Commentary on Article 398. Violation of the Rules for the Protection of Communication Lines and Facilities, as well as Facilities Subject to State Protection, of the Criminal Code of the Republic of Kazakhstan

1. Violation of the rules for the protection of communication lines or communication facilities, if such an act results in the interruption of communications or creates a threat of interruption of communications, —

shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eighty hours.

2. Violation of the rules for the protection of communication lines, resulting in damage to an intercity communication cable line or interruption of intercity communications, —

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

3. Violation of the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions, resulting in their seizure or other grave consequences, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or deprivation of liberty for the same period.

The public danger of the criminal misdemeanour provided for in Parts 1 and 2 (Parts 1 and 2 constitute criminal misdemeanours, while Part 3 constitutes a crime) lies in the fact that it encroaches upon the legal foundations governing activities in the field of communications within the territory of the Republic of Kazakhstan, the powers of state bodies to regulate such activities, and the rights and obligations of individuals and legal entities providing or using communication services. Damage to communication lines and facilities may result in serious disruptions to the operation of telephone, television, radio-relay and other types of communications, as well as the structures and equipment forming part thereof. Automated control systems being introduced across all sectors of production can function only if communications operate flawlessly.

According to Article 1 of the Law of the Republic of Kazakhstan dated 5 July 2004, “On Communications”, communications constitute an integral part of the economic and social infrastructure of the Republic of Kazakhstan, intended to meet the needs of individuals and legal entities and to ensure the communication needs of security, defence, the protection of public order and state bodies.

Communication and computer equipment, as well as information systems, constitute the technical basis for ensuring the processes of collecting, processing, accumulating and disseminating information.

The object of the criminal misdemeanour provided for in Parts 1 and 2 of the Article under consideration is the social relations centred on compliance with the established rules governing the operation of communication lines and facilities and intercity communication cable lines.

The objective element of the criminal misdemeanour provided for in Parts 1 and 2 of Article 398 of the Criminal Code consists in violating the rules for the protection of communication lines or communication facilities, provided that such an act results in the interruption of communications or creates a threat of interruption of communications.

The provisions of Parts 1 and 2 of Article 398 of the Criminal Code are blanket in nature and refer to other regulatory legal documents, in particular, the Law of the Republic of Kazakhstan “On Communications” and the Order of the Minister for Investment and Development of the Republic of Kazakhstan dated 24 December 2014, “On Approval of the Rules for the Protection of Telecommunication Networks in the Republic of Kazakhstan”.

According to subparagraph 10) of Article 2 of the Law of the Republic of Kazakhstan “On Communications”, communications mean the reception, collection, processing, accumulation, transmission (transportation), delivery and dissemination of information, postal and special consignments, and postal money transfers.

Communication lines are understood to mean transmission lines (cable, radio-relay, satellite and other lines), physical circuits and linear cable communication facilities, including backbone lines (international and intercity lines) (subparagraph 14) of Article 2 of the above-mentioned Law).

Communication facilities are engineering infrastructure facilities created or adapted for the placement of communication equipment and communication cables.

In accordance with Article 27 of the Law of the Republic of Kazakhstan “On Communications”, protection zones and clearings are established to ensure the preservation of communication networks and the operation of technical equipment, facilities and devices. Such zones constitute areas with special land-use conditions.

Land included in protection zones shall be marked on the ground with special signs. Such land shall not be subject to withdrawal from owners and land users.

The procedure for establishing protection zones and the operating regime within them shall be determined by the authorised body. The boundaries of the said zones and the land-use regime within them shall be determined by the body that adopted the decision to grant the land into ownership or land use, in accordance with the land legislation of the Republic of Kazakhstan.

According to Article 28 of the said Law, telecommunication networks and equipment, the radio frequency spectrum and orbital positions of communication satellites are under state protection.

The procedure for determining losses resulting from damage to telecommunication networks and equipment shall be determined by the authorised body.

The protection of communication equipment, facilities and networks, the radio frequency spectrum and orbital positions of communication satellites shall be established in accordance with the legislation of the Republic of Kazakhstan.

For the purpose of protecting the established procedure for the use of the radio frequency spectrum and orbital positions of communication satellites, the legislation of the Republic of Kazakhstan may establish restrictions on the manufacture and import into the Republic of Kazakhstan, as well as the operation, of radio-electronic communication equipment that creates unregulated interference with the functioning of electromagnetic systems.

