Commentary on Article 138. Disclosure of the Secret of Adoption (Adoption of a Girl) of the Criminal Code of the Republic of Kazakhstan

Disclosure of the secret of adoption (adoption of a girl) against the will of the adoptive parent, committed by a person obliged to keep the fact of adoption confidential as an official or professional secret, or by another person for mercenary or other base motives, —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and eighty hours, or arrest for a period of up to fifty days, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

The social danger of the criminal misdemeanour provided for in Article 138 of the Criminal Code is expressed in causing suffering to a minor, which may lead to an adolescent leaving the family, conflicts arising between the minor and the adoptive parent, and, in some cases, suicide.

Psychological harm may also be caused to the adoptive parents of the child. Disclosure of the secret of adoption significantly complicates the process of raising the child. Harm is also caused to the family.

The object of the criminal offence under consideration, in the form of a criminal misdemeanour, is the social relations that ensure the normal functioning of the family and the conditions necessary for the normal development and formation of the personality of a minor.

In criminal law scholarship, various points of view have been expressed regarding the object of Article 138 of the Criminal Code, as well as on many other issues related to this problem.

The protection of privacy in general and the secrecy of adoption in particular has a constitutional basis. Article 18 of the Constitution of the Republic of Kazakhstan states: “Everyone shall have the right to privacy, personal and family secrets, and protection of their honour and dignity.” In accordance with Article 53 of the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”, private life and personal and family secrets are protected by law (Part 1). Officials carrying out the state registration of civil status acts, as well as other persons who have otherwise become aware of information concerning private life, are obliged to preserve personal and family secrets (Part 2).

Disclosure of information concerning the private and family life of citizens entails liability established by the laws of the Republic of Kazakhstan (Part 3).

Employees of registration authorities are not entitled, without the consent of the adoptive parent, to communicate any information about the adoption or issue documents containing information indicating that the adoptive parents are not the biological parents of the adopted child (Part 4).

Information about adoption shall be provided upon requests from state bodies within the limits of their competence established by the legislation of the Republic of Kazakhstan.

According to paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Application by Courts of Legislation on the Adoption (Adoption of Girls) of Children”, in order to ensure the secrecy of adoption protected by law, the court, in accordance with Part 2 of Article 19 and Article 314 of the Civil Procedure Code, shall hear cases in this category in a closed court session, including the announcement of the court decision. Taking into account that the consideration of adoption cases in a closed court session is provided for by law, the judge, at the stage of preparing the case for trial, must make such a decision and indicate this in the ruling scheduling the case for judicial proceedings.

At the court hearing, the court must warn the persons participating in the consideration of the case against disclosing information that became known to them during the consideration of the application, as well as about the possibility of bringing them to criminal liability for disclosing the secret of adoption. This must be recorded in the minutes of the court hearing, either in writing or in the abbreviated minutes and the audio recording of the court hearing.

The victims of disclosure of the secret of adoption (adoption of a girl) are: adopted children (a child), as well as their adoptive parents.

The objective side is expressed in the disclosure of the secret of adoption (adoption of a girl) against the will of the adoptive parent, that is, in communicating to the adopted child, as well as to any other person, information about their actual origin (who their biological parents are), as well as other circumstances and details related to the adoption (adoption of a girl).

Disclosure of the secret of adoption (adoption of a girl) means a communication made by the perpetrator in any form (orally or in writing) that a person considered to be someone's son (daughter) does not actually originate from those parents and was not born to them. The communication may also be anonymous. The offence is considered completed if the information becomes known to at least one person. The age of the adopted person is also irrelevant: a criminal offence may take place after they have reached the age of majority. Cases in which the secret of adoption is violated after the death of the adoptive parent must also be classified as disclosure of the secret of adoption.

Adoption must be duly formalised, namely, by a court decision. Therefore, disclosure of information about adoption that has not been legally formalised in the prescribed manner (de facto adoption) does not constitute the elements of a criminal offence within the meaning of Article 138 of the Criminal Code.

If adoption (adoption of a girl) is carried out by spouses, liability for disclosure of the secret of adoption arises when such actions are committed against the will of one of the adoptive spouses. It should be noted that in criminal law scholarship there is an opinion on this matter according to which, if at least one of the adoptive parents (where the adoption was carried out by spouses) has consented to the disclosure of the secret of adoption (adoption of a girl), the elements of a crime are absent. Others, however, believe that the elements of a crime exist in this case as well. The latter position should be supported. This conclusion follows from a literal interpretation of Article 138 of the Criminal Code, according to which the unlawful act consists in “disclosure of the secret of adoption (adoption of a girl) against the will of the adoptive parent”. The objective side of the criminal misdemeanour is present when one adoptive parent discloses the secret of adoption against the will of the other adoptive parent, since the law refers to the adoptive parent in the singular.

