Commentary on Article 375. Encroachment on the Honour and Dignity of the President of the Republic of Kazakhstan and Obstruction of His Activities of the Criminal Code of the Republic of Kazakhstan
1. Public insult or other encroachment on the honour and dignity of the President of the Republic of Kazakhstan —
shall be punishable by a fine of up to two thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to two years, or imprisonment for the same period.
2. The same act committed through the use of mass media or telecommunications networks —
shall be punishable by a fine of up to three thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to three years, or imprisonment for the same period.
3. Exerting influence, in any form whatsoever, on the President of the Republic of Kazakhstan or his close relatives for the purpose of obstructing the performance of his duties —
shall be punishable by a fine of up to five thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to five years, or imprisonment for the same period.
Note. Public speeches containing critical statements concerning the policy pursued by the President of the Republic of Kazakhstan shall not entail criminal liability under this Article.
The President of the Republic is the Head of State and its highest-ranking official, who determines the main directions of the State's domestic and foreign policy and represents Kazakhstan within the country and in international relations (Paragraph 1 of Article 40 of the Constitution).
The President of the Republic is the symbol and guarantor of the unity of the people and State power, the inviolability of the Constitution, and the rights and freedoms of individuals and citizens (Paragraph 2 of Article 40 of the Constitution). The President of the Republic ensures the coordinated functioning of all branches of State power and the accountability of government bodies to the people. The President of the Republic has the right to speak on behalf of the people and the State (Article 1 of the Constitutional Law of the Republic of Kazakhstan dated 26 December 1995, “On the President of the Republic of Kazakhstan”).
The President carries out his activities in strict accordance with the Constitution of the Republic of Kazakhstan, under which the President of the Republic of Kazakhstan, his honour and dignity are inviolable. The provision, maintenance and protection of the President of the Republic and his family are carried out at the expense of the State. The provisions of Article 46 of the Constitution apply to former Presidents of the Republic (Article 46 of the Constitution of the Republic of Kazakhstan).
The public danger of the crime provided for in Article 375 of the Criminal Code lies in the fact that this act disrupts the normal functioning of the President of the Republic of Kazakhstan and also humiliates his honour and dignity.
When this act is committed, the political and legal status of the President of the Republic of Kazakhstan, as well as the prerogatives and guarantees of the President of the Republic of Kazakhstan, established by the Constitution of the Republic of Kazakhstan and the Constitutional Law of the Republic of Kazakhstan “On the President of the Republic of Kazakhstan”, are violated for the purpose of obstructing his activities.
The object of the crime under consideration is public relations ensuring the normal functioning of the President of the Republic of Kazakhstan. An additional object is the authority, honour and dignity of the President, as well as public relations guaranteeing their protection.
The victim under Parts 1 and 2 of Article 375 of the Criminal Code may only be the President of the Republic of Kazakhstan, whereas under Part 3, in addition to the President, his close relatives may also be victims.
The objective element of the crime provided for in Article 375 of the Criminal Code consists in publicly insulting or otherwise encroaching upon the honour and dignity of the President of the Republic of Kazakhstan.
Insult is understood as the actions of the perpetrator expressed in the humiliation not only of the President's personal, human, professional, official and occupational dignity as a representative of authority, but also of his dignity as the Head of State and its highest-ranking official, who determines the main directions of the State's domestic and foreign policy and represents Kazakhstan within the country and in international relations.
Insult may also be expressed through physical actions (for example, tearing off a button, spitting in the face, slapping, making obscene gestures, etc.) that humiliate the dignity of the President of the Republic of Kazakhstan.
In the case of insult, the circumstances constitute an obligatory element: the specified actions must be committed in a public setting, that is, in the presence of a certain number of third parties.
Public insult consists in the intentional humiliation of the honour and dignity of the President of the Republic of Kazakhstan in the presence of an outsider (other than the perpetrator and the President of the Republic of Kazakhstan).
The crime under consideration may be committed by any means: verbally, in writing, through the use of mass media, or by means of conduct.
Publicity also includes the use of mass media and information and communication networks, for example, computer technology, etc.
