Commentary on Article 159. Unlawful Restriction of the Right to Access Information Resources of the Criminal Code of the Republic of Kazakhstan
Unlawful restriction of the right to access information resources shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eighty hours.
The public danger of the criminal misdemeanour under consideration lies in the violation of the rights and legitimate interests of citizens and organisations relating to access to information stored electronically in information systems.
In accordance with Part 3 of Article 18 of the Constitution of the Republic of Kazakhstan, state bodies, public associations, officials and mass media are obliged to ensure that every citizen has the opportunity to familiarise themselves with documents, decisions and sources of information affecting their rights and interests.
Information resources are sources of information stored electronically.
The object of the criminal misdemeanour is the social relations ensuring the exercise of the aforementioned right of access to information resources as a source of information.
The subject matter is information, including personal data of an individual, contained electronically in information systems.
The objective side is expressed in the unlawful restriction of the right to access information resources.
In accordance with Paragraph 2 of Article 3 of the Law of the Republic of Kazakhstan dated 24 November 2015 “On Informatization”, state regulation in the field of informatization is based on the following principles:
legality;
respect for the rights, freedoms and legitimate interests of individuals, as well as the rights and legitimate interests of legal entities;
equality of the rights of individuals and legal entities to participate in activities in the field of informatization and to use their results;
ensuring free access to electronic information resources containing information about the activities of state bodies (presumption of openness), and their mandatory provision, except for electronic information resources to which access is restricted in accordance with the laws of the Republic of Kazakhstan;
timely provision, objectivity, completeness and reliability of electronic information resources in respect of which the laws of the Republic of Kazakhstan establish the mandatory nature of their public dissemination or provision by state bodies;
freedom to search for, create and transmit any electronic information resources to which access is not restricted in accordance with the laws of the Republic of Kazakhstan;
ensuring the security of the individual, society and the state when applying information and communication technologies;
creating conditions for the development of the information and communication technology industry and fair competition;
ensuring centralised management of the informatization facilities of “electronic government”;
carrying out informatization activities within the territory of the Republic of Kazakhstan on the basis of uniform standards ensuring the reliability and manageability of informatization facilities.
According to Subparagraph 57) of Article 1 of the Law “On Informatization”, electronic information resources mean information in electronic-digital form contained on an electronic storage medium and in informatization facilities.
Electronic information resources are characterised by a significant volume and structured nature of data, as well as their specific functional purpose.
According to Article 37 of the Law “On Informatization”, information systems are divided, according to ownership criteria, into state and non-state systems, and according to the degree of access, into publicly accessible and restricted-access systems.
State information systems are those created or developed using budgetary funds, as well as those acquired by state legal entities through other means established by the laws of the Republic of Kazakhstan.
Information systems created or developed using the funds of individuals and legal entities, as well as those acquired by them through other means established by the laws of the Republic of Kazakhstan, are non-state information systems.
Publicly accessible information systems are information systems containing electronic information resources (Paragraph 4 of Article 37 of the aforementioned Law).
Information systems containing restricted-access electronic information resources are restricted-access information systems (Paragraph 5 of Article 37 of the aforementioned Law).
According to Paragraph 5 of Article 37 of the Law, restricted-access information systems are divided into: 1) information systems in a protected configuration, classified as state secrets, the protection of which is carried out using state encryption facilities and (or) other means of protecting information constituting state secrets, in compliance with secrecy regime requirements; 2) confidential information systems.
Information stored electronically in information systems operating within an open information and communication network is classified as Internet resources.
An information system is a system designed for storing, processing, searching, distributing, transmitting and providing information through the use of a hardware and software complex.
In accordance with Subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated 21 May 2013 “On Personal Data and Their Protection”, personal data means information relating to a specific subject, recorded on an electronic, paper and (or) other tangible medium, which makes it possible to identify that subject.
