Commentary on Article 312. Production and Circulation of Materials or Objects Containing Pornographic Images of Minors, or Their Involvement in Pornographic Entertainment Events of the Criminal Code of the Republic of Kazakhstan
1. The production, possession or transportation across the State Border of the Republic of Kazakhstan, for the purpose of distribution, public display or advertising, or the distribution, public display or advertising of materials or objects containing pornographic images of minors —
shall be punishable by imprisonment for a term of three to six years, with confiscation of property.
2. The involvement, by a person who has reached the age of eighteen, of minors as models or actors in the production of materials and (or) objects of a pornographic nature, as well as their involvement as performers in pornographic entertainment events —
shall be punishable by imprisonment for a term of five to ten years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
3. The acts provided for in Parts One or Two of this Article, committed:
1) by a parent, teacher or other person upon whom the laws of the Republic of Kazakhstan impose duties relating to the upbringing of a minor;
2) against a person who is knowingly under the age of fourteen;
3) by a group of persons acting pursuant to a prior conspiracy or by a criminal group;
4) repeatedly, —
shall be punishable by imprisonment for a term of ten to fifteen years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
The public danger of the crime commented on herein lies in the fact that the commission of these acts involves the distribution of pornographic materials or objects containing pornographic images of minors, which undermine the foundations of public decency and morality and arouse base feelings and desires of lust towards minors.
In accordance with Article 40-1 of the Law of the Republic of Kazakhstan dated August 8, 2002, “On the Rights of the Child in the Republic of Kazakhstan,” protection of the child against actions involving the child in the circulation of products harmful to the child’s health and moral and spiritual development is provided for. In particular, this Article states: “Involving a child in the production, advertising, public display or distribution, as well as the sale to a child, of printed publications, films or video materials, images, other objects or materials of a pornographic nature and (or) erotic content that are harmful to the child’s health and development shall entail liability as provided for by the laws of the Republic of Kazakhstan.”
According to Paragraph 4 of Article 6 of the Law of the Republic of Kazakhstan dated December 19, 2003, “On Advertising,” advertising of goods (works, services) prohibited from being produced and sold in accordance with the legislation of the Republic of Kazakhstan is not permitted.
The object of the crime under consideration is public morality. The additional object is the interests of a minor, as well as their physical, moral and spiritual development.
The victims may be minors of either sex.
The subject matter of the crime consists of various materials and objects containing pornographic images of minors. These may include printed publications, photographic, cinematographic, audio and video materials, images, paintings, drawings, etc.
The objective side of the crime consists of committing the following alternative acts involving materials or objects containing pornographic images of minors:
production, possession or transportation thereof across the State Border of the Republic of Kazakhstan for the purpose of distribution, public display or advertising;
distribution, public display or advertising thereof.
The concepts and characteristics of production, distribution and advertising correspond to the characteristics set out in the commentary to Article 311 of the Criminal Code.
Other characteristics not specified in Article 311 of the Criminal Code of the Republic of Kazakhstan include “possession,” “transportation across the State Border of the Republic of Kazakhstan” and “public display.”
Possession of materials or objects containing pornographic images of minors shall mean any intentional actions associated with such materials or objects being in the actual possession of the offender, regardless of the place (on their person, in a hiding place, premises, vehicle or other locations) and the duration of their possession.
Transportation of the specified materials or objects across the State Border of the Republic of Kazakhstan shall mean their passage beyond the territory of the Republic of Kazakhstan.
According to Article 1 of the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan,” the State Border of the Republic of Kazakhstan means a line and a vertical plane passing along that line, which define the limits of the territory of the Republic of Kazakhstan (land, waters, subsoil and airspace) and the spatial limits of the exercise of state sovereignty by the Republic of Kazakhstan.
Public display of materials or objects containing pornographic images of minors shall mean actions involving the visual showing or presentation of such materials or objects to an indefinite circle of persons.
Advertising shall mean the dissemination and placement, in any form and by any means of information, of materials or objects containing pornographic images of minors, intended for an indefinite circle of persons and designed to create or maintain interest in such materials or objects.
Distribution of materials or objects containing pornographic images of minors shall mean their transfer to other persons, whether for consideration or free of charge.
The composition of the crime under analysis is formal in its structure. The crime shall be considered completed from the moment one of the above-mentioned acts is committed.
Unlike Article 311 of the Criminal Code of the Republic of Kazakhstan, the provision under consideration establishes liability for the transportation of pornographic materials across the State Border or for involving minors in pornographic entertainment events.
The subjective side is characterized by direct intent: the offender is aware that they are committing unlawful acts involving materials or objects containing pornographic images of minors and desires to commit such acts.
In the production, possession or transportation across the State Border of the Republic of Kazakhstan of materials or objects containing pornographic images of minors, an obligatory element of the subjective side of the crime is the purpose of distributing, publicly displaying or advertising such materials or objects.
The subject of the crime is a sane natural person who has reached the age of 16.
Part 2 of Article 312 of the Criminal Code provides for liability for the involvement, by a person who has reached the age of eighteen, of minors as models or actors in the production of materials and (or) objects of a pornographic nature, as well as their involvement as performers in pornographic entertainment events. In this case, the public danger of the crime increases because minors are involved as models or actors in the production of materials and objects of a pornographic nature and as performers in pornographic events, while the pornographic event is of an entertainment nature, i.e. it involves simultaneous demonstration to a large number of people.
Under this Part, criminal liability arises at the age of 18.
Part 3 of Article 312 of the Criminal Code provides for circumstances that particularly aggravate criminal liability where this crime is committed: 1) by a parent, teacher or other person upon whom the laws of the Republic of Kazakhstan impose duties relating to the upbringing of a minor; 2) against a person who is knowingly under the age of fourteen; 3) by a group of persons acting pursuant to a prior conspiracy or by a criminal group; 4) repeatedly.
Parents are the father and mother of the minor.
Teachers include persons who, by virtue of their professional duties, perform work aimed at the intellectual, physical, spiritual and moral development of children.
Other persons upon whom the law imposes duties relating to the upbringing of a minor include adoptive parents, guardians or trustees, foster carers and legal representatives of the child.
A person who has not reached the age of fourteen shall be recognized as a young child.
The characteristics of a crime committed by a group of persons acting pursuant to a prior conspiracy or by a criminal group, as well as repeatedly, are explained in the commentary to Parts 3 and 4 of Article 297 of the Criminal Code.
Transportation across the State Border of the Republic of Kazakhstan, for the purpose of distribution, public display or advertising, of materials or objects containing pornographic images of minors (Parts 1 and 3 of Article 312 of the Criminal Code) constitutes a particular case of smuggling items withdrawn from circulation or whose circulation is restricted (Article 286). Therefore, the application of the above-mentioned provisions of the Criminal Code gives rise to competition between general and special provisions, in which case, pursuant to Part 3 of Article 13 of the Criminal Code, criminal liability arises under the article of the Special Part of the Criminal Code containing the special provision, namely Article 312 of the Criminal Code.
The distinction between this constituent element of a crime and the act provided for in Article 311 of the Criminal Code should be made on the basis of the subject matter of the crime. The crime provided for in the Article commented on herein concerns materials or objects containing pornographic images of minors.
The acts provided for in Parts 1, 2 and 3 of Article 312 of the Criminal Code are classified as serious crimes.
Commentary of 2021 to 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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