Comment to Article 356. Disclosure of information on security measures applied to judges and participants in criminal proceedings of the Criminal Code of the Republic of Kazakhstan
1. Disclosure of information about security measures applied to judges, bailiffs, bailiffs, victims, witnesses, other participants in criminal proceedings, as well as their relatives, if this act was committed by a person to whom the information was entrusted or became known in connection with his official activities, — is punishable by a fine in the amount of two hundred to four hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to four months, or by restriction of liberty for a term of up to two years, or by arrest for a term of up to four months. 2. The same act, which entailed grave consequences, is punishable by imprisonment for up to five years.
The public danger of this crime consists in violation of the security measures taken by the court in relation to participants in the criminal process, violation of the principle of The Constitution of the Republic of Kazakhstan on the inviolability of the person, equality of all before the law and the court.
The object of this crime is the normal work of judicial authorities in the administration of justice, as well as the safety of participants in the criminal process and their loved ones. Thus, this crime is a two-object one. The objective side of the crime in question is the disclosure of information about the security measures applied to the judge and participants in the criminal process, as well as in relation to their loved ones.
Disclosure refers to the unlawful disclosure of information about security measures taken by law enforcement agencies against judges, bailiffs, bailiffs, victims, witnesses, other participants in criminal proceedings, as well as their relatives. Other participants in the criminal process against whom security measures may be taken include the prosecutor (public prosecutor), investigator, inquirer, suspect, accused, their legal representatives, defense counsel, civil defendant, his legal representative and representative, private prosecutor, civil plaintiff, their legal representatives and representatives., the secretary of the court session, the interpreter, the understood, the expert, the specialist (art. 7 CPC). Their parents, adoptive parents, guardians, and guardians are recognized as the legal representatives of these persons (Article 7 of the CPC).
The objective side of the crime under consideration also includes the disclosure of information about security measures not only in relation to these persons, but also their loved ones. Close relatives and other close people are considered close. Parents, children, adoptive parents, adopted children, full- and half-siblings, grandparents, and grandchildren are considered close relatives (Article 7 of the CPC). Other relatives should include the husband (wife), the bride (groom), and a close friend. Information about security measures can include information about the nature of the security measures taken, personal data, place of residence, place of work, place of residence of the person against whom security measures are being taken, information about his relatives and friends, about the doctor who changed his appearance, etc.
The crime contains a formal composition and is considered completed from the moment when this information became known to at least one outsider. Anyone should be considered an outsider, including a family member, friend, relative of the subject of the crime in question, or a person against whom security measures are being taken.
An outsider is also recognized as a colleague who, by the nature of the work performed or official duties, is not related to information about security measures. Consequently, the very fact of working together at a given enterprise or institution does not exclude the recognition of a person as an outsider if, by the nature of his duties, he is not allowed to access this information.
At the same time, it does not matter whether or not someone used the disclosed information to the detriment of the security of the protected persons. On the subjective side, this crime belongs to the categories of intentional and can be committed with both direct and indirect intent. The person who discloses information about the security measures applied to the judge and the participants in the process is aware of the public danger of his act.
The subject of the crime in question can only be a person to whom the relevant information has been entrusted or has become known in connection with his official activities. The persons to whom this information is entrusted include those who directly decide on the need to take security measures against the judge and the participants in the process. In accordance with Part 2 of art . 99 CPC The body conducting the criminal procedure takes measures to ensure the safety of the victim, witness, accused, other persons participating in the criminal process, as well as their family members and close relatives on the basis of their oral (written) statements or on their own initiative, and issues an appropriate resolution. The first part of paragraph 10 of Article 7 of the CPC refers to the bodies conducting criminal proceedings as the court, the prosecutor, the investigator, the body of inquiry and the inquirer. Thus, the decision on taking security measures can be made by a judge, prosecutor, investigator, or inquirer.
In addition to these officials, persons who are entrusted with information about security measures include those who ensure the enforcement of the security measures decree. Part 6 of Article 101 of the CPC imposes the duty of executing a court order to ensure the safety of participants in the trial, in addition to the criminal prosecution authorities, also on the bailiff. All of the listed officials may be the subject of the crime in question as persons who are entrusted with information about the security measures of the participants in the process.
Another category of special subjects of the crime under consideration are persons who have become aware of information about the security measures of the participants in the process through work or in connection with official activities. Such a person may be considered an employee to whom the specified information was not provided for use, but who became familiar with it in the performance of his official duties.
These include those employees who, due to accidental circumstances, become aware of information about the security measures taken against the judge and the participants in the process. For example, while cleaning the room, a cleaner read a document lying on the table, which contained information about security measures in relation to an important witness in a criminal case. Such a leak of information is possible due to an unfair attitude towards their official duties on the part of those to whom this information was entrusted.
If the specified information is passed on by an official to someone for remuneration, responsibility arises for the totality of crimes provided for in Articles 356 and 311 of the Criminal Code (Receiving a bribe).
If the person to whom the specified information was not entrusted and did not become known in connection with his official activities becomes aware of information about the security measures being taken against the judge or participants in the process (overheard a telephone conversation, heard from the bearer of this information, accidentally found documents with the specified information, etc.) and he disclosed this information, then the composition of the crime in question in his actions will be absent, since he cannot be recognized as the subject of this crime.
In part two of the analyzed article of the Criminal Code, the onset of serious consequences is indicated as a qualifying feature. These include such consequences as murder, causing serious harm to the health of a person against whom security measures have been taken. A serious consequence of the commission of this crime can be recognized as the receipt of information about the security measures taken against the judge or the participants in the process to persons interested in the outcome of the case, who later used this information to counteract the investigation process or the consideration of the case in court.
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
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