Commentary to article 173. Loss of documents, items containing state secrets of the Criminal Code of the Republic of Kazakhstan and the Criminal Procedure Code of the Republic of Kazakhstan

     1. Loss of documents containing a state secret, as well as items about which information is a state secret, by a person to whom they were entrusted in the service or at work, if the loss occurred as a result of a violation of the established rules for handling said documents or items and entailed grave consequences., —     

is punishable by a fine in the amount of up to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to ten months, or correctional labor for a term of up to two years, or arrest for a term of three to six months, or imprisonment for a term of up to four years with deprivation of the right to hold certain positions or engage in certain activities for up to three years.    

 1. Loss of documents containing official secrets, as well as items about which information constitutes official secrets, by the person to whom they were entrusted in the performance of official duties, if the loss occurred as a result of a violation of the established rules for handling said documents or items and entailed grave consequences., -      

is punishable by a fine in the amount of two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to two months, or correctional labor for up to one year, or arrest for up to two months, or imprisonment for up to one year with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years or without it.

     The public danger of this crime lies in the fact that lost documents and items containing state secrets may become the property of foreign intelligence services and damage the national security of the Republic of Kazakhstan.    

The direct object of the crime is social relations that ensure the established procedure for handling and preserving documents and items that constitute state and official secrets.      The subject of the crime may be:    

 1) documents containing state secrets;    

 2) items, information about which is a state secret.    

 A document is a written (graphic, electronic) act with bank details, classified information, registration number of a government agency, enterprise, institution or organization that preserves secrecy, as well as a special procedure for storage, issuance and operation.    

 The subjects, information about which constitutes a state secret, are various materials and articles containing information of the specified nature. These include: closed samples of machinery, fuel, equipment, raw materials, weapons, ciphers, codes, and so on.    

The objective side of the crime is characterized by the following features:     

1) by an act or omission (violation of the established rules for handling documents containing a state secret, as well as items about which information constitutes a state secret);   

  2) the consequence (loss of the latter and the onset of serious consequences).;     

3) the causal relationship between the specified actions (inaction) and the consequences that have occurred.   

  Violation of the rules for handling documents and items containing state secrets is expressed in rejection or complete disregard of the established rules, which creates conditions for the loss of the document or item.   

  For criminal liability to occur, it is necessary to establish which specific rules of treatment and which specific points of the rules were violated by the offender.     

Judicial practice shows that violations are most often associated with non-compliance with the rules on the place and time of working with documents, their storage, forwarding, transfer, and the like.    

 The loss of documents and objects should be understood as their illegal removal from the possession of the responsible person, which entailed serious consequences. The destruction of objects and documents that constitute a state or official secret is not a loss, since in this case the possibility of unauthorized persons getting acquainted with them is excluded.     

An obligatory sign of the objective side of the crime is the socially dangerous consequences in the form of the loss of the objects in question and the occurrence of serious consequences as a result.    

 Grave consequences are an estimated category. This can be understood as the curtailment of scientific and technical developments that occurred as a result of the loss, disclosure of information constituting state and official secrets of foreign countries, etc.     

The existence of a causal relationship between the violation of the rules of treatment and the loss of objects and documents, which entailed grave consequences, lies in the direct relationship between the fact of violation of the rules and the facts of withdrawal of the object or document from the possession of this person and the occurrence of these consequences. Otherwise, there will be no corpus delicti.   

  The composition of the crime should be considered completed from the moment of the onset of serious consequences.    

 The subjective side of the crime is characterized by a careless form of guilt. At the same time, the act itself, which entailed a violation by a person of the established rules for handling documents or objects containing state secrets, may be either intentional or careless. The attitude of a person towards the fact of loss (withdrawal of a document or object from his possession) and the occurrence of serious consequences in relation to the composition in question can only be careless. In general, this crime is characterized by careless guilt.   

  In accordance with the requirements contained in part 4 of Article 19 of the Criminal Code of the Russian Federation, the legislator, in my opinion, should indicate in parts 1 and 2 of Article 173 of the Criminal Code of the Russian Federation the "reckless" occurrence of grave consequences.    

The subject of the crime is a special person, sane, who has reached the age of 16 and has a duly issued admission to state and official secrets.    

 Article 173 of the Criminal Code of the Republic of Kazakhstan provides for liability for "the loss of documents containing official secrets, as well as items constituting official secrets, by a person to whom they were entrusted in the service or at work, if the loss resulted from a violation of established rules for handling these documents or items entailed grave consequences."    

 The distinction between part 1 of Article 173 of the Criminal Code of the Republic of Kazakhstan and part 2 of Article 173 of the Criminal Code of the Republic of Kazakhstan should be based primarily on the subject of the crime. Part 1 of Article 173 of the Criminal Code of the Republic of Kazakhstan, as we have already indicated, refers to "documents containing State secrets or items about which information is a State secret." In part 2 of Article 173 of the Criminal Code of the Republic of Kazakhstan, the subject of a crime is "documents containing official secrets, as well as items about which information constitutes official secrets."    

 In accordance with the Law of the Republic of Kazakhstan "On State Secrets" dated March 15, 1999, official secrets are understood as "information having the character of separate information that may constitute a state secret, the disclosure or loss of which may harm the national interests of the State, the interests of state bodies and organizations of the Republic of Kazakhstan."

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

Date of amendments to the law: 08/02/2007 Date of adoption of the law: 08/02/2007 Place of adoption: THERE is NO body that adopted the law: 1800000000000 Region of operation: 1000000000000 NPA registration number assigned by the regulatory authority: 167 Status of the law: new sphere of legal relations: 0280000000000 Report form: COMM Legal the law entered into force in 1900 in Russian.

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