Commentary on Article 275. Illegal Export of Technologies, Scientific and Technical Information, and Services Used in the Creation of Weapons of Mass Destruction, Armaments and Military Equipment of the Criminal Code of the Republic of Kazakhstan
1. Illegal export of technologies, scientific and technical information, and services that may be used in the creation of weapons of mass destruction, their means of delivery, armaments and military equipment, and in respect of which special export control has been established, —
shall be punishable by deprivation of liberty for a term of three to seven years, with or without confiscation of property.
The public danger of the crime lies in the fact that its commission causes harm to public security, damages the interests of the State, and creates a threat to the country's defence capability and international security.
When analysing the elements of the crime provided for in Article 275 of the Criminal Code, it is necessary to be guided by the Law of the Republic of Kazakhstan dated 21 July 2007 “On Export Control”. This Law establishes the foundations and procedure for exercising export control over armaments, military equipment, nuclear and special non-nuclear materials, military-purpose products, dual-use (dual-purpose) goods and technologies, raw materials, materials, equipment, technologies, scientific and technical information, and services related to their production and use, in the interests of international and national security and strengthening the non-proliferation regime for weapons of mass destruction.
In addition to the above-mentioned Law, the regulatory legal acts governing offences in the field of ensuring the security of the exercise of export control over armaments, military equipment, nuclear and special non-nuclear materials, military-purpose products, dual-use (dual-purpose) goods and technologies, raw materials, materials, equipment, technologies, scientific and technical information, and services include the Environmental Code of the Republic of Kazakhstan dated 2 January 2021; the Law of the Republic of Kazakhstan dated 23 April 1998 “On Radiation Safety of the Population”; the Resolution of the Government of the Republic of Kazakhstan dated 18 October 1995 “On the Development of Nuclear Energy in the Republic of Kazakhstan”; the Resolution of the Government of the Republic of Kazakhstan dated 1 July 2010 “On Approval of the Technical Regulation ‘Nuclear and Radiation Safety of Nuclear Power Plants’”; the Decree of the President of the Republic of Kazakhstan dated 25 August 2014 “On Measures to Delimit Powers between Levels of State Administration of the Republic of Kazakhstan”; the Law of the Republic of Kazakhstan dated 16 May 2014 “On Permits and Notifications”; and the following orders: the Order of the Minister of Energy of the Republic of Kazakhstan dated 9 February 2016 “On Approval of the Rules for State Accounting of Nuclear Materials”; the Order of the Minister of National Economy of the Republic of Kazakhstan dated 27 February 2015 “On Approval of Hygienic Standards ‘Sanitary and Epidemiological Requirements for Ensuring Radiation Safety’”; and the Order of the Minister of Healthcare of the Republic of Kazakhstan dated 26 June 2019 “On Approval of the Sanitary Rules ‘Sanitary and Epidemiological Requirements for Ensuring Radiation Safety’”.
Article 1 of the Law of the Republic of Kazakhstan dated 21 July 2007 “On Export Control” defines:
“19) export — removal of products from the territory of the Republic of Kazakhstan;
- export control — a set of measures established by this Law and other regulatory legal acts of the Republic of Kazakhstan in the field of export control, aimed at implementing the export control system by state bodies of the Republic of Kazakhstan and the procedure for export, re-export, import, re-import, transit or processing of products outside the territory of the Republic of Kazakhstan by participants in foreign economic activity (applicants) using internal corporate export control systems.”
Article 8 of the Law “On Export Control” establishes the list of products subject to export control. Such control is exercised in accordance with the legislation of the Republic of Kazakhstan and the international treaties of the Republic of Kazakhstan on the non-proliferation of weapons of mass destruction, their means of delivery, and other types of armaments and military equipment ratified by the Republic of Kazakhstan. Such control is exercised for the purpose of ensuring national security and protecting the economic interests of the State, fulfilling the obligations of the Republic of Kazakhstan under international treaties, and supporting international efforts to prevent the proliferation of weapons of mass destruction and conventional weapons.
The object of the crime is public security in the sphere of control over the production, distribution and deployment of weapons of mass destruction, armaments and military equipment.
The subject matter of the crime is technologies and scientific and technical information that may be used in the creation of weapons of mass destruction, their means of delivery, armaments and military equipment.
The listed objects may be classified as the subject matter of this crime provided that they are included in the lists of export control items approved in accordance with the procedure established by law.
The export and import of products are carried out on the basis of a licence. Licensing of product exports is carried out in accordance with the Law of the Republic of Kazakhstan “On Permits and Notifications”.
