Bringing to criminal responsibility | Insulting humiliation of honor and dignity | Slander spreading deliberately false information | recovery of moral damage

The court considered in open court a criminal case on a private charge, according to which: H.T.M., born on 11/01/1957, a native of Russia, Tatarstan, residing at the address: Kostanay region, Gitikara, .., with higher education, married, not previously convicted, citizen of the Republic of Kazakhstan, Tatar, put on trial 130 part 1 and 131 part 1 of the Criminal Code. On July 20, 2018, from 6.40 p.m. to 7.10 p.m., in the city of Zhitikara, Kostanay region, in the courtyard of house No. 9 of the eleventh microdistrict, H.T.M. insulted H.I.V. the words "mammoth", "she stole there", "she will have a certificate soon, the prosecutor is referring her to psychiatry" and others, humiliating her honor and dignity, expressed in an indecent form. Also, H.I.V. filed a private complaint with the court about bringing H.T.M. to criminal responsibility under Article 130, Part 2 of the Criminal Code, since on July 20, 2018, during the time period from 7 p.m. to 7.10 p.m., in the city of Zhitikara, Kostanay region, in the courtyard of house No. 9 of the eleventh microdistrict, H.T.M. in the presence of witnesses, he spread deliberately false information about her that she had a certificate and needed a psychiatric examination, called her a "thief", which defamed her honor and dignity. In accordance with parts 1 and 2 of Article 1 of the CPC of the Republic of Kazakhstan, the procedure of criminal proceedings in the territory of the Republic of Kazakhstan is determined by the Constitution of the Republic of Kazakhstan, constitutional laws, the Code of Criminal Procedure of the Republic of Kazakhstan, based on the Constitution of the Republic of Kazakhstan and generally recognized principles and norms of international law. International contractual and other obligations of the Republic of Kazakhstan, as well as normative resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan regulating the procedure of criminal proceedings, are an integral part of criminal procedure law. According to paragraphs 1 and 2 of Article 15 of the International Covenant on Civil and Political Rights, to which the Republic of Kazakhstan is a party by virtue of the Law of the Republic of Kazakhstan dated 28.11.2005. No. 91, Everyone has the right, when considering any criminal charge brought against him, to a fair and public hearing by a competent, independent and impartial court established by law. Everyone accused of a criminal offense has the right to be presumed innocent until proven guilty in accordance with the law.

 

The private prosecutor, H.I.V., explained to the court that H.T.M. was her former father-in-law. There is a hostile relationship between them, as she does not trust him with her children, believes that he commits indecent acts of a sexual nature against her daughter. She contacted the police about this, but the case was dismissed. Her former father-in-law constantly swears at her, compromises her everywhere, calls her a thief, and therefore she loses her job. About H.T.M.'s behavior. She repeatedly contacted the police and the prosecutor's office, where she was told to record everything on her cell phone. So, on July 20, 2018, according to the court decision, her ex-husband took her daughter. Not believing her husband, since he constantly leaves his daughter with his father, that is, with H.T.M., whom she does not believe, she went to the house of her former father-in-law. The time was about 6.40 pm. She saw that her ex-husband's car was parked near the entrance, who was leaving the entrance with his daughter in his arms. She began to make claims against him, believing that her husband intended to leave his daughter to his father, H.T.M. Later, she saw H.T.M., whom she began filming on her cell phone, as she was told about it by the prosecutor's office so that she would have evidence of insults against her from H.T.M. In the presence of police officers and neighbors, H.T.M. insulted her with obscenities, saying that she was a "thief" that there is a certificate that she is mentally ill, called her a "mammoth". She perceived all statements about her as an insult and slander, as they humiliated her honor and dignity, spreading deliberately false information. He believes that the neighbors of H.T.M. They don't want to testify against him because he bribed them all. He asks to find H.T.M. guilty under Articles 130 part 1 and 131 Part 1 of the Criminal Code and impose a fine on him under both articles. In addition, she asks for a civil