Commentary to article 637. Violation of the legislation of the Republic of Kazakhstan in the field of communications The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Commentary to article 637. Violation of the legislation of the Republic of Kazakhstan in the field of communications The Code of the Republic of Kazakhstan on Administrative Offences

Chapter 31. ADMINISTRATIVE OFFENSES IN THE FIELD OF INFORMATIZATION AND COMMUNICATIONS

Chapter 31 of the Administrative Code contains the elements of administrative offenses in the field of informatization and communications.

The generic object of administrative offenses in the field of informatization and communications is public relations, protected by legislative acts in the field of informatization and communications.

Such legislative acts are, for example, the Law of the Republic of Kazakhstan dated July 5, 2004 "On Communications", the Law of the Republic of Kazakhstan dated November 24, 2015 "On Informatization", the Law of the Republic of Kazakhstan dated January 7, 2003 No. 370-II "On electronic document and electronic digital Signature", the Law of the Republic of Kazakhstan dated May 21, 2013 "About personal data and their protection", etc.

In the process of improving and optimizing the provision of public services, the idea of creating an "electronic government" arose. Currently, more than 900 services are provided through the e-government infrastructure. The popularity of the portal is confirmed by statistical data. The users of the portal are more than 50% of the economically active population of the country or more than 5.3 million people who have received more than 130 million electronic services.

Mobile communications and mobile technologies, as well as electronic digital signatures, are also an integral part of citizens' lives today. Currently, the regulatory framework, infrastructure, databases, etc. have been formed, which ensure the availability of e-government for every citizen.

In order to strengthen the rule of law and order in this area, the Code of Administrative Offences provides for administrative liability for offences in the relevant areas.

Article 636. Excluded by the Law of the Republic of Kazakhstan dated 05/24/2018 No. 156-VI

Article 637. Violation of the legislation of the Republic of Kazakhstan in the field of communications

1. Violation of the legislation of the Republic of Kazakhstan in the field of communications, committed in the form of:

1) unjustified refusal by the dominant telecom operator to conclude an affiliation agreement or to establish deliberately restrictive conditions for the connection or laying of communication lines by the dominant telecom operator;

2) violations of the deadlines for joining telecommunications networks to the public telecommunications network provided for by the legislation of the Republic of Kazakhstan in the field of communications;

3) violations by telecom operators of the connection levels of telecommunications networks, including traffic skipping and the procedure for mutual settlements;

4) disconnection and (or) restriction of communication with the numbers of toll-free connections with emergency medical, law enforcement, fire, emergency, information and other services;

5) non-compliance by the telecom operator with the size of the billing units;

7) failure to inform subscribers about the cost of the connection when providing access to intellectual services (lottery, voting, quiz show, information services, dating services);

8) providing users with communication services that do not meet the quality standards, technical standards and indicators of the quality of communication services;

9) the use of the radio frequency spectrum in case of non-compliance of the technical parameters of electronic means with the data specified in the permit for the use of the radio frequency spectrum of the Republic of Kazakhstan;

9-3) violations by telecom operators of the rules for applying the security certificate;

9-4) violations of the functioning of the centralized management system of telecommunications networks of the Republic of Kazakhstan;

9-5) provision by the telecom operator of access to information prohibited by a court decision that has entered into force or by the laws of the Republic of Kazakhstan;

9-6) network address substitution;

10) non-compliance by telecom operators and the operator of the centralized database of subscriber numbers with the rules for transferring subscriber numbers in cellular networks;

11) failure by the mobile operator to fulfill the obligation to provide the operator with a centralized database of subscriber numbers with information about subscriber numbers of cellular communications;

12) provision of communication services by the telecom operator and (or) the owner of the communication network, as well as distribution of subscriber numbers by the representative of the telecom operator without concluding a corresponding contract for the provision of communication services;

13) non-compliance by mail operators with the established requirements for the organization of user service and the procedure for conducting an operational day;

14) violations by mail operators of the established requirements for the order of acceptance and delivery of mail items, as well as their registration, which led to the loss of the postal item;

15) violations by mail operators of the requirements for the installation of technical means and equipment on postal networks that make it possible to identify prohibited items and substances in mail;

16) failure by telecom operators and network owners to optimize their own communication networks, including timely response and taking measures to reduce the spread of the radio signal in the territory of penal institutions, -

entails a fine for individuals in the amount of ten, for officials, small businesses in the amount of twenty, for medium-sized businesses in the amount of forty, for large businesses in the amount of one hundred monthly calculation indices.

2. The acts provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

They impose a fine on individuals in the amount of twenty, on officials, small businesses in the amount of forty, on medium-sized businesses in the amount of eighty, on large businesses in the amount of two hundred monthly calculation indices.

