Commentary on Article 399 of the Criminal Code of the Republic of Kazakhstan. Illegal Manufacture, Production, Acquisition, Sale or Use of Special Technical Means Intended for the Covert Acquisition of Information

1. Illegal manufacture, production, acquisition, sale or use of special technical means intended for the covert acquisition of information —

shall be punishable by a fine 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.

2. The same acts committed by a group of persons pursuant to a prior conspiracy or on a large scale —

shall be punishable by a fine 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.

3. The acts provided for in Parts One or Two of this Article, committed by a criminal group —

shall be punishable by imprisonment for a term of three to seven years.

In accordance with Article 18 of the Constitution of the Republic of Kazakhstan, everyone has the right to privacy, personal and family confidentiality, and protection of their honour and dignity. Everyone has the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications. Restrictions on this right are permitted only in cases and in accordance with the procedure expressly established by law, for example, Article 243 of the Criminal Procedure Code of the Republic of Kazakhstan, “Covert Monitoring, Interception and Removal of Information Transmitted via Electrical (Telecommunication) Communication Networks”.

The public danger of the crime provided for in Article 399 of the Criminal Code lies in the violation of the aforementioned right guaranteed by the Constitution and consists in encroachment upon the established procedure for the use of special technical means.

The object of the crime under consideration is public relations ensuring the activities of government bodies (the state and its apparatus: legislative and executive authorities and officials). An additional object is public relations guaranteeing the right to privacy, personal and family confidentiality, and protection of one's honour and dignity.

The subject matter of the crime provided for in Article 399 of the Criminal Code is special technical means intended for the covert acquisition of information.

According to the Law of the Republic of Kazakhstan dated 15 September 1994, “On Operational-Investigative Activities”, special technical means are devices, equipment, instruments and apparatus having special functions, software and design features for obtaining and documenting information in the course of operational-investigative measures and covert investigative actions. Such means include, for example, special technical means for the covert acquisition and recording of acoustic and video information; for covert visual surveillance and documentation (video cameras with a fixed lens whose aperture diameter does not exceed 2 millimetres, cameras and video cameras disguised as household objects); for covert listening to and recording of telephone and other conversations; for covert interception and recording of information from technical communication channels; for covert monitoring of postal correspondence and consignments; for covert examination of objects and documents; for covert entry into and inspection of premises, vehicles and other facilities (devices for opening locking mechanisms, means of neutralising security systems), and others.

The objective element of the crime provided for in Article 399 of the Criminal Code consists in the illegal manufacture, production, acquisition, sale or use of special technical means intended for the covert acquisition of information.

The illegality of the actions specified in the disposition of the Article under consideration means that they are committed in violation of the established procedure. Thus, for example, in accordance with the Law of the Republic of Kazakhstan dated 16 May 2014, “On Permits and Notifications”, activities involving the development, production, repair and sale of special technical means intended for conducting operational-investigative measures are subject to licensing.

According to the Resolution of the Government of the Republic of Kazakhstan dated 27 July 2015, “On Determining the Licensing Authority in the Fields of Information Security and Special Technical Means Intended for Conducting Operational-Investigative Measures, and the Body Authorised to Issue a Second-Category Permit in the Field of Cryptographic Information Protection”, the licensing authority responsible for licensing activities involving the development, production, repair and sale of special technical means intended for conducting operational-investigative measures; the development of cryptographic information protection tools; and the provision of services for identifying technical information leakage channels and special technical means intended for conducting operational-investigative measures is the National Security Committee of the Republic of Kazakhstan.

Illegal manufacture of special technical means intended for the covert acquisition of information should be understood as the unlawful manufacture of such technical means.

Illegal production of special technical means intended for the covert acquisition of information should be understood as their industrial or artisanal manufacture, adaptation of household equipment for special purposes, its modernisation for the covert acquisition of information, and other similar actions.

To acquire means to become the owner or possessor of something, or to obtain something. Acquisition means obtaining an item into one's possession, use and control by any means, whether for consideration or free of charge (through purchase, exchange, receipt as a gift, as collateral, etc.).

Illegal acquisition of special technical means intended for the covert acquisition of information constitutes any action prohibited by law as a result of which the offender becomes the possessor of a special technical device, including purchasing it, exchanging it, receiving it as a gift, receiving it as payment of a debt, etc.

If the method of acquiring special technical means intended for the covert acquisition of information contains the elements of an independent criminal offence, for example, theft, the act should be classified under the cumulative elements of criminal offences (under Articles 188 and 399 of the Criminal Code).

Illegal sale of special technical means intended for the covert acquisition of information means their sale through wholesale supply or retail purchase and sale, barter transactions, as well as gratuitous alienation. The illegality of these actions means that the relevant special technical means are sold in violation of the applicable rules.

To use means to make use of something or employ it.

Illegal use of special technical means means their unlawful use in violation of the procedure for their use established by legislation.

If, as a result of using special technical means intended for the covert acquisition of information, a person violates the confidentiality of correspondence, telephone conversations, postal, telegraphic or other communications, the act should be classified under the cumulative elements of criminal offences (under Articles 148 and 399 of the Criminal Code).

The corpus delicti of the crime provided for in Article 399 of the Criminal Code is, by its construction, formal. The crime is considered completed from the moment one of the actions specified in the disposition of this Article is committed.

The subjective element of the crime under consideration is characterised by direct intent. The offender is aware that they are illegally manufacturing, producing, acquiring, selling or using special technical means intended for the covert acquisition of information and desires to perform these actions.

The motive and purpose do not affect the legal classification of the offence but are taken into account by the court when imposing punishment.

The subject of the crime provided for in Article 399 of the Criminal Code may be any sane person who has reached the age of sixteen.

Part 2 of Article 399 of the Criminal Code provides for qualifying circumstances of the illegal manufacture, production, acquisition, sale or use of special technical means intended for the covert acquisition of information, namely, the commission of the act by a group of persons pursuant to a prior conspiracy or on a large scale.

The concept of the circumstance “by a group of persons pursuant to a prior conspiracy” is set out in Part 2 of Article 31 of the Criminal Code.

Illegal manufacture, production, acquisition, sale or use of special technical means intended for the covert acquisition of information committed by a group of persons pursuant to a prior conspiracy means the commission of such acts involving persons who had agreed in advance to jointly commit this type of crime.

For the purposes of Article 399 of the Criminal Code, in accordance with Subparagraph 38) of Article 3 of the Criminal Code, a large scale means the value of special technical means exceeding five thousand monthly calculation indices.

Part 3 of Article 399 of the Criminal Code provides for criminal liability for the acts specified in Parts 1 or 2 of this Article when committed by a criminal group (see the commentary to Subparagraph 24) of Article 3 and Part 3) of Article 31 of the Criminal Code).

The act provided for in Part 1 of Article 399 of the Criminal Code is classified as a minor criminal offence.

The act provided for in Part 2 of Article 399 of the Criminal Code is classified as a medium-gravity criminal offence.

The act provided for in Part 3 of Article 399 of the Criminal Code is classified as a serious criminal offence.

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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