Commentary on Article 373. Public Insult and Other Encroachment upon the Honour and Dignity of the First President of the Republic of Kazakhstan — Elbasy, Desecration of Images of the First President of the Republic of Kazakhstan — Elbasy, and Obstruction of the Lawful Activities of the First President of the Republic of Kazakhstan — Elbasy of the Criminal Code of the Republic of Kazakhstan
- Public insult or other encroachment upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, or desecration of images of the First President of the Republic of Kazakhstan — Elbasy —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to two years, or deprivation of liberty for the same term.
The same acts, committed through the use of mass media or telecommunications networks, —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to three years, or deprivation of liberty for the same term.
Influencing the First President of the Republic of Kazakhstan — Elbasy, or members of his family residing with him, in any form whatsoever, for the purpose of obstructing his lawful activities —
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to five years, or deprivation of liberty for the same term.
When analysing the legal status of the First President of the Republic of Kazakhstan — Elbasy, it should be proceeded from the fact that Kazakhstan is a state with a presidential form of government.
The status and powers of the First President of the Republic of Kazakhstan — Elbasy are established by the Constitutional Law of the Republic of Kazakhstan dated 20 July 2000, “On the First President of the Republic of Kazakhstan — Elbasy”, according to which the First President of the Republic of Kazakhstan, who stood at the origins of the establishment of Kazakh statehood and made an outstanding contribution to the development of sovereign Kazakhstan as a democratic, secular, legal and social state, is Elbasy.
The public danger of the crime provided for in Article 373 of the Criminal Code lies in the fact that this act disrupts the normal functioning of government bodies and undermines their authority, as well as humiliates the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy.
When this act is committed, the political and legal status of the First President of the Republic of Kazakhstan — Elbasy, as well as the prerogatives and guarantees of the First President of the Republic of Kazakhstan, guaranteed by the Constitution of the Republic of Kazakhstan and the Constitutional Law of the Republic of Kazakhstan “On the First President of the Republic of Kazakhstan — Elbasy”, are violated.
The object of the crime under consideration is the public relations ensuring the activities of the First President — Elbasy. The additional object is the authority, honour and dignity of the First President — Elbasy, as well as the public relations guaranteeing their protection.
Under Parts 1 and 2 of Article 373 of the Criminal Code, only the First President of the Republic of Kazakhstan — Elbasy may be the victim, whereas under Part 3 of the said Article, in addition to the First President — Elbasy, members of his family residing with him may also be victims.
The subject matter of the crime may include images of the First President of the Republic of Kazakhstan — Elbasy, for example, his photographs, paintings, portraits, leaflets and other objects bearing images of the First President of the Republic of Kazakhstan — Elbasy.
The objective element of the crime provided for in Article 373 of the Criminal Code consists in publicly insulting or otherwise encroaching upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, or desecrating his images.
Obstruction of the lawful activities of the First President of the Republic of Kazakhstan — Elbasy, public insult or other encroachment upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, as well as desecration of images of the First President of the Republic of Kazakhstan — Elbasy, are prohibited and prosecuted by law (Article 1 of the Constitutional Law of the Republic of Kazakhstan “On the First President of the Republic of Kazakhstan — Elbasy”).
According to Article 131 of the Criminal Code, insult means the humiliation of the honour and dignity of another person, expressed in an indecent form.
In accordance with the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 18 December 1992, “On the Application in Judicial Practice of Legislation on the Protection of the Honour, Dignity and Business Reputation of Individuals and Legal Entities”, honour is the public assessment of a person, the measure of their spiritual and social qualities; dignity is a person's internal assessment of their own qualities, abilities, worldview and social significance.
An indecent form may be expressed through statements containing obscene language, as well as statements that violate the norms of speech etiquette.
Linguists classify the following as statements in an indecent form: descriptive designations of a person referring to activities that are negative from the standpoint of society's interests (for example, bandit, prostitute); words and phrases whose very meaning contains a negative assessment of someone's activities, occupation or behaviour (for example, traitor, betrayer); zoosemantic metaphors referring to animal names and emphasising certain negative human characteristics, such as stupidity or ingratitude (donkey, male dog, pig); words denoting actions or qualities and characteristics of someone or something (for example, to steal, to grab, hypocrite); words and phrases whose very meaning contains a negative (abusive) assessment of someone as an individual (for example, fool, vile creature); occasional word formations created for the purpose of insulting and humiliating the addressee (for example, “der'mokrat”).
Thus, humiliation of honour and dignity expressed in an indecent form is a negative assessment of an individual that discredits a person and undermines their moral standing both in the eyes of others and in their own eyes.
Insult may also be expressed through physical actions (for example, tearing off a button, spitting in someone's face, slapping someone, making indecent gestures, etc.) that humiliate the dignity of the First President of the Republic of Kazakhstan — Elbasy.
In cases of insult, the circumstances in which it is committed constitute a mandatory element: the specified actions must be committed in a public setting, that is, in the presence of a certain number of outsiders.