3. Violation of the obligation to collect and store official information about subscribers and (or) users of communication services -

entails a fine for small businesses in the amount of fifty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of five hundred monthly calculation indices.

4. The action provided for in the third part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

entails a fine for small businesses in the amount of one hundred, for medium-sized businesses in the amount of two hundred, for large businesses in the amount of two thousand monthly calculation indices.

5. Failure by the telecom operator and (or) the owner of the communication network to fulfill the obligations to provide the bodies carrying out operational search and counterintelligence activities on communication networks with organizational and technical capabilities for conducting operational search and counterintelligence activities on all communication networks, as well as to take measures to prevent the disclosure of forms and methods of conducting operational search and counterintelligence activities -

entails a fine for small businesses in the amount of fifty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of five hundred monthly calculation indices.

6. Failure by the telecom operator and (or) the owner of the communications network to fulfill their obligations to provide bodies engaged in operational search and counterintelligence activities on communications networks with access to official information about subscribers, as well as to take measures to prevent disclosure of forms and methods of conducting operational search and counterintelligence activities -

entails a fine for small businesses in the amount of fifty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of five hundred monthly calculation indices.

7. Failure by the telecom operator and (or) the owner of the communications network to fulfill the obligation to ensure the functions of their telecommunications equipment for the technical conduct of operational search and counterintelligence activities in accordance with the requirements for networks and means of communication -

entails a fine for small businesses in the amount of fifty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of five hundred monthly calculation indices.

8. The actions provided for in parts six and seven of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

they entail the suspension of the license to provide services in the field of communications.

9. Non-fulfillment by a cellular operator of obligations to provide communication services to settlements and (or) territories specified in the permit for the use of the radio frequency spectrum of the Republic of Kazakhstan, -

entails the withdrawal of permission to use the radio frequency spectrum.

10. Non-use of the radio frequency spectrum for one year -

entails the withdrawal of permission to use the radio frequency spectrum.

11. Failure by the mobile operator to fulfill the obligation to ensure the transfer of subscriber numbers in cellular networks -

entails a fine for small businesses - in the amount of five hundred, for medium-sized businesses - in the amount of one thousand, for large businesses - in the amount of two thousand monthly calculation indices.

12. Violation of the rules for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic equipment and high-frequency devices, as well as calculating the electromagnetic compatibility of civil radio-electronic equipment -

entails a warning or fine for individuals in the amount of five, for officials, individual entrepreneurs - in the amount of twenty, for small businesses or non-profit organizations - in the amount of twenty, for medium-sized businesses - in the amount of forty, for large businesses - in the amount of eighty monthly calculation indices.

13. The actions provided for in part twelve of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

they impose a fine on individuals in the amount of ten, on officials, individual entrepreneurs - in the amount of forty, on small businesses or non-profit organizations - in the amount of thirty, on medium-sized businesses - in the amount of sixty, on large businesses - in the amount of one hundred monthly calculation indices.

Notes.

1. For the purposes of this Code, radio electronic devices are understood to be technical means consisting of one or more radio transmitting or receiving devices or combinations thereof and auxiliary equipment designed to transmit and receive radio waves.

2. In this Code, high-frequency devices are understood to be equipment or devices intended for the generation and local use of radio frequency energy for industrial, scientific, medical, and domestic purposes, with the exception of applications in the field of telecommunications.

3. For the purposes of this Code, disconnection and (or) restriction of communication means an action (inaction) by a telecom operator that has led to the inability to connect with emergency medical, law enforcement, fire, emergency, help and other services, with the exception of circumstances related to force majeure or ongoing preventive and (or) emergency services, as well as in other cases stipulated by the legislation of the Republic of Kazakhstan.

Part 1 of the commented article provides for administrative liability of individuals, officials and business entities in the form of an administrative fine for violating the legislation of the Republic of Kazakhstan in the field of communications.

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 compliance with requirements in the field of communications. According to the Law of the Republic of Kazakhstan dated July 5, 2004 "On Communications" (hereinafter - the Law) Communication refers to the reception, collection, processing, accumulation, transfer (transportation), delivery, dissemination of information, postal and special items, postal money transfers.

The objective side of the administrative offense provided for in Part 1 of Article 637 of the Administrative Code is characterized by the following actions (omissions):

Telecom operators are individuals or legal entities registered in the territory of the Republic of Kazakhstan, providing communication services and (or) operating communication networks. The dominant telecom operator is a telecom operator that occupies a dominant (monopoly) position in the field of communications in accordance with the legislation of the Republic of Kazakhstan in the field of competition protection (for example, Kazakhtelecom JSC, Kazpost JSC).