If insulting actions or statements are directed at State bodies, enterprises or organisations as a whole, rather than specifically at the President, the elements of the crime under consideration shall not be present. In this case, depending on the direction of the intent, the act should be classified as insulting a representative of authority (Article 378 of the Criminal Code) or hooliganism (Article 293 of the Criminal Code).
Other encroachments on the honour and dignity of the President of the Republic of Kazakhstan should be understood as any actions committed by the perpetrator, for example, displaying caricature leaflets depicting the President of the Republic of Kazakhstan, making an insulting statement over the telephone in the presence of another person, or defamation, that is, disseminating knowingly false information that discredits his honour and dignity or undermines his reputation.
By its legal structure, the corpus delicti is formal and is considered completed from the moment of the public insult or other encroachment on the honour and dignity of the President of the Republic of Kazakhstan.
The subjective element is characterised by direct intent. The perpetrator is aware that he is publicly insulting or otherwise encroaching upon the honour and dignity of the President of the Republic of Kazakhstan while the President is exercising his powers or in connection with the exercise of such powers, and desires to do so.
The motives may vary (political, hooligan motives, etc.) and must be taken into account when imposing punishment. Insulting the President of the Republic of Kazakhstan for personal reasons unrelated to the performance of his duties as Head of State shall be classified as an insult under Article 131 of the Criminal Code.
The purpose of committing the act under consideration is to obstruct the activities of the President of the Republic of Kazakhstan.
The subject of the crime under consideration may be any sane person who has attained the age of 16.
Part 2 of Article 375 of the Criminal Code establishes criminal liability for publicly insulting or otherwise encroaching upon the honour and dignity of the President of the Republic of Kazakhstan through the use of mass media or telecommunications networks.
Public insult or other encroachment on the honour and dignity of the President of the Republic of Kazakhstan 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, messengers, etc. (a more detailed description of the qualifying elements of the crime under consideration is provided above, in the analysis of Article 373 of the Criminal Code).
In Part 3 of Article 375 of the Criminal Code, the legislator established an independent corpus delicti providing for criminal liability for exerting influence, in any form whatsoever, on the President of the Republic of Kazakhstan or his close relatives for the purpose of obstructing the performance of his duties.
Influence should be understood as actions expressed in any form: delaying a departure for an official interstate meeting, providing the President with disinformation, threatening the President or his close relatives, etc. Such actions may be expressed either verbally or in writing.
Thus, obstructing the performance of the duties of the President of the Republic of Kazakhstan consists in the intentional commission of unlawful acts or omissions as a result of which the President of the Republic of Kazakhstan is unable to carry out his activities fully or partially in the manner and within the limits established by the Constitution and the Constitutional Law of the Republic of Kazakhstan “On the President of the Republic of Kazakhstan”, that is, depriving him of the opportunities (powers) granted to him by the Constitution and the aforementioned Constitutional Law.
Obstruction may take the form of an attempt to prevent, terminate or alter the President's activities in the present, or to prevent or preclude the performance of his duties in the future. At the same time, obstruction covers not only the President of Kazakhstan's working hours but also his non-working hours.
By its legal structure, the corpus delicti provided for in Part 3 of Article 375 of the Criminal Code is formal and is considered completed from the moment influence, in any form whatsoever, is exerted on the President of the Republic of Kazakhstan or his close relatives for the purpose of obstructing the performance of his duties.
The subjective element of the crime provided for in Part 3 of Article 375 of the Criminal Code is characterised by direct intent. The perpetrator is aware that he is exerting influence on the President of the Republic of Kazakhstan or his close relatives and desires to do so.
The act under consideration has a mandatory subjective element (special purpose) — obstructing the performance of the duties of the President of the Republic of Kazakhstan.
In accordance with the Note to Article 375 of the Criminal Code, public speeches containing critical statements concerning the policy pursued by the President of the Republic of Kazakhstan shall not entail criminal liability under the Article being commented on.
The act provided for in Part 1 of Article 375 of the Criminal Code belongs to the category of minor offences.
The acts provided for in Parts 2 and 3 of Article 375 of the Criminal Code belong to the category of offences of medium gravity.
Note: Spelling errors, typographical errors and obvious optical character recognition errors have been corrected; the content, sequence and volume of the text have been preserved. The legal provisions and the current validity of the cited version of the Article have not been verified.
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 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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