Comment to Article 172. Illegal receipt, disclosure of state secrets of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Collecting information constituting state secrets by stealing documents, bribing or threatening persons in possession of state secrets or their relatives, intercepting communications, illegally entering a computer system or network, using special technical means, as well as by other illegal means in the absence of signs of high treason or espionage -      

is punishable by arrest for a term of four to six months or imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities.      

2. Disclosure of information constituting a state secret by a person to whom this secret has been entrusted or has become known through service or work, in the absence of signs of high treason. -      

is punishable by arrest for a term of three to six months or imprisonment for a term of up to three years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.      

3. Disclosure of information constituting an official secret by a person to whom it was entrusted or became known through service or work, in the absence of signs of high treason, if this entailed grave consequences., -      

is punishable by a fine in the amount of two hundred to five hundred 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 arrest for up to four months, or by imprisonment for up to two years with deprivation of the right to hold certain positions or engage in certain activities for up to two years or without one.    

4. The acts provided for in the first or second parts of this Article, if they have entailed the occurrence of grave consequences -      

is punishable by imprisonment for a term of up to eight years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     The public danger of this crime lies in the fact that illegally collected or disclosed information constituting state secrets may become the property of foreign intelligence services and cause damage to the national security of the Republic of Kazakhstan.      

The immediate object of the crime is public relations that ensure the safety of state secrets.     

The subject of the crime is information that constitutes State secrets.      

The procedure for handling state secrets is carried out in accordance with the Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999 (with subsequent amendments and additions).      

The objective side of the crime is characterized by the commission of one of the following acts:     

1. collection of information constituting state secrets;      

2. disclosure of information constituting a state secret;      

3. disclosure of information constituting an official secret.      

Collecting information constituting state secrets entails liability under this article if there are no signs of treason or espionage in the act of the perpetrator. This means that the culprit, when collecting information constituting state secrets, does not establish the existence of a goal to undermine or weaken the external security and sovereignty of the Republic of Kazakhstan or the purpose of transmitting this information to a foreign state, a foreign organization or their representatives.     

The procedure for handling documents and items containing classified information is carried out in accordance with the Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999 (as amended and supplemented) and is regulated by the Instructions on Ensuring Secrecy in the Republic of Kazakhstan dated March 24, 1993.     

Collecting information constituting state secrets is defined as actions aimed at illegally obtaining this information. Part 1 of Article 172 of the Criminal Code lists the most common ways of collecting information constituting state secrets:      

- theft of documents;      

- bribery or threat against persons in possession of state secrets or their relatives;      

- interception of communications;      

- illegal entry into a computer system or network;      

- the use of special technical means.      

This list of methods of collecting information constituting state secrets is not exhaustive, since the law allows the use of any other methods of collecting this information. For example, in the form of information exchange, obtaining this information through abuse of trust, etc.      

The crime provided for in Part 1 of Article 172 of the Criminal Code is considered completed from the moment the guilty party receives information constituting state secrets.      

On the subjective side, Part 1 of Article 172 of the Criminal Code of the Republic of Kazakhstan is characterized by guilt in the form of direct intent, i.e. the guilty person realizes that as a result of the committed actions he becomes the owner of information constituting state secrets to which he does not have legal access.      

172 of the Criminal Code of the Republic of Kazakhstan provides for liability for "disclosure of information constituting a state secret by a person to whom it was entrusted or became known through service or work, in the absence of signs of high treason."      The subject of Part 2 of Article 172 of the Criminal Code of the Republic of Kazakhstan is information constituting a state secret. In accordance with the Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999 (as amended dated 16.03.2001, 10.07.2002) state secrets are understood as "information of a military, economic, political and other nature, the disclosure or loss of which causes or may damage the national security of the Republic of Kazakhstan."      Part 2 of Article 172 of the Criminal Code provides for liability for disclosure of information constituting a state secret. Disclosure is defined as "reporting something." The Law of the Republic of Kazakhstan "On State Secrets" states in Article 1 that the disclosure of state secrets means the communication, transmission, provision, forwarding, publication, or bringing state secrets by any other means to legal entities and individuals who are not granted the right to familiarize themselves with them. Thus, disclosure is understood as such unlawful disclosure of information constituting state secrets, in which they become the property of outsiders.      