According to paragraph 1 of Article 26 of the law, for the dominant telecom operators of the public telecommunications network, an affiliation agreement defining the conditions for the provision of services for connecting other telecommunications networks, as well as related obligations for network interaction and traffic transmission, is a public agreement, the standard form of which is approved by the authorized body.

A public contract is one of the specific types of contract stipulated in the Civil Code of the Republic of Kazakhstan.

Signs of a public contract:

- it is signed by a commercial organization;

- it establishes the responsibilities of a commercial organization for the sale of goods, performance of work or provision of services;

- by the nature of its activities, an organization should carry out these duties in relation to everyone who applies to it.;

- a commercial organization has no right to give preference to one person over another in relation to the conclusion of a contract, except in cases provided for by law.

In case of unjustified refusal, the same consequences occur as in case of refusal to conclude a contract in cases where the conclusion of the contract is mandatory (Article 399 of the Civil Code). Thus, the consumer has the right to apply to the court with a claim for compulsion to provide the service by the telecom operator and for compensation for damages caused by such refusal in civil proceedings.

The Government of the Republic of Kazakhstan has the right to issue mandatory rules on certain types of public contracts in cases established by legislative acts (model contracts, regulations, etc.), as in the case of an affiliation agreement with a dominant telecom operator.

According to paragraph 2 of article 26 of the law, it is not allowed for the dominant telecom operator to refuse to conclude an affiliation agreement or for the dominant telecom operator to establish deliberately restrictive conditions for connection or laying of communication lines.

Deliberately restrictive conditions for connection or laying of communication lines are understood as technical conditions for connection established by the dominant telecom operator, the fulfillment of which for the connected telecom operator is disproportionate to the costs that could have been incurred under other conditions of connection, or is not possible due to the refusal of the owner of the land plot, land user, owner of the building or structure to lay telecommunications networks on their territory and (or) in buildings or structures.

A telecommunications network is a set of telecommunications facilities and communication lines providing the transmission of telecommunications messages, consisting of switching equipment (stations, substations, hubs), linear cable structures (subscriber lines, connecting lines and communication channels), transmission systems and subscriber devices;

According to paragraph 9-1 of the Rules for the Connection and Interaction of Telecommunications Networks, the connection of telecommunications operators' telecommunications networks to public telecommunications networks is carried out after the connected switching equipment is brought into compliance with the requirements established by the relevant technical regulations. Joining for the purpose of certification for compliance with the requirements established by the specified technical regulations is carried out within a period of no more than 30 calendar days.

3) violations by telecom operators of the connection levels of telecommunications networks, including traffic skipping and the procedure for mutual settlements;

According to subparagraph 17) of paragraph 1, the connection level is the network level determined by the hierarchy and numbering plan of the connecting telecommunications network and at which the connection of another telecommunications network is carried out. Chapter 2 of the Rules defines the order of allocation of the numbering resource.

4) disconnection and (or) restriction of communication with the numbers of toll-free connections with emergency medical, law enforcement, fire, emergency, information and other services;

According to paragraph 4 of Article 20 of the law, telecom operators ensure round-the-clock provision of free connections to the operator of the emergency call system, emergency medical, law enforcement, fire, emergency and other services according to the list determined by the Government of the Republic of Kazakhstan.

5) non-compliance by the telecom operator with the size of the billing units;

The unit of billing is a unit of measurement of time, quantity or volume of information for which a fee is charged for the relevant type of communication service, which is mandatory for telecom operators and network owners of all categories included in the unified telecommunications network of the Republic of Kazakhstan.

For example, the size of the billing units used in mutual settlements between telecom operators when passing all types of incoming, outgoing and transit traffic on public telecommunications networks.:

1) local, intra-zone, long-distance telephone traffic and IP telephony operators - 1 second);

1-1) telephone traffic of cellular operators – 1 second;

2) international telephone traffic - 1 second);

3) data traffic and Internet - 1 KB).

At the same time, it is allowed for telecom operators to use the size of the charging units smaller than the size of the charging units provided for by law.

7) failure to inform subscribers about the cost of the connection when providing access to intellectual services (lottery, voting, quiz show, information services, dating services);

According to paragraph 1-1 of Article 36 of the law, when providing access to intellectual services via telephone (including cellular communications) (lottery, voting, game show, quiz, information services, dating services) before the start of a billing connection, the telecom operator is obliged to notify the subscriber of the cost of this connection.

If the subscriber agrees to a telephone connection (that is, when the subscriber does not interrupt such a connection), the fee for this connection is determined based on the duration of the telephone connection by the number of total billing units multiplied by the tariff.

