Comment to Article 386. Disclosure of classified military information or loss of documents containing classified military information of the Criminal Code of the Republic of Kazakhstan
1. Loss of documents or items containing classified information of a military nature that do not contain state secrets by a person to whom these documents or items are entrusted in the service, if the loss was the result of a violation of the established rules for handling these documents and items, —
is punishable by restriction on military service for a term of up to one year, or by arrest for a term of up to six months, or by imprisonment for a term of up to one year.
2. Disclosure of classified military information that does not contain state secrets by a person to whom this information was entrusted or became known in the service, —
is punishable by restriction on military service for a term of up to two years or imprisonment for the same term.
3. The acts provided for in the first or second parts of this Article, which have entailed grave consequences, shall be punishable by imprisonment for a term of three to ten years.
The public danger of this crime is determined by the fact that as a result of the disclosure of military secrets or the loss of documents containing classified military information, they may become information of foreign intelligence services and be used to the detriment of the national interests and security interests of the Republic of Kazakhstan.
Strict preservation of military secrecy is one of the most important requirements of military discipline, enshrined in the military oath and military regulations. It is aimed at ensuring the high defense capability of the state and the constant combat readiness of the army and navy.
The disclosure of military secrets is always fraught with serious consequences for the security of the state and the combat readiness of its Armed Forces.
The immediate object of this crime is the military secrecy procedure established in the Armed Forces of the Republic of Kazakhstan, which does not contain a state secret.
In accordance with the Charter of the Internal service of the Armed Forces of the Republic of Kazakhstan, a serviceman is obliged to: be vigilant, strictly keep military and state secrets.
The Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999 (as last amended and supplemented) defines the legal framework and a unified system for protecting state secrets in the interests of ensuring the national security of the Republic of Kazakhstan, regulates public relations arising in connection with the classification of information as state secrets, their classification, disposal, protection and declassification.
In accordance with this law:
state secrets are information protected by the state, constituting state and official secrets, the dissemination of which is limited by the state in order to carry out effective military, economic,
scientific and technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-investigative and other activities that do not conflict with generally accepted norms of international law;
state secret — information of a military, economic, political and other nature, the disclosure or loss of which causes or may cause damage to the national security of the Republic of Kazakhstan;
official secret — 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;
disclosure of state secrets is the communication, transmission, provision, forwarding, publication or communication of state secrets by any other means to legal entities and individuals who are not granted the right to familiarize themselves with them.;
The loss of state secrets is the withdrawal, including temporary, of information constituting state secrets from legal possession or use as a result of loss or theft.
State secrets in the military field include:
information disclosing plans for the use of troops, operational plans, combat management documents, documents on bringing troops to various degrees of combat readiness;
information on the strategic deployment of the Armed Forces of the Republic of Kazakhstan;
information on the development, strength, combat strength or number of troops, their combat readiness, as well as on the military-political and (or) operational situation;
information revealing the state of operational (combat) training of troops, the security of their activities, the composition and (or) the state of command and control systems;
information on the mobilization deployment of troops, the mobilization of human and transport resources, the mobilization deployment management system and (or) the possibilities of recruiting troops, providing weapons, military equipment and other material, financial resources, as well as military transportation;
information that reveals directions, long-term forecasts or plans for the development of weapons and military equipment, the content or results of targeted programs, research, development work on the creation or modernization of weapons and military equipment, their tactical and technical characteristics;
information revealing the directions of development, design, manufacturing technology, isotopic composition, combat, physical, chemical or nuclear properties, the procedure for the use or operation of weapons and military equipment; information revealing production facilities, planned or actual data on the production and (or) supply (in kind) of bacterial or medical protection products;
information that reveals the achievements of nuclear science and technology that are of important defense and economic importance or determine a qualitatively new level of capabilities for creating weapons and military equipment and (or) fundamentally new products and technologies.;
information revealing the properties, formulation, or technology of production of rocket fuel, ballistic powders, explosives, or military explosives, as well as new alloys, special liquids, and fuels for weapons and military equipment;
information disclosing the location, valid names, organizational structure, armament, number of troops not included in the list of facilities subject to public announcement in accordance with the international obligations of the Republic of Kazakhstan;
