Commentary on Article 458. Disclosure of Secret Military Information or Loss of Media Containing Secret Military Information of the Criminal Code of the Republic of Kazakhstan
1. The negligent loss of media containing secret military information that does not constitute a state secret, by a person to whom such media were entrusted in connection with their official duties, where the loss resulted from a violation of the established rules for handling such media, —
shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or correctional labor in the same amount, or arrest for a period of up to fifty days.
2. Disclosure of secret military information that does not constitute a state secret, by a person to whom such information was entrusted or became known in connection with their official duties, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labor in the same amount, or restriction of liberty for a period of up to two years, or imprisonment for the same period.
3. Acts provided for in Part One or Part Two of this Article, which have resulted in the infliction of substantial damage or the occurrence of other grave consequences, —
shall be punishable by imprisonment for a term of five to ten years.
4. Acts provided for in Part One, Two or Three of this Article, committed in a combat situation or under a state of emergency, —
shall be punishable by imprisonment for a term of seven to twelve years.
5. Acts provided for in Part One, Two or Three of this Article, committed in wartime, —
shall be punishable by imprisonment for a term of ten to twenty years.
The public danger of the criminal offence (Part 1 — a criminal misdemeanor; Parts 2, 3, 4 and 5 — crimes) is determined by the fact that, as a result of the loss of media containing secret military information and the disclosure of such information, which does not constitute a state secret, it may become known to foreign intelligence services and be used to the detriment of the national interests and security of the Republic of Kazakhstan.
Strict safeguarding of secret military information, that is, military secrets, is one of the most important requirements of military discipline, enshrined in the military oath and military regulations. It is aimed at ensuring the high defense capability of the state and the constant combat readiness of the army and navy.
Disclosure of military secrets always entails serious consequences for the security of the state and the combat readiness of its Armed Forces.
In accordance with Article 1 of the Law of the Republic of Kazakhstan dated March 15, 1999, "On State Secrets":
state secrets — information protected by the state that constitutes state and official secrets, the dissemination of which is restricted by the state for the purpose of carrying out effective military, economic, scientific and technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-search and other activities that do not contradict generally recognized norms of international law;
state secret — information of a military, economic, political or other nature, the disclosure or loss of which causes or may cause damage to the national security of the Republic of Kazakhstan;
official secret — information in the form of individual data that may form part of a state secret, the disclosure or loss of which may cause damage to the national interests of the state and the interests of state bodies and organizations of the Republic of Kazakhstan;
media containing information constituting state secrets — material objects, including physical fields, in which information constituting state secrets is represented in the form of symbols, images, signals, technical solutions and processes.
Information in the military sphere classified as state secrets of the Republic of Kazakhstan is established in Article 11 of the aforementioned Law, which contains 22 subparagraphs.
The object is the procedure established in the Armed Forces and other troops and military formations of the Republic of Kazakhstan for safeguarding media containing secret military information, that is, military secrets, which do not constitute state secrets.
The subject matter is media containing secret military information that does not constitute a state secret.
The objective side is expressed in the negligent loss of media containing secret military information that does not constitute a state secret, by a person to whom such media were entrusted in connection with their official duties, provided that the loss resulted from a violation of the established rules for handling such media.
The loss of media containing secret military information should be understood as the commission of an act whereby, as a result of the offender's violation of the established rules for handling such media, they pass out of the possession of the military servicemember against their will and become, or may become, accessible to other persons.
Secret military information that does not constitute a state secret, that is, military secrets, means secret military information that is not a state secret and is not subject to disclosure in accordance with the requirements of the current legislation.
The negligent loss of media containing secret military information of a military nature (Part 1 of Article 458 of the Criminal Code) may consist of an act (for example, forwarding information in violation of the established rules, as a result of which the information is lost).
The act may also be characterized by omission, expressed in the offender's violation of the established rules for handling secret media, which results in harmful consequences (the information passing out of the possession of the military servicemember to whom it was entrusted).
There must be a causal link between the violation committed and the loss of the media containing secret information.
If, as a result of a violation of the established rules, media containing secret information, documents or items that contain state secrets are lost, such an act constitutes a criminal offence classified under Article 186 of the Criminal Code, "Loss of Media Containing Information Constituting State Secrets."
The rules for handling secret media mean the procedure for using secret military information that does not constitute a state secret, established in the Armed Forces by relevant instructions and orders, as well as the rules governing its storage, reproduction, forwarding, transportation and so forth.