claim for moral damages in the amount of 100,000 tenge to be satisfied in full, as she found herself in an awkward position in front of other people, felt uncomfortable, suffered moral suffering, distress, humiliation, and a sense of shame. In addition, he asks to collect 5,000 tenge from the defendant for providing legal assistance. Defendant X/T.M. guilty under art. 130 part 1 and 131 part 1 of the Criminal Code did not recognize, he explained to the court that he and his former daughter-in-law X/I.V. had a long-term hostile relationship, which was due to the fact that the former daughter-in-law did not allow him to communicate with his granddaughters, accusing him of committing obscene acts against his granddaughter. In addition, H.I.V. constantly harasses him, insults him, uses obscene language, and refers him to the police for various reasons. On July 20, 2018, in the evening, the son stood with his granddaughter on the porch of the entrance. Khusnullina I.V. approached, who immediately filmed everything on her cell phone. She began to make claims to her ex-husband, that is, his son, about her daughter. He did not approach H.I.V. directly. H.I.V. herself began to provoke him, filming everything on her cell phone. Indeed, the neighbors were sitting on the bench. He did not use foul language against H.I.V., and he did not use any insults against her. Even if he said something, it was because H.I.V. was provoking him. He simply told the police officers to go with them to the prosecutor's office. He does not admit guilt or a civil claim. He asks to acquit him. The witnesses S.G.A. and K.R.T. They explained to the court that they were police officers of the Department of Internal Affairs of the city of Zhitikar and the district. On July 20, 2018, they received a call that a girl had been hit in the 11th microdistrict. He and H.I.V. drove into the courtyard of the 11th microdistrict, house number 9. H.I.V. immediately began filming everything that was happening on her cell phone. They saw and heard that there was a verbal altercation between H.I.V. and H.T.M. However, they did not hear any foul language from anyone. We didn't hear any insults. They cannot say what the conversation was about, as they took measurements after the hit-and-run. Witness S... additionally explained that he had heard an expression from T.M. Khusnullin addressed to I. Khusnullina that she was "sick". Witness M... explain to the court that X. He doesn't know. On July 20, 2018, in the evening, he answered a call at 11 -9, as he works as a taxi driver. He saw that a woman was arguing with a man, but he did not pay attention to it. He didn't hear any foul language. Indeed, a woman approached him, who filmed everything on a cell phone, began to talk to him, but he left. Witness S.M.K. explained to the court that he knew H.T.M. for a long time, as a resident of the city, she has not maintained any relations with him. He was taking out the trash from the 10th house of the 11th microdistrict on July 20, 2018, in the evening. I heard a noise in the street. He saw that H.T.M. and the woman were talking loudly about what they were talking about - he did not hear, he did not hear obscenities. He took out the trash and left. Witness I.S.Y. explained to the court that he did not know the defendant and the victim. On July 20, 2018, he answered a call as a taxi driver in the 11th microdistrict, standing near house No. 9. He saw that there was a verbal conflict between a man and a woman. However, I did not hear what the conversation was about. He was standing 50 meters away from them. Witness Z.S.R. explained to the court that H.T.M. was her neighbor, lived on the same site, and had a normal relationship. She did not know H.I.V. On July 20, 2018, she was leaving the entrance, helped to support the door of H.R., the defendant's son, who was holding his daughter in his arms. On the street, she heard a woman say, "Why didn't you close the door?" She sat down on a bench and began telling her neighbor, H.T.M., to let her cat enter the building, as she needed to leave on business. She saw that a girl who was filming on a cell phone was approaching them. At the same time, the girl said that the prosecutor told her to film everything. The girl went to the car and took the child out of it and went to the 10th house. She didn't hear any foul language from anyone. She cannot say what the conversation was about between H.I.V. and H.T.M., she did not pay attention, as she had other problems. H.T.M. never said anything bad to her about her daughter-in-law, he just said that she didn't let him communicate with her grandchildren.