If the subscriber does not agree to such a connection (that is, after receiving the appropriate notification, he interrupted such a connection), then the connection establishment fee is not charged.

If the telecom operator has not notified the subscriber about the cost of this connection before the start of the billing connection, then there is no charge for providing access to intellectual services (lottery, voting, quiz show, information services, dating services).

8) providing users with communication services that do not meet the quality standards, technical standards and indicators of the quality of communication services;

According to paragraph 1 of Article 35 of the law, telecom operators are required to provide users with communication services that meet the quality of standardization documents, technical standards, and the terms of the contract for the provision of communication services.

The quality indicators of communication services approved by the Order of the Minister of Information and Communications of the Republic of Kazakhstan dated November 22, 2017 No. 410 are established in accordance with international standards for the quality of telephone services and Internet access.

According to paragraph 6 of Article 12 of the law, the permit for the use of the radio frequency spectrum specifies the type or standard of communication, the territory of use, the type and technical parameters of the electronic means used, as well as obligations to provide communication services to settlements and (or) territories.

According to subparagraph 1 of Article 28-7, owners of radio-electronic means and high-frequency devices:

1) ensure that the technical characteristics and operating conditions of radio-electronic devices and high-frequency devices comply with the parameters set out in the notification of the commencement or termination of operation of radio-electronic devices and (or) high-frequency devices, as well as established rules and regulations.

9-3) violations by telecom operators of the rules for applying the security certificate;

According to subparagraph 36-1) of Article 1 of the law, a security certificate is a set of electronic numeric characters used to pass traffic containing protocols that support encryption.

Chapter 3 of the Rules for Issuing and Applying a Security certificate regulates the procedure for applying a security certificate. Thus, according to paragraph 8 of the above Rules, the application of the security certificate is carried out by telecom operators in order to limit the dissemination of information on the telecommunications network that is prohibited by a court decision that has entered into force or the laws of the Republic of Kazakhstan.

According to subparagraph 4) of paragraph 3-1 of Article 26 of the law, long-distance and (or) international telephone operators are required to transmit traffic using protocols that support encryption using a security certificate.

9-4) violations of the functioning of the system of centralized management of telecommunications networks of the Republic of Kazakhstan;

According to subparagraph 32-2) of Article 1 of the law, the system of centralized management of telecommunications networks of the Republic of Kazakhstan is a set of organizational and technical measures for the formation of control parameters and control over their execution, including a hardware and software package and communication channels for centralized management of telecommunications networks. Technical support of the centralized management system of telecommunications networks of the Republic of Kazakhstan, as well as international points of junction, is provided by the state technical service related to the state monopoly.

9-5) provision by the telecom operator of access to information prohibited by a court decision that has entered into force or by the laws of the Republic of Kazakhstan;

According to paragraph 1-3 of Article 36 of the law, when providing Internet access services, the telecom operator is obliged to restrict access to information prohibited by a court decision that has entered into force or the laws of the Republic of Kazakhstan.

9-6) network address substitution;

According to paragraph 2-1 of Article 40 of the law, subscribers and users of communication services are responsible for the substitution of network addresses committed in order to conceal violations of the laws of the Republic of Kazakhstan.

10) non-compliance by telecom operators and the operator of the centralized database of subscriber numbers with the rules for transferring subscriber numbers in cellular networks;

According to article 36-1 of the law, when transferring subscriber numbers, cellular operators interact exclusively through a centralized database of subscriber numbers.

Cellular operators are required to ensure the transfer of subscriber numbers in cellular networks in accordance with the legislation of the Republic of Kazakhstan in the field of communications.

The procedure for the functioning of a centralized database of subscriber numbers and the provision of access to its resources, as well as organizational and technical interaction and mutual settlements between participants in the transfer of subscriber numbers is determined by the rules for transferring subscriber numbers in cellular networks.

The rules for transferring a subscriber number determine the procedure for transferring a subscriber number in cellular networks, the functioning of a centralized database of subscriber numbers and providing access to its resources, as well as organizational and technical interaction and mutual settlements between participants in the transfer of subscriber numbers.

According to paragraph 5 of article 36-1, cellular operators are required to ensure that the operator of a centralized database of subscriber numbers is provided with information about cellular subscriber numbers, including information determined by the rules for transferring a subscriber number in cellular networks.

According to subparagraph 5) of paragraph 1 of Article 15, telecom operators and (or) owners of communication networks operating in the territory of the Republic of Kazakhstan are required to ensure the provision of communication services, as well as the distribution of subscriber numbers by a representative of the telecom operator, only upon conclusion of an appropriate contract for the provision of communication services, concluded in accordance with the rules for the provision of communication services.