With regard to the elements of the criminal offence under consideration, the issue concerns personal data containing information relating to a specific subject and recorded on an electronic medium.
According to Article 24 of the Law “On Personal Data and Their Protection”, an individual to whom personal data relates has the right to give consent or refuse to give consent to the owner and (or) operator for the dissemination of their personal data in publicly accessible sources of personal data.
The owner of a database containing personal data is a state body, individual and (or) legal entity exercising, in accordance with the laws, the rights of possession, use and disposal of a database containing personal data.
The operators of a database containing personal data include a state body, individual and (or) legal entity carrying out the collection, processing and protection of personal data.
Unlawful restriction of the right to access electronic information resources, i.e. information databases contained in information systems, constitutes the objective side of the criminal offence under consideration.
The classification of electronic information resources as state secrets is carried out in accordance with the legislation of the Republic of Kazakhstan on state secrets.
The classification of electronic information resources as confidential is carried out in accordance with the procedure established by the legislation of the Republic of Kazakhstan, except for cases provided for by the aforementioned Law.
In accordance with this Law, access to state electronic information resources containing the following information may not be restricted:
- regulatory legal acts, except for regulatory legal acts containing state secrets;
- information on emergencies, natural and man-made disasters, weather, sanitary and epidemiological conditions and other conditions necessary to ensure the safety of citizens, populated areas and production facilities;
- official information on the activities of state bodies;
- information accumulated in open information systems of state bodies, libraries, archives and other organisations.
Consequently, restricting access to the aforementioned four types of electronic information resources is unlawful.
The owner or holder of an information system of a state body, or a person authorised by them, after its commissioning for industrial operation, shall provide the National Information Security Coordination Centre with access to the information system of the state body at its location for the purpose of monitoring the provision of information security (Paragraph 4 of Article 38 of the Law).
Restriction of access to electronic information resources committed in violation of the rules established by their owner also constitutes the objective side of the act under analysis.
By its legal construction, the criminal offence belongs to the category of formal offences, meaning that it is considered completed from the moment the right to access information resources is unlawfully restricted.
The subjective side is characterised exclusively by direct intent. The offender is aware of the socially dangerous nature of their actions, foresees the possibility of the consequences specified in the law occurring and desires their occurrence.
The subject of this criminal offence is a person who has reached the age of 16. Such a person may be someone who ensures access to electronic information resources, i.e. exercises the right to use them, as well as a person vested with powers to create conditions for and organise access of individuals and legal entities to electronic information resources. Under the Law “On Informatization”, these include: the holder and owner of electronic information resources, an operator in the field of informatization, and central and local executive bodies.
An operator in the field of informatization means a legal entity established by a decision of the Government of the Republic of Kazakhstan, which is entrusted with the tasks of integrating state information systems and state electronic information resources, participating in the implementation of a unified technical policy in the field of informatization, and performing the functions of a project integrator of the “electronic government” infrastructure.
An operator in the field of informatization ensures the creation of technical conditions for individuals and legal entities to access state electronic information resources and state information systems (Subparagraph 5) of Article 9 of the aforementioned Law).
The holder of informatization facilities is an entity to which the owner of informatization facilities has granted the rights of possession and use of informatization facilities within the limits and in accordance with the procedure established by law or agreement (Subparagraph 5) of Article 1 of the aforementioned Law).
In accordance with Subparagraph 5) of Article 7 of the Law “On Informatization”, the organisation of access for individuals and legal entities to state electronic information resources and state information systems falls within the competence of central executive bodies in the field of informatization. The organisation of access for individuals and legal entities to state electronic information resources and state information systems, including through the allocation of non-residential premises for organising such access, falls within the competence of local executive bodies of regions (cities of republican significance and the capital) in the field of informatization (Subparagraph 11) of Article 10 of the aforementioned Law).
The act provided for by Article 159 of the Criminal Code is classified as a criminal misdemeanour.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulation Protocol Draft Programme Rules Messages