According to the provisions of the Law “On Export Control”, Kazakhstan has the right to introduce restrictions on the export, import, transit and processing of products within the territory of the Republic of Kazakhstan, up to and including an embargo against foreign states, in the event that they violate obligations undertaken towards the Republic of Kazakhstan, as well as pursuant to decisions of international organisations of which the Republic of Kazakhstan is a member. The Government of the Republic of Kazakhstan, proceeding from the interests of ensuring national security and fulfilling the international treaties of the Republic of Kazakhstan, determines the list of states in respect of which restrictions are introduced on the export, import, transit and processing of products outside the territory of the Republic of Kazakhstan, and annually publishes information on sanctions against individual states and organisations for the information of participants in foreign economic activity (applicants).
Control over goods developed or modified for military use is regulated by the Resolution of the Government of the Republic of Kazakhstan dated 5 February 2008 “On Approval of the Nomenclature (List) of Products Subject to Export Control”.
Technology is a set of methods, processes and materials used in a particular field of activity, as well as a scientific description of methods of technical production.
Information technologies are a set of methods, production processes and software and technical means combined into a technological complex that ensures the collection, creation, storage, accumulation, processing, retrieval, output, copying, transmission and dissemination of information.
Scientific and technical information is information contained in scientific and technical literature and regulatory and technical documentation concerning achievements in science and technology, including data on the technical level and quality of products manufactured both by domestic industry and abroad. Scientific and technical information includes information on the designs of machines and equipment; drawings; diagrams; materials used; formulations; production methods and techniques (particularly those relating to newly developed products); new technologies; areas for modernising known technologies, processes and equipment; and software.
Dual-use (dual-purpose) goods and technologies are equipment, materials, raw materials, technologies and scientific and technical information that are used for civilian purposes but may be applied in the production of armaments, military equipment and ammunition, including weapons of mass destruction and their means of delivery (subparagraph 1) of Article 1 of the Law “On Export Control”).
Weapons of mass destruction are chemical, bacteriological (biological), radiological, nuclear and toxin weapons.
Means of delivery are missiles and unmanned aerial vehicles capable of delivering weapons of mass destruction (capable of delivering a payload of at least 500 kg over a range of 300 km or more).
According to paragraph 6 of clause 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 21 July 1995 “On Judicial Practice in Cases Involving the Theft of Firearms, Ammunition, Armaments and Explosives, Their Illegal Acquisition, Carrying, Storage, Manufacture or Sale, and Negligent Storage of Firearms”, armaments include combat equipment based on land, air, sea and river platforms, equipped with standard means of engaging targets, mining and demining, as well as means ensuring its use for its intended purpose (optical instruments, radar and radiotelephone stations, etc.).
Military equipment, pursuant to subparagraph 13) of Article 1 of the Law of the Republic of Kazakhstan dated 7 January 2005 “On Defence and the Armed Forces of the Republic of Kazakhstan”, means combat vehicles, military ships (boats and other vessels), military aircraft and other flying vehicles with which the Armed Forces of the Republic of Kazakhstan, other troops and military formations are equipped.
The objective aspect of the crime is characterised by the commission of actions related to the illegal export of technologies, scientific and technical information, and services that may be used in the creation of weapons of mass destruction, their means of delivery, armaments and military equipment, and in respect of which special export control has been established.
Illegal export means the commission of actions contrary to regulatory acts, involving the removal abroad of technologies and scientific and technical information and the provision abroad of services for the production of weapons of mass destruction and their means of delivery, or the removal abroad of armaments and military equipment in violation of special rules governing the export of such goods.
Export of goods is a special customs regime characterised by the removal of certain goods beyond the borders of a country, with the primary purpose of selling them on the foreign market.
Export of services is the export of intangible products in the services sector, including commercial, professional and consumer services. Services include services for the repair, maintenance, modernisation and adjustment of military equipment; services for the training and use of military advisers and specialists; construction and installation works in the creation of military-purpose facilities, etc.
By its legal structure, the elements of the crime are formal. The crime is considered completed from the moment the relevant export control items are actually moved across the customs border or from the commencement of the provision of services or performance of work outside the customs territory of the Republic of Kazakhstan. In this regard, it does not matter whether the services or work have been completed in full and whether they have been successful, or whether the specified items were subsequently used to create weapons of mass destruction, their means of delivery, armaments or military equipment.
The subjective aspect of the crime is characterised by direct intent. The guilty person is aware that they are carrying out the illegal export of technologies, scientific and technical information, and services that may be used in the creation of weapons of mass destruction, their means of delivery, armaments and military equipment, and in respect of which special export control has been established; foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.
The subject of the crime is a sane individual who has attained the age of 16.
The act provided for in Article 275 of the Criminal Code is classified as a serious crime.
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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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