Commentary on Article 311. Illegal Distribution of Pornographic Materials or Objects of the Criminal Code of the Republic of Kazakhstan

1. Illegal production of pornographic materials or objects for the purpose of distribution or advertising, distribution, advertising of pornographic materials or objects, as well as illegal transportation or trade in printed publications, films or video materials, images or other objects of a pornographic nature —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour 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, with or without confiscation of property.

The public danger of this crime lies in the fact that, when these acts are committed, pornographic materials or objects are distributed which undermine the foundations of public morality and ethics and arouse base feelings and desires of lust.

Pornography is an explicitly indecent depiction of people's sexual life. As a rule, it manifests itself in the demonstratively naturalistic depiction of sexual intercourse. The fight against pornography is carried out on the basis of international conventions and treaties, the principal ones being the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications of 1923 (Geneva) and the Protocol thereto of 1947, as well as the Agreement for the Suppression of the Circulation of Obscene Publications of 1910, as amended by the Protocol of 1949.

The 1923 Convention classifies as pornographic publications literary works, films, postcards, drawings, engravings, paintings, printed publications, images, posters, emblems, photographs and other pornographic objects (the Convention does not provide a general definition of the concept of a pornographic publication).

The Convention declares the following acts punishable:

“1. The production or possession of writings, drawings, engravings, paintings, printed publications, images, posters, emblems, photographs, cinematographic films or other pornographic objects for the purpose of selling or distributing them, or publicly exhibiting them;

The importation, transit, exportation, personally or through another person, for the above-mentioned purposes, of the aforementioned writings, drawings, engravings, paintings, printed publications, images, posters, emblems, photographs, cinematographic films or other pornographic objects, or putting them into circulation by any other means;

Trading in them, even privately, carrying out any transactions of any kind whatsoever involving them, distributing them, publicly exhibiting them, or renting them out as a profession;

Announcing or making known by any means whatsoever, for the purpose of encouraging the circulation or trade which is to be suppressed, that any person is engaged in one of the above-mentioned punishable acts, or announcing or making known where and through whom these writings, drawings, engravings, paintings, printed publications, images, posters, emblems, photographs, cinematographic films or other pornographic objects may be obtained, either directly or through the intermediary of another person.”

The States Parties to the Convention undertake to introduce into their legislation provisions establishing the illegality of the above-mentioned offences, to institute criminal proceedings against persons guilty of committing them, and to confiscate and destroy discovered pornographic objects.

The jurisdiction over persons who have committed these offences is determined according to the general rule by the place where they were committed. However, the Convention permits the exercise of jurisdiction by the State of nationality of the guilty person even where the crime was committed outside its territory, provided that the accused is present in the territory of that State (the latter rule was formulated to ensure that persons guilty of producing and distributing pornographic products do not evade criminal liability by virtue of the general rule concerning the non-extradition of a State's own citizens).

The object of the act under consideration is public morality.

The subject matter consists of various materials and objects of a pornographic nature (printed publications, films and video materials, images and paintings, drawings, and indecent handicrafts).

Other objects may include audio and video media containing materials of a pornographic nature.

The legal definition of cinematographic and video products of a pornographic and sexually erotic nature is provided in Article 1 of the Law of the Republic of Kazakhstan dated 23 July 1999 “On Mass Media”, according to which these are naturalistic, detailed recordings of sexual intercourse or the demonstration of naked genitals during sexual contact, which contribute to the arousal of sexual desire or the satisfaction of sexual needs that are inconsistent with moral values and offend the honour and dignity of a person. Works of art that glorify the beauty of the human body and the depth of human feelings, including those relating to the intimate sphere, achieved without crude naturalism, as well as images of the naked body created for scientific purposes, are not classified as pornographic objects.

Subparagraph 20) of Article 1 of the above-mentioned Law provides the following definition of erotic products, which are not classified as pornographic materials or objects: a printed publication or television or radio programme that depicts sexual relations between people and intimate parts of the human body, with the exception of the genitals, and does not contain elements of pornography. In cases of doubt concerning a particular work, an art history examination shall be appointed.

