Comment to Article 143. Illegal violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other communications of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other communications of citizens —      

is punishable by a fine in the amount of fifty to one hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to one month, or by community service for a period of one hundred and twenty to one hundred and eighty hours, or correctional labor for a period of up to one year.      

2. The same act committed by a person using his official position or special technical means designed to secretly obtain information, —      

is punishable by a fine in the amount of five hundred to two thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to three months, or by deprivation of the right to hold certain positions or engage in certain activities for a period of two to five years, or by correctional labor for a period of up to two years, or by arrest for a period of from two to four months.    

3. Illegal manufacture, production, sale or acquisition for the purpose of sale of special technical means intended for the secret receipt of information, —      

are punishable by a fine in the amount of five hundred to two thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by restriction of liberty for a term of up to three years, or by imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. years old.

     In accordance with Part 2 of Article 18 of the Constitution of the Republic of Kazakhstan, "Everyone has the right to privacy of correspondence, telephone conversations, postal, telegraphic or other communications." Restrictions on this right are allowed only in cases and in accordance with the procedure directly established by laws.      

The public danger of a crime is expressed in the violation of the above-mentioned constitutional right.      

The object of the crime is the constitutional right of citizens to privacy of correspondence, telephone conversations, postal, telegraphic and other communications. This right is a type of the right to privacy (Part 1 of Article 18 of the Constitution of the Republic of Kazakhstan). However, in this case, it is not required that correspondence, telephone conversations, postal and other messages contain information that constitutes a personal or family secret. Article 143 of the Criminal Code protects the secrecy of correspondence, telephone conversations, postal and other communications, regardless of their nature and content.      

The objective side of the crime is expressed in the commission by the perpetrator of actions aimed at violating the secrecy of correspondence, telephone and telegraphic messages. This violation consists in familiarizing, without the consent of the person who exercises this right, with the contents of postal, telegraphic and other correspondence addressed to the latter, as well as with his telephone conversations. The legislator provides an exhaustive list of methods of encroachment.      

Other messages mean messages by fax, teletype, e-mail, messages sent through technical communication channels, etc., when correspondence becomes the property of other persons without the consent of the addressee.    

 Violation of the secrecy of correspondence, telephone conversations, postal, telegraphic and other communications occurs in cases when correspondence becomes the property of other persons without the consent of the addressee.      

Legitimate cases of familiarization with citizens' correspondence are cases when correspondence is seized in connection with the investigation of a criminal case in order to uncover a crime, detect or detain a criminal. Such withdrawal (seizure) of correspondence is carried out only with the approval of the prosecutor or by definition or court order.      

The crime is considered completed from the moment of illegal familiarization of a person with correspondence, telephone conversations, postal, telegraphic and other messages, regardless of the consequences.    

On the subjective side, the crime in question can only be committed with direct intent. The perpetrator is aware that he is violating the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages, anticipates that as a result of his actions, undesirable consequences may or inevitably occur for the victim and desires this.    

 The motives for committing this crime are different (envy, revenge, curiosity, etc.) do not affect the qualification, but are taken into account by the court when sentencing.    

 The subject of the crime is a sane individual who has reached the age of 16.  

   Part 2 of Article 143 of the Criminal Code includes two qualifying features:

1) the perpetrator's use of his official position;

2) the use of special technical means designed to obtain information secretly. Persons who have the opportunity to get acquainted with correspondence, telephone conversations, postal, telegraphic or other messages can use their official position.

(for example, employees of the post office, telegraph, other means of communication, and law enforcement agencies).    

  The use of special technical means designed to obtain information secretly increases the possibility of obtaining information more fully, and, consequently, increases the degree of public danger of the act. Special technical means designed to secretly obtain information are understood to include devices and other equipment that record, record, and decrypt information.      

The subject of the crime under Part 2 of Article 143 of the Criminal Code of the Republic of Kazakhstan is a special one, since it can be a person with official powers, as well as having access to special technical means.   

  In part 3 of Article 143 of the Criminal Code of the Republic of Kazakhstan, responsibility is established for an independent crime, but organically related to the actions being analyzed: the manufacture, production, sale or acquisition for the purpose of selling special technical means designed to secretly obtain information.    

 The manufacture of special technical means intended for the secret receipt of information should be understood as such actions of the perpetrator, as a result of which the specified technical means were obtained. The production of these products refers to their manufacture both artisanal and in mass production. Sale is the sale, that is, the paid or gratuitous transfer in any way, of specified funds to individuals or legal entities.      

The storage of other people's special technical means intended for the secret receipt of information is not a crime, and their use should be qualified under Part 2 of Article 143 of the Criminal Code of the Republic of Kazakhstan.   

  The crimes provided for in Parts 1 and 2 of art. 143 of the Criminal Code of the Republic of Kazakhstan are minor crimes.      

The crime provided for in Part 3 of Article 143 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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