Commentary to article 504. Violation of established requirements in the field of protection of state secrets, as well as in working with official information of limited distribution The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the established procedure for access or access to state secrets -
entails a fine in the amount of twenty monthly calculation indices.
2. Violation of the established requirements for ensuring secrecy by persons authorized to work with state secrets or their carriers, if these actions do not contain signs of a criminally punishable act., -
entails a fine in the amount of twenty monthly calculation indices.
3. Unjustified classification of information and its media that are not subject to secrecy, the use of secrecy labels and other restrictive labels for classifying information that is not classified as state secrets, if these actions do not contain signs of a criminally punishable act., -
they entail a fine in the amount of twenty monthly calculation indices.
4. The actions specified in part three of this article, committed for the purpose of concealing a violation of legality, shall entail a fine in the amount of fifty monthly calculation indices.
5. Unjustified declassification of information and its media constituting state secrets, violation of the deadlines for declassification of media established during their classification, with the exception of cases provided for by legislation on state secrets, if these actions do not contain signs of a criminally punishable act., -
they entail a fine in the amount of twenty monthly calculation indices.
6. Violation of the established requirements for working with official information of limited distribution by persons admitted to it in connection with professional or official activities, resulting in the disclosure or loss of this information., -
entails a fine in the amount of fifteen monthly calculation indices.
A common object of an administrative offense is public relations in the field of the established management procedure while respecting state secrets and the secrecy regime.
The objective side of the administrative offense provided for in part 1 of the article in question is expressed in illegal actions (omissions) committed by:
1) violations of the established procedure for access to state secrets;
2) violations of the established procedure for access to state secrets.
In the Law of the Republic of Kazakhstan dated March 15, 1999 "On State Secrets", access to state secrets is understood as the procedure for registering the right of citizens to access information constituting state secrets, and organizations to carry out work using such information.
Access to information constituting state secrets is the familiarization of a specific person with information constituting state secrets authorized by an authorized official.
According to the meaning, the right of access to state secrets can be granted only if there is access to information of an appropriate degree of secrecy. A similar procedure is stipulated in Article 36 of the Law of the Republic of Kazakhstan "On State Secrets" when exercising financial control over the expenditure of funds on measures to protect state secrets.
In cases where the President of the Republic of Kazakhstan has imposed a state of emergency or martial law on the entire territory of the Republic or in certain areas of the Republic, the procedure for access of officials and citizens to state secrets may be changed for this period.
The terms, circumstances and procedure for registration or re-registration of access of officials and citizens to state secrets are established by the Government of the Republic of Kazakhstan. The admission of officials and citizens of the Republic of Kazakhstan to state secrets provides for:
1) assuming written obligations to the state not to disclose information entrusted to them that constitutes state secrets;
2) consent to partial, temporary restrictions on their rights in accordance with Article 32 of the Law of the Republic of Kazakhstan dated March 15, 1999 No. 349-1 "On State Secrets". This article "Restrictions on the rights of an official or a citizen of the Republic of Kazakhstan during the period of registration of access granted or previously granted to state secrets" states that: "An official or a citizen of the Republic of Kazakhstan who was admitted or previously granted access to state secrets may be temporarily restricted in their rights."
Restrictions may apply to:
the right to leave the Republic for the period stipulated by the employment contract when obtaining access to state secrets;
the right to use discoveries and inventions containing information constituting State secrets and to disseminate such information;
the right to privacy during verification activities during the period of obtaining access to state secrets.
The admission of officials and citizens of the Republic of Kazakhstan to state secrets provides for:
1) assuming written obligations to the state not to disclose information entrusted to them that constitutes state secrets;
2) consent to partial, temporary restrictions of their rights;
3) written consent to the conduct of verification measures in relation to them by authorized bodies;
4) familiarization with the legislation of the Republic of Kazakhstan on state secrets, providing for responsibility for its violation;
5) making a decision by the head of a state body or organization on the admission of a person being processed to information constituting state secrets (art. 29 of the Law).
The scope of verification measures depends on the degree of secrecy of the information to which the person being processed will be allowed. The mutual obligations of the administration and the person being processed are reflected in the employment contract. It is not allowed to conclude an employment contract before the completion of verification activities by the competent authorities.
Three forms of access to state secrets of officials and citizens are established, corresponding to three degrees of secrecy of information constituting state secrets: of special importance, top secret or secret. The access of officials and citizens to information of a higher degree of secrecy is the basis for their access to information of a lower degree of secrecy.
Foreigners are allowed to access state secrets only within the framework of the implementation of international treaties of the Republic of Kazakhstan after the implementation of the procedures provided for Rules for the transfer of information constituting state secrets to foreign states, approved by Resolution of the Government of the Republic of Kazakhstan dated October 23, 2001 No. 1355.