The objective element of the crime under consideration is expressed in:

illegal production for the purpose of distribution or advertising;

distribution;

advertising of pornographic materials or objects;

illegal transportation of printed publications, films or video materials, images or other objects of a pornographic nature;

illegal trade in printed publications, films and video materials, images or other objects of a pornographic nature.

Illegal production shall mean the creation of objects and materials of a pornographic nature by any means: writing a book, article or script, taking photographs and developing photographic materials, filming a motion picture or video film, sculpting, and the like, as well as reproducing an already completed object or material (printing photographs and copies of cinema and video tapes). The term “production” encompasses both the process of creation itself and its result, that is, the obtaining of a finished material or object of a pornographic nature.

An essential condition for criminal liability for this offence is the purpose of distributing or advertising pornographic materials.

The production of written and printed materials, photographs, drawings, motion pictures or video films for personal use or use within a narrow circle of persons shall not entail criminal liability under Article 311 of the Criminal Code.

If they are used for committing acts of sexual corruption against persons under the age of 14, their use, but not their production, may be qualified under Article 124 of the Criminal Code, “Corruption of Minors”.

Illegal distribution shall mean the transfer of any pornographic objects to other persons for the purpose of familiarising them with such objects. Distribution includes the publication of pornographic objects or materials and the copying of them for transfer to other persons. The demonstration or transfer of pornographic objects for familiarisation to family members or a narrow circle of one's acquaintances shall not be considered distribution. In cases of distribution, the crime shall be deemed completed from the moment the object passes into the possession of another person or that person perceives its content.

According to subparagraph 1-2) of paragraph 1 of Article 3 of the Law of the Republic of Kazakhstan dated 19 December 2003 “On Advertising”, advertising is information disseminated and/or placed in any form by any means, intended for an indefinite group of persons and designed to form or maintain interest in an individual or legal entity, goods, trademarks, works or services, and to promote their sale or provision. Advertising of goods (works, services) prohibited from production and sale in accordance with the legislation of the Republic of Kazakhstan shall not be permitted (Article 4 of the said Law).

Advertising must not be used to promote or advocate the forcible change of the constitutional order, violation of the territorial integrity of the Republic of Kazakhstan, undermining the security of the State, war, social, racial, national, religious, class or clan superiority, the cult of cruelty and violence, pornography, or the dissemination of information constituting State secrets of the Republic of Kazakhstan and other secrets protected by law (Article 6 of the Law).

Advertising shall mean displaying such objects for public viewing or communicating information about them to an indefinite group of persons by any means (distribution of letters, advertising leaflets, advertising in the mass media). Pornographic objects may be advertised and distributed both by their producers and by other persons.

Illegal transportation shall mean the carriage, delivery or forwarding of pornographic materials or objects, printed publications, films or video materials, images or other objects of a pornographic nature.

Trade in printed publications, films and video materials, images or other objects of a pornographic nature shall mean the sale of pornographic materials or offering them for sale (the so-called public offer). Trade always presupposes the conclusion of a sale and purchase agreement, that is, it is of a commercial nature and involves consideration.

This corpus delicti is formal and shall be deemed completed at the moment the specified acts are committed.

The subjective element is characterised by direct intent: the perpetrator is aware that they are producing, distributing, advertising or trading in pornographic materials, images and objects, and desires to do so.

In the production of pornographic materials and objects, an essential element of the subjective side of the offence is the purpose of distributing or advertising such products.

The subject of the offence under consideration is a sane individual who has reached the age of 16.

Posing and performing for the recording of works of a pornographic nature may, where all the necessary elements are present, be qualified as complicity in the production of pornographic materials or objects.

Where the offence under consideration is committed with the participation of minors, liability arises under Article 311 of the Criminal Code, in conjunction with Article 144 of the Criminal Code, which provides for liability for involving a minor in the production of erotic-content products, as well as in the distribution, advertising and sale of erotic-content products, and Article 312 of the Criminal Code, “Production and Circulation of Materials or Objects Containing Pornographic Images of Minors, or Their Involvement in Participation in Entertainment Events of a Pornographic Nature”.

The act provided for in Article 311 of the Criminal Code is classified as a minor offence.

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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