Article 411. Defamation of a Judge, Juror, Prosecutor, Person Conducting Pre-Trial Investigation, Expert, Court Bailiff, or Judicial Enforcement Officer

Commentary on the Article of the Criminal Code of the Republic of Kazakhstan

1. Defamation of a judge or juror in connection with the consideration of cases or materials in court —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

2. The same act committed against a prosecutor, a person conducting a pre-trial investigation, an expert, a court bailiff, or a judicial enforcement officer in connection with the conduct of a pre-trial investigation, the performance of a forensic examination, or the execution of a sentence, court decision, or other judicial act —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

3. Acts provided for in paragraphs one or two of this Article, combined with accusing a person of committing a serious or especially serious crime —

shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period.

The public danger of the crime under consideration lies in the fact that defamation of a judge, juror, prosecutor, person conducting a pre-trial investigation, expert, court bailiff, or judicial enforcement officer undermines public confidence in persons involved in the administration of justice and diminishes the authority of the judiciary and the law enforcement agencies of the country.

The object of the crime is the social relations ensuring the proper administration of justice by the court, the normal functioning of the prosecutor's offices, pre-trial investigation bodies, and bodies responsible for enforcing court decisions and judicial acts, as well as the honor, dignity, and business reputation of the victims.

The victims are a judge, juror, prosecutor, person conducting a pre-trial investigation, expert, court bailiff, and judicial enforcement officer. The concepts of these categories of persons are explained in detail in the commentary to Articles 407 and 408 of the Criminal Code of the Republic of Kazakhstan.

The objective element of the crime under consideration is expressed in defamation of a judge or juror in connection with the consideration of cases or materials in court.

The concept of defamation is provided in Article 73-3 of the Code of Administrative Offenses, according to which defamation is the dissemination of knowingly false information that discredits the honor and dignity of another person or undermines that person's reputation.

As stated in paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 18, 1992, “On the Application in Judicial Practice of Legislation on the Protection of the Honor, Dignity and Business Reputation of Individuals and Legal Entities,” the dissemination of information discrediting the honor and dignity of a citizen or organization means its publication in the press, transmission by radio or television, or through other mass media, inclusion in references and performance appraisals, public speeches, statements addressed to various organizations or officials, or communication in another form, including orally, to several persons or at least one person. Communication of such information solely to the person to whom it relates cannot be recognized as its dissemination.

The method of disseminating knowingly false information is irrelevant for the legal classification of the actions of the perpetrator under Article 411 of the Criminal Code.

Information is considered knowingly false when a person disseminates information about the victim that is fictional, fabricated, and does not correspond to reality.

As explained by the Supreme Court of the Republic of Kazakhstan in the above-mentioned Regulatory Resolution, information that discredits a person includes information that does not correspond to reality and diminishes the honor and dignity of a citizen or organization in public opinion or in the opinion of individual citizens from the standpoint of compliance with the laws and moral principles of society (for example, information about the commission of a dishonest act, unworthy conduct in a work collective or family; information discrediting production and economic activities, reputation, etc.). At the same time, claims seeking the refutation of information containing criticism, consistent with reality, of shortcomings in work, in a public place, within a collective, or in everyday life cannot be considered justified.

In particular, information containing allegations that the victim has violated applicable legislation, behaved improperly or unethically in private or public life, acted in bad faith when exercising official powers, or violated business ethics, thereby diminishing the victim's honor, dignity, or business reputation, constitutes discrediting information. In this regard, the judgment must precisely specify which particular information diminishes the honor and dignity of the relevant person.

The concepts of “honor,” “dignity,” and “business reputation” are provided in the commentary to Article 410 of the Criminal Code.

By its structure, the elements of the crime are formal. The crime shall be considered completed from the moment when knowingly false information that discredits the honor and dignity or undermines the reputation of a judge or juror becomes known to at least one person. In this regard, it is irrelevant whether such communication produced the effect sought by the perpetrator.

