Commentary on Article 423. Disclosure of Pre-Trial Proceedings Data or Closed Court Proceedings of the Criminal Code of the Republic of Kazakhstan

1. Disclosure of pre-trial proceedings data or closed court proceedings by a person who has been warned, in accordance with the procedure established by the law of the Republic of Kazakhstan, of the inadmissibility of disclosing such information, where the disclosure of pre-trial proceedings data is made without the consent of the prosecutor or the person conducting the pre-trial proceedings, as well as disclosure of closed court proceedings data without the consent of the judge —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor 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 deprivation of liberty for the same period.

The public danger of this act is manifested in the fact that disclosure of pre-trial proceedings data or closed court proceedings may impede the pre-trial investigation and affect the establishment of the truth in the case. Factual data obtained during pre-trial proceedings or closed court proceedings may be neutralized by a person interested in the case — such a person may destroy traces of the crime, conceal objects obtained by criminal means, or commit other actions that may impede the investigation process, the timely exposure of the guilty person, and the adoption of a fair judicial decision in respect of that person. In addition, disclosure of pre-trial proceedings data or closed court proceedings may result in a violation of the lawful rights and interests of an individual.

Restriction of publicity, as one of the fundamental principles of criminal proceedings, is expressly provided for in Article 29 of the Criminal Procedure Code as an exceptional circumstance. Article 47 of the Criminal Procedure Code sets out the mechanisms for ensuring confidentiality, while the protection of pre-trial investigation data is covered by Article 201 of the Criminal Procedure Code. These three categories must be properly distinguished.

The object of the crime is social relations ensuring the proper and normal functioning of pre-trial investigation bodies and the court. The interests of an individual may constitute an additional object.

The subject matter of the crime under consideration is information in the form of pre-trial proceedings data or closed court proceedings data that is not subject to disclosure. Pursuant to paragraph 41 of Article 7 of the Criminal Procedure Code, pre-trial proceedings are proceedings in a case from the commencement of the pre-trial investigation until the prosecutor refers the criminal case to court for consideration on the merits or terminates the proceedings in the case, as well as the preparation of materials in a criminal case by a private prosecutor and the defence party. This may only include information relating to pre-trial proceedings or information of substantial significance to closed court proceedings. Thus, in particular, informing acquaintances that a person has given testimony as a witness, etc., does not constitute disclosure of information. Such communications are not of substantial significance to the investigation or court proceedings.

The objective element of the crime consists of the disclosure of pre-trial proceedings data or closed court proceedings data by a person who has been warned, in accordance with the procedure established by law, of the inadmissibility of disclosing such information, where such disclosure is made without the consent of the prosecutor, investigator or person conducting the pre-trial proceedings, as well as without the consent of the judge.

Pursuant to Part 1 of Article 201 of the Criminal Procedure Code, pre-trial investigation data shall not be disclosed. Such data may be made public only with the permission of the prosecutor, to the extent that the prosecutor considers possible, provided that this does not contradict the interests of the investigation and is not associated with a violation of the rights and legitimate interests of other persons.

In accordance with Part 1 of Article 29 of the Criminal Procedure Code, criminal cases are heard openly in all courts and judicial instances. Restriction of the publicity of court proceedings is permitted only where publicity contradicts the interests of protecting state secrets and other secrets protected by law. Closed court proceedings are permitted pursuant to a reasoned court ruling in cases involving criminal offences committed by minors, cases involving sexual offences, and other cases for the purpose of preventing the disclosure of information concerning the intimate aspects of the lives of persons participating in the case, as well as in cases where this is required by the security interests of the victim, witness or other persons participating in the case, as well as members of their families or close relatives. Complaints against actions (inaction) and decisions of the body conducting criminal prosecution, which are considered by an investigating judge, are also examined in closed court hearings.

Disclosure consists of communicating information concerning any procedural action (a search conducted, an inspection of the crime scene, a confrontation, etc.), the investigation itself, or available information about persons participating in the case, to at least one outsider.

Since Article 423 of the Criminal Code does not establish a list of data that may not be disclosed, any information contained in the criminal case should be classified as such data.

Disclosure may be carried out in any form: orally, in writing, by means of audio or video recording, through mass media, via the Internet, etc.

