Commentary on Article 185. Illegal Collection, Dissemination and Disclosure of State Secrets of the Criminal Code of the Republic of Kazakhstan
1. Illegal collection of information constituting state secrets, as well as dissemination of unlawfully obtained information constituting state secrets, in the absence of elements of high treason or espionage, –
shall be punishable by restriction of liberty for a term of up to five years or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without such deprivation.
2. Disclosure of information constituting state secrets by a person to whom such information was entrusted or became known in connection with their official duties, work, or on other grounds provided for by the laws of the Republic of Kazakhstan, in the absence of elements of high treason, –
shall be punishable by restriction of liberty for a term of up to five years or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without such deprivation.
3. Acts provided for in paragraphs one or two of this Article, if they have caused major damage or resulted in other grave consequences, –
shall be punishable by imprisonment for a term of five to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
The public danger of this crime lies in the fact that illegally collected or disclosed information constituting state secrets may become available to foreign intelligence services and cause damage to the national security of the Republic of Kazakhstan. The list of information in various areas of public life, the dissemination of which is restricted in the interests of national security, is established by the current legislation of the Republic of Kazakhstan.
The object of the crime is public relations ensuring the preservation of state secrets.
The subject matter of the crime is information constituting state secrets. The concept and characteristics of information constituting state secrets are examined in the commentary to Article 175 of the Criminal Code.
In accordance with the Law of the Republic of Kazakhstan dated March 15, 1999, “On State Secrets,” state secrets are defined as information protected by the state, constituting state and official secrets, the dissemination of which is restricted by the state for the purpose of carrying out effective military, economic, scientific and technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-search and other activities that do not contradict the generally recognized norms of international law (Article 1 of the Law). A similar definition is provided in paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013, “On the Application in Criminal Proceedings of Certain Provisions of Legislation Regulating Issues of State Secrets Protection.”
Article 1 of the aforementioned Law also contains definitions of the concepts of “state secret” and “official secret”:
state secret – information of a military, economic, political or other nature, the disclosure or loss of which causes or may cause damage to the national security of the Republic of Kazakhstan;
official secret – information in the form of individual data that may form part of a state secret, the disclosure or loss of which may cause damage to the national interests of the state and the interests of state bodies and organizations of the Republic of Kazakhstan.
The objective aspect of the crime is characterized by the commission of one of the following acts: 1) illegal collection of information constituting state secrets; 2) dissemination of unlawfully obtained information constituting state secrets, in the absence of elements of high treason or espionage.
The collection of information constituting state secrets entails liability under this Article if the actions of the perpetrator do not contain elements of high treason or espionage. This means that, when collecting information constituting state secrets, the perpetrator is not found to have the purpose of undermining or weakening the external security and sovereignty of the Republic of Kazakhstan, or the purpose of transferring the said information to a foreign state, foreign organization or their representatives. If the aforementioned elements are present, such acts constitute the elements of crimes provided for in Articles 175 and 176 of the Criminal Code.
The collection of information constituting state secrets means actions aimed at unlawfully obtaining such information. The most common methods of collecting information constituting state secrets include: theft of documents; bribery or threats against persons possessing state secrets or their close relatives; interception of communications; illegal penetration into a computer system or network; and the use of special technical means to collect such information.
The theft of documents containing state secrets means the unlawful removal of the relevant documents from document circulation or from the possession of another person, and their appropriation for the benefit of oneself or another person.
Bribery means the transfer or promise to transfer money or other property to a person possessing information constituting state secrets, or the provision of services of a proprietary nature, as payment for such information.
A threat means intimidation through the use of violence, destruction of or damage to property, or dissemination of information that may cause substantial harm to the rights and legitimate interests of the person possessing information constituting state secrets. A threat may be made orally or in writing, as well as conveyed through intermediaries. The threat must be real.
Interception of communications is a method of unlawfully obtaining state secrets through unauthorized access to correspondence, postal and telegraphic messages, and information transmitted by telephone, telefax, teletype and other telecommunications, using material and technical equipment (radio engineering, telephone and telegraph equipment), by means of unauthorized connection to technical communication facilities.
