Commentary on Article 186. Loss of Media Containing State Secrets of the Criminal Code of the Republic of Kazakhstan
1. Negligent loss of media containing information constituting state secrets by a person to whom such media have been entrusted by virtue of their official position, employment, or on other grounds provided for by the laws of the Republic of Kazakhstan, where the loss results from a violation of the established rules for handling media containing information constituting state secrets —
shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. The same act, if it results in the infliction of major damage or the occurrence of other grave consequences —
shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or restriction of liberty for a period of up to four years, or deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
The public danger of this criminal offense (Part 1 constitutes a criminal misdemeanor, while Part 2 constitutes a crime) lies in the fact that lost documents and items containing state secrets may come into the possession of foreign intelligence services and cause damage to the national security interests of the Republic of Kazakhstan.
The object of the criminal offense is the public relations ensuring the established procedure for handling and safeguarding documents and items constituting state and official secrets.
The subject matter of the criminal offense is media containing information constituting state secrets.
In accordance with Article 1 of the Law of the Republic of Kazakhstan dated March 15, 1999, “On State Secrets,” information media are material objects, including physical fields, in which information constituting state secrets is represented in the form of symbols, images, signals, technical solutions, and processes.
Accordingly, the subject matter of the criminal offense may include: 1) documents containing state secrets; 2) items, information about which constitutes state secrets.
A document is a written (graphic or electronic) instrument containing requisite details, a secrecy classification marking, and a registration number of the state authority, enterprise, institution, or organization carrying out the classification of information, as well as a special procedure for its storage, issuance, and handling.
Items, information about which constitutes state secrets, are various materials and products containing information of the aforementioned nature. These include classified samples of machinery, fuel, equipment, raw materials, weapons, ciphers, codes, etc.
The nature and types of information that constitute state secrets are determined by the Law of the Republic of Kazakhstan “On State Secrets.”
The objective element of the criminal offense is characterized by the following features:
an act or omission (violation of the established rules for handling documents containing state secrets, as well as items, information about which constitutes state secrets);
the occurrence, as a result of this act, of socially harmful consequences in the form of the loss of media containing information constituting state secrets;
a causal relationship between the specified acts (omissions) and the consequences.
Violation of the rules for handling documents and items containing state secrets is expressed in deviation from or complete disregard of the established rules, thereby creating conditions for the loss of a document or item.
For criminal liability to arise, it is necessary to establish precisely which handling rules and which specific provisions of those rules were violated by the perpetrator.
Judicial practice indicates that violations are most often associated with non-compliance with the rules governing the place and time of working with documents, their storage, dispatch, transfer, etc.
The loss of media containing information constituting state secrets should be understood as their unlawful departure from the possession of the person responsible for them. Once a medium containing information constituting state secrets leaves a person's possession, the possibility of directly controlling it and exercising physical control over it is lost. In this regard, for the purposes of qualification under this element, it is irrelevant for what period the medium containing information constituting state secrets left the person's possession, i.e., whether temporarily or permanently.
A causal relationship must be established between the fact of violation of the rules for handling media containing information constituting state secrets and their departure from the person's possession. If there is no causal relationship between them, there are no grounds for speaking of the elements of a criminal offense in the form of a criminal misdemeanor.
The criminal offense shall be considered completed from the moment the media containing information constituting state secrets are lost through negligence.
For the purposes of Article 186 of the Criminal Code, major damage, pursuant to subparagraph 38) of Article 3 of the Criminal Code, means damage in an amount exceeding five hundred times the monthly calculation index.
The subjective element is characterized by negligence as the form of guilt: in the case of recklessness, the person foresaw the possibility of socially dangerous consequences of their actions in the form of the loss of media containing information constituting state secrets, but, without sufficient grounds, carelessly relied on preventing such consequences; in the case of negligence, the person did not foresee the possibility of socially dangerous consequences of their actions, although, with due attention and foresight, they should and could have foreseen these consequences in the form of the loss of media containing information constituting state secrets.
The subject of the criminal misdemeanor is special: a sane person who has attained the age of 16 and to whom media containing information constituting state secrets have been entrusted by virtue of their official position, employment, or on other grounds provided for by the laws of the Republic of Kazakhstan. Entrusting information to a person presupposes that they have duly formalized authorization to access state secrets or access thereto.
Part 2 of the commented article provides for criminal liability for the same act resulting in the infliction of major damage or the occurrence of other grave consequences. The legislator has specified the occurrence of these consequences as alternatives; therefore, the occurrence of any one of them is sufficient to establish the elements of the crime provided for in Part 2 of Article 186 of the Criminal Code.
For the definitions of major damage and other grave consequences, see the commentary to Part 3 of Article 185 of the Criminal Code.
The act provided for in Part 1 of Article 186 of the Criminal Code is classified as a criminal misdemeanor.
The act provided for in Part 2 of Article 186 of the Criminal Code is classified as a crime of minor gravity.
Commentary (2021) on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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 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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