Commentary on Article 227-1. Unlawful Modification 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 Modifying the Identification Code of a Subscriber Device of the Criminal Code of the Republic of Kazakhstan

1. Unlawful modification, without the consent of the manufacturer or lawful owner, of the identification code of a cellular communication subscriber device, or creation of a duplicate cellular communication subscriber identification card -

shall be punishable by a fine in the amount of 200 to 500 monthly calculation indices, or in the amount of the convicted person's salary or other income for a period of 2 to 5 months, or by community service for a period of 120 to 180 hours, or by correctional labor for a period of up to 1 year, or by deprivation of liberty for the same period.

2. Unlawful creation, use or distribution of programs that enable the modification of the identification code of a cellular communication subscriber device or the creation of a duplicate cellular communication subscriber identification card -

shall be punishable by a fine in the amount of 500 to 800 monthly calculation indices, or in the amount of the convicted person's salary or other income for a period of 5 to 8 months, or by correctional labor for a period of 1 to 2 years, or by deprivation of liberty for a period of up to 3 years.

3. The same acts committed:

a) by a group of persons acting upon prior conspiracy or by an organized group;

b) repeatedly;

c) by a person previously convicted of unlawful access to computer information, or the creation, use or distribution of malicious computer programs -

shall be punishable by deprivation of liberty for a period of 2 to 5 years, with or without confiscation of property.

The public danger of the crime is determined by the importance of advanced technologies of cellular communication subscriber devices in the economic activities of society, as a result of which significant damage is caused to organizations or individual citizens.

The legislation of the Republic of Kazakhstan provides that “individuals and legal entities who cause damage to communication facilities, structures and telecommunication networks, violate the established procedure for the manufacture, acquisition, import, use and registration of radio-electronic equipment and high-frequency devices, the use of radio frequencies for the operation of radio-electronic equipment for all purposes and high-frequency devices, as well as those creating excessive interference with television and radio reception, shall bear liability in accordance with the procedure established by law” (Article 28 of the Law of the Republic of Kazakhstan “On Communications” dated May 18, 1999 (as subsequently amended and supplemented). Z040000567_

In order to reduce the level of theft of cellular phones and eliminate the possibility of their unrestricted and unlawful use, this criminal law provision was introduced by the Law of the Republic of Kazakhstan dated January 8, 2007.

The object of this crime is public relations associated 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, authorized bodies and business entities operating in the communications sector. Unlawful modification of the identification code of a cellular communication subscriber device, creation of a duplicate cellular communication subscriber identification card, and 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 for obtaining the rights to use telephone numbers of the specified communication system.

Cellular communication phones (subscriber device, cellular communication device) should be understood as terminal certified subscriber equipment connected to radio communication networks for receiving and transmitting information, having an identification code of the subscriber device and a subscriber identification device.

Electrical communication (telecommunication) is the transmission or reception of signs, signals, voice information, written text, images and sounds through wired, radio, optical and other electromagnetic systems.

A subscriber is a user of communication services with whom an agreement for the provision of such services has been concluded, with a subscriber number or identification code allocated for these purposes.

The identification code of a cellular communication subscriber device is understood to mean IMEI, which stands for International Mobile Equipment Identifier, translated as “International Mobile Equipment Identifier.” In other words, the identification code of a subscriber device (IMEI) is a 15-digit number representing the unique serial number of every GSM (Global System for Mobile Communications) format phone, which is automatically transmitted by the device to the operator's network when it connects. It is installed at the factory during manufacture and serves for the accurate and complete identification of the device in the GSM network.

The subscriber identification device in a cellular phone (subscriber identification card) is intended to identify the cellular communication device and the subscriber individually, is purchased independently of the phone, registered to an individual and installed in the device's casing with a strictly assigned number. In other words, this device is called a SIM card.

From the objective side, this crime is expressed in the actions of the perpetrator consisting of the unlawful modification 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 modifying the identification code of a subscriber device.

A discrepancy in the identification code of a cellular communication subscriber device (IMEI) can occur only in two cases: either it was changed during the “reflashing” of the phone, or a complete replacement of the casing was carried out (not removable panels, but the actual casing). Replacing the casing of a cellular phone is equivalent in cost to purchasing a new phone.

At the same time, communication equipment used on 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 of the Republic of Kazakhstan.

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

Thus, unlawful modification of the identification code of a cellular communication subscriber device without the consent of the manufacturer or lawful owner should be understood as the unauthorized reinstallation, using electronic and technical equipment, of the 15-digit serial number of a GSM-format phone. The specified number may be replaced either completely or by randomly changing any digit in the given numerical sequence.

