Commentary to article 142. Violation of privacy of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal collection or dissemination of information about a person's private life that constitutes his personal or family secret, without his consent, if these acts have harmed the rights and legitimate interests of the victim., —      

are punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by community service for a period of one hundred and twenty to one hundred and eighty hours, or correctional labor for up to one year, or arrest for up to four months.      

2. The same acts committed by a person using his official position, as well as the dissemination of information specified in part one of this article, in a public speech, a publicly displayed work or in the mass media, which entailed the same consequences., —      

are punishable by a fine in the amount of five hundred to eight hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months, or by deprivation of the right to hold certain positions or engage in certain activities for a period of two to five years, or by arrest for a period of four to six months.

     The International Covenant on Civil and Political Rights (December 16, 1966) states: "No one may be subjected to arbitrary or unlawful interference in his personal and family life, arbitrary or unlawful attacks on the inviolability of his home or the secrecy of his correspondence, or unlawful attacks on his honor and reputation" (art. 17).      

Article 18 of the Constitution of the Republic of Kazakhstan proclaims the right of everyone to privacy, personal and family secrets, and the protection of their honor and dignity. For the first time, the Criminal Code of the Republic of Kazakhstan provided for liability for violation of privacy in Article 142.      

The public danger of this act is expressed in the violation of the constitutional right to inviolability of private life, i.e. the sphere of public relations that is outside the official and (or) public activities. Intrusion into a person's personal life can negatively affect the victim's exercise of professional duties, his business reputation, family life, etc.      

The object of the analyzed act is public relations that ensure the realization of the right to privacy.      

The subject of a crime is information about a person's private life that constitutes his personal or family secret. For the qualification of a crime, it is important that the person wished to keep this information secret, regardless of its nature. They can include any information that is outside the sphere of public interest, for example, information about family relationships, with relatives, activities outside of work, hobbies, friendships, various aspects of intimate life, health status, creative plans, etc.    

The objective side of the analyzed act is formed by the commission of one of the actions specified in the disposition of the article:      

- illegal collection;      

- dissemination of information about a person's private life;      

- the occurrence of consequences in the form of harm to the rights and legitimate interests of the victim;      

- the presence of a causal relationship between the actions of the perpetrator and the consequences that have occurred.      

Illegal collection of information about private life should be understood as the actions of an unauthorized person aimed at collecting information about the personal or family secrets of the victim. Whether this information is a personal or family secret is decided by the person concerned. The court may or may not agree with his opinion. Information collection can be carried out openly — the perpetrator gets acquainted with documents, letters, diaries at the victim's house, relatives, friends; veiled — the perpetrator studies official documents, disciplinary records, medical records, and so on.      

The dissemination of information about a person's private or family life that constitutes his personal or family secret should be recognized as having been communicated to at least one person without the victim's consent, regardless of the method (verbally, in writing, by telephone or other communication channels). At the same time, information can be collected in any way: during a conversation with neighbors, acquaintances, work colleagues, as a result of visual observation; by reviewing documents, etc.      

Obtaining information about a citizen's private life is allowed in criminal procedural and operational investigative activities.      

The crime is considered completed from the moment the consequences occur. In order for the collection and dissemination of information about a person's private life to be recognized as a criminally punishable act, the consequences of such actions in the form of harm to the rights and legitimate interests of citizens are required.

These consequences can be expressed in the manifestation of distrust on the part of others, in refusal to hire or dismiss her, in the deterioration of family relations, with friends and colleagues, in the disruption of a profitable deal, undermining business reputation, etc. At the same time, the harm caused can be both material and moral.      

The subjective side is characterized only with direct intent, since the person is aware that he is illegally collecting or distributing information about private life that constitutes a family or personal secret, thereby violating the inviolability of private life guaranteed by the Constitution of the Republic of Kazakhstan, anticipates that as a result of his actions undesirable consequences will occur for the victim and wants to commit these actions. The motives for committing this act can be different: greed, revenge, jealousy, envy, but they should always be based on base motives. Motives do not affect qualifications.      

The subject of the crime is a sane individual who has reached the age of 16.      

In part 2 of Article 142 of the Criminal Code of the Republic of Kazakhstan, the legislator indicated the qualified composition of this act.:      

1) illegal collection or dissemination of information about a person's private life that constitutes his personal or family secret, without his consent, resulting in harm to the rights and legitimate interests of the victim, committed by a person using his official position;      

2) as well as the dissemination of the specified information in a public speech, in a publicly displayed work or in the mass media.      

The subject of the qualified composition of this act is a special one. The commission by an official of actions aimed at the illegal collection or dissemination of information about a person's private life that constitute his family or personal secret involves the use of his official position for this purpose (see commentary to Part 2 of Article 141 of the Criminal Code). The disclosure of this information in a public speech (for example, at a meeting, rally), a publicly displayed work (for example, on a videotape, CD) or in the mass media (newspaper, magazine, radio) expands the circle of those who can be acquainted with the information constituting a family or personal secret. In the end, both actions increase the likelihood of undesirable consequences for the victim.      

If illegal collection of information about private life is associated with illegal entry into a home, then the act should be qualified in accordance with art. 145 of the Criminal Code of the Republic of Kazakhstan.      

If collecting or disclosing information about private life is a way of committing another crime (for example, for the purpose of using it for extortion (Article 181 of the Criminal Code), or they are carried out illegally (by theft (Article 175 of the Criminal Code)), then they must be qualified under the relevant article and do not form part of Article 142 of the Criminal Code.      

In some cases, disclosure of information about private life under the Criminal Code simultaneously constitutes another crime: disclosure of the secret of adoption (Article 135 of the Criminal Code), disclosure of inquiry or preliminary investigation data (Article 355 of the Criminal Code), disclosure of information about security measures applied against judges and participants in criminal proceedings (Article 356 of the Criminal Code), disclosure of information about security measures applied to an official holding a responsible public position (Article 322 of the Criminal Code). In these cases, the deed is qualified in conjunction with the commented article. On the contrary, it is not illegal for a person who is required by law to disclose personal and family secrets (for example, during interrogation as a witness).      

The crimes provided for in Parts 1 and 2 of art. 142 of the Criminal Code of the Republic of Kazakhstan are minor crimes.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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