Commentary on Article 382. Disclosure of Information on Security Measures Applied in Respect of an Official Holding a Responsible Public Position of the Criminal Code of the Republic of Kazakhstan
1. Disclosure of information on security measures applied in respect of an official holding a responsible public position, as well as his or her close relatives, by a person to whom such information was entrusted or became known in connection with his or her official activities, -
shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labor in the same amount, or engagement in community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.
2. The same act resulting in grave consequences -
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or engagement in community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or deprivation of liberty for the same period.
The public danger of the criminal offense provided for in Article 382 of the Criminal Code (Part 1 – a criminal misdemeanor, Part 2 – a crime) lies in the fact that it infringes upon the activities of state bodies, as well as upon the life and health, personal and property interests of an official holding a responsible public position and his or her close relatives.
The object of the criminal offense under consideration is the social relations arising in the sphere of implementation of measures provided for by law to ensure the personal security of officials holding responsible public positions and their close relatives. An additional object is the social relations guaranteeing the safety of the life and health of an official holding a responsible public position and his or her close relatives, as well as their personal and property interests.
An obligatory feature of the object as an element of the analyzed corpus delicti is the victim. Part 1 of Article 382 of the Criminal Code identifies an official holding a responsible public position and his or her close relatives as such (see subparagraph 16) of Article 3 of the Criminal Code and the commentary to Article 380 of the Criminal Code).
The subject matter of the criminal offense provided for in Article 382 of the Criminal Code is information on security measures applied in respect of an official holding a responsible public position. Essentially, this is confidential official information constituting an official secret. The information disclosed in this case includes data on personal protection, protection of residential premises and property, the issuance of weapons, special means of individual protection and danger notification, temporary placement in a safe location, change of place of work (service), relocation to another place of residence, replacement of documents, change of appearance, etc.
The objective element consists in the disclosure of information on security measures applied in respect of an official holding a responsible public position, as well as his or her close relatives, by a person to whom such information was entrusted or became known in connection with his or her official activities.
To disclose means to tell, notify, or make something secret known.
Thus, disclosure of information should be understood as actions or omissions by persons that result in third parties becoming acquainted with such information, that is, where secret information about security measures applied in respect of an official holding a responsible public position or his or her close relatives becomes known to at least one outsider who is interested in obtaining such information or who may transmit it to interested persons. Outsiders are persons to whom information about security measures was not entrusted in connection with their work or service, that is, persons who have no right to obtain such information.
The methods of disclosing information may vary, both oral and written (in the form of audio or video recordings, letters, telegrams, email messages, messages on social networks, messengers, etc.), and do not affect the legal classification of the criminal offense.
Information about security measures may be disclosed as a result of both active actions and omissions (in particular, failure to comply with rules ensuring the proper storage of such information, thereby creating conditions conducive to its disclosure).
The act of disclosing information about security measures applied in respect of an official holding a responsible public position is limited by a specific time frame. It may be committed only during the period when the said measures are in effect. If the period for applying security measures has expired, they lose their confidential nature, which excludes the commission of the act under consideration. The duration of the period for applying a security measure is calculated in each specific case; however, such a measure must be considered to have been applied from the moment the competent authority adopts a decision on its application.
When classifying the act under consideration, it should be taken into account that the disclosure must be unlawful. The unlawfulness of disclosing information about security measures applied in respect of an official holding a responsible public position exists where there is no consent of the protected person to make such information public and no authorization from an empowered person to breach the confidential nature of the information about security measures.
The corpus delicti of the criminal misdemeanor provided for in Part 1 of Article 382 of the Criminal Code is formal in its structure; therefore, bringing a person to criminal liability does not require the occurrence of any socially dangerous consequences. The mere fact of disclosing information about security measures applied in respect of an official holding a responsible public position to third parties is sufficient.
Unlike Part 1 of Article 382 of the Criminal Code, Part 2 of the provision under consideration establishes liability for disclosing information about security measures applied in respect of an official holding a responsible public position where such disclosure has resulted in grave consequences. Thus, the corpus delicti provided for in Part 2 of Article 382 of the Criminal Code is classified as material in its structure.
The concept of grave consequences is defined in subparagraph 4) of Article 3 of the Criminal Code. Grave consequences should include: the murder of an official holding a responsible public position in respect of whom protection measures were being taken, or an attempt to murder such official; the infliction of grievous bodily harm upon such official; the murder of or infliction of grievous bodily harm upon his or her close relatives; the destruction of or damage to the property of the latter; the murder of or infliction of grievous bodily harm upon security personnel; and substantial material expenses incurred in changing security measures.
It should be noted that disclosure of the relevant information while being aware of the inevitability of the victim's murder should be classified as complicity in murder under Article 28 and subparagraph 2) of Part 2 of Article 99 of the Criminal Code, which provides for criminal liability for the murder of a person or his or her close relatives in connection with that person's official activities or performance of professional or public duties.