The subjective element of the crime is characterized by guilt in the form of direct intent, that is, the person is aware of the public danger of the information being disseminated, understands that it is false, discredits or undermines the reputation of a judge or juror, and realizes that the information is being disseminated in connection with the consideration of a case or materials in court by that person; the perpetrator foresees and desires to act in this manner.

The motives for committing the crime may be very diverse: revenge, envy, anger, bringing someone to account, etc. At the same time, the motive must necessarily be connected with the exercise by the judge or juror of their powers to consider cases or materials in court. This is a mandatory element of the composition of this crime.

The subject of the crime is a sane individual who has reached the age of 16 by the time the crime is committed.

Part 2 of Article 411 of the Criminal Code provides for liability for defamation of a prosecutor, a person conducting a pre-trial investigation, an expert, a court bailiff, or a judicial enforcement officer in connection with the conduct of a pre-trial investigation, the performance of a forensic examination, or the execution of a sentence, court decision, or other judicial act.

In the objective element, a mandatory feature under Part 2 of this Article is the connection between the motive for committing the crime and the conduct of a pre-trial investigation, the performance of a forensic examination, or the execution of a sentence, court decision, or other judicial act.

The procedure, grounds, and conditions for conducting forensic examinations, as well as the procedural formalization of their results, are regulated by Chapter 35 of the Criminal Procedure Code of the Republic of Kazakhstan and the Law of the Republic of Kazakhstan dated February 10, 2017, “On Forensic Expert Activities.” A distinctive feature of this type of activity is that this source of evidence is of great importance, since it is based on specialized scientific knowledge, while the objectivity of its results is determined by the independence of experts and strict rules governing its appointment and conduct.

Defamation of a court bailiff, whose legal status is established in subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated July 7, 1997, “On Court Bailiffs,” as well as a judicial enforcement officer, whose legal status is regulated by the Law of the Republic of Kazakhstan dated April 2, 2010, “On Enforcement Proceedings and the Status of Judicial Enforcement Officers,” constitutes a criminal offense only when connected with their professional activities. Otherwise, the actions of the person should be regarded as an administrative offense provided for in Article 73-3 of the Code of Administrative Offenses.

The motivational connection of this crime with the activities of the persons specified in the Article may, firstly, be expressed in the perpetrator's desire, through defamation, to obstruct lawful activities related to the administration of justice, enforcement of judicial acts, or the conduct of preliminary investigations. Secondly, defamation may serve as an instrument of retaliation for such activities, with the aim of undermining the victim's professional competence, lawful activities, etc.

The qualifying element provided for in Part 3 of Article 411 of the Criminal Code is defamation combined with accusing a person of committing a serious or especially serious crime.

According to Article 11 of the Criminal Code, serious crimes are intentional acts for which the maximum punishment provided for by the Criminal Code does not exceed 12 years of imprisonment (Part 4), while especially serious crimes are intentional acts for which the punishment provided for is imprisonment for a term exceeding 12 years, life imprisonment, or the death penalty (Part 5).

The elements of the crime under consideration are similar to those of knowingly false reporting of a crime (Article 419 of the Criminal Code), which is committed for the purpose of securing the prosecution of an innocent person. In the case of knowingly false reporting, information about an alleged crime committed by someone is submitted to law enforcement agencies. When committing the crime provided for in the Article under consideration, the perpetrator does not pursue this purpose and remains indifferent as to whether a pre-trial investigation will be conducted against the person whom they have defamed. The main objective of the defamer is to achieve the humiliation of the victim's honor, dignity, and business reputation. When committing the crime under consideration, defamatory fabrications are not directed to law enforcement agencies but are disseminated among the public.

The acts provided for in Parts 1 and 2 of Article 411 of the Criminal Code are classified as minor crimes.

The act provided for in Part 3 of Article 411 of the Criminal Code is classified as a medium-gravity crime.

Commentary of 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 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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