Spreading deliberately false information | statements discrediting honor and dignity | undermining business reputation

On January 20, 2019, at about 4:00 a.m., P.I.A., being at her place of residence at the address: g.Zhitikara,...., with direct intent, posted a photo of K.I.V. on the Odnoklassniki social network with the comment "Slut takes 5,000 tenge for 1 hour," knowing that that this information does not correspond to reality, that is, she spread deliberately false information discrediting the honor and dignity of K.I.V., undermining her reputation, committed using telecommunications networks. The defendant P.I.A. she fully admitted her guilt, repented of what she had done and showed the court that on January 20, 2019, at about 04:00, while in her apartment at the address: Gitikara, ..., she posted a photo with K.I. and B.A. on her page on the Odnoklassniki social network and printed the following text under the photo The content is "Slut charges 5,000 tenge for 1 hour." She knew that the text she had typed did not correspond to reality. She did not ask K. and B. for permission to post the photo on her social network pages. She did this intentionally so that visitors to her social network page would view this false information and so that they would have a negative opinion about K.. By her actions, she wanted to discredit K.'s honor and dignity in the eyes of others, to offend her, since the latter was living with her former roommate. At about 08:00 on January 20, 2019, her daughter Amina, at the request of her former roommate B.. I deleted this photo with a comment on it from her page. On the evening of the same day, B. called her. and he asked her to apologize to K., because when the latter saw this photo, she was in a state of despair. She called K. and asked her to apologize for the published photo. According to K.. It became clear to her that the apology had been accepted. 302 people listed as "Friends" have access to her page on the Odnoklassniki social network, and they can view her content. In her opinion, one of the visitors to her page copied the photo with the inscription and spread it further on other social networks and messengers. She apologizes profoundly to private prosecutor K. for the photo she posted. Currently, she is not employed, has debts on a bank loan in the amount of about 900,000 tenge, she has no other property income, her young daughter is dependent on her, they are supported by her current roommate H.R..

 

A civil claim for compensation for moral damage brought against her by K. She partially acknowledged it, but she fully acknowledged the costs of representation. She asked the court to release her from criminal liability in connection with active repentance and, if possible, to reduce the amount of claims. The private prosecutor (victim), K.I.V., fully supported the charge at the hearing and testified that P.I. had known for a long time. She knows that her current roommate, B.A., had previously cohabited with P. and they have a daughter together. On January 20, 2019, in the morning, her friends and acquaintances began sending a photo of B. and her to the phone and the text under the photo "Slut takes 5,000 tenge for 1 hour," indicating that P. had posted it on her personal page on the Odnoklassniki social network.. When she came to work at the 41st store, her colleagues and employer began to show her this photo. Her mother, who works in a kindergarten, called her and said that she had learned from the staff about the photo with her image. Customers started calling and joking about her discounts for regular customers, etc. Since the city is small and almost everyone knows her, therefore, after seeing this photo, the surrounding people began to discuss her lifestyle, moral character, someone sympathized, and someone, on the contrary, gloated. She was not pleased, and for a month she experienced feelings of humiliation, irritation, depression, shame, and despair. This photo ruined her mood before her upcoming vacation. She decided to file a criminal complaint against P., but P.'s daughter called her. and she asked not to do this, because the mother does not work anywhere and if she is punished, they will not be able to compensate for the damage. At about 19:00 on January 20, 2019, she received a call from P.. and she apologized for posting the photo with the caption. She replied to P. that she did not forgive her, but would not file a police report now, as she was going on vacation. Upon arrival from vacation, she decided not to contact the police if P. would not touch her. However, P. did not leave her alone, began calling her at home, harassing and insulting her. Therefore, on May 17, 2019, she submitted an application for the involvement of P. She applied to the Police Department for criminal liability for defamation. The comment under the photo "Slut takes 5,000 tenge in 1 hour" she perceived that she is a prostitute, that is, a dissolute woman who sells her body to men for 5,000 tenge in 1 hour, and thus earns a living. This information is not true. In fact, she is a respectable woman, brings up a young child, has a permanent job, enjoys respect in the team and among neighbors, and lives with her roommate. He does not want to reconcile with the defendant. The civil claim brought against defendant P. for compensation of moral damage in the amount of 300,000 tenge, asked the court to satisfy in full. With this amount of a civil claim, she wants to financially punish P. for the suffering caused to her, and therefore, knowing that P. will not be able to pay this amount of the claim, does not want to reduce it.