information on the use of the infrastructure of the Republic of Kazakhstan in the interests of ensuring its defense capability and security;
information on the location, purpose, degree of readiness or security of sensitive facilities that do not fall under the obligations of the Republic of Kazakhstan under international treaties, on the selection, allocation of land, subsoil or water areas for the construction of these facilities, as well as on planned or ongoing exploration, design and other work to create these facilities. The same information applies to special facilities of state authorities;
information on the use or prospects for the development of the interconnected communication network of the Republic of Kazakhstan in the interests of ensuring the defense capability and security of the state;
summary information with diagrams and descriptions containing geographical coordinates of long-distance trunk communication lines, including spare communication nodes leased by the Government, the Ministry of Defense, the National Security Committee and the Ministry of Internal Affairs of the Republic of Kazakhstan, indicating data on their capacities;
information disclosing the distribution or use of radio frequency bands by military or special-purpose radio-electronic devices;
information revealing the organization or functioning of all types of communications, radar, and radio engineering support for troops;
information revealing the content, organization or results of the main activities of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan;
information revealing the directions of development of dual-use facilities, technologies, content, results of targeted programs, research and (or) development work on the creation or modernization of these facilities, technologies;
information on the use of dual-use equipment and technologies for military purposes;
information on the development prospects and (or) the use of the space infrastructure of the Republic of Kazakhstan in the interests of ensuring its defense capability and security;
information that reveals the state and (or) directions of development of hydroonautics in the interests of defense and security of the state.
The objective side of this crime consists of two separate criminal offences:
1) loss of documents or items containing classified military information that does not contain state secrets;
2) disclosure of classified military information that does not contain state secrets.
The loss of documents or items containing classified military information (Part 1 of Article 386 of the Criminal Code of the Republic of Kazakhstan) consists in an action (for example, in sending a document in violation of established rules, as a result of which the document was lost). The act is also characterized by inaction, which resulted in the violation by the perpetrator of the established rules for handling classified documents and entailed harmful consequences (the release of documents and items from the possession of the serviceman to whom they were entrusted). There must be a causal relationship between the violation and the loss of documents and items.
If, as a result of violation of the established rules, documents or items that contain state secrets are lost, then this act constitutes a crime under Article 173 of the Criminal Code of the Republic of Kazakhstan.
The rules for handling classified documents are understood to mean the procedure established in the Armed Forces by relevant instructions and orders for the use of documents and items containing classified military information, as well as the rules for their storage, reproduction, shipment, transportation, and so on. For the composition of the loss of documents or items, it does not matter whether the document or item has left the person's possession at all or only for a while. At the same time, it is important to establish whether there was a real possibility of other persons taking possession of the document. If there was no such possibility, then there is no corpus delicti.
The objective side of Part 2 of Article 386 of the Criminal Code of the Republic of Kazakhstan is expressed in the disclosure of classified military information that does not contain a state secret. This act can be carried out by making public the specified information orally (in conversation, conversation, lecture, report, by means of communication, on radio and television) or in writing (printed and written documents).
Disclosure also refers to various forms of showing documentation, objects, and objects to outsiders. Passive acts of disclosure of secrets are possible, for example, leaving documents and objects in such a way that unauthorized persons gain easy access to them and get acquainted with them.
The crime is considered completed from the moment the person leaves possession of the documents or objects entrusted to him, regardless of whether they were in the possession of an outsider and from the moment when secret information became available to at least one person who should not have known it.
On the subjective side, the crime is characterized by a careless form of guilt in the form of arrogance and negligence.
The subject of the crime is a special one, i.e. a military man to whom documents or items containing classified information were entrusted in the service or became known in the service (Part 2 of Article 386 of the Criminal Code), regardless of official position and military rank.
Grave consequences, within the meaning of Part 3 of Article 386 of the Criminal Code of the Republic of Kazakhstan, should be considered the use of information and lost documents contrary to the interests of the Republic of Kazakhstan, the disruption of a military operation during wartime or in a combat situation due to the disclosure of classified military data.
The crimes provided for in Parts 1 and 2 of art. 386 of the Criminal Code of the Republic of Kazakhstan are minor crimes.
The crime provided for in Part 3 of Article 386 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
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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