Individuals and legal entities that have caused damage to communication equipment, facilities and telecommunication networks, violated the established procedure for the manufacture, acquisition, import and use of radio-electronic equipment and high-frequency devices, the use of radio frequencies for the operation of radio-electronic equipment of all purposes and high-frequency devices, or created unregulated interference with television and radio reception shall bear liability established by the laws of the Republic of Kazakhstan.

According to subparagraph 55) of Article 2 of the Law of the Republic of Kazakhstan “On Communications”, a telecommunication network is a combination of telecommunication equipment and communication lines ensuring the transmission of telecommunication messages, consisting of switching equipment (stations, substations and concentrators), linear cable facilities (subscriber lines, connecting lines and communication channels), transmission systems and subscriber devices.

At the same time, the concept of “communication lines” is covered by the concept of “telecommunication networks”. Accordingly, the rules for the protection of communication lines and facilities are regulated by the Order of the Minister for Investment and Development of the Republic of Kazakhstan dated 24 December 2014, “On Approval of the Rules for the Protection of Telecommunication Networks in the Republic of Kazakhstan”.

In accordance with subparagraph 54) of Article 2 of the Law of the Republic of Kazakhstan “On Communications”, a telecommunication network protection zone is a land plot located along a communication line and around communication facilities, together with the vegetation and structures situated thereon.

According to the Rules for the Protection of Telecommunication Networks in the Republic of Kazakhstan, telecommunication network protection zones are established for:

- underground cable and overhead communication and radio broadcasting lines located outside populated areas on treeless land plots, in the form of land plots along such lines, defined by parallel straight lines located at a distance of at least 2 metres on each side from the underground cable route or the outermost wires of overhead lines;

- ground-level and underground unattended amplification and regeneration points on cable communication lines, in the form of land plots defined by a closed line located at a distance of at least 3 metres from the centre of the installation of amplification and regeneration points or from the boundary of their embankments, and at least 2 metres from grounding contours;

- underwater cable communication lines, in the form of water areas extending throughout the entire depth, from the water surface to the bottom, defined by parallel planes located at a distance of 0.25 nautical miles (0.4 km) from the route of the sea cable and at a distance of 100 metres on each side from the cable route at crossings over rivers, lakes, reservoirs and canals (irrigation ditches);

- telephone cable ducts, armoured cables laid in the ground, cable lines suspended on poles, and overhead communication and radio broadcasting lines located in populated areas, in the form of land plots along such lines, defined by parallel straight lines located at a distance of at least 2 metres on each side from the route of the ducts or inspection structures, or at a distance of at least 2 metres on each side from the outermost wires of overhead lines;

- cable communication lines located in basements and attics of residential buildings, administrative buildings and structures, in floor distribution panels and inter-floor passages, as well as those laid along the external and internal walls of buildings, in the form of land plots defined by parallel straight lines located at a distance of at least 25 millimetres on each side from the cable route.

In accordance with the above-mentioned Rules, the following activities shall not be permitted within telecommunication network protection zones without the written consent and presence of a representative of the relevant organisation operating the communication lines/facilities:

- carrying out any construction, installation or blasting works, levelling the soil using earthmoving machinery, and excavation works involving the opening of soil to a depth exceeding 0.3 metres (except for ploughing that does not exceed the specified depth);

- carrying out geological surveying, prospecting, geodetic and other survey work involving the drilling of wells, excavation of test pits, soil sampling and blasting operations;

- carrying out works within protection zones without a project where such works may damage communication lines/facilities (digging pits, planting trees, arranging field camps, keeping livestock, storing materials, fodder and fertilisers, setting up shooting ranges), as well as lighting fires;

- arranging access roads and parking areas for motor vehicles, tractors and machinery, installing fences and other obstacles, creating temporary exits from roads, transporting oversized cargo beneath overhead communication and radio broadcasting lines where the dimensions of such cargo are equal to or exceed the height at which the wires are suspended on poles, constructing canals (irrigation ditches), and excavating trenches for connecting individual houses (buildings) to engineering networks (water supply systems and heating networks);

- arranging berths for vessels, barges and floating cranes, carrying out loading and unloading operations, underwater technical works, dredging and excavation works, allocating fishing areas, catching fish and other aquatic animals, as well as aquatic plants using bottom fishing equipment, arranging watering places for livestock, and breaking and harvesting ice. Vessels and other floating craft shall not be permitted to drop anchors, navigate with anchors, chains, sounding leads, drags or trawls deployed;

- constructing and reconstructing power transmission lines, radio stations and other facilities emitting electromagnetic energy and having a hazardous impact on communication lines;

- carrying out corrosion protection of underground utilities without taking into account the underground cable communication lines passing through the area;

- placing temporary structures (kiosks, advertising boards and bus stops);

- carrying out roof replacement and repair works, as well as attic works directly associated with fastening supports and guy wires of pole-mounted cable communication lines and radio broadcasting lines laid across building roofs, and other works that may damage communication cables and wires located on the external and internal walls of buildings, in basements and in inter-floor passages.