After listening to the victim, the defendant, the witnesses, and examining the materials of the criminal case, the court came to the following conclusion.  The following has been established on charges against H.T.M. under art. 130 Part 1 of the Criminal Code of the Republic of Kazakhstan. Thus, the defendant pleaded not guilty to the charges. In accordance with the general provisions of the Criminal Procedure Law, the prosecutor is responsible for proving the existence of grounds for criminal liability and the guilt of the accused. In his complaint, private prosecutor H.T.V. asks to bring H.T.M. to criminal responsibility under art. 130 Part 1 of the Criminal Code of the Republic of Kazakhstan – as slander, that is, the dissemination of deliberately false information discrediting the honor and dignity of another person. Defamation is the dissemination of deliberately false information that discredits the honor and dignity of another person or undermines his reputation. The subjective side of slander is characterized by direct intent. It must be established that the perpetrator was aware of the falsity of the information he provided, as well as the fact that the information he disseminated discredited the honor and dignity of another person or undermined his reputation, and wanted to do so. Thus, a mandatory element of defamation is the dissemination of deliberately false information that shames another person about specific facts concerning the victim. The perpetrator must be aware of the deliberately false nature of the information he has disseminated, which excludes a good-faith misconception about the reliability of this information. In this regard, these circumstances are subject to proof by the prosecution. However, the court considers that there was no direct intent on the part of H.T.M. to commit a crime under Article 130 Part 1 of the Criminal Code of the Republic of Kazakhstan at the court hearing. Thus, it was reliably established at the hearing that there was a long-term hostile relationship between H.T.M. and H.I.V., It follows from the video provided that H.I.V., on her own initiative, came to house No. 9 of the eleventh microdistrict and began filming on her cell phone. It is clear from the recording that her daughter was crying and asked her mother to leave. However, H.I.V. continued her direction towards H.T.M., while she herself provoked him to talk, and also commented on H.T.M.'s answers, which are hard to hear on the recording. Indeed, on the presented recording, it is heard and seen that H.T.M., being near the bench where strangers were sitting, said "I stole there." However, in the court's opinion, this statement by H.T.M. was not uttered with the aim of spreading deliberately false information discrediting the honor and dignity of another person. These statements, according to the court, were uttered on the basis of long-term hostile relations between the parties. At the same time, the court considers that they were also caused directly by the behavior of H.I.V. herself, who herself came to the house of H.T.M. and according to the court, she herself provoked the specified behavior of H.T.M. In addition, the private prosecutor explained that H.T.M. spread deliberately false information about her, saying that she had a certificate and needed a psychiatric examination. Indeed, on the submitted recording, H.T.M. can be heard saying, "She will have a certificate soon, the prosecutor is sending her to a psychiatric hospital," "Ask for a certificate from psychiatry or you have a certificate." In this case, according to the court, these statements are a good-faith misconception. These statements, also, according to the court, are caused precisely on the basis of personal hostile relations. Thus, no direct intent on the part of H.T.M. to spread deliberately false information discrediting the honor and dignity of H.I.V. was established at the court session, that is, there is no subjective side of Article 130 of the Criminal Code. In accordance with Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan, the court is obliged to take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary for the proper resolution of the case on the merits. According to the law, criminal liability for defamation under Article 130 of the Criminal Code of the Republic of Kazakhstan occurs only when it is established that there is a mandatory element of this crime – the deliberately false information disseminated. If a person is conscientiously mistaken about the authenticity of the information disseminated by him, then these actions do not contain the corpus delicti of slander. In accordance with Article 19 of the Criminal Code of the Republic of Kazakhstan, a person is subject to criminal liability only for those socially dangerous acts and 7 socially dangerous consequences that have occurred, in respect of which his guilt has been established. By virtue of art . 19 CPC RK – a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. According to the NP of the Supreme Council of the Republic of Kazakhstan for No. 19 dated 08/15/2002. "On a court verdict" is a guilty verdict, therefore, the conclusion of guilt cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. Evidence confirming the existence of a direct intent to disseminate information to H.T.M. that was obviously false to her, discrediting the honor and dignity of the private prosecutor, H.I.V. Thus, the private prosecutor did not provide the court with evidence confirming the existence of corpus delicti in the actions of H.T.M. – as slander. The Court considers that H.T.M.'s guilt in committing a crime under Article 130 Part 1 of the Criminal Code of the Republic of Kazakhstan has not been established, and there is no corpus delicti in his actions. No reasons, motives, goals, or desire to harm H.I.V. on the part of defendant H.T.M. were established at the hearing, and no such evidence was presented to the court by the private prosecutor.