13) non-compliance by mail operators with the established requirements for the organization of user service and the procedure for conducting an operational day;

Article 24 of the Law of the Republic of Kazakhstan dated April 9, 2016 "On Mail" (hereinafter referred to as the Law on Mail) contains the following rules for the provision of postal services.

1) organization of the postal network and service by mail operators of users of the services of the mail operator, including unhindered access of persons with disabilities to postal services;

2) the use of personal devices of mail operators;

3) registration of mail items, as well as types of mail items and their technical characteristics;

4) receiving, processing, transportation and (or) transfer, delivery and (or) delivery of postal items and (or) postal money transfers, as well as the form of a postal package and (or) postal transfer;

5) acceptance, processing and delivery of international mail items;

6) receipt, processing and verification of mail items, as well as storage periods for mail items;

7) sending and returning mail items;

8) conducting an operational day;

9) and others.

The procedure for the provision of postal services by postal operators is regulated by the Rules for the Provision of Postal Services, approved by Order No. 65 of the Minister of Information and Communications of the Republic of Kazakhstan dated July 29, 2016.

14) violations by mail operators of the established requirements for the order of acceptance and delivery of mail items, as well as their registration, which led to the loss of the postal item;

According to paragraph 1 of article 44 of the Postal Act, the postal operator is obliged to ensure the safety of the postal item from the moment it is received from the sender until it is delivered to the recipient.

Paragraph 3 of the same article establishes the responsibility of the operator for the loss, damage (spoilage) of the registered postal item or the shortage of things, objects or goods inside the registered postal item in certain amounts. It should be noted that in this case, liability in the form of compensation to the recipient of the cost of the postal item occurs according to the rules of the legislation on mail, civil legislation. According to the commented article of the Administrative Code, for violation by mail operators of the established requirements for the order of acceptance and delivery of mail, as well as their registration, which led to the loss of mail, there is also administrative responsibility, entailing an administrative fine to the state budget.

According to paragraph 1 of Article 7 of the Law on Mail, postal operators are required to install technical means and equipment on postal networks that ensure the conduct of operational search, counterintelligence activities, collection and storage of information about personal data.

According to subparagraph 2) of paragraph 2 of Article 15-1 of the law, telecom operators are required to ensure the optimization of their own communication networks, including timely response and taking measures to reduce the spread of radio signals on the territory of penal institutions.

The rules of interaction during the operation of special technical equipment on the territory of institutions of the penal correction (penitentiary) system determine the procedure for the interaction of telecom operators with institutions of the penal correction (penitentiary) system using special technical equipment.

The subjective side of the administrative offense provided for in part 1 of the commented article may be expressed as intent or negligence.

The subject of an administrative offense provided for in part 1 of the commented article are individuals, officials (special entity) and business entities to which an administrative fine is applied differentially depending on the category of business entities: small, medium and large businesses.

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, except for subparagraph 14) of part 1 of Article 637 of the Administrative Code. In this case, the offense is considered completed when there is a fact of causing material harm, that is, the loss of the postal item.

Part 2 of the commented article establishes a more severe punishment for repeated commission of an act provided for in Part 1 of Article 637 of the Administrative Code within a year after the imposition of an administrative penalty.

Part 3 of the commented article provides for administrative liability of business entities in the form of an administrative fine for violating the obligation to collect and store official information about subscribers and (or) users of communication services.

The direct object of the administrative offense provided for in part 3 of the commented article is the procedure established by law and protected by the state for collecting and storing official information about subscribers and (or) users of communication services.

The objective side of the administrative offense provided for in Part 3 of Article 637 of the Administrative Code is characterized by an action (inaction) in the form of a violation of the collection and storage of official information about subscribers and (or) users of communication services. According to the Rules for the collection and storage of service information about subscribers by telecom operators, service information about subscribers is information about subscribers intended solely for the purposes of conducting counterintelligence activities and operational search activities on communication networks and includes:

- information about subscriber numbers, including information about individual identification numbers (for individuals) or business identification numbers (for legal entities) of the owners of subscriber numbers;

- information about the identification codes of cellular subscriber devices, including information about individual identification numbers (for individuals) or business identification numbers (for legal entities) of owners of cellular subscriber devices;

- billing information (information about the services received by the subscriber);

- the location of the subscriber's device on the network in accordance with the requirements of the technical regulations;

- addresses on the data network;

- addresses of access to Internet resources on the data network;

- Internet resource identifiers;

- data transmission network protocols.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of an administrative offense provided for in part 3 of the commented article is a special entity, namely, a telecom operator. The sanction provides for administrative liability in the form of an administrative fine and is applied differentially depending on the category of business entities: small, medium and large enterprises.