According to subparagraph 19-11) of paragraph 1 of Article 8 of the Law “On Communications”, approval of the rules for the protection of telecommunication networks in the Republic of Kazakhstan, including the procedure for establishing protection zones and the operating regime within them, falls within the competence of the authorised body.

The authorised body is the central executive body designated by the Government of the Republic of Kazakhstan, which implements state policy in the field of communications, exercises state control, and coordinates and regulates the activities of persons providing or using services in the field of communications (subparagraph 65) of Article 2 of the Law “On Communications”).

Thus, a violation of the rules for the protection of communication lines and communication facilities shall be understood as a criminal act in the form of an action or omission, where a person, by virtue of the work performed or the position held, fails to perform actions prescribed by regulatory legal acts governing the rules for the protection of communication lines and communication facilities, or performs them in violation of such requirements or not in full (partially). For example, a violation of the rules for the protection of communication lines and facilities may consist in failure to comply with requirements for soil reinforcement or in an official performing work within a protection zone without technical documentation, provided that this circumstance caused damage to a cable communication line and resulted in an interruption of communications or created a threat of interruption of communications.

The composition of the criminal misdemeanour provided for in Part 1 of Article 398 of the Criminal Code is, by its structure, formal-material. The criminal misdemeanour shall be deemed completed when the violation of the rules for the protection of communication lines or facilities results in consequences in the form of an interruption of communications or creates a threat of interruption of communications.

The subjective element of the criminal misdemeanour provided for in Parts 1 and 2 of Article 398 of the Criminal Code is characterised by an intentional form of guilt. In this regard, intent may be either direct or indirect.

When committing a criminal misdemeanour with direct intent, the perpetrator is aware that they are violating the rules for the protection of communication lines or communication facilities, foresees the possibility or inevitability of socially dangerous consequences in the form of an interruption of communications, and desires their occurrence.

In the case of indirect intent, the person is aware that they are violating the rules for the protection of communication lines or communication facilities, foresees the possibility or inevitability of socially dangerous consequences in the form of an interruption of communications, does not desire their occurrence but consciously allows such consequences to occur or is indifferent to them.

The motive and purpose in relation to the composition of the criminal misdemeanour under consideration are optional elements of the subjective side. Accordingly, they do not affect the legal qualification. Motives may vary and must be taken into account when imposing punishment.

The subject of the criminal misdemeanour provided for in Parts 1 and 2 of Article 398 of the Criminal Code may be any sane individual who has reached the age of 16 and upon whom the obligation to comply with the rules for the protection of communication lines or communication facilities has been imposed.

Part 2 of Article 398 of the Criminal Code provides for liability for violating the rules for the protection of communication lines, resulting in damage to an intercity communication cable line or interruption of intercity communications.

In accordance with subparagraph 33) of Article 2 of the Law of the Republic of Kazakhstan “On Communications”, an intercity communication line is a communication line connecting the intercity switching stations of a communication operator within the territory of the Republic of Kazakhstan.

Cable communication lines shall be understood as communication lines consisting of directed transmission facilities (cables), intended to organise communications jointly with wired transmission systems. The organisation of communications shall be understood as the organisation of channels for telephone communications, facsimile communications, data transmission, technological communications and other types of communications.

Damage to an intercity communication cable line shall be understood as deterioration of the cable line that subsequently makes its use difficult or renders it impossible to use without restoration.

Interruption of intercity communications shall be understood as the complete cessation of the reception, collection, processing, accumulation and transmission of information between cities. In other words, it means bringing communication lines into a condition in which they cannot be restored and used for their intended purpose.

The composition of the criminal misdemeanour provided for in Part 2 of Article 398 of the Criminal Code is, by its structure, material. The criminal misdemeanour shall be deemed completed when the violation of the rules for the protection of communication lines or facilities results in damage to an intercity communication cable line or interruption of intercity communications.

In Part 3 of Article 398 of the Criminal Code, the legislator has established an independent corpus delicti providing for criminal liability for violating the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions, where such violation results in their seizure or other grave consequences.

The public danger of the crime provided for in Part 3 of Article 398 of the Criminal Code lies in the fact that it encroaches upon facilities subject to state protection, buildings of state bodies and state institutions, as a result of which their normal functioning is disrupted.

