Commentary on Article 378. Insulting a Representative of Authority of the Criminal Code of the Republic of Kazakhstan

1. Insulting a representative of authority while performing their official duties or in connection with the performance thereof —

shall be punishable by a fine of up to eighty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days.

2. The same act committed publicly or through the use of mass media or telecommunication networks —

shall be punishable by a fine of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

Note. Public speeches containing critical statements concerning the official activities of a representative of authority shall not entail criminal liability under this Article.

In accordance with Article 3 of the Constitution of the Republic of Kazakhstan, the people are the sole source of state power.

The people exercise power directly through a republican referendum and free elections, and also delegate the exercise of their power to state bodies.

No one may usurp power in the Republic of Kazakhstan. Usurpation of power is prosecuted by law. The right to speak on behalf of the people and the State belongs to the President, as well as to the Parliament of the Republic within the limits of its constitutional powers. The Government of the Republic and other state bodies act on behalf of the State within the limits of the powers delegated to them.

State power in the Republic is unified and is exercised on the basis of the Constitution and laws, in accordance with the principle of its division into legislative, executive and judicial branches and their interaction through the system of checks and balances.

The public danger of the criminal misdemeanour provided for in Article 378 of the Criminal Code lies in the fact that this act disrupts the normal functioning of government bodies, undermines their authority, and also humiliates the honour and dignity of a representative of authority. As a consequence, disorganisation occurs in the work of government bodies.

The object of the criminal misdemeanour under consideration is the public relations ensuring the activities of a representative of authority. An additional object is the authority, honour and dignity of a representative of authority, as well as public relations guaranteeing their protection.

The victims of the criminal misdemeanour provided for in Article 378 of the Criminal Code are representatives of authority.

According to subparagraph 9) of Article 3 of the Criminal Code, a representative of authority is a person in public service who, in accordance with the procedure established by the laws of the Republic of Kazakhstan, is vested with administrative powers in relation to persons who are not subordinate to them in an official capacity, including an employee of a law enforcement or special state body, an employee of a military police body, or a military servicemember participating in ensuring public order.

The status of a representative of authority is primarily associated with powers of authority, the concept of which has been developed in legal theory and judicial practice in cases involving abuse of official powers (Article 361 of the Criminal Code), excess of authority or official powers (Article 362 of the Criminal Code), negligence (Article 371 of the Criminal Code), and official forgery (Article 369 of the Criminal Code).

Powers of authority are understood as the right to make decisions and issue requirements that are binding on citizens, institutions and organisations, regardless of their departmental affiliation and subordination.

The functions of a representative of authority are primarily characteristic of officials, the concept of whom is established in paragraph 26 of Article 3 of the Criminal Code: an official is a person who permanently, temporarily or under special authority performs the functions of a representative of authority or carries out organisational and administrative or administrative and economic functions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan.

The objective element of the criminal misdemeanour consists in insulting a representative of authority while performing their official duties or in connection with the performance thereof.

For the purposes of the Article under consideration, insulting a representative of authority means actions of the guilty person expressed in the humiliation of the honour and dignity of a representative of authority and manifested in an indecent form.

Insult may be committed in various ways: orally, in writing, through gestures, as well as through physical actions (for example, tearing off buttons or shoulder straps, spitting in the face, slapping, making indecent bodily movements, etc.) that humiliate the dignity of a representative of authority.

It should be noted that even the communication of truthful defamatory facts from the life of a representative of authority, if presented in an indecent form, will constitute sufficient grounds for recognising in a person's actions the elements of a criminal misdemeanour qualified under Article 378 of the Criminal Code.

In order to explain the concept of “while performing their official duties”, it is necessary to define the term “official duty”. Service is a range of actions related to the performance of a particular position. A duty is something that must be performed unconditionally. Thus, an official duty is a set of employee actions aimed at achieving the objectives of the management system and mandatory for performance.

Consequently, the concept of “a representative of authority performing their official duties” should be understood as the presence of a civil servant, an employee of a law enforcement or special state body, an employee of a military police body, or a military servicemember participating in ensuring public order, on duty (at work), and the performance of actions that are mandatory and aimed at achieving the objectives of the management system.

If the act is committed outside the circumstances specified above, that is, when the representative of authority is not performing their official duties, criminal liability should arise under the relevant Articles of Chapter 1, “Criminal Offences Against the Person”. In other words, insulting a representative of authority on the grounds of personal hostility does not constitute the elements of the criminal misdemeanour under consideration.

Insulting a judge and other participants in judicial proceedings should be considered under Article 410 of the Criminal Code, which provides for criminal liability for contempt of court.

The elements of the criminal misdemeanour provided for in Article 378 of the Criminal Code are formal in nature. Accordingly, the occurrence of any negative consequences is not required in order to bring a person to criminal liability; the mere fact of insulting a representative of authority while performing their official duties or in connection with the performance thereof is sufficient.

Where the insult was committed in the absence of the victim, the criminal offence under analysis should be considered completed from the moment the insults directed at them are communicated to them by other persons.

The subjective element of the criminal misdemeanour under commentary is characterised by direct intent. The perpetrator is aware that they are insulting a representative of authority while that person is performing their official duties or in connection with the performance thereof, and desires to do so.

For example, D., while at their place of residence, was drinking alcoholic beverages with friends and playing cards, thereby disturbing the peace. N. arrived at the relevant address in response to a call received by the 102 dispatch centre. In response to N.'s demand — N. being an inspector of the Patrol Police Regiment of the Local Police Service of the Police Department of the city of Nur-Sultan, who was on duty — to proceed to the Police Department of the Saryarka District for the preparation of an administrative protocol for disturbing the peace, D., being aware of the socially dangerous nature of their actions, foreseeing the inevitability of socially dangerous consequences and desiring their occurrence, used obscene language directed at N., a representative of authority who was performing their official duties, that is, insulted N., thereby humiliating N.'s honour and dignity as a representative of authority.

The subject of the criminal misdemeanour provided for in Article 378 of the Criminal Code may be any sane person who has reached the age of sixteen.

Part 2 of Article 378 of the Criminal Code establishes criminal liability for insulting a representative of authority when committed publicly or through the use of mass media or telecommunication networks.

Publicly insulting a representative of authority while that person is performing their official duties, through the use of mass media or telecommunication networks, constitutes public humiliation of their honour and dignity, expressed in an indecent form, or the dissemination of knowingly false information that discredits their honour and dignity or undermines their reputation through the use of printed publications, television and radio channels, websites, messengers, etc.

A more detailed description of the qualifying elements of the criminal misdemeanour under consideration is provided above, in the analysis of Article 373 of the Criminal Code.

The note to this Article states that public speeches containing critical statements concerning the official activities of a representative of authority shall not entail criminal liability under the Article under commentary.

The acts provided for in Parts 1 and 2 of Article 378 of the Criminal Code constitute criminal misdemeanours.

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

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