The procedure for admission of foreigners to the state secrets of the Republic of Kazakhstan is defined by the Resolution of the Government of the Republic of Kazakhstan "On approval of the Rules for admission of foreigners to the State Secrets of the Republic of Kazakhstan" dated February 15, 2002 No. 222.
Access to information constituting State secrets is defined by law as the authorized official's familiarization of a particular person with information constituting State secrets. In other words, access can be defined as the exercise of the right to access information that constitutes State secrets.
31 of the Law of the Republic of Kazakhstan "On State Secrets", the procedure for access of an official or citizen to information constituting state secrets is established by the Government of the Republic of Kazakhstan.
It should be noted that such a specialized Government decree has not been approved, therefore, when registering access, one should follow the Law of the Republic of Kazakhstan "On State Secrets" and Resolution of the Government of the Republic of Kazakhstan dated December 31, 2015 No. 1196 "On approval of the Rules for Classifying information as official information of limited distribution and working with it." Violation of the procedure for dealing with official information of limited distribution, marked "For official use", which did not cause or result in the disclosure or loss of this information, may be the basis for bringing the perpetrators to disciplinary responsibility in accordance with current legislation.
The procedure for access and implementation of criminal procedure proceedings is provided for by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 3 "On the application in criminal proceedings of certain norms of legislation regulating the protection of state secrets." Criminal proceedings should be conducted in strict compliance with the legislation governing the protection of State secrets. If the materials of the criminal case contain information constituting state secrets, the body conducting the criminal process must issue an appropriate resolution restricting access to them, notify the participants in the criminal process in writing and explain to them the procedure for access to such information. In order to exclude the possibility of unauthorized access to information constituting state secrets by persons who do not have the appropriate security clearance, it is recommended that the materials of the criminal case containing state secrets be attached to the case separately from unclassified materials (in separate volumes).
Heads of government agencies and organizations are personally responsible for selecting persons who are allowed access to information constituting state secrets, as well as for creating conditions under which an official or citizen gets acquainted only with information constituting state secrets and in such volumes as are necessary for the performance of their official (functional) duties. An act is considered completed from the moment it is committed. An offense can be committed either in the form of illegal actions or by omission in cases of non-compliance with the requirements for access or access to state secrets.
The subjects of Part 1 of the commented article are:
1) heads of state bodies and organizations who make decisions on the need to issue access or grant access to state secrets to an official or other citizen;
2) employees of departments for the protection of state secrets and personnel departments of enterprises, institutions and organizations that issue access to state secrets to officials and other citizens.
The list of government officials authorized to classify information as state secrets is defined by Decree of the President of the Republic of Kazakhstan dated April 13, 2000 No. 371. This normative act contains the names of the positions of the first heads of state bodies and a list of information constituting the state secrets of the Republic of Kazakhstan.
The objective side of the administrative offense provided for in part 2 of the commented article is characterized by a violation of the established requirements for ensuring secrecy by persons authorized to work with state secrets or their carriers.
The offense may be expressed in the following illegal actions (omissions):
1) violation of secret records management;
2) violation of established requirements when working with encrypted correspondence;
3) violation of the access and intra-facility regime;
4) violation of established requirements when processing information constituting state secrets using computer technology;
5) violation of the established measures to counteract technical intelligence;
6) violation of the restrictions imposed on secret carriers.
This list of ways to violate the secrecy regime is not exhaustive. However, when a citizen is found guilty of violating the secrecy regime, the prerequisites for the leakage (loss) of information constituting state secrets, as well as threats to their security, must be considered.
The secrecy regime is a unified procedure established by regulatory legal acts to ensure the safety of information constituting state secrets, including administrative, organizational, technical and other measures aimed at preventing unauthorized access to this information, and is part of the overall national security system of the state.
An act is considered completed from the moment it is committed. An offense can be committed either in the form of illegal actions or by omission in cases of non-compliance with the requirements for ensuring secrecy.
In accordance with paragraph 5 of Article 8 of the Law of the Republic of Kazakhstan "On State Secrets", the competence of the authorized body for the protection of state secrets of the Republic of Kazakhstan includes the function of developing Instructions for ensuring secrecy in the Republic of Kazakhstan. We do not specify the content of this regulatory legal act and do not use it in the commentary, as it is classified as "secret".
Violation of the secrecy regime entails liability under part 2 of this article if there are no signs of a criminal offense in the actions of the perpetrator. That is, articles 185, 186, 458 of the Criminal Code of the Republic of Kazakhstan will be competing norms of criminal offenses.
The subject of the offenses under consideration under part 2 of the article under study may be officials, legal entities and individuals who have violated the secrecy regime.
