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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of July 21, 1995 No. 4

About court practice on cases on plunder of firearms, ammunition, arms and explosives, illegal acquisition, carrying, storage, production or their sale, and negligent custody of firearms

(as amended on 22-12-2022)

Having discussed court practice on cases on plunder of firearms, ammunition, arms and explosives, illegal acquisition, production, carrying, storage or their sale, and negligent custody of firearms, the plenary session of the Supreme Court of the Republic of Kazakhstan notes that courts generally correctly resolve cases of this category.

At the same time, courts not always in due measure consider that these criminal offenses belong to the category of the most dangerous and pose serious threat of public safety, first of all, to life, health and the rights and interests of citizens protected by the law, and use of objects of encroachment in criminal objectives quite often leads to heavy effects.

For the purpose of establishment of single court practice for this category, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. Considering that the criminal offenses connected with plunder of firearms, ammunition, arms and explosives, illegal acquisition, production, carrying, storage and their sale pose serious threat for public safety, for the purpose of the warning of criminal offenses to courts it is necessary to increase the level of legal proceedings, to take the punishments prescribed by the law effective measures to inevitability, to identification of sources of acquisition of firearms and ammunition, arms and explosives, and also establishment and elimination of the facts of their inadequate protection or production on production and other reasons and conditions promoting making of these criminal offenses.

Courts shall react essentially private resolutions to each fact of the negligent relation to firearms saving officials to whom it is entrusted on service, leaving without protection or the inadequate equipment of storage locations of firearms, ammunition, arms and explosives, violation of procedure for their accounting, issue, transportation, their wrong use and application, in each case to discuss question of accountability of those officials, action or failure to act of which promoted making of criminal offenses.

2. In case of the solution of question of guilt of person in making of criminal offenses, stipulated in Article 289, the corresponding parts of Articles 287, of 288, of 290, of 291 Criminal Code of Kazakhstan (further - UK), it is necessary to establish whether these or those objects withdrawn from the guilty person belong to firearms, ammunition, arms and explosives, responsibility for plunder which carrying, storage, acquisition, production, sale and negligent custody it is provided by the specified Articles.

Distinctive signs of these objects are their special purpose for defeat, destructions or destructions of the different purposes and objects, and also special procedure for their production, acquisition, use and storage.

At the same time it is necessary to consider that firearms, ammunition, arms and explosives can be as factory production, and self-made.

Production of sawn-off shotgun from the fowling piece, i.e. change of its property for the intended purpose with giving of qualities of fighting firearms, and also its acquisition, carrying, storage, sale or plunder form structure of the criminal offense provided by the corresponding parts of Articles 287, of 288, 291 UK.

3. In relation to Article 289, the corresponding parts of Articles 287, of 288, of 290, 291 UK should understand the automatic machines, carbines, rifles, guns, machine guns and other devices and objects which are structurally intended for defeat of live or other purpose, and also sports including small-bore cut hunting weapon in which for production of shot energy of powder or other charge is used as firearms irrespective of in what purposes it is actually applied.

Are understood as ammunition: military units of rockets, bombs, mines, rockets, artillery, mortar, grenade shots, manual and reactive garnets and fuses to them, the cartridges of small arms, thunder flashes, detonators, alarm, lighting, imitating means and other products and destructive devices assembled equipped with explosive and intended for firing from firearms of the corresponding type or for explosion production.

Courts shall mean that pneumatic guns, flare, starting, construction, gas guns, flare pistols, and also the containing explosives and mixes, pyrotechnic and lighting means which are not intended for fighting application do not belong to firearms, ammunition, explosives, responsibility for plunder, carrying, storage, acquisition, production or sale of which is stipulated in Article 289, the corresponding parts of Articles 287, of 288, of 290, 291 UK.

In law sense carrying, storage, acquisition, production or sale of ammunition to smooth-bore hunting weapon do not form structure of the criminal offense provided by the corresponding parts of article 287 UK.

It is necessary to understand gunpowder, trotyl, nitroglycerine, guncotton, ammonal and other chemicals and their mixes having capability to explosive reactions on which acquisition and storage special permission is required as explosives.

Military equipment of land, air, sea and river basing with the regular weapons of destruction of the purposes established on it, minings and mine clearing and providing its application for the intended purpose belong to arms (optical devices, radar and radiotelephone stations, etc.).

4. Courts need to consider that responsibility by the corresponding parts of the articles 287,UKUK comes for plunder, carrying, storage, acquisition or sale of firearms, suitable for use, and ammunition, arms and explosives, and also defective or educational which the guilty person had real opportunity to bring to suitable state.

If the guilty person stole firearms, unsuitable to use, or ammunition, arms, explosives and was mistaken at the same time concerning their quality, considering that they are operational, the deeds should be qualified as attempt at plunder of these objects.

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