Commentary on Article 16. Inviolability of Private Life of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. Secrecy of correspondence, telephone conversations, postal, telegraphic and other communications
• 2. The private life of citizens, personal and family secrets are protected by law. Everyone has the right to secrecy of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications.
• 3. In the course of criminal proceedings, everyone shall be guaranteed the right to inviolability of private (personal and family) life. Restriction of this right shall be permitted only in cases and in the manner expressly established by law.
• 4. No one shall have the right to collect, store, use or disseminate information about a person's private life without that person's consent, except in cases provided for by law.
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• Information about a person's private life obtained in accordance with the procedure established by this Code may not be used otherwise than for the performance of the tasks of criminal proceedings.
• No one shall be subjected to arbitrary interference with their private and family life, arbitrary attacks on the inviolability of their home, the secrecy of their correspondence, or their honour and reputation. Everyone has the right to the protection of the law against such interference or attacks, — proclaims Article 12 of the Universal Declaration of Human Rights. The rights and freedoms of a person and citizen may be restricted only by laws and only to the extent necessary for the protection of the constitutional order, public order, the rights and freedoms of individuals, and the health and morality of the population, — as established by paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan. The provision under commentary reproduces the provisions of an international instrument and Article 18 of the Constitution and constitutes a constitutional principle of criminal proceedings.
• The secrecy of private life (personal and family) includes a citizen's right to its protection, including the secrecy of correspondence, telephone conversations, diaries, notes, written communications, intimate life, adoption, birth, medical confidentiality, attorney-client privilege, and bank deposits. Disclosure of the secrecy of private life is possible only in cases established by legislative acts (Article 144 of the Civil Code). Thus, violation of the inviolability of private life and of the legislation of the Republic of Kazakhstan on personal data and their protection entails criminal liability (Article 147 of the Criminal Code). The secrecy of correspondence, telephone conversations, postal, telegraphic or other communications is also protected by criminal law (Article 148 of the Criminal Code). Specifically, pursuant to Article 21 of the Law of the Republic of Kazakhstan dated May 21, 2013, “On Personal Data and Their Protection,” the protection of personal data includes the application of a set of measures, including legal, organizational and technical measures, for the purposes of: 1) exercising the rights to inviolability of private life and personal and family secrets; 2) ensuring their integrity and preservation; 3) maintaining their confidentiality; 4) exercising the right of access to them; 5) preventing their unlawful collection and processing. In this regard, maintaining confidentiality and liability for its violation are the most important rules governing the conduct of any proceedings in a case (see the commentary to Article 13 of the Criminal Procedure Code).
• Restrictions on the rights provided for by this provision may arise in connection with an investigation in a criminal case and consist in conducting investigative actions provided for by the Criminal Procedure Code: examination (Articles 223—224), search and seizure (Articles 252—256), covert investigative actions (Article 231), obtaining samples (Articles 262—269), and expert examination (Articles 270—287).
• Significant intrusion into the sphere of private life occurs during operational-search measures, covert investigative actions, and counterintelligence measures in criminal cases. In this regard, legislation in this area also requires the lawful and justified use of information obtained in this manner.
• Thus, pursuant to the Law of the Republic of Kazakhstan dated September 15, 1994, “On Operational-Search Activities,” the conduct of operational-search measures, as well as the use of information obtained in the course of their conduct, for the achievement of purposes and objectives not provided for by this Law is prohibited (paragraph 1 of Article 5); information obtained as a result of operational-search activities concerning a person's private life, honour and dignity, if it does not contain information about the commission of acts prohibited by law, shall not be subject to storage and shall be destroyed (paragraph 5 of Article 5).
• Similarly, the Law of the Republic of Kazakhstan dated December 28, 2016, “On Counterintelligence Activities,” prohibits the conduct of counterintelligence activities, as well as the use of information obtained in the course thereof, for the purpose of resolving tasks not provided for by this Law (paragraph 1 of Article 5). In addition, actions that humiliate the honour and dignity of a person and citizen are prohibited in the course of counterintelligence activities (paragraph 2 of Article 5).
• The Criminal Procedure Code also addresses these matters in the same way, prohibiting the conduct of covert investigative actions and the use of information obtained in the course of their conduct for the achievement of purposes and objectives not provided for by this Code (Part 9 of Article 232 of the Criminal Procedure Code).
• The secrecy of personal deposits and savings is the subject of protection under the Law of the Republic of Kazakhstan dated August 31, 1995, “On Banks and Banking Activities in the Republic of Kazakhstan.” Banking secrecy includes information about bank clients and correspondent banks, their transactions and relations with banks connected with the receipt of banking services, including, without limitation: information about the existence, owners and numbers of bank accounts and correspondent bank accounts, balances and movement of funds in those accounts and the bank's own accounts, restrictions on the aforementioned accounts (decisions and (or) orders of state bodies suspending debit transactions, arrests, pledges), transactions of clients and correspondent banks and the bank itself (except for the general conditions for conducting banking transactions), as well as information about the existence, owners, nature and value of clients' property held for safekeeping in safe-deposit boxes, cabinets and premises of the bank, information about clients obtaining loans (except for cases specified in this Article), and the conduct of payment and (or) money transfer transactions, including those carried out without opening a bank account. Information about loans issued by a bank undergoing liquidation shall not constitute banking secrecy.
• Banks guarantee the secrecy of transactions and accounts of their depositors, clients and correspondent banks, as well as the secrecy of property held for safekeeping in safe-deposit boxes, cabinets and premises of banks, and other information constituting banking secrecy. The seizure of funds and other valuables held in accounts and deposits in banks and credit institutions for the purpose of ensuring enforcement of a judgment in respect of a civil claim, other property-related penalties or possible confiscation of property shall be carried out by an inquirer or investigator with the authorization of an investigating judge or judges of a regional court or an equivalent court. In this case, all debit transactions on the relevant accounts shall be suspended within the limits of the funds subject to seizure (Articles 50, 51 of the Law “On Banks and Banking Activities in the Republic of Kazakhstan,” Articles 160—164 of the Criminal Procedure Code).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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