According to the court, there was just a personal hostile relationship between H.T.M. and H.I.V., but their actions, in the court's opinion, do not fall under the offense under art. 130 of the Criminal Code of the Republic of Kazakhstan. According to the court, the words "she stole there", "she will have a certificate soon, the prosecutor sends her to a psychiatric hospital" in the current situation do not fall under the signs of Article 130 part 1 of the Criminal Code, but fall under the signs of the composition provided for in Article 131 part 1 of the Criminal Code – an insult. Under the circumstances, the court does not consider that H.T.M. committed defamation, that is, the dissemination of false information discrediting the honor and dignity of H.I.V. In such circumstances, H.T.M. is subject to acquittal under art. 130 Part 1 of the Criminal Code of the Republic of Kazakhstan for the absence of elements of this crime in his actions. On the charge of H.T.M. under Article 131, Part 1 of the Criminal Code of the Republic of Kazakhstan, the court came to the following conclusion. A private prosecutor charged H.T.M. that on 07/20/2018, in the presence of other people on the street in the evening, he used obscene language against her, thereby insulting her, humiliating her honor and dignity. The defendant pleaded not guilty to the charges. The object of an insult is the honor and dignity of a person, that is, a public assessment of a person, a measure of his spiritual and social qualities and personal dignity, which is understood as an internal self-assessment of a person's own qualities, abilities, worldview, and social significance. The objective side of this crime consists in actions aimed at humiliating the honor and dignity of another person, expressed in an indecent manner by negatively assessing the victim's personality. The indecent form is designed to cause the victim to feel offended and humiliated, it contradicts the generally accepted rules of human behavior in society. And at the same time, the court should proceed from the norms of morality of our society, and not only from its perception by the victim himself, because he may have an increased conceit and consider any critical statements against himself offensive. It does not matter whether the victim's negative assessment corresponds to reality or not. The insult must be directed at a specific person or specific persons. The subjective side of the crime is characterized by direct intent. That is, the perpetrator is aware that he is committing acts that degrade the honor and dignity of another person in an indecent manner and desires it. The motives for offensive statements and actions should be determined by hostile relationships. At the hearing, it follows from the testimony of the defendant, witnesses, and the submitted recording that H.T.M. did not use foul language against H.I.V. It follows from the testimony of the witnesses that they did not hear obscenities and other offensive expressions. However, all the witnesses confirmed that they understood that there was a conflict between H.I.V. and H.T.M. In addition, the witnesses explained that they were all busy with their own business, so they did not listen to the essence of the conversation. However, it was established at the hearing from the submitted recording that H.T.M. had expressed other insults, not related to obscenity, to H.I.V. In particular, H.T.M. had expressed to H.I.V. the following expressions are "she stole there", "she will have a certificate soon, the prosecutor sends her to psychiatry", "ask for a certificate from psychiatry or you have a certificate", "mammoth, hello" and other statements that do not relate to obscenity, but they are expressed in words and expressions unacceptable in official documents. According to H.I.V., she perceives these expressions as an insult, humiliation of her honor and dignity. The Court fully agrees that the above statements are offensive to the victim. At the hearing, the accuracy of the information on the video provided by the private prosecutor was not disputed by anyone. The court has no reason to doubt the authenticity of the available video. Based on the above, the court considers that the objective and subjective side of Article 131 of the Criminal Code was fully confirmed at the hearing, since H.T.M. humiliated the honor and dignity of another person. At the same time, H.T.M. acted with direct intent, since the motive of the statements was due to hostile relations. Based on the above, the court refers to the testimony of the defendant in the part that H.I.V. she provoked his behavior with her actions, treats them critically and regards them as a way of protection. Private prosecutor H.I.V. stated in the complaint under Article 131, Part 1 of the Criminal Code that the insult was expressed in obscenity. However, despite the fact that the obscenity in the court session did not find its objective confirmation, but there were other statements insulting the honor and dignity of the victim. In this case, the court considers that by pointing out other offensive expressions in the