For the purposes of establishing the offence of losing media containing secret information, documents or items, it is irrelevant whether such information, document or item has completely passed out of the person's possession or has done so only temporarily.
The composition of the criminal offence is formal in nature. The act is deemed completed from the moment the secret information entrusted to the person passes out of their possession, regardless of whether it has come into the possession of an unauthorized person.
From the subjective side, the act in question is characterized by negligence in the form of recklessness and carelessness.
In the case of recklessness, the person foresees the possibility of socially dangerous consequences in the form of the loss of media containing secret military information that does not constitute a state secret, but, without sufficient grounds, arrogantly relies on preventing such consequences or on their not occurring for objective reasons.
Carelessness is expressed in the fact that the person who lost the media containing secret military information that does not constitute a state secret does not foresee the possibility of socially dangerous consequences arising from such a violation, although, with due attention and foresight, they should and could have foreseen these consequences.
If a person responsible for the aforementioned information intentionally transfers it to someone, then, in the absence of signs of high treason, the act should be regarded as disclosure of state secrets (Part 2 of Article 185 of the Criminal Code).
Motives and purpose do not affect the legal classification of the act but are taken into account by the court when imposing punishment.
The subject is special, namely, a military servicemember to whom media containing secret military information that does not constitute a state secret have been entrusted or to whom such information has become known in connection with their official duties (Part 2 of Article 458 of the Criminal Code), regardless of their official position or military rank.
The objective side of Part 2 of Article 458 of the Criminal Code is expressed in the disclosure of secret military information that does not constitute a state secret by a person to whom such information was entrusted or became known in connection with their official duties.
Disclosure of secret information means its unlawful divulgence, as a result of which it becomes accessible to unauthorized persons.
Disclosure may consist of communicating information orally, in writing or electronically, as well as showing or transferring such information. For example, disclosing information in conversations with acquaintances or relatives, in public speeches, in private correspondence, including electronic correspondence, and so on. In all these cases, secret information is made public and becomes accessible to persons who must not have access to it. The method of disclosure is irrelevant to the criminal offence under consideration.
Disclosure of secrets may also occur through passive actions, for example, leaving media containing secret information, documents or items in such a way that unauthorized persons can easily gain access to them and examine them.
The act is considered completed from the moment the information becomes known to an unauthorized person.
From the subjective side, Part 2 of Article 458 of the Criminal Code is characterized by negligence in the form of recklessness and carelessness.
In the case of recklessness, the person foresees the possibility of socially dangerous consequences in the form of disclosure of secret military information that does not constitute a state secret, but, without sufficient grounds, arrogantly relies on preventing such consequences or on their not occurring for objective reasons.
Carelessness is expressed in the fact that the person disclosing secret military information that does not constitute a state secret does not foresee the possibility of socially dangerous consequences arising from such a violation, although, with due attention and foresight, they should and could have foreseen these consequences.
Under Part 3 of Article 458 of the Criminal Code, substantial damage is understood, in accordance with Subparagraph 38) of Article 3 of the Criminal Code, as damage amounting to one thousand times the monthly calculation index.
The concept of other grave consequences is provided in the commentary to Part 2 of Article 437 of the Criminal Code.
Part 4 of Article 458 of the Criminal Code provides for the disclosure of secret military information or the loss of media containing secret military information in a combat situation or under a state of emergency, while Part 5 provides for such acts committed in wartime. The definitions of these circumstances are given in the commentary to Parts 3 and 4 of Article 437 of the Criminal Code, respectively.
It should be noted that the legislator has made an inaccuracy in the structure of this criminal law provision. The subjective side of the offence under consideration is characterized by negligence. According to Part 3 of Article 46 of the Criminal Code, the term of imprisonment for crimes committed through negligence may not exceed ten years. In this regard, the sanctions provided for in Parts 4 and 5 of Article 458 of the Criminal Code, which prescribe terms of imprisonment exceeding the established maximum term of imprisonment for crimes committed through negligence, create contradictions between the provisions of the General and Special Parts of criminal legislation. This contradiction requires resolution in accordance with the established procedure.
The act provided for in Part 1 of Article 458 of the Criminal Code is classified as a criminal misdemeanor.
The act provided for in Part 2 of Article 458 of the Criminal Code is classified as a crime of minor gravity.
The acts provided for in Parts 3, 4 and 5 of Article 458 of the Criminal Code are classified as crimes of medium gravity.
Spelling errors, typographical errors and obvious distortions arising during text recognition have been corrected. The content, structure and volume of the text have been preserved.
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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