Commentary on Article 148. Unlawful Violation of the Secrecy of Correspondence, Telephone Conversations, Postal, Telegraphic or Other Communications of the Criminal Code of the Republic of Kazakhstan
1. Unlawful violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other communications of individuals —
shall be punishable by a fine in the amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.
2. The same act committed by a person through the use of their official position or special technical means intended for the covert acquisition of information, or through unlawful access to electronic information resources or an information system, or through the unlawful interception of information transmitted over telecommunication networks —
shall be punishable by imprisonment for a period of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a period of two to five years.
The public danger of the crime is expressed in the violation of the constitutional right to the secrecy of correspondence, telephone conversations, postal, telegraphic or other communications, guaranteed by paragraph 2 of Article 18 of the Constitution of the Republic of Kazakhstan. Restrictions on this right are permitted only in cases and according to the procedure expressly established by law.
The object of the crime is the constitutional right of citizens to the secrecy of correspondence, telephone conversations, postal, telegraphic and other communications. This right is a type of the right to privacy (paragraph 1 of Article 18 of the Constitution of the Republic of Kazakhstan). However, in this case, it is not required that correspondence, telephone conversations, postal and other communications contain information constituting personal or family secrets. Article 148 of the Criminal Code protects the secrecy of correspondence, telephone conversations, postal and other communications themselves, regardless of their nature and content.
The subject matter of the crime includes postal or telegraphic correspondence, telephone conversations, postal, telegraphic and other communications.
For the qualification of the crime, the medium carrying the information and its content are irrelevant.
The objective side of the crime is expressed in the commission by the perpetrator of actions aimed at violating the secrecy of correspondence, telephone and telegraphic communications. Such a violation consists of becoming acquainted, without the consent of the person exercising this right, with the contents of postal, telegraphic and other correspondence addressed to that person, as well as with their telephone conversations. The legislator provides an exhaustive list of methods of encroachment.
Other communications include messages transmitted by telefax, teletype, electronic mail, messages sent through technical communication channels, etc., where the correspondence becomes known to other persons without the consent of the addressee.
A violation of the secrecy of correspondence, telephone conversations, postal, telegraphic and other communications occurs when correspondence becomes known to other persons without the consent of the addressee.
Lawful cases of becoming acquainted with citizens' correspondence include cases where correspondence is seized in connection with the investigation of a criminal case for the purpose of seizing specific items and documents relevant to the case, provided that their exact location and the person in whose possession they are held are known, as well as property subject to confiscation in accordance with Article 253 of the Criminal Procedure Code. Such seizure is carried out by the person conducting the pre-trial investigation on the basis of a reasoned resolution. A resolution authorizing a search, as well as the seizure of documents containing state secrets or other legally protected secrets, must be sanctioned by an investigating judge in accordance with paragraph 1 of Article 254 of the Criminal Procedure Code.
By its legal construction, the corpus delicti is formal. The crime is considered completed from the moment a person unlawfully becomes acquainted with correspondence, telephone conversations, postal, telegraphic and other communications, regardless of the consequences.
From the subjective side, the crime under consideration may be committed only with direct intent. The perpetrator realizes that they are violating the secrecy of correspondence, telephone conversations, postal, telegraphic or other communications, foresees the possibility or inevitability of undesirable consequences for the victim resulting from their actions, and desires their occurrence.
The motives for committing this crime may vary (envy, revenge, curiosity, etc.); they do not affect the qualification of the crime but are taken into account by the court when imposing a sentence.
The subject of the crime is a sane individual who has reached the age of 16.
Part 2 of Article 148 of the Criminal Code provides for liability for: 1) the perpetrator's use of their official position; 2) the use of special technical means intended for the covert acquisition of information; 3) unlawful access to electronic information resources or an information system; 4) unlawful interception of information transmitted through an information and communication network.
Persons who have the opportunity to become acquainted with correspondence, telephone conversations, postal, telegraphic or other communications may use their official position (for example, postal workers, telegraph operators, employees of other communication services, and law enforcement officials).
The use of special technical means intended for the covert acquisition of information increases the possibility of obtaining more complete information and, consequently, increases the degree of public danger of the act. Special technical means intended for the covert acquisition of information are understood to mean devices and other equipment that record, capture and decrypt information.
Information stored electronically in information systems is referred to as an electronic information resource, or, in other words, a database. Electronic information resources are characterized by a significant volume and structured nature of data, as well as their specific functional purpose.
Information stored electronically in information systems operating within an open information and communication network is classified as Internet resources.
An information system is a system designed to store, process, search, distribute, transmit and provide information through the use of a hardware and software complex.
Pursuant to Article 32 of the Law of the Republic of Kazakhstan dated November 24, 2015, “On Informatization,” electronic information resources are classified, by form of ownership, as state-owned and non-state-owned, and by degree of access, as publicly accessible and restricted-access resources.
Electronic information resources created, acquired and accumulated at the expense of budgetary funds, as well as those obtained by state bodies through other means established by the laws of the Republic of Kazakhstan, are state-owned.
Electronic information resources created and acquired at the expense of funds belonging to individuals and legal entities, as well as those obtained by them through other means established by the laws of the Republic of Kazakhstan, are non-state-owned.
Electronic information resources that are provided or distributed by their owner or holder without specifying access or use conditions, as well as information to which access is unrestricted and does not depend on the form in which it is presented or the method of its distribution, are publicly accessible.
Electronic information resources containing information to which access is restricted by the laws of the Republic of Kazakhstan or by their owner or holder in cases established by the legislation of the Republic of Kazakhstan are restricted-access electronic information resources. Restricted-access electronic information resources are divided into electronic information resources containing information constituting state secrets and confidential electronic information resources.
Consequently, the following should be classified as information systems constituting the subject matter of the crime under consideration:
information systems containing state electronic information resources classified as state secrets;
information systems containing confidential electronic information resources, including those containing personal data and legally protected secrets;
other information systems to which access is restricted by their owner or holder.
Unlawful access to information protected by law and contained on an electronic storage medium is expressed in obtaining the possibility of directly taking possession of such information and may be carried out either by overcoming the protection measures established by the owner (holder) of the electronic storage medium or without doing so.
Unlawful access to an information system is expressed in obtaining the possibility of directly using at least one of the system's functions: storage, processing, search, distribution, transmission and provision of information. Unlawful access to an information system is generally carried out by overcoming its protection measures: legal, organizational and technical (software and hardware) measures.
Access is carried out exclusively by means of software and hardware.
Unlawful access to an information system or database may be carried out directly through the computer (server) on which the information system or database operates, or through a computer (workstation) previously connected to the information system, as well as remotely, including via the Internet.
An information and communication network is a combination of technical and hardware and software means that ensure interaction between information systems or their components, as well as the transmission of information resources. Unlawful interception of information transmitted through an information and communication network results in obtaining the possibility of directly taking possession of that information.
By its legal construction, the corpus delicti is formal.
The subject of the crime under Part 2 of Article 148 of the Criminal Code is special, since it may be a person possessing official powers, as well as a person having access to special technical means, electronic information resources, an information system or an information and communication network.
The act provided for in Part 1 of Article 148 of the Criminal Code is classified as a minor crime.
The act provided for in Part 2 of Article 148 of the Criminal Code is classified as a crime of medium gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored 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 Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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