Commentary to article 355. Disclosure of inquiry or preliminary investigation data of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Disclosure of inquiry or preliminary investigation data by a person who has been warned in accordance with the procedure established by law about the inadmissibility of their disclosure, if it was committed without the consent of the prosecutor, investigator or person conducting the inquiry., —
is punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or correctional labor for a period of one to two years, or arrest for a period of up to three months.
The public danger of this crime lies in the fact that as a result of the disclosure of the inquiry or preliminary investigation data, it may be impossible or difficult to establish the objective truth in the case, since interested persons can use this information.
The object of the crime is the normal activity of the bodies of inquiry or investigation.
The objective side is to disclose the data of the inquiry or preliminary investigation. This data may be made public only with the permission of the investigator, prosecutor or the person conducting the inquiry, and only if it does not contradict the interests of the investigation and does not violate the rights and legitimate interests of others. In accordance with article 205 of the CPC, the investigator warns the defender, witness, victim, civil plaintiff, civil defendant or their representatives, expert, specialist, translator, witnesses and other persons about the inadmissibility of disclosing information available in the case, about which a subscription with a warning about responsibility is withdrawn from these persons.
Disclosure should be understood as the communication of inquiry or preliminary investigation data to at least one person by the person from whom the subscription was withdrawn. The method of disclosure may be different: in oral and written form, in the media, etc. – and does not affect the qualification of this crime.
The data of the preliminary investigation or inquiry includes all information obtained during the inquiry and preliminary investigation, contained in the protocols of interrogations, confrontations, searches, investigative experiments, examination materials and other documents available in the case.
According to the current criminal legislation, the prohibition on the disclosure of data from the preliminary investigation and inquiry may extend to the period of the inquiry and preliminary investigation. If these actions are committed after the court considers the case and passes a verdict, then there will be no corpus delicti in question, since the results of the inquiry and preliminary investigation become known to all participants in the process and the criminal procedure legislation does not provide for the possibility of warning them about the inadmissibility of disclosure of these data.
The composition of the crime contained in the article under consideration of the Criminal Code is among the formal ones. This crime is considered completed from the moment of the commission of the actions specified in art. 355 of the Criminal Code, regardless of the occurrence of any consequences.
The subject of the crime may be a sane person who has reached the age of 16. They may be a defender, a witness, a victim, a civil plaintiff, a civil defendant or their representatives, an expert, a specialist, a translator, a witness or other persons who were present during the investigative actions (Article 205 of the CPC).
In connection with this provision of the criminal procedure legislation, the question arises whether a person who was not present during the investigative actions, but who became aware of the information about the inquiry or preliminary investigation, can be recognized as the subject of the crime in question. For example, according to persons who were present during the investigation or law enforcement officers. In our opinion, these persons may be the subjects of the crime in question if they have been warned about their responsibility for disclosing the data of the preliminary investigation or inquiry.
An employee of the mass media who was present during the investigative actions may be recognized as the subject of the crime in question if a receipt was taken from him stating that he had been warned about responsibility for disclosing the data of the preliminary investigation and inquiry. The Criminal Procedure Law does not limit the range of possible subjects of this crime, since in Article 205 of the CPC, after listing individual participants in the process as such, it indicates that they may be other persons who were present during the investigative actions.
It is also controversial whether the suspect or the accused may be the subject of the crime in question. It is impossible to exclude their responsibility for disclosing the data of the preliminary investigation and inquiry to protect the rights and legitimate interests of others. For example, if a suspect, while on his own recognizance, informs about the results of the examination, about the contents of other procedural documents, for example, interrogation protocols, confrontation, this may negatively affect not only the establishment of the truth in the case, but also lead to a violation of the rights and legitimate interests of others. The victim may suffer more from this.
The disposition of Article 355 of the Criminal Code contains an indication of another sign of a special subject of the crime in question. It can only be a person who has been warned in accordance with the procedure established by law about the non-disclosure of information that became known to him due to his presence during the investigative actions. If a person who was present during the investigative actions, but was not warned about the responsibility for disclosing the data of the preliminary investigation and inquiry, discloses this data, he is not subject to criminal liability under the article of the Criminal Code in question, since he cannot be the subject of this crime. A person who has been warned of responsibility for disclosing the data of an inquiry or preliminary investigation must have a receipt stating that he has been warned.
Most scientists believe that employees of the bodies of inquiry, the investigator, the prosecutor, and the judge are responsible for disclosing the data of the inquiry or preliminary investigation as an official offense (abuse of official authority, negligence). Such statements may lead to the conclusion that these law enforcement officials cannot be the subject of the crime in question. It is difficult to agree with this opinion, because, firstly, in the disposition of art. 355 of the Criminal Code has no restrictions on the fact that these persons cannot be the subject of the crime in question.
On the subjective side, this crime is one of those that are committed only intentionally. The perpetrator must be aware that the information disclosed by him constitutes the data of a preliminary investigation or inquiry. The establishment of this circumstance is sufficient to admit guilt in the crime in question.
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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