Comment to article 165. High treason of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     High treason, that is, an intentional act committed by a citizen of the Republic of Kazakhstan with the aim of undermining or weakening the external security and sovereignty of the Republic of Kazakhstan, expressed in defecting to the enemy during a war or armed conflict, as well as espionage, the issuance of state secrets or other assistance to a foreign state, foreign organization or their representatives in conducting a hostile activities against the Republic of Kazakhstan, —      

is punishable by imprisonment for a term of ten to fifteen years with or without confiscation of property, and during war or in a combat situation under aggravating circumstances — by imprisonment for a term of up to twenty years, or by death penalty with or without confiscation of property, or by life imprisonment with or without confiscation of property.

     Note. A person who has committed the crimes provided for in this Article, as well as Articles 166 and 168 of this Code, shall be released from criminal liability if he voluntarily and promptly informed the state authorities or otherwise contributed to preventing damage to the interests of the Republic of Kazakhstan and if his actions do not contain elements of another crime.

     The national security of the Republic of Kazakhstan, in accordance with the Law of the Republic of Kazakhstan "On National Security of the Republic of Kazakhstan" dated June 26, 1998, refers to the state of protection of the national interests of the country from real and potential threats. High treason is one of the grave crimes against the national interests of the Republic of Kazakhstan.      

The Constitution of the Republic of Kazakhstan classifies treason as one of the most serious crimes. Paragraph 2 of Article 47 of the Constitution of the Republic of Kazakhstan states that "The President of the Republic is responsible for actions committed in the performance of his duties only in the event of high treason and may be dismissed from office by Parliament for this."      The immediate object of high treason is the external security and sovereignty of the Republic of Kazakhstan.      

In accordance with the Law of the Republic of Kazakhstan "On National Security of the Republic of Kazakhstan" dated June 26, 1998, external security is understood as the state of protection of the national interests of the Republic of Kazakhstan from threats emanating from foreign states, organizations and citizens.      

The objective side of high treason is characterized by the commission of any of the following actions:      

1) defecting to the enemy during a war or armed conflict;     

2) espionage; 3) giving out state secrets;      

4) other assistance to a foreign state, a foreign organization or their representatives in carrying out hostile activities against the Republic of Kazakhstan.      

The law provides an exhaustive list of treasonable acts, which cannot be interpreted broadly, and all of them can be committed only through active actions.      

Defection to the enemy during a war or armed conflict is understood as the provision of assistance by a citizen of the Republic of Kazakhstan to a military opponent during a war or armed conflict.      

For the existence of an objective side of this form of high treason, three signs are necessary:      

1) a special situation of going over to the enemy's side — a situation of war or armed conflict;      

2) the entry of a citizen of the Republic of Kazakhstan into contact with a military opponent;      

3) the purpose of the contact is to assist a military opponent.      

The very transition to the enemy's side can be expressed in leaving the territory of our country and moving to the territory of an enemy state (physical transition) or in providing assistance to such a state, its organizations or representatives on the territory of our country (intellectual transition). However, regardless of the forms of its manifestation, liability under Article 165 of the Criminal Code is possible only in cases where the transfer was made to assist an enemy state, and not for any other reason (for example, to avoid prosecution for a committed offense).      Espionage consists in transferring, as well as collecting, stealing, or storing information constituting state secrets for the purpose of transferring it to a foreign state, foreign organization, or their representatives, as well as transferring or collecting other information on behalf of foreign intelligence to use it to the detriment of the external security or sovereignty of the Republic of Kazakhstan.      

Espionage is classified as high treason under Article 165 of the Criminal Code of the Republic of Kazakhstan only if it is committed by a citizen of the Republic of Kazakhstan. Espionage committed by a foreign citizen or a stateless person is an independent crime and is qualified under Article 166 of the Criminal Code of the Republic of Kazakhstan. The objective side of high treason in the form of espionage fully fits the description contained in Article 166 of the Criminal Code of the Republic of Kazakhstan and will be considered when analyzing this crime.      

The issuance of state secrets consists in the deliberate communication by a citizen of the Republic of Kazakhstan to representatives of a foreign state or a foreign organization of information constituting state secrets.      

The concept of state secrets is defined in the Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999 (with subsequent amendments and additions). They are understood to mean information protected by the state that constitutes state and official secrets, the dissemination of which is limited by the state in order to carry out effective military, economic, scientific, technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-investigative and other activities that do not conflict with generally accepted norms of international law.      