The object of the crime under consideration is the social relations aimed at ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions.

The objective element of the crime provided for in Part 3 of Article 398 of the Criminal Code consists in violating the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions, where such violation results in their seizure or other grave consequences.

The provision of Part 3 of Article 398 of the Criminal Code is blanket in nature and refers to other regulatory legal documents, in particular, the Law of the Republic of Kazakhstan dated 19 October 2000, “On Security Activities”, and the Resolution of the Government of the Republic of Kazakhstan dated 7 October 2011, “Certain Issues Concerning Facilities Subject to State Protection”.

In accordance with subparagraph 1) of paragraph 1 of the Requirements for the Engineering and Technical Reinforcement of Facilities Subject to State Protection, approved by the Resolution of the Government of the Republic of Kazakhstan dated 7 October 2011, “Certain Issues Concerning Facilities Subject to State Protection”, security means the condition of a protected facility in which there is no unacceptable risk associated with causing harm to it as a result of the realisation of any threat or the effects of such threat.

A facility is a building, structure or land plot where material assets or other items subject to mandatory protection are concentrated (subparagraph 7) of paragraph 1 of the Requirements).

A protected facility is a separate room (territory) containing material or other assets, or several rooms distributed within one or more buildings, united by a common territory and protected by a Security Unit (subparagraph 28) of paragraph 1 of the Requirements).

According to the said Rules, facilities of the Republic of Kazakhstan subject to state protection are divided into three main categories: particularly important state facilities, strategic facilities, and facilities belonging to sectors of the economy of strategic importance and owned by legal entities in whose authorised capital the state directly or indirectly holds a controlling block of shares (participatory interests).

Particularly important state facilities include facilities whose integrity, if compromised, may negatively affect state security, the proper implementation of the functions assigned to the state, cause significant damage to the economy, complicate interstate relations, as well as facilities of significant importance to the state and society.

The category of particularly important state facilities includes: administrative buildings and facilities of central and local executive state bodies of the Republic of Kazakhstan of republican and regional significance, the Supreme Court of the Republic of Kazakhstan, local and other courts, the General Prosecutor's Office, regional prosecutor's offices, prosecutor's offices of cities of republican significance and the capital of the Republic of Kazakhstan, city and equivalent military and other specialised prosecutor's offices, the Committee on Legal Statistics and Special Records and its territorial divisions; facilities of the National Bank of the Republic of Kazakhstan, its branches and storage facilities; foreign diplomatic missions, foreign consular institutions, international organisations and representative offices of international organisations located within the territory of the Republic of Kazakhstan.

Strategic facilities include facilities of socio-economic importance for the sustainable development of Kazakhstani society, damage to which may negatively affect the state of national security of the Republic of Kazakhstan and create a threat to the life and health of citizens.

The category of strategic facilities includes: facilities of the Republic of Kazakhstan protected by the State Security Service of the Republic of Kazakhstan jointly with units of internal affairs bodies and included in the list approved by the President of the Republic of Kazakhstan, as well as facilities of important state significance; military units of the Armed Forces of the Republic of Kazakhstan and other troops and military formations, facilities containing state material reserves — warehouses for storing medical preparations, fuels and lubricants, food supplies and clothing; facilities of state organisations and institutions engaged in the development, production, testing, research and storage of particularly dangerous, bacteriological, biological and chemical substances, narcotic drugs and precursors; space infrastructure facilities; facilities for the use of atomic energy; life-support facilities, including in the following sectors: heat supply — combined heat and power plants (exceeding 50 Gcal); drinking water supply — water intake facilities.

Facilities belonging to sectors of the economy of strategic importance and owned by legal entities in whose authorised capital the state directly or indirectly holds a controlling block of shares (participatory interests) include facilities of the Republic of Kazakhstan classified as major taxpayers, with state participation in their authorised capital, whose activities involve an increased risk of emergency situations.

This category includes: water management facilities — hydraulic structures: hydroelectric complexes, locks and dams; reservoirs used for water resource management; communication, television and radio broadcasting facilities of republican significance; facilities of legal entities engaged in the storage of explosives and poisonous substances.

The protection of facilities subject to state protection shall be carried out by state bodies, specialised security units of internal affairs bodies, the Armed Forces, other troops and military formations of the Republic of Kazakhstan.

The State Security Service of the Republic of Kazakhstan ensures the security of the places of work and residence of protected persons with the involvement of specialised security units of internal affairs bodies.