The subjective element of the corpus delicti of the criminal misdemeanor provided for in Part 1 of Article 382 of the Criminal Code is characterized by an intentional form of guilt, that is, the perpetrator is aware that he or she is failing to comply with the obligation to keep secret information about security measures applied in respect of an official holding a responsible public position, as well as his or her close relatives, and wishes to disclose it to third parties.
The motive and purpose in relation to the corpus delicti under examination are optional features of the subjective element. Accordingly, they do not affect the legal classification. Motives may vary and should be taken into account when imposing punishment.
The act provided for in Part 2 of Article 382 of the Criminal Code is also characterized by an intentional form of guilt. However, in the act under consideration, the intentional form of guilt may relate only to the very fact of disclosing information about security measures applied in respect of an official holding a responsible public position, as well as his or her close relatives. The mental attitude toward the consequences, however, must be expressed in the form of negligence. Where an intentional form of guilt is present, the actions of the guilty person must be classified cumulatively as disclosure of information about security measures applied in respect of an official holding a responsible public position and the corresponding criminal offense provided for, for example, in Article 106 of the Criminal Code, "Intentional Infliction of Grievous Bodily Harm."
The subject of the criminal offense provided for in the commented article is special: exclusively a person to whom information about security measures was entrusted or became known in connection with his or her official activities.
The criminal offense provided for in Article 382 of the Criminal Code should be distinguished from the crime provided for in Article 147 of the Criminal Code, "Violation of the Inviolability of Private Life and the Legislation of the Republic of Kazakhstan on Personal Data and Their Protection."
Unlike the criminal offense provided for in Article 382 of the Criminal Code, the object of which is the social relations arising in the sphere of implementation of measures provided for by law to ensure the personal security of officials holding responsible public positions and their close relatives, the direct object of the crime provided for in Article 147 of the Criminal Code is the social relations ensuring the exercise of the right to inviolability of private life.
In terms of the content of the disclosed information, the criminal offense provided for in Article 382 of the Criminal Code also differs from the crime provided for in Article 147 of the Criminal Code, where the subject matter of the crime consists exclusively of information about a person's private life constituting his or her personal and family secret.
At the same time, Article 382 of the Criminal Code significantly narrows the circle of victims – officials holding responsible public positions, as well as their close relatives.
The subject of the criminal offense provided for in Article 382 of the Criminal Code is a person to whom information about security measures was entrusted or became known in connection with his or her official activities, whereas the subject of the crime provided for in Article 147 of the Criminal Code, depending on the part of the article, is either a physically competent person who has reached the age of sixteen, or a person who is entrusted with the obligation to take measures to protect personal data, or a person who has used his or her official position or special technical means intended for the covert acquisition of information, or has acted through unlawful access to electronic information resources or an information system, or unlawful interception of information transmitted via a telecommunications network, or for the purpose of obtaining benefits and advantages for himself or herself or for other persons or organizations.
Differences are also found in the objective and subjective elements of these criminal offenses. In cases of violation of the inviolability of private life and the legislation of the Republic of Kazakhstan on personal data and their protection, the occurrence of socially dangerous consequences is not mandatory, whereas in cases of disclosure of information about security measures applied in respect of an official holding a responsible public position, depending on the part of the article, the infliction of harm is a mandatory feature of the objective element. With regard to the subjective element, the crime provided for in Article 147 of the Criminal Code is committed only with direct intent, whereas the acts provided for in Article 382 of the Criminal Code, depending on the part of the article, are characterized either by an intentional form of guilt (Part 1), or by an intentional form of guilt in relation to the very fact of disclosing information about security measures applied in respect of an official holding a responsible public position, as well as his or her close relatives, and a negligent form of guilt in relation to the consequences (Part 2).
The criminal offense under commentary should also be distinguished from the crime provided for in Article 424 of the Criminal Code, "Disclosure of Information on Security Measures Applied in Respect of Persons Subject to State Protection." The differences lie in the object of the infringement and the circle of victims. The object of the crime provided for in Article 424 of the Criminal Code is the proper functioning specifically of the bodies of justice, whereas the object of the criminal offense provided for in Article 382 of the Criminal Code is the proper functioning of state bodies and officials holding responsible public positions. In addition, Article 424 of the Criminal Code concerns the disclosure of information about security measures applied in respect of a judge, court bailiff, judicial executor, victim, witness, other participants in criminal proceedings, as well as their close relatives, whereas Article 382 of the Criminal Code identifies an official holding a responsible public position, as well as his or her close relatives, as the victim.
The act provided for in Part 1 of Article 382 of the Criminal Code is classified as a criminal misdemeanor.
The act provided for in Part 2 of Article 382 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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