Commentary on Article 204. Negligent Destruction or Damage to Another Person’s Property of the Criminal Code of the Republic of Kazakhstan

1. Negligent destruction or damage to another person’s property resulting in major damage –

shall be punishable by a fine in the amount 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. The same act, committed through negligent handling of fire or other sources of increased danger, or resulting in grave consequences or causing particularly large-scale damage –

shall be punishable by a fine in the amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

The public danger of the criminal offence (Part 1 – a criminal misdemeanour, Part 2 – a crime) is similar to that characterising the intentional destruction or damage of another person’s property, since it consists in the violation of public relations concerning ownership of property.

The object of the offence under consideration is property.

The subject matter of the criminal offence in question may be any property belonging to another person (movable or immovable), including property withdrawn from civil circulation, except in cases where the destruction or damage of certain items constitutes independent criminal offences provided for under Article 350 of the Criminal Code, “Intentional Rendering of Vehicles or Means of Communication Unfit for Use”; Part 3 of Article 384 of the Criminal Code, “Theft, Destruction, Damage or Concealment of Official Documents, Stamps or Seals”; or Article 459 of the Criminal Code, “Intentional Destruction or Damage of Military Property”.

From the objective side, the criminal offence under consideration is expressed in the negligent destruction or damage of another person’s property resulting in major damage.

The elements of the objective side of criminal offences (destruction or damage) provided for in Articles 202 and 204 of the Criminal Code coincide; therefore, they will not be examined when analysing Article 204 of the Criminal Code.

The legislator has constructed this offence as a material offence, meaning that its essential elements include not only actions (or omissions) aimed at destroying or damaging another person’s property, but also the occurrence of consequences in the form of major damage, as well as a causal link between them. Paragraph 38) of Article 3 of the Criminal Code states that major damage is recognised as the value of property or the amount of damage exceeding one thousand times the monthly calculation index.

The distinctive feature of this criminal offence lies in its subjective side. This is the only criminal offence against property that is committed through negligence; that is, guilt is expressed in the form of negligence, specifically in the form of criminal self-confidence or criminal negligence, the concepts of which are established in Article 21 of the Criminal Code.

The subject of negligent destruction or damage to another person’s property is a sane individual who has reached the age of sixteen.

Part 2 of Article 204 of the Criminal Code establishes increased liability for the commission of the act under consideration through negligent handling of fire or other sources of increased danger, or where it results in grave consequences.

Negligent handling of fire or other sources of increased danger (Part 2 of Article 204 of the Criminal Code) may, in particular, consist of improper handling of ignition sources near combustible materials, or the operation of technical devices with unrepaired defects (for example, using a tractor in a forest without a spark arrester, leaving unattended extinguished-incompletely stoves or campfires, or electrical appliances and gas burners that have not been switched off, etc.).

Civil legislation classifies vehicles, mechanisms, electrical and atomic energy, explosives, explosive devices, highly potent poisons, bacteria, etc., as sources of increased danger.

In legal literature, sources of increased danger are characterised as: a) certain objects of the material world (mechanisms, devices, motor vehicles, explosives, highly potent poisons, etc.) that exhibit harmful properties during their operation, which cannot be fully controlled by humans or cannot be controlled to an adequate extent, as a result of which they create a danger to others; or b) activities that create danger.

This list is not exhaustive, since it is impossible to provide a complete list due to the continuous development of science and technology. Whether certain objects used in the activities of legal entities or individuals should be classified as sources of increased danger is determined by two main characteristics: their harmful properties and the impossibility of exercising complete human control over them. If doubts arise, the issue of recognising an object or activity as a source of increased danger must be resolved by the court on the basis of the findings of an appropriate expert examination (technical, electrical engineering, chemical, etc.). Four main groups of such objects are distinguished: 1) physical (including mechanical, electrical and thermal); 2) physical-chemical (radioactive); 3) chemical (including toxic, explosive and flammable); 4) biological (including zoological and microbiological).

The occurrence of grave consequences as a result of the negligent destruction or damage of another person’s property implies the infliction of various consequences. For example, these may include leaving other persons without housing or means of subsistence, a prolonged suspension of an enterprise’s operations resulting in financial losses, or causing moderate or serious harm to health.

In the event of a person's death, the actions of the perpetrator should be classified under the cumulative combination of criminal offences – under Article 204 and Article 104 of the Criminal Code, “Causing Death by Negligence”.

Negligent destruction or damage to another person’s property should be distinguished from violations of fire safety requirements (Article 292 of the Criminal Code). Firstly, the object of the latter crime is public safety. Secondly, there is a distinction in terms of the subject of the crime. The subject of the crime provided for in Article 292 of the Criminal Code is a person who has been entrusted with the duty of complying, either permanently or temporarily, with fire safety requirements approved and registered in accordance with the established procedure.

When deciding whether a person is guilty of violating fire safety requirements that resulted in the consequences provided for in Article 292 of the Criminal Code (negligently causing serious or moderate harm to a person’s health or causing major damage to a citizen, organisation or the State), it is necessary to establish precisely how the improper performance or non-performance of these rules occurred, whether there is a causal link between the violations committed and the consequences that followed, and to specify this in the judgment with reference to the specific provisions of the fire safety rules that were violated.

Thus, when distinguishing a violation of fire safety rules resulting in grave consequences through negligence from the negligent destruction or damage of property resulting in the same consequences, courts should proceed from who the subject of the crime is: a person responsible for complying with fire safety rules or a person who has not been entrusted with such responsibility.

If the cause of a fire was a violation of safety rules at nuclear energy facilities, during mining or construction operations, at explosive facilities, or a violation of the rules for the storage, use, accounting and transportation of radioactive materials, etc., the act is covered by special elements of criminal offences (Articles 276, 277, 281 of the Criminal Code, etc.) and does not require additional classification under Article 292 of the Criminal Code.

Negligent destruction or damage to another person’s property differs from negligent destruction or damage of military property (Article 460 of the Criminal Code). Firstly, the object of the latter offence is the established procedure for the disposal and use of military property, which constitutes the material basis of the combat readiness and combat capability of the Armed Forces, other troops and military formations of the Republic of Kazakhstan. Secondly, the distinction concerns the subject matter of the criminal offence. In accordance with Paragraph 12) of Article 1 of the Law of the Republic of Kazakhstan dated 7 January 2005, “On Defence and the Armed Forces of the Republic of Kazakhstan”, military property means defence facilities, all types of weapons, military equipment, special means and other property held under the right of operational management by state institutions of the Armed Forces of the Republic of Kazakhstan, other troops and military formations. In its Regulatory Resolution dated 28 October 2005, “On Judicial Practice in Cases Involving Military Criminal Offences”, the Supreme Court of the Republic of Kazakhstan explains that if the specified actions are committed in relation to dual-purpose objects (vehicles, radio stations, telephone sets, computers, etc.) at the disposal of military units, which do not belong to military property or items of military equipment, liability arises for the intentional or negligent damage or destruction of another person’s property under Articles 202 or 204 of the Criminal Code. Thirdly, the subject of the crime must be a military servicemember or a person liable for military service who has been called up for military training.

The act provided for in Part 1 of Article 204 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 204 of the Criminal Code is classified as a crime of minor gravity.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, authored by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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 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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