Commentary to article 342. Contempt of court of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Contempt of court, expressed in insulting the participants in the trial, —
is punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by community service for a period of one hundred eighty to two hundred forty hours, or by arrest for a period of two to four months.
2. The same act, expressed in insulting the judge, —
is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or correctional labor for a period of one to two years, or arrest for a period of four to six months.
The public danger of this crime consists in undermining the authority of the court and a particular judge, in particular, in humiliating the personal dignity of citizens participating in court proceedings. Contempt of court, expressed in insulting the participants in the judicial proceedings, encroaches on the constitutional principle of the independence of judges, on the objective and fair decision of a criminal or civil case.
The object of this crime is the normal activity of judicial authorities, as well as the honor and dignity of the judge, juror and participants in the trial. In this regard, the crime should be considered two-object.
According to art .1 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the judicial System and the Status of Judges of the Republic of Kazakhstan", judicial power in the Republic of Kazakhstan belongs only to courts represented by permanent judges, as well as jurors involved in criminal proceedings in cases and in the manner prescribed by law. In accordance with art . 1 of the Law of the Republic of Kazakhstan dated January 16, 2006 "On Jurors", a juror is a citizen of the Republic of Kazakhstan who is called upon to participate in the consideration of a criminal case by a court in accordance with the procedure established by law and has taken the oath.
There are different points of view expressed in the legal literature on the question of who can be a victim of this type of crime. This is due to the fact that in the first part of Article 342 of the Criminal Code, participants in the trial are indicated as victims. There is no interpretation of the concept of "participants in the trial" in the CPC, and in the first part of Article 7 of the CPC there is an interpretation of the concepts: "participants in the process"; "other persons involved in the criminal process". But these two concepts cannot be limited either, because they relate only to participants and other persons involved in the criminal process. The current CPC in art . 2 establishes the procedure for the consideration of cases on disputes arising from civil, family, labor, housing, administrative, financial, economic, land relations, relations on the use of natural resources and environmental protection and other legal relations, as well as cases of special proceedings.
When considering materials on administrative offenses in court, the court is guided by the procedural rules established by the Administrative Code.
Participants in the process, in accordance with Article 7 of the CPC, are understood to be bodies and persons conducting criminal prosecution and maintaining charges in court, as well as persons defending their rights and interests during criminal proceedings: the prosecutor (public prosecutor), investigator, body of inquiry, inquirer, suspect, accused, their legal representatives, the defense attorney, the civil defendant, his legal representative and representative, the victim, the private prosecutor, the civil plaintiff, their legal representatives and representatives. It should be noted that there is no victim on the list. The criminal procedure law classifies the secretary of the court session, the interpreter, the witness, the understood, the expert, the specialist and the bailiff as other persons participating in the criminal process.
44 of the CPC, the parties (the plaintiff and the defendant) are involved in the case; third parties who make independent claims on the subject of the dispute; third parties who do not make independent claims on the subject of the dispute; the prosecutor, state bodies, local governments, organizations or individual citizens who have filed a claim in defense of other people's interests, state bodies and bodies local authorities who have entered into the process to give an opinion on the case, as well as applicants and other interested persons in cases considered by the court in a special procedure.
In Chapter 34 of the Administrative Code, participants in proceedings on administrative offenses are: the person against whom the proceedings are being conducted (art. 584); the victim (art. 585); legal representatives of an individual (art. 586); legal representatives of a legal entity (art. 587); defender (art. 588); representative of the victim (art.593); witness (Article 594); understood (Article 595); specialist (Article 596); expert (Article 597); translator (Article 598); prosecutor (Article 599).
An analysis of the provisions contained in the above norms of the criminal procedure, civil procedure and administrative legislation of the Republic of Kazakhstan indicates that in these normative legal acts there is a difference in deciding who can be recognized as a person participating in the case. If participants in the trial are recognized as persons participating in criminal proceedings, in civil cases or in the consideration of cases of administrative offenses, then criminal liability for insulting the secretary of the court session and the bailiff will be provided for in the consideration of criminal cases, and such liability will be excluded in the consideration of civil or administrative cases, since these persons do not belong to involved in a civil case or an administrative offense case. The objective side of the crime is contempt of court, expressed in insulting the judge, juror or participants in the trial.
An insult is an indecent humiliation of the honor and dignity of a judge, juror, or participants in a trial. Honor is a public assessment of a person, a measure of his spiritual and social qualities. Dignity is a person's internal self–assessment of their own qualities, abilities, worldview, and social importance. Humiliation of the honor and dignity of the victim is a negative assessment of his personality, which is given in an indecent form. Such a form is considered indecent, which clearly contradicts the generally accepted rules of morality and morality.
According to the method of commission, this crime can be expressed as an insult verbally, in writing, by action (by indecent gestures).
Verbal abuse is expressed, for example, by using obscene words. Insulting an action can be by hitting (slapping), pushing, ripping off glasses, etc.
Publications and television appearances criticizing the court and the judicial process cannot form signs of the crime in question, because the actions provided for in Article 342 of the Criminal Code of the Republic of Kazakhstan should be committed, in our opinion, during the court session, i.e. up to the moment of the announcement of the verdict, decision or other judicial act and necessarily in the courtroom. Insulting actions against a judge or participants in the trial, committed after the court session was declared closed, may entail liability under Article 130 of the Criminal Code (Insult).
342 of the Criminal Code, insulting actions against a judge, juror or participants in a trial committed in connection with their participation in a trial, but outside the courthouse, cannot also be qualified. These actions may be qualified under Article 130 of the Criminal Code. This opinion can be justified by the fact that Article 342 of the Criminal Code contains a special provision on liability for contempt of court by insulting the judge, juror and participants in the trial. And contempt of court is possible during the trial and in the courtroom. Abusive behavior towards the judge, juror, or participants in the trial during the trial may negatively affect the course of the case in court. If these actions are committed later, after the end of the trial, they will no longer affect the administration of justice, since the main task of the criminal legislation on liability for crimes against justice is to protect the interests of justice.
The crime contains a formal structure. It is considered completed from the moment the specified actions are performed. The subjective side of the crime is characterized by direct intent. The perpetrator is aware that he is showing disrespect to the court by insulting the judge, juror or participants in the trial.
The subject of this crime may be a sane person who has reached the age of 16.
Part two of the article in question of the Criminal Code provides for liability for contempt of court by insulting a judge or juror. The latter include persons holding the position of judge in accordance with the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and Status of Judges of the Republic of Kazakhstan", as well as jurors.
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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