Commentary on Article 313. Illegal Distribution of Works Promoting the Cult of Cruelty and Violence of the Criminal Code of the Republic of Kazakhstan
1. Illegal production, for the purpose of distribution or advertising, distribution, advertising, screening of films and video materials and other works promoting the cult of cruelty and violence, as well as illegal trade in printed publications, films or video materials promoting the cult of cruelty and violence —
shall be punishable by a fine in the amount of up to two thousand monthly calculation indices, or corrective 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 the crime lies in the fact that, when these actions are committed, materials are disseminated that may lead to the spread of cruelty and violence, and inhuman treatment of people towards one another. In addition, they distort the spiritual and moral values of society, promote lack of spirituality, lead to the loss of social activity and degradation of the individual, and have a harmful effect on the psyche.
The object of the crime is public morality.
The subject matter of the crime consists of works promoting the cult of cruelty and violence, which are cynical in nature and demonstrate contempt for the norms of morality and ethics (printed publications, films and video materials, images, etc.). Images include paintings, drawings, photographs and sculptures promoting the cult of cruelty and violence. Other works may include audio recordings, compact discs, etc.
The question of recognising works as promoting the cult of cruelty and violence is quite complex; therefore, an expert examination is necessary.
The objective element is expressed in the following actions: 1) illegal production for the purpose of distribution or advertising; 2) distribution; 3) advertising; 4) screening or demonstration; 5) illegal trade.
Illegal production means the creation of works promoting the cult of cruelty and violence by any means: writing a book, article or screenplay, taking photographs and developing photographic materials, filming a motion picture or video, sculpting, and similar activities.
Production should also be understood to include the reproduction of an already completed work (printing photographs and copies of film and video tapes). The concept of "production" encompasses both the process of creation itself and its result. Liability for production constitutes the elements of the crime under consideration only if the perpetrator has the purpose of distributing or advertising works promoting the cult of cruelty and violence. The production of written and printed materials, photographs, drawings, films or videos for personal consumption or use within a narrow circle of people does not entail criminal liability under Article 313 of the Criminal Code.
Distribution means transferring works promoting the cult of cruelty and violence to other persons for the purpose of familiarising them with such works. Distribution may be for consideration (the sale or rental of video cassettes or audio recordings, photographs, or the organisation of video salons for screening films promoting the cult of violence and cruelty) or gratuitous (handing them over for reading or viewing). The screening or transfer of works promoting the cult of cruelty and violence for familiarisation by members of one's own family or a narrow circle of acquaintances is not considered distribution.
Advertising consists of displaying such works for public viewing or communicating information about them to an indefinite circle of persons by any means (distribution of letters, advertising leaflets, through the mass media, etc.).
The definition of the concept of "advertising" is provided in subparagraph 1-2) of paragraph 1 of Article 3 of the Law of the Republic of Kazakhstan dated 19 December 2003 "On Advertising" (see the commentary to Article 311 of the Criminal Code of the Republic of Kazakhstan).
Works promoting the cult of cruelty and violence may be advertised and distributed both by their producers and by other persons.
Demonstration consists of screening films and video recordings, listening to recordings on audio media, viewing printed materials, photographs and drawings, and reading magazine or newspaper articles.
Illegal trade involves the sale of works promoting the cult of cruelty and violence or offering them for sale (the so-called public offer). Trade always implies the conclusion of a sale and purchase agreement, that is, it is conducted for consideration. Trade is considered completed regardless of whether the person has managed to sell at least one work.
The crime is considered completed at the moment the actions specified in the law are committed.
The subjective element is characterised by direct intent: the perpetrator is aware that they are illegally producing, distributing, advertising, demonstrating and trading in works promoting the cult of cruelty and violence, and desires to do so.
In the case of production, an obligatory feature of the subjective element of the crime is the purpose of distributing or advertising works promoting the cult of cruelty and violence.
The subject of the crime is a general one — a sane natural person who has reached the age of 16.
The act provided for in Article 313 of the Criminal Code is classified as a minor offence.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 the 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.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Statute Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses
