Commentary to article 456-1. Illegal restriction of the right of access to information The Code of the Republic of Kazakhstan on Administrative Offences
1. Unlawful refusal to provide information or provision of knowingly false information in cases where such information is to be provided at the request of the user of the information in accordance with the legislation of the Republic of Kazakhstan, with the exception of actions for which responsibility is provided for in other articles of this Code., -
entails a fine for officials, small business entities, non-profit organizations - in the amount of thirty, for medium-sized businesses - in the amount of fifty, for large businesses - in the amount of one hundred monthly calculation indices.
2. Posting deliberately false information in the mass media, on the Internet resource of the information owner, on the Internet portal of open data or by other means provided for by the legislation of the Republic of Kazakhstan, -
entails a fine for officials, small business entities, non-profit organizations - in the amount of thirty, for medium-sized businesses - in the amount of fifty, for large businesses - in the amount of one hundred monthly calculation indices.
3. The unlawful attribution of information that is not information with limited access to information with limited access, with the exception of actions provided for in the third part of Article 504 of this Code., -
entails a fine for officials in the amount of twenty monthly calculation indices.
4. The acts provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
A fine is imposed on officials, small business entities or non-profit organizations in the amount of fifty, on medium-sized businesses in the amount of one hundred, and on large businesses in the amount of two hundred monthly calculation indices.
Part 1 of the commented article provides for administrative liability of officials, non-profit organizations and business entities in the form of an administrative fine for unlawful refusal to provide information or knowingly providing false information in cases where such information is to be provided at the request of the information user in accordance with the legislation of the Republic of Kazakhstan, with the exception of actions for which liability is provided for in other articles of this Code. The Code,.
The direct object of the administrative offense provided for in part 1 of the commented article is the procedure established by law and protected by the state for complying with the requirements for providing information at the request of the information user.
1. According to the Law of the Republic of Kazakhstan dated November 16, 2015 "On Access to Information" (hereinafter referred to as the Law), information refers to information about persons, objects, facts, events, phenomena and processes received or created by the owner of the information, recorded on any medium and having details that allow it to be identified.
Article 11 of the Law defines the procedure for providing information upon request.
A request is a request in oral or written form, including in the form of an electronic document, for the provision of information, voiced or sent to the information holder in accordance with the procedure established by this Law (subparagraph 12) of Article 1 of the law).
According to the procedure described in article 11 of the Law, any information is provided upon request, except for information with limited access, and also free of charge.
Paragraph 4 of article 11 of the Law contains a list of issues that can be addressed verbally in person or by phone. For example, the work schedule of the information holder; telephone numbers of information services; the procedure for reviewing appeals, requests, applications and complaints from individuals and legal entities; the procedure for the provision of public services; schedules for the consideration of court cases; information on the date and place of open competitive bidding (auctions, tenders); information on the media established by the holder information (if available); phone numbers for obtaining information about available vacant positions and others.
The user of the information who has directly contacted the owner of the information and submitted the request in writing is given a coupon indicating the date and time, surname and initials of the person who accepted the request.
In addition, written requests submitted in accordance with the procedure established by this Law, with the exception of anonymous requests, are subject to mandatory acceptance, registration, accounting and consideration.
A response to a written request is provided within fifteen calendar days from the date of receipt by the information holder (Article 11 of the law).
2. Article 18-1 of the Law of the Republic of Kazakhstan dated July 23, 1999 "On Mass Media" (hereinafter referred to as the Law on Mass Media) contains the procedure for providing information that is not included in official communications.
Media requests for information submitted in writing and/or in the form of an electronic document are sent under the signature and/or certified by the electronic digital signature of the editor-in-chief (editor), an authorized person or an accredited journalist.
The response to such a request shall be submitted within seven working days from the date of its receipt in the form and in the language of the received request, unless otherwise specified in the request itself.
Thus, public relations regulated by the above-mentioned laws in the field of providing information is an object of an administrative offense provided for in the commented article.