State bodies of the Republic of Kazakhstan and legal entities in whose authorised capital the state directly or indirectly holds a controlling block of shares (participatory interests) shall submit proposals to the Ministry of Internal Affairs of the Republic of Kazakhstan for the inclusion in the list of facilities subject to state protection (hereinafter referred to as the List) of newly established facilities and the exclusion of liquidated facilities belonging to the above-mentioned categories in accordance with the said Rules, by 20 April of the reporting year.

The Ministry of Internal Affairs, based on proposals from state bodies and legal entities, may make amendments to the List in accordance with the procedure established by law annually no later than 1 December.

The protection of foreign diplomatic missions, foreign consular institutions, international organisations and representative offices of international organisations, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961, the Vienna Convention on Consular Relations of 24 April 1963 and other international treaties of the Republic of Kazakhstan, shall be ensured by specialised security units of the internal affairs bodies of the Republic of Kazakhstan in accordance with the list submitted annually by the Ministry of Foreign Affairs to the Ministry of Internal Affairs of the Republic of Kazakhstan.

The concept of “building” is provided in subparagraph 60) of Article 1 of the Law of the Republic of Kazakhstan dated 16 July 2001, “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”.

In accordance with the Resolution of the Government of the Republic of Kazakhstan dated 22 November 2011, “On Approval of the Rules for the Manufacture and Placement of Signs Bearing the Names of State Bodies on Administrative Buildings”, state bodies are state institutions authorised by the Constitution, laws and other regulatory legal acts to perform, on behalf of the state, the following functions: issuing acts establishing generally binding rules of conduct; managing and regulating socially significant public relations; and monitoring compliance with generally binding rules of conduct established by the state.

According to subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan dated 1 March 2011, “On State Property”, a state institution is a non-profit organisation established by the state and maintained solely at the expense of the budget or the budget (expenditure estimate) of the National Bank of the Republic of Kazakhstan, unless additional sources of financing are established by the laws of the Republic of Kazakhstan, for the purpose of performing managerial, socio-cultural or other non-commercial functions.

Thus, a violation of the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions shall be understood as a criminal act in the form of an action or omission, where a person, by virtue of the work performed or the position held, fails to perform actions prescribed by regulatory or local legal acts governing the security requirements applicable to the above-mentioned facilities, or performs such actions in violation of the established requirements or not in full (partially).

At the same time, it should be taken into account that liability under Part 3 of Article 398 of the Criminal Code arises not for the violation of any requirements for ensuring the security of the above-mentioned facilities, but only for the violation of those requirements whose breach resulted in the harmful consequences specified in the Article.

The composition of the crime is material in its structure. Accordingly, the objective element of this act includes three mandatory features: firstly, a socially dangerous act consisting in the violation of requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions; secondly, socially dangerous consequences expressed in the seizure of the said facilities or the causing of other grave consequences; and thirdly, a causal relationship between the violations and the consequences specified in the law. Accordingly, the act shall be deemed completed from the moment the socially dangerous consequences occur.

As a socially dangerous consequence of violating the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions, the legislator has provided for the seizure of facilities subject to state protection, buildings of state bodies and state institutions, or the causing of other grave consequences.

Seizure shall be understood as the unlawful taking possession of a facility subject to state protection, a building of a state body or a state institution. The concept of grave consequences is contained in subparagraph 4) of Article 3 of the Criminal Code.

The subjective element of the crime provided for in Part 3 of Article 398 of the Criminal Code is characterised by an intentional form of guilt. In this regard, intent may be either direct or indirect.

When committing a crime with direct intent, the perpetrator is aware that they are violating the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions, foresees the possibility or inevitability of socially dangerous consequences in the form of seizure of the above-mentioned facilities or the causing of other grave consequences, and desires their occurrence.

In the case of indirect intent, the person is aware that they are violating the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions, foresees the possibility or inevitability of socially dangerous consequences in the form of seizure of the above-mentioned facilities or the causing of other grave consequences, does not desire their occurrence but consciously allows such consequences to occur or is indifferent to them.

The motive and purpose in relation to the composition of the criminal offence under consideration are optional elements of the subjective side. Accordingly, they do not affect the legal qualification. Motives may vary and must be taken into account when imposing punishment.

The subject of the crime provided for in Part 3 of Article 398 of the Criminal Code may be any sane individual who has reached the age of 16 and upon whom the obligation to comply with the requirements for ensuring the security of facilities subject to state protection, buildings of state bodies and state institutions has been imposed.

The acts provided for in Parts 1 and 2 of Article 398 of the Criminal Code constitute criminal misdemeanours.

The act provided for in Part 3 of Article 398 of the Criminal Code constitutes 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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