Part 4 of the commented article establishes a more severe punishment for repeated commission of an act provided for in Part 3 of Article 637 of the Administrative Code within a year after the imposition of an administrative penalty.

Part 5 of the commented article provides for administrative liability of business entities in the form of an administrative fine for failure by the telecom operator and (or) the owner of the communications network to fulfill their duties to provide the bodies carrying out operational search and counterintelligence activities on communications networks with organizational and technical capabilities for conducting operational search and counterintelligence activities on all communications networks, as well as taking measures to prevent the disclosure of forms and methods of conducting operational search and counterintelligence activities.

The direct object of the administrative offense provided for in part 5 of the commented article is the procedure established by law and protected by the state for providing organizational and technical capabilities for conducting operational search and counterintelligence activities on all communication networks, as well as taking measures to prevent the disclosure of forms and methods of conducting operational search and counterintelligence activities.

The objective side of the administrative offense provided for in Part 5 of Article 637 of the Administrative Code is characterized by inaction in the form of failure by the telecom operator and (or) the owner of the communications network to fulfill their obligations to provide organizational and technical capabilities for conducting operational search and counterintelligence activities on all communications networks, as well as to take measures to prevent the disclosure of forms and methods of conducting operational search and counterintelligence activities. events.

According to subparagraph 1) of paragraph 1 of Article 15 of the law, telecom operators and (or) owners of communication networks operating in the territory of the Republic of Kazakhstan are required to: 1) to provide the bodies carrying out operational-search and counterintelligence activities on communication networks with organizational and technical capabilities for conducting operational-search and counterintelligence activities on all communication networks, as well as to take measures to prevent disclosure of the forms and methods of carrying out these activities.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of the administrative offense provided for in part 5 of the commented article is a special entity, namely, the telecom operator and (or) the owner of the communications network. The sanction provides for administrative liability in the form of an administrative fine and is applied differentially depending on the category of business entities: small, medium and large enterprises.

Part 6 of the commented article provides for administrative liability of business entities in the form of an administrative fine for failure by the telecom operator and (or) the owner of the communications network to fulfill their duties to ensure access to official information about subscribers to bodies engaged in operational search and counterintelligence activities on communications networks, as well as to take measures to prevent disclosure of forms and methods of conducting operationalinvestigative and counterintelligence activities.

The direct object of the administrative offense provided for in part 6 of the commented article is the procedure established by law and protected by the state for ensuring access to official information about subscribers, as well as taking measures to prevent disclosure of forms and methods of conducting operational search and counterintelligence activities to bodies engaged in operational search and counterintelligence activities.

The objective side of the administrative offense provided for in Part 6 of Article 637 of the Administrative Code is characterized by inaction in the form of failure by the telecom operator and (or) the owner of the communications network to fulfill their duties to ensure access to official information about subscribers to bodies carrying out operational search and counterintelligence activities on communications networks, as well as taking measures to prevent disclosure of forms and methods of conducting operational-search and counterintelligence activities

According to subparagraph 3) of paragraph 1 of Article 15 of the law, telecom operators and (or) owners of communication networks operating in the territory of the Republic of Kazakhstan are required to: 3) to provide access to official information to the bodies carrying out operational-search and counterintelligence activities on communication networks, as well as to take measures to prevent disclosure of the forms and methods of carrying out these activities.

According to subparagraph 2) of Article 2 of the law, official information about subscribers is information about subscribers intended solely for the purposes of conducting counterintelligence activities and operational search activities on communication networks.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of the administrative offense provided for in part 6 of the commented article is a special entity, namely, the telecom operator and (or) the owner of the communications network. The sanction provides for administrative liability in the form of an administrative fine and is applied differentially depending on the category of business entities: small, medium and large enterprises.

Part 7 of the commented article provides for administrative liability of business entities in the form of an administrative fine for failure by the telecom operator and (or) the owner of the communications network to fulfill the obligation to ensure the functions of their telecommunications equipment for the technical conduct of operational search and counterintelligence activities in accordance with the requirements for networks and means of communication.

The direct object of the administrative offense provided for in part 7 of the commented article is the procedure established by law and protected by the state for providing the telecommunications operator and (or) the owner of the communications network with the functions of its telecommunications equipment for the technical conduct of operational search and counterintelligence activities in accordance with the requirements for networks and means of communication.