Regarding administrative liability for refusal to provide information to an individual, the procedure for which is regulated by the Law of the Republic of Kazakhstan dated January 12, 2007 "On the procedure for considering Appeals from Individuals and Legal Entities" is provided for in Article 78 of the Administrative Code. Therefore, it is necessary to distinguish between the sphere of public relations regulated by two legislative acts that constitute the objects of two different types of administrative offenses.
Thus, the scope of the Law "On the procedure for considering Appeals from Individuals and Legal Entities", according to paragraph 2-2 of Article 3, does not apply to public relations related to appeals from individuals and legal entities containing only requests for information received or created by entities regulated by the Law of the Republic of Kazakhstan "On Access to Information".
It should be noted that according to the Law "On the procedure for considering appeals from individuals and legal entities", the entities considering appeals include government agencies, local governments, legal entities with one hundred percent state participation or providing goods (works, services) in accordance with the terms of the state order and (or) public procurement, which are entitled to consider and to make decisions on appeals from individuals and legal entities in accordance with their competence., as well as large business entities at the request of individuals and legal entities with whom a contract has been concluded for the supply (performance, provision) of goods (works, services) to them.
Thus, when qualifying an administrative offense under Article 78 of the Administrative Code or 456-1 of the Administrative Code, it is necessary to take into account the nature of the request itself, as well as the subject considering the request.
The objective side of the administrative offense provided for in Part 1 of Article 456-1 of the Administrative Code is characterized by action (inaction), namely:
- unlawful refusal to provide information;
- providing deliberately false information
According to paragraph 18 of Article 11 of the law, managers of information holders are personally responsible for the organization of work with requests, for the state of their reception, registration, accounting and consideration.
According to paragraph 3 of article 18-1 of the Law on Mass Media, for failure to provide or late submission of a response to a request from the media, government officials are responsible in accordance with the laws of the Republic of Kazakhstan.
The subject of an administrative offense provided for in part 1 of the commented article are officials, non-profit organizations and business entities (a special entity). The sanction provides for administrative liability in the form of an administrative fine.
The subjective side of the acts provided for in Part 1 of Article 456-1 of the Administrative Code is characterized by guilt in the form of intent.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered by the controlling body and it is not necessary to establish the fact of causing material harm.
Part 2 of the commented article establishes administrative liability in the form of an administrative fine for posting knowingly false information in the mass media, on the Internet resource of the information holder, on the Internet portal of open data or in other ways provided for by the legislation of the Republic of Kazakhstan.
The direct object of the administrative offense provided for in part 2 of the commented article is the procedure established by law and protected by the state for complying with the requirements for posting information in the media, on an Internet resource, on an Internet portal.
According to subparagraph 3 of paragraph 2 of Article 9 of the Law, the information holder is obliged to provide reliable and complete information.
The objective side of the administrative offense provided for in Part 2 of Article 456-1 of the Administrative Code is characterized by an action, namely, the posting of knowingly false information in the media, on the Internet resource of the information holder, on the Internet portal of open data or in other ways provided for by the legislation of the Republic of Kazakhstan.
According to subparagraph 4) of article 1 of the Law on Mass Media, mass media include periodicals, television, radio channels, documentary films, audiovisual recordings and other forms of periodic or continuous public dissemination of mass media, including online resources.
If such an offense is classified as the dissemination of knowingly false information that creates a danger of violating public order or causing significant harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, criminal liability will be applied under Article 274 of the Criminal Code.
If the composition of the administrative offense provided for in Article 456-1 of the Administrative Code is formal and has no consequences, then the composition of the criminal offense has certain consequences in the form of a danger of violating public order or causing significant harm.
According to Article 3 of the Criminal Code, significant harm refers to the following consequences in cases where they are not specified as a sign of a criminal offense provided for in this Code: violation of constitutional human and civil rights and freedoms, rights and legitimate interests of organizations, legally protected interests of society and the state; causing significant damage; the occurrence of a difficult life situation for the injured person; violation of the normal work of organizations or government agencies; disruption of important military events or a short-term decrease in the level of combat readiness and combat capability of military units and subunits; untimely detection or repulse of attacks by armed groups or individual armed persons, land, air or naval military equipment, allowing unhindered illegal passage of persons and vehicles across the State border of the Republic of Kazakhstan, movement of contraband goods, connivance of actions causing damage border facilities, technical means of border protection; other consequences indicating the materiality of the damage caused.
