Commentary on Article 213. Unlawful alteration of the identification code of a cellular communication subscriber device, the subscriber identification device, as well as the creation, use, and distribution of programs for altering the identification code of a subscriber device of the Criminal Code of the Republic of Kazakhstan

1. Alteration of the identification code of a cellular communication subscriber device, creation of a duplicate of a cellular communication subscriber identification card, if these actions are committed without the consent of the manufacturer or the lawful owner, —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

2. Unlawful creation, use, or distribution of programs enabling the alteration of the identification code of a cellular communication subscriber device or the creation of a duplicate of a cellular communication subscriber identification card, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour 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.

3. Acts provided for in Part One or Part Two of this Article, committed by a criminal group, —

shall be punishable by imprisonment for a period of up to five years.

The public danger of the act commented upon is determined by the significance of cellular subscriber devices in the economic activities of society and the substantial harm caused to organisations or individual citizens.

Communications are an integral part of the economic and social infrastructure of the Republic of Kazakhstan, designed to meet the needs of individuals and legal entities, as well as to ensure the communication needs of security, defence, law enforcement, and government authorities.

The unlawful alteration of the identification code of a cellular communication subscriber device, the unlawful creation of a duplicate of a cellular communication subscriber identification card, and the creation, use, and distribution of programs for these purposes undoubtedly violate the procedure for allocating numbering resources and assigning cellular communication numbers, and have a destructive impact on the established rules governing the acquisition of rights to use telephone numbers of the said communication system.

The object of this criminal offence (Part 1 — a criminal misdemeanour, Parts 2 and 3 — crimes) is public relations connected with the manufacturer's property rights, as well as relations arising in the sphere of regulating the rights and legitimate interests of users of communication services, authorised bodies, and business entities operating in the field of communications.

In accordance with the Rules for the Provision of Communication Services, approved by Order No. 171 of the Acting Minister for Investment and Development of the Republic of Kazakhstan dated 24 February 2015, cellular communication is a type of electrical communication that uses the division of the serviced territory into a number of cells, ensures continuity of communication as a subscriber moves from one cell to another, and is intended for the two-way (multi-way) exchange of information transmitted by means of radio waves; a subscriber device is an individual-use communication device that generates electrical communication signals for transmitting or receiving information specified by the subscriber and is connected to the network of a cellular communication operator.

The identification code of a cellular communication subscriber device is understood as the code of a subscriber device or subscriber station assigned by the manufacturer, which is transmitted to the communication operator's network when the device is connected to it.

Under international standards, the identification code of a subscriber device is designated as IMEI (International Mobile Equipment Identifier), which is a sequence of 15 digits and constitutes a unique serial number of each mobile telephone, assigned by the manufacturer.

A cellular communication subscriber identification card is understood as a device that permanently stores the subscriber number, which is transmitted by the communication device to the communication operator's network when it is connected to that network.

The cellular communication subscriber identification device is intended to identify the subscriber device and the subscriber, is purchased separately from the telephone, registered in the name of an individual, and installed in the body of the device. In other words, this device is referred to as a SIM card.

A subscriber device is understood as an individual-use communication device that generates electrical communication signals for transmitting or receiving information specified by the subscriber and is connected to the communication operator's network.

A subscriber is an individual or legal entity with whom an agreement for the provision of communication services has been concluded, with a subscriber line, subscriber number and/or identification code allocated for these purposes.

From the objective side, the criminal offence is expressed through several alternative actions provided for in different parts of the Article under consideration:

in Part 1 — unlawful alteration of the identification code of a cellular communication subscriber device; unlawful creation of a duplicate of a cellular communication subscriber identification card;

in Part 2 — unlawful creation of programs enabling the alteration of the identification code of a cellular communication subscriber device or the creation of a duplicate of a cellular communication subscriber identification card; unlawful use of such programs; unlawful distribution of such programs.

Unlawfulness means the absence of consent from the manufacturer or lawful owner to perform the specified actions.

A discrepancy in the identification code of a cellular communication subscriber device (IMEI) can occur only in two cases: either it was altered during the telephone's firmware reinstallation, or the entire casing was replaced (not removable panels, but the actual casing). Replacing the casing of a cellular telephone is equivalent in cost to purchasing a new telephone.

At the same time, communication equipment used in the unified telecommunications network of the Republic of Kazakhstan, radio-electronic equipment and high-frequency devices that are sources of electromagnetic radiation are subject to mandatory certification in accordance with the legislation.

The list of communication equipment subject to mandatory certification is determined by the authorised body in coordination with the national security authorities and the authorised body for standardisation, metrology, and certification.

Thus, unlawful alteration of the identification code of a cellular communication subscriber device without the consent of the manufacturer or lawful owner should be understood as the unauthorised reinstallation of the serial number of a communication device using electronic and technical equipment. The said number may be changed either completely or by randomly entering any digit from the specified numerical sequence.

The authorised body develops and approves rules establishing the procedure for obtaining rights to use numbers, including determining the grounds for assigning numbers, and maintains a register of allocated and reserve numbering resources.

The creation of a duplicate of a cellular communication subscriber identification card by a guilty person in violation of the established rules, through counterfeiting a SIM card, scanning a SIM card profile, or imitating its operation under the number of another subscriber, also constitutes the objective side of the elements of the criminal offence under consideration.

The creation and use of a program for altering the identification code of a subscriber device or creating a duplicate of a subscriber identification card are understood as the development of a functional program code and the application of that program for its intended purpose.

The distribution of a program for altering the identification code of a subscriber device or creating a duplicate of a subscriber identification card is understood as its transfer to third parties on a machine-readable medium or through an information and communication network.

By its legal construction, the elements of the act under consideration are formal. This criminal offence is considered completed from the moment the actions provided for by this provision are committed, regardless of whether harmful consequences occur.

From the subjective side, the criminal offence under analysis is characterised exclusively by an intentional form of guilt. The motive for committing the criminal offence is irrelevant for its legal classification.

The subject is a sane individual who has attained the age of criminal responsibility, namely 16 years. The law does not require that such person engage in any particular activity in the field of computer information or possess any specific technical education.

The qualifying feature of Part 3 of Article 213 of the Criminal Code is the commission of the offence by a criminal group (see the commentary on Part 3 of Article 206 of the Criminal Code).

The act provided for in Part 1 of Article 213 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 213 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 3 of Article 213 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, 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 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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