The objective side of the administrative offense provided for in Part 7 of Article 637 of the Administrative Code is characterized by inaction in the form of non-fulfillment by the telecom operator and (or) the owner of the communications network of their duties to ensure the functions of their telecommunications equipment for the technical conduct of operational search, counterintelligence activities in accordance with the requirements for networks and means of communication.

According to subparagraph 4) of paragraph 1 of Article 15 of the law, telecom operators and (or) owners of communication networks operating in the territory of the Republic of Kazakhstan are required to: provide, at the expense of their own or borrowed funds, the functions of their telecommunications equipment for the technical conduct of operational search, counterintelligence activities in accordance with the requirements for networks and means of communication and the procedure which are determined by the Government of the Republic of Kazakhstan.

According to the Rules of provision by telecom operators and (or) owners of communication networks operating in the territory of the Republic of Kazakhstan, at the expense of their own or borrowed funds, the functions of their telecommunications equipment for the technical conduct of operational-search, counterintelligence activities, while providing the functions of telecommunications equipment for the technical conduct of OPM, CRM, the owners of the equipment ensure:

1) the necessary channel and technical resources of the telecommunications network for the technical implementation of ORM, CRM;

2) access of bodies engaged in operational search activities and counterintelligence activities to official information about subscribers;

3) implementation of a system for registration and identification of all its subscribers by technical and organizational measures;

4) safety and security of telecommunication equipment with the functions of technical control of OPM, CRM, located at communication facilities;

5) the necessary conditions for the uninterrupted operation of equipment with the functions of OPM and CRM maintenance, including power supply, grounding, climatic conditions, fire safety;

6) organizational and technical capabilities of OPM, CRM on all communication networks;

7) taking measures to prevent disclosure of the forms and methods of OPM, CRM;

8) informing the authorized subdivision of the national security agencies about the introduction and (or) change of service numbers, new communication services, and switching equipment;

9) monthly submission of information on the location of base stations of cellular communication networks, including those operating in a test mode, to the bodies carrying out operational search and counterintelligence activities on communication networks;

10) immediate elimination of malfunctions that have arisen in the operation of telecommunications equipment with the functions of technical control of OPM, CRM.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of the administrative offense provided for in part 7 of the commented article is a special entity, namely, the telecom operator and (or) the owner of the communications network. The sanction provides for administrative liability in the form of an administrative fine and is applied differentially depending on the category of business entities: small, medium and large enterprises.

Part 8 of the commented article establishes a more severe punishment (suspension of a license to provide communications services) for repeated commission of an act provided for in Part 6.7 of Article 637 of the Administrative Code within a year after the imposition of an administrative penalty.

Part 9 of the commented article provides for administrative liability in the form of revocation of permission to use the radio frequency spectrum of cellular operators for failure to fulfill obligations to provide communication services to settlements and (or) territories specified in the permission to use the radio frequency spectrum of the Republic of Kazakhstan.

The direct object of the administrative offense provided for in part 9 of the commented article is the procedure established by law and protected by the state for providing communications services by a telecom operator in settlements and (or) territories specified in the permit for the use of the radio frequency spectrum of the Republic of Kazakhstan.

The objective side of the administrative offense provided for in Part 9 of Article 637 of the Administrative Code is characterized by inaction in the form of non-fulfillment of obligations to provide communication services to settlements and (or) territories specified in the permit for the use of the radio frequency spectrum of the Republic of Kazakhstan.

According to paragraph 6 of Article 12 of the law, permits for the use of the radio frequency spectrum are issued to telecom operators and persons intending to use the radio frequency spectrum for internal production activities, no later than two months from the date of receipt by the authorized body of the application of the established sample.

The permit for the use of the radio frequency spectrum specifies the type or standard of communication, the territory of use, the type and technical parameters of the electronic means used, as well as obligations to provide communication services to settlements and (or) territories.

In addition, according to subparagraph 2) of paragraph 8-1 of Article 12 of the law, permission to use the radio frequency spectrum is withdrawn in accordance with the procedure established by the authorized body in the following cases:: failure by the mobile operator to fulfill obligations to provide communication services to settlements and (or) territories specified in the permit for the use of the radio frequency spectrum of the Republic of Kazakhstan.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of an administrative offense provided for in part 9 of the commented article is a special entity, namely a cellular operator.

Part 10 of the commented article provides for administrative liability in the form of revocation of permission to use the radio frequency spectrum for non-use of the radio frequency spectrum for one year.

The direct object of the administrative offense provided for in part 10 of the commented article is the procedure established by law and protected by the State for the use of the radio frequency spectrum.

The objective side of the administrative offense provided for in Part 10 of Article 637 of the Administrative Code is characterized by inaction in the form of non-use of the radio frequency spectrum for one year.