Illegal penetration into a computer system or network may be expressed in the following actions: connecting to a particular computer, connecting to a telephone network, using another person's name (password), identifying vulnerabilities in the protection of automated systems (breaking the security system), and others.
Special technical means are understood to mean equipment, devices and instruments intended for extracting information from material carriers.
This list of methods of collecting information constituting state secrets is not exhaustive, since the law permits the use of any other methods of collecting such information, for example, in the form of information exchange, obtaining such information through abuse of trust, etc.
The dissemination of unlawfully obtained information constituting state secrets should be understood as communicating such information to at least one person who does not have access to such information, regardless of the method used (orally, in writing, by telephone or through other communication channels).
The elements of the crime under Part 1 of the commented Article are formal. The crime is considered completed from the moment any of the actions specified in the disposition of the Article is committed.
The subjective aspect of the illegal communication or dissemination of unlawfully obtained state secrets is characterized by guilt in the form of direct intent, meaning that the perpetrator is aware that, as a result of the unlawful actions committed, they become the possessor of information constituting state secrets to which they have no lawful access, or that they are disseminating such information; they foresee the possibility or inevitability of socially dangerous consequences and desire their occurrence.
The subject of the crime provided for in Part 1 of Article 185 of the Criminal Code is general. It may be any sane person who has reached the age of 16.
Part 2 of Article 185 of the Criminal Code provides for liability for disclosure of information constituting state secrets.
The objective aspect is expressed in an act in the form of disclosure, which means communicating, transferring, providing, forwarding, publishing or otherwise bringing state secrets to the attention of legal entities and individuals who have not been granted the right to access such information. Thus, disclosure means the unlawful making public of information constituting state secrets in such a manner that it becomes available to outsiders.
An obligatory element of the disclosure of information constituting state secrets is the perception of such information by outsiders who do not have the right to access it. An outsider is any person who, by virtue of the nature of their work or official duties, does not have access or clearance to classified information.
Access to information constituting state secrets means the authorized familiarization of a specific person with information constituting state secrets by an authorized official.
Security clearance to state secrets is the procedure for formalizing the right of citizens to access information constituting state secrets and the right of organizations to carry out work involving the use of such information.
Outsiders also include close relatives, provided that they do not have security clearance to the relevant information.
Disclosure may be committed either through an act or through omission. Disclosure by an act may be committed, for example, during a confidential conversation, a public speech, or through the loss of unregistered notebooks and notepads containing extracts from documents that include state secrets, and the like. Disclosure by omission may be committed, for example, by failing to take measures to conceal a restricted-access facility, leaving documents, items, tables or diagrams in circumstances where outsiders may become acquainted with them; or failing to comply with the requirements for the storage, transfer, forwarding and transportation of documents, cargo, items, materials, etc.
An obligatory element of the crime of disclosure of information constituting state secrets is the absence of elements of high treason.
The crime is considered completed at the moment when the disclosed information becomes available to outsiders who perceive and understand its general meaning. In this regard, it is not necessary for them to perceive the entire body of disclosed information; a general understanding of the meaning of the information made public is sufficient.
The subjective aspect of disclosure of information is characterized by guilt in the form of direct and indirect intent. When a crime is committed with direct intent, the perpetrator is aware of the public danger of their actions, foresees that, as a result, information constituting state secrets will become available to outsiders, and desires this outcome (for example, publication in the press). In the case of disclosure with indirect intent, the perpetrator is aware of the public danger of their actions in making state secrets public, foresees that, as a result of their actions, the said information may become known to outsiders, and consciously allows outsiders to become acquainted with it (for example, during a conversation in a public place).
The motive for intentional disclosure is most often boasting, with the aim of demonstrating to an outsider one's awareness, competence and the like.
Disclosure of information constituting state secrets is classified under Article 185 of the Criminal Code only on the condition that the act does not contain elements of high treason in the form of espionage or the disclosure of state secrets. In cases of disclosure, the perpetrator does not seek to cause damage to the country's external security by transferring information to a foreign state, organization or their representatives. Furthermore, the concept of the recipient of state secrets under the meaning of the commented Article is broader than that in the elements of high treason. Information constituting state secrets may be disclosed to any outsider.