accusation that are not related to obscenity, the court does not go beyond the charges brought by the private prosecutor, since the events took place on July 20, 2018, at the same time, in the same place and are inextricably linked. In this case, the court considers that by distinguishing the actions of H.T.M. into two different types of offenses, the private prosecutor made a mistake related to legal illiteracy. Both offenses are classified as offenses against the person. In addition, the sanction of art. 130 Part 1 of the Criminal Code is more severe than the sanction of Art. 131 Part 1 of the Criminal Code. Thus, the court does not in any way aggravate the defendant's situation. Based on the above, the court considers that H.T.M.'s guilt in committing an offense under Article 131, Part 1 of the Criminal Code of the Republic of Kazakhstan has been fully confirmed by reliable evidence examined at the hearing, his actions under this article are qualified correctly, since he committed an insult, that is, humiliation of the honor and dignity of another person, expressed in an indecent form. The defendant is not registered with a narcologist or a psychiatrist, and there were no oddities in his behavior during the trial. Therefore, the court has no reason to doubt the defendant's sanity. 52-54 of the Criminal Code of the Republic of Kazakhstan, when deciding on the type and term of punishment, the court takes into account the circumstances mitigating and aggravating the responsibility and punishment of the defendant. Kh.T.M. has not previously been convicted. It is characterized from a satisfactory side. The defendant has no previous convictions, which the court, in accordance with art. 53 of the Criminal Code of the Republic of Kazakhstan, recognizes the mitigating circumstances of his responsibility and punishment. The court did not establish any aggravating circumstances. By virtue of Article 10, Part 3 of the Criminal Code of the Republic of Kazakhstan, the criminal offense committed by the defendant under Article 131, Part 1 of the Criminal Code of the Republic of Kazakhstan is classified as criminal offenses. In accordance with Article 52, Part 2 of the Criminal Code of the Republic of Kazakhstan, a person who has committed a criminal offense must be punished, necessary and sufficient to correct it and prevent new crimes.

By virtue of Part 3 of Article 52 of the Criminal Code of the Republic of Kazakhstan, when imposing punishment, the nature and degree of public danger of a criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense, ... as well as the impact of the imposed punishment on the correction of the convicted person ... The sanction of Article 131, Part 1 of the Criminal Code of the Republic of Kazakhstan is an alternative one, provides for a fine, correctional labor, community service. When sentencing a defendant under art. 131 Part 1 of the Criminal Code of the Republic of Kazakhstan, the court takes into account mitigating circumstances and punishment – the absence of a criminal record, the absence of aggravating circumstances. In addition, the court takes into account that the defendant has no place of work, his age is 60 years. According to the court, the penalty in the form of a fine and correctional labor, Article 42 of the Criminal Code, should not be imposed on H.T.M., due to the lack of a place of work. In connection with the above, the court considers it necessary to impose punishment on H.T.M. - in the form of community service within the minimum limits established by art.43 of the Criminal Code, which, in the opinion of the court, is fair and proportionate to the criminal offense committed by him and will meet the purposes of punishment. It should be clarified to the convicted H.T.M. that in accordance with paragraphs 1, part 2-1, Article 43 of the Criminal Code of the Republic of Kazakhstan, in case of evasion from community service, they are replaced by arrest at the rate of one day of arrest for four hours of community service not completed. Private prosecutor H.I.V. filed a civil lawsuit for the recovery of moral damage in the amount of 100,000 tenge and the recovery of 5,000 tenge for legal aid. The guilt of H.T.M. in committing an offense under Article 131, Part 1 of the Criminal Code of the Republic of Kazakhstan has been fully established. At the hearing, it was established that H.I.V., having heard unpleasant statements addressed to her, felt humiliation of honor and dignity, and experienced moral suffering. 11 According to the Law of the Supreme Court of the Republic of Kazakhstan No. 1 "On the application by courts of legislation on compensation for moral harm" dated December 27, 2015 – "Moral harm should be understood as moral or physical suffering experienced by a citizen as a result of unlawful violation, diminution or deprivation of personal non-property benefits and rights belonging to him. The amount of compensation for moral damage should be considered reasonable and fair if, when establishing it, the circumstances related to the violation of personal non-property rights of a citizen are taken into account.".

