Commentary to article 16. Privacy and secrecy protection The Code of the Republic of Kazakhstan on Administrative Offences
Private life, personal, family, commercial and other legally protected secrets are protected by law. Everyone has the right to privacy of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications. Restrictions on these rights in the course of proceedings on an administrative offense are allowed only in cases and in accordance with the procedure directly established by law.
The commented article implements the constitutional human rights provided for in Part 2 of Article 18 of the Constitution. Everyone has the right to privacy of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications. Restrictions on this right are allowed only in cases and in accordance with the procedure directly established by law.
Privacy, personal and family secrets are protected by the Constitution of the Republic of Kazakhstan. Private life is a sphere of vital activity of one individual, which is dear only to him, therefore, interference from society and the state without the consent of the person himself is unacceptable. A personal secret, being a part of private life, presupposes the existence of information that a person keeps secret. These include information about health, details of intimate life, etc. Family secrecy presupposes the existence of information hidden from outsiders by close relatives, i.e. family members. These include the secrecy of adoption and other family relationships. Given the great importance of a person's private life, the legislator recognizes it as inviolable and protects it from any unlawful interference.
The official interpretation of paragraph 2 of Article 18 of the Constitution is given by the regulatory resolution of the Constitutional Council of August 20, 2009 No. 5, which states that "the owner is given the right to own, use and dispose of personal deposits and savings, to exercise these rights by placing funds belonging to him monetary or other property character, including bank deposits and in other accounts, in the authorized capitals of economic entities and for use in other forms of entrepreneurial and other activities permitted by law."
The protection of everyone's constitutional right to privacy of personal deposits and savings is ensured by a number of laws, including the Civil Code (General Part) dated December 27, 1994, the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" dated December 25, 2017, the Business Code of the Republic of Kazakhstan dated October 29, 2015, the Law of the Republic of Kazakhstan dated August 31 1995 "On Banks and banking activities in the Republic of Kazakhstan", the Law of the Republic of Kazakhstan dated July 2, 2003 "On the Securities Market".
Based on the content of the norms of the Constitution and the above-mentioned laws, the secrecy of personal deposits and savings should be understood as legally protected information about the depositor, money or other property belonging to him, including bank deposits, other accounts and savings, and shares in authorized capital that are not publicly available on equal terms to an unlimited number of persons. business entities and other property, as well as transactions with them. The constitutional right of everyone to secrecy in this context means that only the depositor himself can dispose of it (including transferring information to someone) at your discretion.
The permissible limits and procedure for restricting everyone's right to privacy of personal deposits and savings, as well as the criteria for such restriction, must comply with constitutional requirements, including those established in Article 39 of the Constitution.
Civil legislation protects information that constitutes a commercial secret when the information has actual or potential commercial value due to its being unknown to third parties, there is no free access to it on a legitimate basis, and the owner of the information takes measures to protect its confidentiality. Persons who have obtained such information by illegal means, as well as employees contrary to an employment contract or contractors contrary to a civil law contract who have disclosed official or commercial secrets, are obliged to compensate for the damage caused (art. 126 of the Civil Code).
Article 28 of the Business Code of the Republic of Kazakhstan regulates the procedure for the protection of information constituting a trade secret. The protection of a trade secret consists in prohibiting the illegal receipt, dissemination or use of information constituting a trade secret. A business entity determines the circle of persons who have the right of free access to information constituting a trade secret and takes measures to protect its confidentiality. The procedure for classifying information into access categories, and the conditions for storing and using information constituting a trade secret are determined by the business entity.
Measures taken by a business entity to protect information constituting a trade secret may include:
1) determination of the list of information constituting a trade secret;
2) restriction of access to trade secrets by establishing the procedure for handling this information and monitoring compliance with such procedure;
3) accounting of persons who have gained access to trade secrets and (or) persons to whom this information has been provided or transferred.
Publicly available information of a business entity includes:
1) last name, first name, patronymic (if it is indicated in the identity document) or the name of the individual entrepreneur;
2) name and date of registration of the legal entity;
3) Identification number;
4) legal address (location);
5) type of activity;
6) the surname, first name, patronymic (if it is indicated in the identity document) of the supervisor.
The secrecy of correspondence, telephone conversations, postal, telegraphic and other communications is also protected by law. Article 144 of the Civil Code refers to the secrets of personal life, the disclosure of which is possible only in cases established by law. Similar requirements are provided for in art. 10 of the CPC.
The secrecy of correspondence, telephone conversations, postal, telegraphic and other communications relate to human rights in the field of communications, and the legislator, given that new types of communication tools are emerging every day, is not limited to an exhaustive list, but makes it possible to take into account any types of messages. Due to its vulnerability, the secrecy of correspondence and telephone conversations needs special protection. Eavesdropping on telephone conversations, checking postal and telegraphic messages are allowed in the event of a threat to the life and health of individuals upon their application or with their written consent.
Part 4 of Article 16 of the CPC stipulates that information about a person's private life obtained in accordance with the procedure provided for by the Code cannot be used except to fulfill the tasks of the criminal process. Such tasks may include:
1) suppression, impartial, prompt and full disclosure, investigation of criminal offenses;
2) exposing and bringing to criminal responsibility the persons who committed them;
3) fair trial and proper application of the criminal law;
4) protection of individuals, society and the State from criminal offenses.
Access to information about private, family or personal life can be carried out in the process of secret investigative actions. According to paragraphs 5-1) of Part 2 of Article 53 of the CPC, the court is authorized to authorize the conduct of secret investigative actions and the extension of its terms, as well as to extend the period for notifying a person of secret investigative actions carried out against him, to give the pre-trial investigation body consent not to inform the person about the secret investigative actions carried out against him.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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