The person conducting the pre-trial investigation warns the defence counsel, witnesses, the victim, the civil claimant, the civil defendant or their representatives, the expert, specialist, interpreter, attesting witnesses and other persons present during investigative actions of the inadmissibility of disclosing, without that person's permission, the information contained in the case. A written undertaking is obtained from such persons, containing a warning of liability (Part 2 of Article 201 of the Criminal Procedure Code).

Persons participating in a closed court hearing are warned by the court of the inadmissibility of disclosing, without its permission, the information contained in the case. A written undertaking is obtained from them, containing a warning of liability (Article 350 of the Criminal Procedure Code).

The absence of a duly executed written undertaking containing a warning of liability excludes criminal liability for disclosure of pre-trial investigation data or closed court proceedings data.

The crime consists of disclosure of information committed during pre-trial proceedings or closed court proceedings. Communication of the same information from the moment an open court hearing begins does not constitute the elements of the crime provided for in Article 423 of the Criminal Code.

The elements of the crime under consideration will also be absent where the aforementioned actions are committed after the case has been examined by the court and a judgment has been rendered, since the results of pre-trial proceedings become known to all participants in the proceedings during the court examination of the case, and criminal procedure legislation does not contain a requirement prohibiting the disclosure of such data after the case has been considered by the court.

By its structure, the corpus delicti is formal. The crime shall be considered completed from the moment the data concerning pre-trial proceedings or closed court proceedings becomes known to at least one outsider. At the same time, the outsider must understand the meaning of the disclosed data. If the said outsider is unable to understand the meaning of the disclosed information for various reasons, the actions of the perpetrator should be classified as an attempt to disclose pre-trial proceedings data or closed court proceedings data (Part 3 of Article 24, Article 423 of the Criminal Code).

Disclosure of pre-trial proceedings data or closed court proceedings data is committed with direct intent: the perpetrator is aware of the public danger of disclosing any pre-trial proceedings data or closed court proceedings data, foresees the negative consequences and desires to disclose such data.

A person may also disclose pre-trial proceedings data or closed court proceedings data through negligence. Such an act is not criminal due to its insignificance, as it does not pose a public danger (Part 4 of Article 10 of the Criminal Code).

The motives and purposes of committing the crime may vary (careerism, revenge, greed, etc.) and do not affect the legal classification of the crime.

The subject of the crime is a special subject — a physically competent person who has reached the age of 16 and has been duly warned of the inadmissibility of disclosing pre-trial proceedings data or closed court proceedings data.

An employee of the mass media who was present during investigative actions may be recognized as the subject of the crime under consideration if a written undertaking was obtained from that person confirming that they had been warned of criminal liability for disclosure of pre-trial investigation data.

Criminal procedure law does not restrict the range of possible subjects of this crime, since Part 2 of Article 201 of the Criminal Procedure Code, after listing certain participants in the proceedings as such subjects, states that other persons present during investigative actions may also fall within this category.

A person who was not present during investigative actions but who became aware of pre-trial proceedings data or closed court proceedings data, for example, from the statements of persons who were present during investigative actions, employees of law enforcement agencies, or participants in closed court proceedings, cannot be recognized as the subject of the crime under consideration. The basis for not recognizing them as subjects of the crime commented upon is the fact that they were not warned of criminal liability for disclosure of pre-trial proceedings data or closed court proceedings data.

On the same grounds, a person who was present during investigative actions but was not warned, in accordance with the procedure established by law, of the inadmissibility of disclosing pre-trial proceedings data or closed court proceedings data cannot be the subject of the article commented upon.

As for the employees of pre-trial investigation bodies and the court themselves, maintaining official confidentiality is part of their official duties. They may also be subjects of the crime provided for in Article 423 of the Criminal Code.

If the data specified in the disposition of Article 423 of the Criminal Code is disclosed by officials of investigative and judicial bodies to whom such information became known in the course of their official duties, they may, where the relevant conditions are present, be held liable under Articles 361 or 371 of the Criminal Code.

The act provided for in Article 423 of the Criminal Code is classified as a minor offence.

The text has been corrected for spelling errors and obvious typographical errors, and words distorted during text recognition have been restored. The content and volume of the text have been preserved; formulations that raise substantive doubts have deliberately not been edited.

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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