According to subparagraph 1) of paragraph 8-1 of Article 12 of the law, permission to use the radio frequency spectrum is withdrawn in accordance with the procedure established by the authorized body in the following cases:: non-use of the radio frequency spectrum for one year.

According to paragraph 2 of Article 12 of the law, the distribution of the radio frequency spectrum is carried out in accordance with the national Table of frequency band allocation between the radio services of the Republic of Kazakhstan in the frequency range from 3 kHz to 400 GHz for radio electronic devices of all purposes, approved by the authorized body, and plans for the prospective use of the radio frequency spectrum., approved by the authorized body on the basis of recommendations of the Interdepartmental Commission on Radio Frequencies of the Republic of Kazakhstan under the Government of the Republic of Kazakhstan in accordance with the Radio Regulations of the International Telecommunication Union. The Rules contain the procedure for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic means and high-frequency devices, as well as calculating the electromagnetic compatibility of radio-electronic means for civil purposes.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of the administrative offense provided for in part 10 of the commented article is special entities, namely radio services.

Part 11 of the commented article provides for administrative liability of business entities in the form of an administrative fine for failure by a cellular operator to comply with the obligation to ensure the transfer of subscriber numbers in cellular networks.

At the same time, according to subparagraph 10) of part 1 of the commented article, failure by telecom operators, the operator of the centralized database of subscriber numbers, to comply with the rules for transferring subscriber numbers in cellular networks entails the responsibility of business entities in the form of an administrative fine. When comparing two types of administrative offenses, there is a duplication in the object, the objective side, the subject and the subjective side of the administrative offense, which can lead to infringement of the rights of certain persons in the qualification of the article and the application of sanctions.

Thus, the direct object of the administrative offense provided for in part 11, as well as subparagraph 10) of part 1 of the commented article, is the procedure established by law and protected by the state for transferring subscriber numbers in cellular networks, which is provided for in the Rules for Transferring Subscriber Numbers in cellular Networks.

The objective side of the administrative offense provided for in Part 11 of Article 637 of the Administrative Code is characterized by inaction in the form of non-compliance with the rules for transferring a subscriber number in cellular networks. The objective side of the administrative offense provided for in subparagraph 10) of paragraph 1 of Article 637 of the Administrative Code is characterized by failure to fulfill the obligation to ensure the transfer of subscriber numbers in cellular networks, which, in our opinion, also duplicates the objective side of the composition of the administrative offense provided for in part 11 of the commented article.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of an administrative offense is a business entity. The sanction provides for administrative liability in the form of an administrative fine and is applied differentially depending on the category of business entities: small, medium and large enterprises.

Thus, we believe that it is necessary to make appropriate changes to eliminate duplication of administrative offenses.

Part 12 of the commented article provides for administrative liability in the form of a warning or an administrative fine for violating the rules for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic equipment and high-frequency devices, as well as calculating the electromagnetic compatibility of civil radio-electronic equipment.

The direct object of the administrative offense provided for in part 12 of the commented article is the procedure established by law and protected by the state for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic equipment and high-frequency devices, as well as calculating the electromagnetic compatibility of civil-purpose radio-electronic equipment.

The objective side of the administrative offense provided for in Part 12 of Article 637 of the Administrative Code is characterized by an action in the form of violations of the rules for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic equipment and high-frequency devices, as well as calculating the electromagnetic compatibility of civil radio-electronic equipment.

The rules for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic means and high-frequency devices, as well as calculating the electromagnetic compatibility of civil-purpose radio-electronic means determine the procedure for assigning frequency bands, radio frequencies (radio frequency channels), the operation of radio-electronic means and high-frequency devices, as well as calculating the electromagnetic compatibility of civil-purpose RES.

The above Rules take into account the provisions of the Radio Regulations of the International Telecommunication Union (ITU, Geneva 2012) and the recommendations of the Interdepartmental Commission on Radio Frequencies of the Republic of Kazakhstan.

The subjective side of an administrative offense is characterized by both intent and negligence.

The subject of an administrative offense is individuals who have reached the age prescribed by the Administrative Code, individual entrepreneurs, non-profit organizations and business entities.

Part 13 of the commented article establishes a more severe punishment in the form of an administrative fine for repeated commission of an act provided for in Part 12 of Article 637 of the Administrative Code within a year after the imposition of an administrative penalty.

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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Commentary to article 79. Violation of the legislation of the Republic of Kazakhstan on personal data and their protection The Code of the Republic of Kazakhstan on Administrative Offences

Commentary to article 79. Violation of the legislation of the Republic of Kazakhstan on personal data and their protection The Code of the Republic of Kazakhstan on Administra...