The direct object of the offense under part 3 of Article 504 of the Administrative Code is public relations that arise when observing the secrecy of information and its media.
The objective side of the administrative offense provided for in part 3 of the article under study is manifested in illegal actions (omissions) in the form of:
1) unjustified classification of information and its media that are not subject to secrecy;
2) the use of secrecy labels and other restrictive labels for classifying information not classified as state secrets;
A special feature of the qualification of an administrative offense is the legal conditions that the above-mentioned illegal actions (omissions) should not contain signs of a criminally punishable act.
According to paragraph 1 of Article 20 of the Law of the Republic of Kazakhstan "On State Secrets", the basis for classifying information obtained (developed) as a result of managerial, industrial, scientific and other types of activities of state bodies and organizations is their compliance with the lists of information subject to secrecy in force in state bodies and organizations. When classifying this information, their carriers are assigned the appropriate security classification.
In accordance with Article 17 of the Law on State Secrets, information is not subject to secrecy.:
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) the state of health, sanitation, demography, migration, education, culture, social protection, economy, agriculture, as well as the state of crime;
3) the facts of committing acts of terrorism;
4) the state of the environment, fire safety, as well as the sanitary-epidemiological and radiation situation, food safety;
5) privileges, compensations and benefits provided by the state to citizens and organizations;
6) facts of violation of human and civil rights and freedoms;
7) the size of the gold and foreign exchange reserve of the National Bank of the Republic of Kazakhstan;
8) the formation and expenditure of funds from the national and local budgets, with the exception of information disclosing the security of the Republic of Kazakhstan;
9) control over the expenditure of funds from the national and local budgets, with the exception of information disclosing the security of the Republic of Kazakhstan;
10) facts of violation of legality by state bodies and organizations, their officials;
11) mass repressions for political, social and other reasons, including those in archives, with the exception of information provided for in article 14 of this Law, namely Information in the field of intelligence, counterintelligence, operational-investigative and other activities classified as state secrets of the Republic of Kazakhstan.
Departmental lists are developed to determine the degree of secrecy of specific information (groups of information), taking into account their departmental, industry, or program-specific affiliation. The degree of secrecy of the information contained in the document is determined by the contractor and the person signing or approving the document.
When qualifying part 3 of the commented offense, the specifics of the application of Article 456-1 of the Administrative Code "Unlawful restriction of the right to access information" should be taken into account. 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, should be qualified under part 3 or 4 of Article 456-1 of the Administrative Code.
Accordingly, the subjects of the offenses under consideration under part 3 of the commented article are persons engaged in activities related to state secrets.
The composition of the offense, namely the objective side of part 4 of Article 504 of the Administrative Code, completely coincide with part 3 of the commented article, with the exception of the subjective side of the offense, since the purpose of the unlawful actions of the subject of the offense is to conceal the violation of legality.
The unjustified classification of information that is not subject to secrecy and its carriers, the use of secrecy labels and other restrictive labels for classifying information that is not classified as state secrets, committed in order to conceal a violation of legality, is characterized only by an intentional form of guilt, since the perpetrator is aware of the illegality of his actions or omissions. This act is considered completed from the moment it is committed.
The direct object of the offense under part 5 of Article 504 of the Administrative Code is public relations that arise when observing the procedure for declassifying information and its media.
The objective side of the administrative offense provided for in part 5 of the analyzed article is manifested in illegal actions that violate the procedure for declassifying information.
The grounds for declassification of information in accordance with Article 22 of the Law of the Republic of Kazakhstan "On State Secrets" are:
1) acceptance by the Republic of Kazakhstan of international obligations on the open exchange of information constituting state secrets in the Republic of Kazakhstan;
2) a change in objective circumstances, as a result of which further protection of information constituting state secrets is impractical;
3) changing the List of information constituting the state secrets of the Republic of Kazakhstan;
4) the end of the period for classifying information constituting state secrets;
5) the need to use the results of operational investigative and counterintelligence activities in criminal proceedings.
State bodies and organizations whose heads are authorized to classify information as state secrets are required to periodically, but at least every five years, review the contents of the lists of information subject to secrecy in these bodies and organizations, regarding the validity of the classification of information and its compliance with the previously established degree of secrecy.
The right to change the lists of information subject to secrecy in force in government agencies and organizations is vested in the heads who approved them, who are personally responsible for the validity of their decisions on declassification of information. The decisions of these managers related to changes in the list of information to be classified are subject to coordination with the authorized state body for the protection of state secrets and the National Security Committee of the Republic of Kazakhstan.
Along with this, if the document (product) is incorrectly classified, the head of the department for the protection of state secrets is obliged to bring it in line with the established degree of secrecy of the information contained in the document.