The subject of an administrative offense provided for in part 2 of the commented article are officials, non-profit organizations and business entities (a special entity). The sanction provides for administrative liability in the form of an administrative fine.
The subjective side of the acts provided for in Part 2 of Article 456-1 of the Administrative Code is characterized by guilt in the form of intent or negligence.
Part 3 of the commented article establishes administrative liability for the unlawful attribution of information that is not information with limited access to information with limited access, with the exception of actions provided for in part three of Article 504 of the Administrative Code.
The direct object of the administrative offense provided for in part 1 of the commented article is the procedure established by law and protected by the State for complying with the requirements for classifying information as information with limited access.
According to the Law of the Republic of Kazakhstan dated November 16, 2015 "On Access to Information" (hereinafter referred to as the Law), information with limited access includes information classified as state secrets, personal, family, medical, banking, commercial and other legally protected secrets, as well as official information marked "For official use".
The objective side of the administrative offense provided for in Part 3 of Article 456-1 of the Administrative Code is characterized by an action, namely, the unlawful attribution of information that is not information with limited access to information with limited access, with the exception of actions provided for in part three of Article 504 of the Administrative Code.
According to article 5 of the Law, the right to access information may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals.
However, there is information that cannot be restricted in any way. According to article 6 of the law, it includes:
1) emergency situations and disasters that threaten the safety and health of citizens and their consequences, as well as natural disasters, their official forecasts and consequences;
2) on the state of health, sanitation, demography, migration, education, culture, social protection, economy, agriculture, as well as on the state of crime;
3) about the facts of committing acts of terrorism;
4) on the state of the environment, fire safety, as well as on the sanitary-epidemiological and radiation situation, food safety;
5) on privileges, compensations and benefits provided by the state to individuals and legal entities;
6) on the facts of violation of human and civil rights and freedoms;
7) on the size of the gold and foreign exchange reserve of the National Bank of the Republic of Kazakhstan;
8) containing the texts of regulatory legal acts of the Republic of Kazakhstan, with the exception of regulatory legal acts containing state secrets and other legally protected secrets, as well as their drafts;
9) on the formation and expenditure of funds from the national and local budgets, with the exception of information containing state secrets;
10) control over the expenditure of funds from the national and local budgets, with the exception of information containing state secrets;
11) facts of violations of the law by information holders and their officials;
12) mass repressions based on political, social and other motives, including those in archives, with the exception of information classified as state secrets of the Republic of Kazakhstan.
Any person who considers the restriction of the right of access to information illegal has the right to appeal to a higher State body or to a court, according to article 18 of the law.
An exception to the commented article is the actions provided for in part three of Article 504 of the Administrative Code, namely, the unjustified classification of information and its media that are not subject to secrecy, the use of secrecy stamps and other restrictive labels to classify information that is not classified as state secrets, if these actions do not contain signs of a criminal offense.
The subject of an administrative offense provided for in part 3 of the commented article are officials (a special subject). The sanction provides for administrative liability in the form of an administrative fine.
The subjective side of the acts provided for in Part 3 of Article 456-1 of the Administrative Code is characterized by guilt in the form of intent or negligence.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered by the controlling body and it is not necessary to establish the fact of causing material harm.
Part 4 of the commented article establishes a more severe punishment for repeated commission of the act provided for in parts 1, 2 of Article 456-1 of the Administrative Code within a year after the imposition of an administrative penalty.
According to part 1 of Article 684 of the Administrative Code, cases of administrative offenses provided for in Article 456-1 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts.
According to part 1 of Article 805 of the Administrative Code, the prosecutor issues a resolution on the initiation of cases of administrative offenses provided for in Article 456-1 of the Administrative Code.
According to subparagraph 4) of part 1 of Article 807 of the Administrative Code, when individuals apply for restoration of violated rights, cases of an administrative offense provided for in Article 456-1 of the Administrative Code are considered by the court without drawing up a protocol on the offense.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
