs 28), 5), 14), 15), 20), 22) and 23) of Article 1 of the Law of the Republic of Kazakhstan “On Gas and Gas Supply” provide definitions of the following concepts: main gas pipeline, unified technical corridor, gas pipeline, gas distribution system, gas consumption system, connecting gas pipeline and field gas pipeline.

Thus, in order to classify a person's actions under subparagraph 2) of Part 4 of Article 188 of the Criminal Code, that person must have committed secret misappropriation from any type of pipeline intended for the transportation of hydrocarbons.

It should be noted that the legislator has structured the criminal-law provision in such a way that the value of the stolen property does not affect the classification, and such actions must be classified immediately under subparagraph 2) of Part 4 of Article 188 of the Criminal Code.

Subparagraph 3) of Part 4 of Article 188 of the Criminal Code provides for the particularly qualifying feature of theft committed on an especially large scale. According to subparagraph 3) of Article 3 of the Criminal Code, an especially large scale is the value of property or the amount of damage exceeding the monthly calculation index by two thousand times.

Theft is a non-violent crime; therefore, the secret taking of property from a person who has been deprived by force of the ability to observe the offender's actions (having been locked in a room) must be classified, depending on the nature of the violence used, under Articles 191 or 192 of the Criminal Code as robbery or armed robbery. Administering against the victim's will potent, poisonous or intoxicating substances dangerous to life and health for the purpose of rendering the victim helpless and taking possession of another person's property must be classified as armed robbery (Article 192 of the Criminal Code). If, for the same purpose, substances that do not pose a danger to the victim's life or health are administered against their will, the act must be classified, depending on the consequences, as robbery involving violence (subparagraph 1) of Part 2 of Article 191 of the Criminal Code) or an attempt to commit that crime (Part 3 of Article 24 of the Criminal Code).

Alongside the secret and non-violent method of taking possession of property, theft is characterised by the fact that the thief has no authority whatsoever to dispose of, manage or store the property they take possession of. Secret taking of another person's entrusted property must be classified not as theft but as misappropriation or embezzlement of another person's property (Article 189 of the Criminal Code). If, however, the misappropriation is committed by a person who merely has access to another person's property in connection with assigned work or the performance of official duties, it is subject to classification as theft.

The difference between theft and misappropriation or embezzlement of entrusted property belonging to another person is that, in the case of theft, the offender may sometimes actually possess another person's property, have access to it or guard it, but is not vested with any authority to dispose of, manage or store that property.

Misappropriation must be classified not as misappropriation or embezzlement but as theft if it is committed by a person who has been granted certain powers in relation to the property being stolen but could only use it in performing assigned work (for example, theft of raw materials or finished products by a worker), or by a person who, by virtue of their official duties, had access to property directly entrusted to other persons (for example, a commandant).

Theft must be distinguished from fraud. First, in theft, the subject matter of misappropriation can only be property, whereas in fraud the subject matter may be both property and the right to property. Second, in theft, the property is taken from the victim secretly and against their will. In fraud, the owner or lawful holder personally transfers the property to the offender after being misled as a result of deception or abuse of trust. Third, in fraud, the property must be transferred to the offender by a legally capable person whose actions in disposing of the property have legal significance. If property is obtained through deception or abuse of trust from an incapacitated person or a person with limited legal capacity due to age or mental disorder, the act committed by the offender constitutes theft rather than fraud, since the will of such persons is legally void. Fourth, in fraud, deception is the method of taking possession of the property, whereas in theft it is directed solely at obtaining access to the property, which is subsequently taken secretly from the owner.

A distinction must be made between theft and the unlawful taking of an automobile or other vehicle without the purpose of misappropriation (Article 200 of the Criminal Code). The principal difference is that theft constitutes misappropriation, whereas the crime provided for in Article 200 of the Criminal Code belongs to the category of other acquisitive crimes against property. In theft, the property is necessarily taken for an acquisitive purpose (conversion to the benefit of the offender or other persons), whereas in the unlawful taking of a vehicle such an acquisitive purpose is absent.

The acts provided for in Parts 1 and 2 of Article 188 of the Criminal Code are classified as medium-gravity crimes.

The acts provided for in Parts 3 and 4 of Article 188 of the Criminal Code are classified as serious crimes.

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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