Commentary on Article 305. Concealment of Information About Circumstances Creating a Danger to Human Life or Health of the Criminal Code of the Republic of Kazakhstan

1. Concealment or distortion of information about events, facts or phenomena that create a danger to human life or health or to the environment, committed by a person obligated to provide the population with such information, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective 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, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

2. The same act, if it negligently results in harm to human health or other grave consequences, —

shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

The public danger of the crime under consideration lies in the fact that it violates the right of every person to receive information, as enshrined in the Constitution of the Republic of Kazakhstan.

In accordance with the Constitution of the Republic of Kazakhstan, citizens have the right to a favourable living environment, the factors of which do not have a negative impact on human health or the health of future generations. They also have the right to receive timely and reliable information about the sanitary and epidemiological situation, the measures being taken to ensure sanitary and epidemiological well-being and their results, as well as the quality of consumer goods, including food products, and drinking water.

Paragraph 3 of Article 18 of the Constitution of the Republic of Kazakhstan establishes that state bodies, public associations, officials and mass media are obliged to ensure that every citizen has the opportunity to familiarise themselves with documents, decisions and sources of information affecting their rights and interests.

Certain provisions concerning this issue are reflected in paragraph 1 of Article 29 of the Constitution of the Republic of Kazakhstan: “Citizens of the Republic of Kazakhstan have the right to protection of their health”, and paragraph 2 of Article 31 of the Constitution of the Republic of Kazakhstan: “Concealment by officials of facts and circumstances threatening human life and health entails liability in accordance with the law”.

The object of the crime is public health. The optional object is the environment, that is, the totality of the properties and characteristics of the environment determined on the basis of physical, chemical, biological and other indicators reflecting the condition of its components in their interaction (paragraph 1 of Article 7 of the Environmental Code dated 2 January 2021).

The subject matter of the act under consideration is information about events, facts or phenomena that create a danger to human life or health or to the environment.

According to Article 18 of the Law of the Republic of Kazakhstan dated 11 April 2014 “On Civil Protection”, individuals have the right to receive advance information about the risk of dangerous factors arising from emergency situations to which they may be exposed, and about the necessary safety measures.

An emergency situation is a situation that has developed in a particular territory as a result of an accident, fire, harmful effects of hazardous industrial factors, a dangerous natural phenomenon, a catastrophe, a natural disaster or other calamity, which may result or has resulted in human casualties, harm to human health or the environment, significant material damage and disruption of people's living conditions (subparagraph 66 of Article 1 of the Law of the Republic of Kazakhstan “On Civil Protection”).

Emergency situations may be of natural or technological origin. Natural emergency situations are emergency situations that have developed as a result of dangerous natural phenomena (geophysical, geological, meteorological, agrometeorological and hydrogeological hazardous phenomena), natural fires, epidemics, and the damage of agricultural plants and forests by diseases and pests (subparagraph 62 of Article 1 of the Law).

Technological emergency situations are emergency situations caused by the harmful effects of hazardous industrial factors, transport and other accidents, fires (explosions), accidents involving the release (or threat of release) of highly toxic, radioactive and biologically hazardous substances, sudden collapses of buildings and structures, dam failures, accidents involving electric power and communication systems that ensure vital services, and wastewater treatment facilities (subparagraph 65 of Article 1 of the Law). An accident is the destruction of buildings, structures and (or) technical devices, an uncontrolled explosion and (or) the release of hazardous substances (subparagraph 1 of Article 1 of the Law).

Emergency situations may also be of a social nature (strikes, mass riots, armed conflicts, etc.).

Information about events, facts and phenomena that create a danger to human life and health or to the environment includes information on radiation, chemical, medical and biological, explosive, fire and environmental safety in the relevant territory.

Such information may include data on: the maximum permissible concentrations of harmful chemical substances in atmospheric air, residential and industrial premises, drinking and technical water, soil and food products; the maximum permissible standards for harmful physical impacts (emissions, noise); the maximum permissible level of radiation exposure; and harmful biological effects on food products and water (the presence of microorganisms and other disease-causing agents in water).

The objective side is expressed in the concealment or distortion of the above-mentioned information.

Concealment should be understood as both withholding the aforementioned information from citizens and the untimely notification and informing of the population about events, facts or phenomena that create a danger to human life or health or to the environment. Concealment may take the form of refusing to provide information, for example, on the grounds that its disclosure may harm the interests of the state or an organisation.

Distortion means providing knowingly false information (for example, understating the radiation level caused by an accident at a nuclear power facility or another industrial facility associated with the production or use of nuclear energy).

Concealment or distortion of information may concern events, facts or phenomena threatening human life, health or the environment, such as natural disasters (earthquakes, floods and the like), catastrophes, accidents, major fires, etc.

By its legal structure, the corpus delicti is formal. The crime is considered completed from the moment the information is concealed or distorted.

The subjective side is characterised by direct intent. The person is aware that they are concealing or distorting information about events, facts or phenomena that create a danger to human life or health or to the environment, and desires to do so.

The subject of the crime may only be persons who are obligated to provide the population with the relevant information. This obligation may arise either from the law or from official job descriptions. For example, under the Environmental Code of the Republic of Kazakhstan, such an obligation rests with civil servants of specially authorised state bodies of the Republic of Kazakhstan responsible for environmental protection.

In addition, the requirement to inform and notify the population in advance when there is a forecast of a threat of an emergency situation and (or) promptly when an emergency situation occurs is established by the Law of the Republic of Kazakhstan “On Civil Protection”.

According to Part 2 of Article 305 of the Criminal Code of the Republic of Kazakhstan, the qualified corpus delicti of this crime consists of the same acts resulting, through negligence, in harm to human health or other grave consequences.

Part 2 of the article under consideration provides for a material corpus delicti. Concealment or distortion of information about events, facts or phenomena that create a danger to human life and health or to the environment is regarded by the legislator as a qualified offence if it negligently results in harm to human health or other grave consequences. Consequently, the crime under Part 2 of the article under consideration is considered completed when one of the consequences specified therein occurs.

Causing harm to human health means negligently causing moderate bodily harm or grievous bodily harm. However, in this case, it must be proven that such harm occurred as a result of concealing or distorting information about circumstances creating a danger to human life or health, that is, that there is a causal relationship between the aforementioned acts and the consequences that occurred (causing harm to human health or the occurrence of other grave consequences).

Other grave consequences may include, for example, causing harm to two or more persons, prolonged illness, or mass illness among people. Other grave consequences may also be expressed in material damage (destruction of or damage to the property of individuals and legal entities, expenses for restoration work and elimination of the consequences of emergency situations that could have been avoided if the information had been received in a timely manner), environmental damage (pollution of air, water and land, destruction of and damage to flora and fauna), and the need to evacuate or relocate people from their place of residence.

The subjective side under Part 2 of Article 305 of the Criminal Code of the Republic of Kazakhstan is characterised by indirect intent. The person foresees that concealing or distorting information may result in harm to human health or other grave consequences and consciously allows such consequences to occur or treats them with indifference.

The act provided for in Part 1 of Article 305 of the Criminal Code of the Republic of Kazakhstan belongs to the category of minor offences.

The act provided for in Part 2 of Article 305 of the Criminal Code of the Republic of Kazakhstan belongs to the category of offences of medium gravity.

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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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