The will of the adoptive parent should be understood as the joint will of the spouses who adopted the child, as well as the will of each of them individually. The will of one of the spouses not to disclose the secret of adoption precludes the possibility of disclosing the secret of adoption. Consequently, disclosure of the secret of adoption in this case entails criminal liability.

The current legislation of the Republic of Kazakhstan (the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”) regulates in sufficient detail the conditions, procedure and legal consequences of adoption, as well as the grounds and procedure for terminating adoption, which makes it possible to ensure the rights and interests of both the child and persons wishing to adopt the child.

The elements of the criminal misdemeanour under consideration are formal. It is considered completed from the moment the fact of adoption (adoption of a girl) is made public, that is, when information of a confidential nature becomes known to outsiders or at least one person, regardless of whether the adopted person has become aware of it.

From the subjective side, the criminal misdemeanour may be committed with direct intent: the perpetrator is aware that they are violating the secret of adoption against the will of the adoptive parent and wishes to commit these actions. The motive is mercenary or other base motives. A motive is required for the existence of the elements of the criminal misdemeanour provided for in Article 138 of the Criminal Code only when disclosure is carried out by a person who is not obliged to keep the fact of adoption confidential as an official or professional secret.

Mercenary motives are defined as the desire to obtain material benefits in the form of monetary remuneration, other material assets or benefits of a material nature.

Other base motives are aspirations characterised by pronounced immorality, incompatibility with the moral values of society, and a desire to cause harm out of revenge, etc.

Disclosure of the secret of adoption through negligence does not constitute a criminal misdemeanour.

The subject is a person obliged to keep the fact of adoption confidential as an official or professional secret, as well as any other person who meets the requirements for a general subject and acts out of mercenary or other base motives.

When qualifying the disclosure of the secret of adoption (adoption of a girl), this offence must be distinguished from such a crime as violation of privacy and the legislation of the Republic of Kazakhstan on personal data and their protection (Article 147 of the Criminal Code).

Article 147 of the Criminal Code establishes criminal liability for the unlawful collection, without a person's consent, of information about their private life constituting their personal or family secret, or for causing substantial harm to a person's rights and legitimate interests as a result of the unlawful collection and/or processing of other personal data (Part 2 of Article 147 of the Criminal Code), or for the dissemination of such information about private life (Part 4 of Article 147 of the Criminal Code). Indeed, the provision under consideration is general in relation to the provision contained in Article 138 of the Criminal Code, since it covers such an act as the dissemination of information constituting a family secret, which includes the secret of adoption (adoption of a girl). These criminal offences are also united by such a characteristic as the commission of the relevant acts against the will of persons for whom the preservation of this secret is a significant matter. At the same time, the establishment of criminal liability for disclosure of the secret of adoption has independent significance.

Firstly, Article 138 of the Criminal Code provides for a criminal misdemeanour, whereas Article 147 of the Criminal Code provides for a crime of medium gravity and, in its aggravated form, a serious crime (Part 5 of Article 147 of the Criminal Code). Accordingly, the legal consequences also differ.

Secondly, the victim of the criminal misdemeanour provided for in Article 138 of the Criminal Code is not an individual person, but the family, represented by the adopted child (adopted girl) and their adoptive parents. This indicates the existence of such an object as the interests of the family and minors.

Thirdly, information about adoption constitutes not only a family secret but also an official and professional secret, the preservation of which is a legal obligation for the perpetrators. Therefore, the subject matter and the subjective composition of the criminal misdemeanour provided for in Article 138 of the Criminal Code are special.

Fourthly, the concept of “family secret” is broader than the concept of “secret of adoption (adoption of a girl)”.

Fifthly, criminal cases concerning crimes provided for in Parts 1 and 2 of Article 147 of the Criminal Code are considered cases of private prosecution, and proceedings in such cases are initiated only upon a complaint by the victim and are subject to termination upon reconciliation between the victim and the accused or defendant (Part 2 of Article 32 of the Criminal Procedure Code). Disclosure of the secret of adoption (adoption of a girl), provided for in Article 138 of the Criminal Code, is prosecuted under the private-public prosecution procedure. Proceedings in such cases are initiated only upon a complaint by the victim and are subject to termination upon reconciliation with the suspect, accused or defendant only in the cases provided for in Article 68 of the Criminal Code (Part 3 of Article 32 of the Criminal Procedure Code).

In light of the above, it can be concluded that the disclosure of information constituting a family secret and the disclosure of the secret of adoption differ in terms of their object, subject matter, circle of victims, perpetrators and motives, as well as the category of these criminal offences and the type of criminal prosecution applicable to them.

In conclusion, I would like to note that, according to a number of authors, distinguishing the disclosure of the secret of adoption (adoption of a girl) as an independent offence is inappropriate. The argument is that criminal legislation already contains a general provision established by Article 147 of the Criminal Code.

The act provided for in Article 138 of the Criminal Code is classified as a criminal misdemeanour.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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