In addition, the legislation provides for the need to declassify information no later than the time limits set for their classification. Prior to the expiration of these terms, the media are subject to declassification if the provisions of the current legislation are changed. In exceptional cases, the right to extend the originally established deadlines for classifying information carriers is granted to the heads of state bodies and organizations authorized to classify state secrets, based on the conclusion of an expert commission appointed by them in accordance with the established procedure.
The disposition of part 5 of the analyzed article provides for the signs of a criminally punishable criminal act provided for in Article 185 of the Criminal Code "Illegal collection, dissemination, disclosure of state secrets." The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 3 clarified the specifics of distinguishing an administrative offense from a criminal offense, depending on the consequences of unlawful acts.
The subjects of the offenses under consideration are citizens engaged in activities related to State secrets.
The object of the offense under part 6 of Article 504 is public relations that arise when working with documents containing official information.
The objective side of the administrative offense provided for in part 6 of the commented article is the violation of the established requirements for working with official information of limited distribution by persons admitted to it in connection with professional or official activities, resulting in the disclosure or loss of this information.
The rules for classifying information as official information of limited distribution and working with it were approved by Resolution No. 1196 of the Government of the Republic of Kazakhstan dated December 31, 2015.
Official information of limited distribution, recorded in documents, files and publications marked "For official use", includes information related to the activities of a government agency, restrictions on the dissemination of which are dictated by official necessity. Government agencies are developing appropriate departmental lists of official information of limited distribution marked "For official use", the open publication or disclosure of which may harm the interests of government agencies of the Republic of Kazakhstan. These lists are subject to approval by the head of the state body.
The subject of the offense in question is both citizens and officials. However, only those who have gained access to the above information in connection with the performance of their official or professional duties can be held responsible.
All of the above qualifying features of the commented Article 504 of the Administrative Code will be considered administrative offenses if they do not contain a sign of a criminally punishable act. However, there is no provision in the Criminal Code of the Republic of Kazakhstan that explicitly contains such illegal actions with the greatest degree of public danger, subject to the Criminal Code. The distinguishing characteristics of administrative and criminal offenses will be the consequences in the form of major damage or serious consequences, the concepts of which are given in Article 3 of the Criminal Code.
In the field of protection and protection of state secrets, the Criminal Code contains such qualifying features as:
1) illegal collection of information constituting state secrets; (art. 185)
2) dissemination of unlawfully obtained information constituting state secrets; (art. 185)
3) disclosure of information constituting state secrets by a person to whom they were entrusted or became known through service, work, or on other grounds provided for by the law of the Republic of Kazakhstan; (art. 185)
4) loss due to negligence of information carriers containing state secrets by a person to whom they were entrusted in service, work or on other grounds provided for by the law of the Republic of Kazakhstan, if the loss was the result of a violation of the established rules for handling information carriers constituting state secrets; (art. 186).
Similar signs of an offense are also contained in article 458 of the Criminal Code, but they relate to state secrets of a military nature.
On the subjective side, this offense, except for the 4th and 5th parts of Article 504 of the Administrative Code, can be committed either intentionally or negligently.
On the basis of part 3 of Article 804 of the Administrative Code, they have the right to initiate proceedings on administrative offenses under the commented article.:
1) officials of the State Security Service of the Republic of Kazakhstan during security measures;
2) the head of the department of the National Security Committee and his deputies, heads of territorial bodies and their deputies.
It should be noted that the main users of restricted access information are employees of special and law enforcement agencies who do not enjoy immunity from administrative responsibility for violating the legislation of the Republic of Kazakhstan in the field of protection of state secrets and, on the basis of part 2 of Article 32, must be held accountable on a general basis. However, the first part of Article 32 of the Administrative Code stipulates that employees of special state and law enforcement agencies are responsible for administrative offenses committed in the performance of their official duties in accordance with regulatory legal acts regulating the procedure for serving in the relevant authorities.
According to Article 726 of the Administrative Code, the head of the department of the National Security Committee and his deputies, heads of territorial bodies and their deputies have the right to consider cases of administrative offenses and impose the prescribed administrative penalties under Article 504 of the Administrative Code. That is, if an offense was committed in the performance of official duties, the staff of the National Security Committee of the Republic of Kazakhstan must transfer materials on offenses to the appropriate authorities to resolve the issue of bringing perpetrators to disciplinary responsibility.
Part 3 of article 32 states that "Administrative penalties in the form of an administrative fine may not be applied to military personnel undergoing military service and cadets of military and special educational institutions.". Since the sanctions of the commented article are expressed in only one type of administrative penalty in the form of a fine, cadets of military and special educational institutions of the Republic of Kazakhstan can only be brought to disciplinary responsibility.
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
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