The issuance of state secrets can be carried out in any way (orally, in writing, by transmitting diagrams, maps, samples, and so on).     

Unlike espionage, the issuance of state secrets consists in the communication or transmission of information that the perpetrator has in his service or work, so he does not need to collect or steal them. These forms of high treason also differ in the subject of the crime. When issuing state secrets, the subject of a crime may be only information constituting state secrets, and in espionage, information constituting state secrets and any other information that may be used to the detriment of the external security and sovereignty of the Republic of Kazakhstan.      

The issuance of state secrets is recognized as a completed crime from the moment the information constituting it is transferred to a foreign state, a foreign organization or their representatives.     

Other assistance to a foreign state, a foreign organization or their representatives in carrying out hostile activities against the Republic of Kazakhstan is characterized by the commission by a citizen of the Republic of Kazakhstan of various acts aimed at assisting them in carrying out intelligence and other subversive activities in order to undermine or weaken the external security and sovereignty of the Republic of Kazakhstan, if they are not covered by other forms of high treason.      

Unlike defecting to the enemy, treason in the form of assistance to a foreign state, a foreign organization or their representatives in carrying out hostile activities against the Republic of Kazakhstan is committed, as a rule, in peacetime. If such actions are committed during wartime, then assistance is provided to the side that is not at war with our state.     

The crime is considered completed not from the moment of giving consent to conduct hostile activities, but from the moment when a citizen of the Republic of Kazakhstan actually provides assistance to a foreign state, a foreign organization or their representatives in such activities.      

A foreign State is any State that carries out hostile activities against the Republic of Kazakhstan. At the same time, it acts as its official bodies and organizations, their officials or official representatives.      A foreign organization is any non–governmental or interstate organization conducting hostile activities against the Republic of Kazakhstan. She also acts in the person of officials or official representatives.      

Representatives of a foreign state or a foreign organization include any persons who, without being their official representatives, carry out orders from a foreign state or a foreign organization to conduct hostile activities against the Republic of Kazakhstan.      

The subjective side of treason is characterized only by direct intent. The subject must be aware that he is committing illegal actions, foresee harm to the interests of the external security and sovereignty of the Republic of Kazakhstan and desire the occurrence of this harm.     

In addition to the guilt of treason, the purpose of committing this crime has a mandatory criminal significance. Based on the disposition of Article 165 of the Criminal Code of the Republic of Kazakhstan, high treason is committed only with the aim of "undermining or weakening the external security and sovereignty of the Republic of Kazakhstan." If the actions of the perpetrator fall under the signs of the objective side of high treason, but are committed for a different purpose, then this person will not be prosecuted for high treason, but will be prosecuted for other acts, for example, for illegally obtaining and disclosing state secrets (Article 172 of the Criminal Code of the Republic of Kazakhstan).      

The motives for treasonous actions can be very diverse: political, mercenary, and others. Their content does not matter for the qualification of a crime, but it can be taken into account when imposing punishment.      Only a citizen of the Republic of Kazakhstan who has reached the age of 16 can be a subject of high treason. The issuance of state secrets as a form of treason presupposes the presence of a special entity — a person who possesses information that constitutes state secrets based on the specifics of his work.     

165 of the Criminal Code of the Republic of Kazakhstan provides for committing treason under aggravating circumstances during a war or armed conflict.      

Wartime is the period from the moment of the declaration of a state of war or the actual outbreak of hostilities until the moment of the announcement of the cessation of hostilities, but not before their actual cessation.      

A combat situation is the time when a military unit is in direct contact with the enemy.     

According to the note to Article 165 of the Criminal Code, a subject can be released from criminal liability for a committed crime if there are two conditions. First, it is necessary that he voluntarily and timely notify government agencies or otherwise contribute to preventing damage to the interests of the Republic of Kazakhstan. Secondly, there should be no other corpus delicti in the actions of a citizen of the Republic of Kazakhstan other than high treason.      

Note to Article 165 of the Criminal Code, as a circumstance exempting a citizen of the Republic of Kazakhstan from criminal liability for high treason, it also applies to espionage (Article 166 of the Criminal Code) and the forcible seizure of power or forcible retention of power or the exercise by representatives of a foreign state or a foreign organization of powers within the competence of authorized bodies and officials of the Republic of Kazakhstan (Article 168 CC).

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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