Commentary to article 164. Incitement of social, national, tribal, racial or religious hatred of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Deliberate actions aimed at inciting social, national, tribal, racial, religious hostility or discord, insulting national honor and dignity or religious feelings of citizens, as well as propaganda of exclusivity, superiority or inferiority of citizens on the basis of their attitude to religion, class, national, tribal or racial affiliation, if these acts committed in public or using mass media, —      

are punishable by a fine in the amount of up to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to ten months, or by arrest for up to six months, or by correctional labor for up to two years, or by imprisonment for up to five years.      

2. The same acts committed by a group of persons or repeatedly, or combined with violence or the threat of its use, as well as by a person using his official position or the head of a public association., —      

are punishable by a fine in the amount of five hundred three thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five months to one year, or by restriction of liberty for a term of up to four years, or by imprisonment for a term of two to six years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it.      

3. Actions provided for in the first and second parts of this Article, entailing grave consequences, —    

 are punishable by imprisonment for a term of three to ten years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     The public danger of this crime lies in the violation of the basic constitutional principle - the principle of equality. Observance of this principle is the most important condition for the existence and development of any civilized society.      

The direct object of this crime is the international legal, as well as the constitutional principle of preventing incitement to social, national, tribal, racial or religious hatred or discord.      According to art . Article 20 of the Constitution prohibits propaganda and agitation of social, national, religious, national, religious, class, and tribal superiority in the Republic, and art. Article 5 of the Constitution of the Republic of Kazakhstan prohibits the creation and operation of public associations whose goals and actions are aimed at inciting social, racial, national, religious, class and clan discord.      

The objective side of the crime provided for in Part 1 of Article 164 of the Criminal Code is the commission of actions aimed at: a) inciting social, national, tribal, racial or religious hostility or discord;      

b) insulting the national honor and dignity or religious feelings of citizens;      

c) propaganda of the exclusivity, superiority or inferiority of citizens on the basis of their attitude to religion, class, nationality, ancestry or race.      

An obligatory sign of the objective side of this crime is the way it is committed - publicly or through the use of mass media.      

Social equality is understood primarily as equality before the law, regardless of the status of people, classes and social groups, as well as respect for the individual, and the creation of conditions for its comprehensive development.     

In sociology, a nation is understood as a community of people that has historically developed and formed in a certain territory on the basis of economic and cultural ties, characterized by a common language, culture and national character. A race, unlike a nation, is a historically formed group of people connected by the unity of origin, having common hereditary characteristics. There are three groups of races: European, Negroid and Mongoloid. If nationality is determined mainly by socio-biological and cultural factors and it can be formed by people belonging to different ethnic groups, but having a common national language and cultural background, then races share certain genetic characteristics. Unlike a nation and race, a clan is a collective of blood relatives descended from a common ancestor, bearing a common family name. It should be noted that remnants of tribal division have been preserved by many peoples.      

As for religion, Kazakhstan is represented mainly by two religions: Islam and Christianity, although there are other religions in the world, for example, Buddhism. There are numerous branches within these religions. In addition, they have numerous sects that profess different canons within these religions (and often beyond them). Some of these sects pose a danger to the state and society in their worldview, therefore their activities are prosecuted by law.      

Incitement of social, national, tribal, racial or religious hostility or discord is understood as an attempt to create conflicts between citizens of different nationalities, clans, races or faiths, which may be accompanied by aggressive attacks, physical violence or the threat of such, destruction or damage to property, etc., or isolation, alienation, restriction of rights, benefits, advantages etc .      

Insulting the national honor and dignity or religious feelings of citizens consists in actions aimed at humiliating the honor and dignity of this category of persons, expressed in an indecent manner. These actions are committed in order to belittle national shrines, lifestyle, way of life, and the history of the development of individual races, nationalities, or nationalities.      

Propaganda of the exclusivity and superiority of citizens based on their attitude to religion, class, national, ancestral or racial affiliation is the dissemination of assessments of citizens (personalities, their abilities, behavior) depending on their attitude to religion, as well as class, national, ancestral or racial affiliation.      Propaganda of the inferiority of citizens is the dissemination of discriminatory assessments of citizens depending on their attitude to religion, as well as class, national origin or race.      

The subjective side is characterized by direct intent.    

The subject of a crime is any sane individual who has reached the age of 16.     

Part 2 of Article 164 of the Criminal Code provides for liability for the same actions committed:      

a) a group of persons. This sign means that two or more persons who have not agreed to commit the crime in question are committing it. The subjects of this crime are the co-perpetrators, who must be sane and have reached the age of criminal responsibility, namely 16 years.;     

b) repeatedly, - means that this crime was committed at least a second time, while for the first such crime a person should not be released from criminal liability (Articles 65, 67, 69 and 76 of the Criminal Code of the Republic of Kazakhstan) or, if the perpetrator was convicted and committed this crime again, then a criminal record for its commission must not be repaid or withdrawn (Article 77 of the Criminal Code of the Republic of Kazakhstan);      

c) combined with violence or the threat of its use.      

Violence should be understood as infliction of moderate or minor harm to health, beatings, and other violent acts related to inflicting physical pain on the victim with restriction of his freedom, aimed at inciting national or racial hatred, insulting national honor and dignity.;      

d) a person using his official position or the head of a public association. These persons are special subjects of the crime. They are both officials and non-officials who use their official powers granted to them in connection with their work at an enterprise, institution or organization, regardless of their forms of ownership.      

Part 3 of Article 164 of the Criminal Code provides for liability for a particularly qualified type of crime - for actions provided for in parts one and two of this article that have serious consequences.      

Grave consequences should be understood as the death of a person, causing serious harm to health, causing major property or other material damage to organizations and institutions, individual citizens, destruction of buildings, disruption of transport routes or normal activities of enterprises or institutions, forced relocation of citizens from places of permanent residence, disruption of important events, etc.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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