Thus, by virtue of the Law of the Supreme Court of the Republic of Kazakhstan No. 1 "On the application by courts of legislation on compensation for moral damage" dated December 27, 2015, as well as Article 170 of the Criminal Procedure Code of the Republic of Kazakhstan, a civil claim for moral damage in the amount of 100,000 tenge is subject to partial satisfaction in the amount of 30,000 tenge, taking into account the financial situation of the defendant, the age of the defendant. In addition, the court takes into account the long-term extremely hostile relations between the parties, which caused the defendant's behavior. In addition, the defendant should be charged a state fee of 50% of the MCI in the amount of 1203 tenge for moral damage. The measure of procedural coercion chosen in relation to H.T.M. in the form of an obligation to appear in court should be abolished after the verdict enters into legal force. A video recording on a flash card should be left with the case file. In accordance with paragraph 2 of Article 10 of the Law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI SAM "On the Victims Compensation Fund", when a court passes a guilty verdict, a compulsory payment is collected from the perpetrators to the Victims Compensation Fund on the basis of Articles 98-1 and 98-2 of the Criminal Code of the Republic of Kazakhstan. According to paragraph 1 of Articles 98-2 of the Criminal Code of the Republic of Kazakhstan, a compulsory payment is collected by the court in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Compensation Fund for Victims, in the amount of five monthly calculation indices for criminal offenses. Since the defendant H.T.M. committed a criminal offense, therefore, a compulsory payment in the amount of 5 monthly calculation indices to the Victims Compensation Fund should be collected from him. The decision to seize the property was not made. Guided by articles 387-390, 393, 395-398, 401 of the CPC, the court SENTENCED: H.T.M. to find guilty of committing a criminal offense \ misdemeanor \ provided for in art. 131 Part 1 of the Criminal Code of the Republic of Kazakhstan. H.T.Mu on charges of committing an offense provided for in art. 130 Part 1 of the Criminal Code of the Republic of Kazakhstan to find innocent and acquit for the lack of corpus delicti in his actions. H.T.M. under art. 131 part 1 of the Criminal Code to impose punishment in in the form of 20 \ twenty \ hours \ community service. Oblige Khusnullin T.M. to appear for registration with the probation service no later than ten days from the date of receipt by the probation service of the court order with a copy of the court verdict that has entered into force. Explain to the convicted H.T.M. that in case of evasion from community service, they are replaced by arrest at the rate of one day of arrest for four hours of community service not completed. The probation service at the place of residence of the convicted person should be responsible for monitoring the performance of community service by the convicted person. The chosen one in relation to H.T.M. A measure of procedural coercion in the form of an obligation to appear in court should be abolished after the verdict enters into legal force. To partially satisfy the civil claim of H.I.V. to H.T.M. for the recovery of moral damage in the amount of 100,000 tenge. To collect from H.T.M. in favor of H.I.V. 30,000 \ thirty thousand \ tenge for compensation of moral damage. To collect from H.T.M. in favor of H.I.V. the costs of paying for legal assistance by a lawyer in the amount of 5,000 tenge. In accordance with Article 172 of the Criminal Procedure Code of the Republic of Kazakhstan to establish H.T.M. The time limit for the voluntary execution of a sentence in respect of a civil claim is one month after the sentence enters into legal force. To collect a state duty in the amount of 1203 one thousand two hundred three tenge from H.T.M. to the state revenue. 98-1, 98-2 of the Criminal Code, a compulsory payment in the amount of 5 (five) monthly calculation indices in the amount of 12,025 (twelve thousand twenty-five) tenge to the Victims Compensation Fund.

 

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