An obligatory sign of the disclosure of information constituting state secrets is the perception of this information by unauthorized persons who do not have the right to get acquainted with them. Any person who, by the nature of his work or official duties, does not have access to this information, which is a state secret, is recognized as an outsider. A state secret is information of a military, economic, political or other nature, the disclosure or loss of which causes or may cause damage to the national security of the Republic of Kazakhstan. At the same time, close relatives are also recognized as outsiders if they do not have access to this information. Access to classified information is issued in accordance with the procedure established by the Instructions for ensuring secrecy.      

Disclosure can be committed by either action or omission.      

Through action, disclosure is made, for example, in a confidential conversation, public speaking, the loss of unaccounted-for notebooks and notebooks with extracts from documents containing state secrets, and the like.      

Through inaction, disclosure can be committed, for example, if measures are not taken to disguise a high-security facility, leaving documents, products, tables, diagrams guilty in conditions where unauthorized persons can get acquainted with them; failure to comply with the requirements for storage, transfer, transfer, transportation of documents, goods, products, materials, and so on.     

The crime is considered to be over at the moment when the disclosed information became the property of outsiders who perceived and realized the general meaning.      

This does not require a perception of the totality of the disclosed information, but rather a general understanding of the meaning of the information being made public.      

The subjective side of disclosing information is characterized by guilt in the form of direct and indirect intent.      

When committing a crime with direct intent, the perpetrator is aware of the public danger of his actions, anticipates that as a result, information constituting a state secret will become the property of outsiders, and desires this (for example, publication in the press).      

When disclosing state secrets with indirect intent, the perpetrator is aware of the public danger of his actions in making state secrets public, anticipates that as a result of his actions, this information may become known to outsiders, and deliberately allows unauthorized persons to become familiar with state secrets (for example, during a conversation in a public place).      

The motive for making deliberate disclosure is most often bragging in order to show an outsider their awareness, competence, and the like.    

 The subject of a crime is a special subject — a sane individual who has reached the age of 16, to whom information constituting state secrets has been entrusted or has become known through service or work.      

172 of the Criminal Code of the Republic of Kazakhstan provides for liability for "disclosure of information constituting an official secret by a person to whom it was entrusted or became known through service or work, in the absence of signs of high treason, if this entailed grave consequences."      

On the basis of the Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999, official secrets are understood as "information having the character of separate data that may be part of a state secret, the disclosure or loss of which may harm the national interests of the state, the interests of state bodies and organizations of the Republic of Kazakhstan."      

The corpus delicti provided for in Part 3 of Article 172 of the Criminal Code of the Republic of Kazakhstan is considered completed from the moment of infliction of grave consequences. This feature has an evaluative character and is determined by the court taking into account all the circumstances of the case.

    Disclosure of information constituting a state or official secret is qualified under Part 2 or Part 3 of Article 172 of the Criminal Code of the Republic of Kazakhstan only on condition that there are no signs of high treason described in Article 165 of the Criminal Code of the Republic of Kazakhstan, in the form of espionage or the issuance of state secrets.      

172 of the Criminal Code of the Republic of Kazakhstan provides for liability for "acts provided for in parts one or two of this Article, if they entailed the onset of grave consequences."      

Grave consequences are an estimated category. They can be understood as the transfer of information into the possession of a foreign state that occurred as a result of disclosure, the disruption of a global scientific research program, the arrest or death of intelligence officers.      

The disclosure of State secrets should be distinguished from treason. In case of disclosure, the perpetrator has no desire to harm the external security of the country by transferring information to a foreign state, organization or their representatives. In addition, the concept of the addressee of the issue of state secrets in the sense of the commented article is broader than as part of high treason. Information constituting a State secret may be disclosed to any outsider.

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

The Criminal Code, Comments to the Criminal Code, the Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan