Commentary on Article 424 of the Criminal Code of the Republic of Kazakhstan. Disclosure of Information on Security Measures Applied to Persons Subject to State Protection
1. Disclosure of information on security measures applied to persons subject to state protection, where such act is committed by a person to whom the said information was entrusted or became known in connection with their official duties, —
shall be punishable by a fine 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 imprisonment for the same period.
2. The same act, if it results in grave consequences or is committed in the interests of a criminal group, —
shall be punishable by a fine of up to six thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to six years, or imprisonment for the same period.
The public danger of the offence consists in the violation of security measures adopted by the court in respect of participants in criminal proceedings, as well as the constitutional principles of personal inviolability and equality of all persons before the law and the court. The public danger lies in the fact that disclosure of information about security measures exposes persons subject to state protection to danger.
In accordance with Article 4 of the Code of Conduct for Law Enforcement Officials, adopted by United Nations General Assembly Resolution 34/169 of 17 December 1979, confidential information obtained by law enforcement officials shall be kept secret unless the performance of their duties or the requirements of justice otherwise require.
The object of the offence is the proper functioning of the court in the administration of justice, as well as the safety of participants in criminal proceedings.
An obligatory element of the corpus delicti is the subject matter of the offence, namely information about security measures applied to persons subject to state protection. Information about security measures must specifically concern persons subject to state protection.
According to Article 3 of the Law of the Republic of Kazakhstan dated 5 July 2000, “On State Protection of Persons Participating in Criminal Proceedings”:
“Under the Criminal Procedure Code and this Law, the following persons shall be subject to state protection:
- judges;
- jurors;
- prosecutors;
- investigators;
- inquiry officers;
- persons carrying out operational-search and counterintelligence activities;6-1) citizens assisting bodies carrying out operational-search and counterintelligence activities;6-2) private prosecutors;
- defence counsel;
- experts;
- specialists;
- court session secretaries, court bailiffs and judicial enforcement officers;
- victims;
- witnesses;
- suspects;
- accused persons, defendants, convicted persons, as well as persons in respect of whom criminal prosecution has been terminated or in respect of whom an acquittal has been issued by a court;
- interpreters;
- attesting witnesses;
- legal representatives and representatives;
- civil claimants and civil defendants;
- family members and close relatives of the persons listed in subparagraphs 1)–18) of this Article.
State protection measures may also be applied to persons who assist in the prevention or detection of crimes, provided that there is a real threat of violence or another act prohibited by criminal law being committed against them.”
The objective element of the offence under consideration consists in the disclosure of information about security measures applied to persons subject to state protection, where such act is committed by a person to whom the said information was entrusted or became known in connection with their official duties.
Disclosure of information may take the form of an act: during an oral conversation, by transferring documents, demonstrating an audio or video recording, publishing information in the press or other mass media, during a telephone conversation, through email correspondence, etc. Security measures may also be disclosed through omission, for example, by leaving documents containing information about security measures in a place accessible to unauthorised persons.
Disclosure shall be understood as communicating information about security measures applied to persons subject to state protection to at least one unauthorised person. An unauthorised person shall be understood as any person who has not been granted access to information about the relevant security measures. Such persons include family members, friends and relatives of the person in respect of whom security measures are being applied, as well as the offender's colleagues and others.
Security measures applied to persons subject to state protection are diverse. In accordance with Article 5 of the Law of the Republic of Kazakhstan “On State Protection of Persons Participating in Criminal Proceedings”, the provision of state protection consists of:
the application by authorised state bodies of security measures aimed at protecting the life and health of protected persons, as well as ensuring the preservation of their property;
the application of legal protection measures, including those providing for criminal liability for encroachments upon their life, health and property;
the implementation of social protection measures providing for the exercise of the right established by this Law to receive material compensation in the event of their death, bodily injury or other harm to their health, or destruction or damage to their property.
For the purpose of ensuring the personal and property safety of protected persons during an inquiry, preliminary investigation or court proceedings, the body conducting the criminal proceedings shall be entitled, taking into account the specific circumstances, to apply the following procedural and other security measures:
issuing an official warning to a person from whom a threat of violence or the commission of other acts prohibited by criminal law originates, regarding the possibility of being held criminally liable;
restricting access to information about the protected person;
imposing on the accused (suspect) a preventive measure that excludes the possibility of using or organising the use of violence against persons participating in criminal proceedings, or committing or organising the commission of other criminal acts against them;
removing certain persons from the courtroom;
holding a closed court hearing;
examining a witness in court without disclosing personal identifying information, using a pseudonym; under conditions that prevent the witness from being recognised; without allowing other participants in the proceedings to see the witness; and, where necessary, prohibiting video recording, audio recording and other methods of recording the examination;
personal protection and protection of the residence and other property;
providing, in accordance with the established procedure, weapons, personal protective equipment and technical devices;
temporary placement in a safe location;
- ensuring the confidentiality of information about protected persons;
- relocation to another place of residence, change of place of employment (service) or study, and assistance with employment;
- replacement of documents;
- alteration of appearance.
Relocation to another place of residence, replacement of documents and alteration of appearance are exceptional security measures and shall be applied in cases where the safety of the protected person cannot be ensured through the application of other security measures.
The corpus delicti is formal in its construction. The offence shall be deemed completed from the moment the information becomes known to at least one person who is not authorised to access information about the relevant security measures. At the same time, it is necessary that the unauthorised person understands the meaning of the information communicated to them. If the said person does not understand the disclosed information, an attempt to commit the offence provided for by Part 3 of Article 24 and Article 424 of the Criminal Code shall be deemed to have taken place.
For the purposes of qualification, it is irrelevant whether the person who became aware of the said security measures used this information contrary to the interests of justice.
From the subjective standpoint, the offence may be committed intentionally, with either direct or indirect intent.
A person acting with direct intent is aware of the socially dangerous nature of disclosing information about security measures applied to persons subject to state protection, foresees the disclosure of such information and wishes to disclose it.
A person acting with indirect intent is aware of the socially dangerous nature of disclosing information about security measures, foresees the possibility of such disclosure, does not desire it but consciously allows it or treats it with indifference. For example, measures to ensure a witness's safety are discussed in an office with the doors left open, as a result of which this information becomes known to unauthorised persons.
The subject of the offence is special. It includes a person to whom the information in question was entrusted or a person who became aware of such information in connection with their official duties. The latter category includes persons whose list is contained in Article 21 of the Law of the Republic of Kazakhstan “On State Protection of Persons Participating in Criminal Proceedings”.
The security measures provided for in Article 7 of the Law of the Republic of Kazakhstan “On State Protection of Persons Participating in Criminal Proceedings” shall be ensured by:
The bodies conducting the criminal proceedings:
issuing an official warning to a person from whom a threat of violence or the commission of other acts prohibited by criminal law originates, regarding the possibility of being held criminally liable;
restricting access to information about the protected person;
imposing on the accused (suspect) a preventive measure that excludes the possibility of using or organising the use of violence against persons participating in criminal proceedings, or committing or organising the commission of other criminal acts against them;
personal protection and protection of the residence and other property;
providing, in accordance with the established procedure, weapons, personal protective equipment and technical devices;
temporary placement in a safe location;
ensuring the confidentiality of information about protected persons;
Authorised state bodies — replacement of documents;
Courts:
removing certain persons from the courtroom;
holding a closed court hearing;
examining a witness without disclosing personal identifying information, using a pseudonym; under conditions that prevent the witness from being recognised; without allowing other participants in the proceedings to see the witness; and, where necessary, prohibiting video recording, audio recording and other methods of recording the examination;
The body conducting the criminal proceedings and, where necessary, jointly with the state body responsible for healthcare — alteration of appearance;
The body conducting the criminal proceedings, jointly with local executive bodies:
relocation to another place of residence;
change of place of employment (service) or study;
assistance with employment.
Security measures in respect of judges of military courts, prosecutors, military personnel of military police and military investigative units, as well as their family members and close relatives, may also be carried out by the command of the relevant military unit or the head of the relevant military institution (Part 2 of Article 21 of the Law of the Republic of Kazakhstan “On State Protection of Persons Participating in Criminal Proceedings”).
Part 2 of the commented Article provides for qualifying elements:
- acts resulting in grave consequences;
- acts committed in the interests of a criminal group.
Grave consequences may include the murder of participants in criminal proceedings in respect of whom security measures were applied, or their close relatives; the infliction of grievous bodily harm upon these persons; destruction of their property; significant material expenses incurred to eliminate the consequences of disclosing information about security measures; the death of a law enforcement officer who ensured the safety of participants in criminal proceedings, etc., provided that the grave consequence that occurred is causally connected with the offender's disclosure of information about the security measures applied to the relevant protected person.
The corpus delicti under Part 2 of Article 424 of the Criminal Code is material. The offence shall be deemed completed from the moment socially dangerous consequences occur.
The subjective element of this offence may be characterised by direct or indirect intent, as well as by two forms of guilt (Article 22 of the Criminal Code).
The concept of a criminal group is defined in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.
The act provided for in Part 1 of Article 424 of the Criminal Code is classified as a medium-gravity offence.
The act provided for in Part 2 of Article 424 of the Criminal Code is classified as a serious 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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