The subject of the crime under Part 2 of Article 185 of the Criminal Code is special. It may be a person to whom information constituting state secrets was entrusted or became known in connection with their official duties, work, or on other grounds provided for by the laws of the Republic of Kazakhstan.
Part 3 of Article 185 of the Criminal Code establishes criminal liability for acts provided for in Parts 1 or 2 of this Article, if they have resulted in major damage or other grave consequences.
The elements of the crime provided for in Part 3 are material. The crime is considered completed from the moment major damage or grave consequences occur.
Pursuant to subparagraph 38) of Article 3 of the Criminal Code, major damage in relation to Article 185 of the Criminal Code means damage in an amount exceeding five hundred times the monthly calculation index.
According to paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013, “On the Application in Criminal Proceedings of Certain Provisions of Legislation Regulating Issues of State Secrets Protection,” the amount of damage caused by crimes provided for in Articles 185, 186 and 458 of the Criminal Code of the Republic of Kazakhstan is determined in accordance with the Rules for Determining the Amount of Damage Caused or That May Be Caused to the National Security of the Republic of Kazakhstan or the Interests of State Bodies and Organizations as a Result of Disclosure or Loss of Information Constituting State Secrets, as well as Damage Caused to the Owner of Information Carriers as a Result of Their Classification, approved by Resolution No. 701 of the Government of the Republic of Kazakhstan dated July 17, 2003. The determination of the amount of damage is carried out at the pre-trial investigation stage of the criminal case by the permanent commission for the protection of state secrets of the state body or organization. In the absence of such a commission in the organization, the determination of the amount of damage is carried out by an expert commission established by order of the head of the organization in which the information was lost or disclosed.
When determining the amount of damage in a criminal case, the permanent commission or expert commission must be guided by the provisions of paragraph 8 of the aforementioned Rules, indicating in its conclusion the grounds and reasons for taking these indicators into account.
According to paragraph 6 of the aforementioned Regulatory Resolution of the Supreme Court, grave consequences provided for in Articles 185, 186 and 458 of the Criminal Code include the transfer of information into the possession of foreign intelligence services, terrorist and extremist organizations or organized criminal groups; damage to the foreign policy interests or national security of the Republic of Kazakhstan; disruption, as a result of criminal actions, of a global scientific research program, state events and international negotiations; relocation of a restricted-access facility; death, infliction of serious bodily injury or arrest of employees of law enforcement and special state bodies, persons who provide or have provided confidential assistance to these bodies, as well as members of their families, etc.
The act provided for in Article 185 of the Criminal Code must be distinguished from high treason (Article 175 of the Criminal Code) and espionage (Article 176 of the Criminal Code). These crimes have the same subject matter of the crime – state secrets. There is also an overlap in their objective aspects, since the methods of committing these crimes may coincide. Consequently, the distinction between these crimes should be made on the basis of the object of the offence and the subjective aspect.
The object of illegal collection, dissemination and disclosure of state secrets is public relations ensuring the preservation of state secrets. The object of high treason and espionage is the national interests, external security and sovereignty of the Republic of Kazakhstan. When committing crimes provided for in Article 185 of the Criminal Code, the perpetrator does not pursue the purpose of transferring the collected information to a foreign state, international or foreign organization, that is, of taking it beyond the borders of the state.
From the subjective aspect, in cases of high treason and espionage, the perpetrator is aware of the nature of the information being transferred and the category of recipients (a foreign state, international or foreign organization, or their representatives) and desires to disclose the said information to them for use against the national interests of the Republic of Kazakhstan. In cases of illegal collection, dissemination or disclosure of state secrets, the perpetrator does not pursue such a purpose.
The acts provided for in Parts 1 and 2 of Article 185 of the Criminal Code are classified as crimes of medium gravity.
The act provided for in Part 3 of Article 185 of the Criminal Code is classified as a serious crime.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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