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

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

By its construction, the composition of the act under consideration is formal. The crime is considered completed from the moment the actions provided for by this provision are committed, regardless of whether criminal consequences occur.

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

From the subjective side, the crime under analysis is characterized exclusively by an intentional form of guilt. The perpetrator is aware of the socially dangerous nature of their actions, foresees the possibility of harmful consequences and desires their occurrence. The motive for the crime may be mercenary.

The disposition of Part 2 of Article 227-1 of the Criminal Code is alternative in nature, since liability under this provision arises from the moment at least one of the following actions is committed:

1 – unlawful creation;2 – use;3 – distribution of programs that enable the modification of the identification code of a cellular communication subscriber device or the creation of a duplicate cellular communication subscriber identification card.

Modern cellular communication phones are third-generation smartphones, which are essentially mini-computers (electronic computing machines) operating on specially developed software.

Computer information is understood as information recorded on a machine-readable medium or transmitted through telecommunication channels in a form accessible to an electronic computing machine.

A program ensures a sequence of operations performed by a computing machine to accomplish a particular task. Programs are written in special machine languages and stored in files.

A computer program is expressed as a set of data and commands necessary for the functioning of an electronic computing machine in order to obtain a specified result within the framework of a particular program. A program implements an algorithm for solving a particular task.

The creation of a computer program means writing its algorithm, that is, a sequence of logical commands, followed by its conversion into the machine language of the electronic computing machine.

Programs for modifying the identification code of a subscriber device are understood to mean a product in the form of an algorithm stored on a machine-readable medium, capable of reprogramming the 15-digit serial number of a GSM-format cellular phone.

Introducing modifications to the existing identification code of a subscriber device means changing it by removing its fragments, replacing them with others or supplementing it in a manner that subsequently allows the cellular phone to function normally.

The creation of a program for the purposes under consideration may constitute an element of the objective side of this crime only if the perpetrator has manufactured a software product on any medium.

The characteristics of the objective side aimed at the creation, use or distribution of programs providing for the creation of a duplicate cellular communication subscriber identification card should be understood in a similar manner.

The use of a program for modifying the identification code of a subscriber device and creating a duplicate cellular communication subscriber identification card is understood as its release into circulation, reproduction and other actions aimed at introducing it into economic circulation in its original or modified form, as well as the independent application of this program for its intended purpose.

The distribution of a program for modifying the identification code of a subscriber device and creating a duplicate cellular communication subscriber identification card is understood as the transfer of a machine-readable medium containing the program to third parties under any conditions whatsoever.

By its construction, the crime provided for in Part 2 of Article 227-1 of the Criminal Code belongs to the category of formal offenses. It is considered completed from the moment the actions provided for by law are committed, regardless of whether harmful consequences occur.

Part 3 of Article 227-1 of the Criminal Code of the Republic of Kazakhstan contains qualifying circumstances, which the legislator identifies as follows:

a) commission by a group of persons acting upon prior conspiracy or by an organized group;

b) repeated commission;

c) commission by a person previously convicted of unlawful access to computer information, or the creation, use or distribution of malicious computer programs.

The concepts of “a group of persons acting upon prior conspiracy” and “an organized group” were discussed by us above when analyzing previous crimes in the sphere of economic activity (see the commentary to Article 31 of the Criminal Code of the Republic of Kazakhstan).

For the concept of “repeated commission,” see the commentary to Article 11 of the Criminal Code of the Republic of Kazakhstan.

The aggravating circumstance of “commission by a person previously convicted of unlawful access to computer information, or the creation, use or distribution of malicious computer programs” refers to a special form of plurality of crimes based on the infringement of a common object provided for in Articles 227 and 227-1 of the Criminal Code of the Republic of Kazakhstan.

The concept of “unlawful access to computer information, creation, use and distribution of malicious computer programs” is examined in the commentary to Article 227 of the Criminal Code of the Republic of Kazakhstan.

A person previously convicted of unlawful access to computer information, or the creation, use or distribution of malicious computer programs, is recognized as a person having a criminal conviction for one or more crimes provided for in Article 227 of the Criminal Code of the Republic of Kazakhstan.

Commentary of 2007 to the Criminal Code of the Republic of Kazakhstan by BORCHASHVILI I.Sh., Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.

Date of amendment of the act: 02.08.2007

Date of adoption of the act: 02.08.2007

Place of adoption: NONE

Body that adopted the act: 180000000000

Territorial scope: 100000000000

Registration number of the normative legal act assigned by the rule-making body: 167

Status of the act: new

Sphere of legal relations: 028000000000

Form of the act: COMMENTARY

Legal force: 1900

Language of the act: Russian

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