Public means open, carried out in the presence of the public. Accordingly, an insult committed in the presence of at least one outsider is recognised as public. Consequently, public insult consists in the intentional humiliation of the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy in the presence of an outsider (in addition to the perpetrator and the First President of the Republic of Kazakhstan — Elbasy).
The crime under consideration may be committed by any means: verbally, in writing, through the use of mass media, or through actions.
Publicity also means the use of mass media and information and communication networks, for example, computer equipment, etc.
Other encroachment upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy should be understood as any actions of the perpetrator, for example, putting up caricature leaflets, making an insulting statement over the telephone in the presence of another person, or defamation, that is, the dissemination of knowingly false information that discredits his honour and dignity or undermines his reputation.
To desecrate means to disgrace, subject to mockery or humiliation, or to stain with something.
An image is an object or drawing depicting someone.
Thus, desecration of images of the First President of the Republic of Kazakhstan — Elbasy should be understood as the commission of various kinds of actions involving objects, drawings and photographs of the First President of the Republic of Kazakhstan — Elbasy that may humiliate his honour and dignity.
Desecration of an image may also be expressed through the physical destruction or desecration of monuments, burning portraits, drawing indecent pictures and inscriptions on an image, etc.
The corpus delicti of the crime provided for in Article 373 of the Criminal Code is, by its legal construction, formal. Therefore, in order to bring a person to criminal liability, it is not necessary for any negative consequences to occur; the mere fact of public insult or other encroachment upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, or desecration of his images, is sufficient.
The subjective element of the crime commented on is characterised by direct intent. The perpetrator is aware that he or she is publicly insulting, otherwise encroaching upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, or desecrating his images while he is exercising his powers or in connection with the exercise of his powers, and desires to do so.
At the same time, an insult against the First President of the Republic of Kazakhstan — Elbasy motivated by personal reasons unrelated to the performance of his duties as Head of State is subject to classification as insult under Article 131 of the Criminal Code.
The subject of the crime under analysis may be any sane person who has reached the age of 16.
Part 2 of Article 373 of the Criminal Code provides for an aggravated form of this crime — public insult or other encroachment upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, or desecration of images of the First President of the Republic of Kazakhstan — Elbasy, committed through the use of mass media or telecommunications networks.
The concepts of “mass media” and “telecommunications network” are defined, respectively, in subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan dated 23 July 1999, “On Mass Media”, and subparagraph 55) of Article 2 of the Law of the Republic of Kazakhstan dated 5 July 2004, “On Communications”.
The concept of “telecommunications” is based on the understanding of means that make it possible to establish communication between two or more geographically remote locations.
Public insult or other encroachment upon the honour and dignity of the First President of the Republic of Kazakhstan — Elbasy, committed through the use of mass media or telecommunications networks, constitutes public humiliation of his honour and dignity expressed in an indecent form, or the dissemination of knowingly false information that discredits his honour and dignity or undermines his reputation through the use of printed publications, television and radio channels, Internet websites, messaging applications, etc.
In Part 3 of Article 373 of the Criminal Code, the legislator established an independent corpus delicti providing for criminal liability for influencing the First President of the Republic of Kazakhstan — Elbasy, or members of his family residing with him, in any form whatsoever, for the purpose of obstructing his lawful activities.
To influence means to exert an effect on someone or to seek to achieve the necessary results.
Influencing the First President of the Republic of Kazakhstan — Elbasy, or members of his family residing with him, means actions directed at the above-mentioned persons for the purpose of achieving obstruction of the lawful activities of the First President of the Republic of Kazakhstan — Elbasy.
Influence may be exerted in any form, for example, through threats, blackmail, hypnosis, etc.
Every member of the family of the First President of the Republic of Kazakhstan — Elbasy who resides with him enjoys all the privileges and guarantees established by the Constitutional Law “On the First President of the Republic of Kazakhstan — Elbasy”.
The corpus delicti of the crime under consideration is, by its legal construction, formal. The act is considered completed from the moment influence is exerted on the First President of the Republic of Kazakhstan — Elbasy, or members of his family residing with him, for the purpose of obstructing his lawful activities, regardless of the consequences that may have occurred.
The subjective element of the crime provided for in Part 3 of Article 373 of the Criminal Code is characterised by direct intent. The perpetrator is aware that he or she is exerting influence on the First President of the Republic of Kazakhstan — Elbasy, or on members of his family residing with him, and desires to do so.
The act under consideration has a mandatory subjective element (special purpose) — obstruction of the lawful activities of the First President of the Republic of Kazakhstan — Elbasy.
Obstruction means the creation of various impediments. In particular, the following actions of the perpetrator may be regarded as obstruction of the lawful activities of the First President of the Republic of Kazakhstan — Elbasy: interference in the activities of the Chairman of the Security Council of the Republic of Kazakhstan for the purpose of influencing his decision, or failure by officials to comply with lawful requirements concerning the coordination of fundamental issues of domestic and foreign policy.
The act provided for in Part 1 of Article 373 of the Criminal Code belongs to the category of minor offences.
The acts provided for in Parts 2 and 3 of Article 373 of the Criminal Code belong to the category of offences of medium gravity.
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 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.
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