She asked the court not to release P. from criminal liability in connection with active repentance, and to punish her in the form of restriction of freedom with forced labor. Witness F.Y.V., questioned at the request of the prosecution, testified to the court that on January 20, 2019, at about 08:00, she began browsing her personal page on the Odnoklassniki social network while at home. On the social network, she has access to view the pages of P.I. and K.I. On her page, she saw a photo of K.I. and a man with the text "Slut takes 5,000 tenge for 1 hour." At the same time, it was clear that P. had posted this photo with the inscription on the social network.. This photo could be viewed by all the people on the social network who were P.'s "friends". She was shocked by what she saw and wrote about it to K. on Whatsapp. Later, Kiselyova called her and informed her that she was uncomfortable with the published photo. K. describes it positively, the inscription under her photo published on the social network does not correspond to reality. Witness B.E.V., questioned at the request of the prosecution, testified to the court that on January 20, 2019, in the morning, a message from her friend G.A. arrived on her phone in the form of a link to the Odnoklassniki social network page. However, she was unable to access this page, as she is not a "friend" of P.. Before work, she met with G. and the latter showed a photo of K.I. with the inscription from her phone. After lunch, this photo with the inscription was sent to her phone via the Whatsapp messenger, that is, it began to spread freely on social networks. People in the Whatsapp groups began to furiously discuss this photo, and there were statements sympathetic to K. and condemning her. In her opinion, the comment "Slut takes 5,000 tenge for 1 hour" means that a woman is selling her body. On the same day, she called K. and they had a conversation about the photo posted on social media. She could tell by her voice that Kiselyova was depressed and upset. Also, K. complained to her that the mood from her upcoming vacation was ruined by this photo. She has known her for a long time, characterizes her positively as a respectable woman who works and brings up her son, who helps her mother. The text posted under the photo does not correspond to the lifestyle and personality of K. V. the defendant P.I.A. is also confirmed by the following evidence examined during the trial.

It follows from the photograph presented by the private prosecutor to the court that a woman of European appearance is depicted sitting at a table against the background of a wall decorated with colorful luminous garlands. The woman is wearing a dark colored dress. Next to her on the left side of the table sits an Asian man wearing a white T-shirt and a dark jumper. The man's left hand rests on the woman's left shoulder. Under the photo there is an inscription "Slut takes 5,000 tenge for 1 hour," According to the conclusion of linguist Mustakimova G.V. On June 27, 2019, a semantic and stylistic analysis of the word in this context shows the presence of a negative, negative evaluation of the lexeme "slut". The word is used specifically in relation to a woman. The word "slut" can be considered as part of an invective vocabulary, the words of which, like obscene, obscene words, humiliate the honor and dignity of a person, that is, K.I.V. The presented photo and the text under it "Slut takes 5,000 tenge for 1 hour" contain negative information about the specified person, semantically expressed explicitly. According to the ways of presenting information, it is characterized as an open verbal (verbal) form. The considered examples of words and expressions have shown that the statements contain a negative assessment of a person (i.e. K.I.V.), undermining his prestige in the eyes of others and humiliating his honor and dignity. In the controversial text, there is a manifestation of speech manipulation – the effect on users of the social network. Given the negative nature of the information in the photo provided on the Odnoklassniki social network, it can be considered negative (negative), as it contains negative information and facial characteristics. If the negative information (information) does not correspond to reality, then such disseminated information is called defamatory in relation to the subject of the information – the person to whom it relates.

 

Analyzing the evidence examined in the trial in their entirety, the court comes to the conclusion that the defendant P.I.A. is proven guilty of committing a criminal offense. In accordance with paragraph 1 of Article 34 of the Constitution, everyone is obliged to respect the rights, freedoms, honor and dignity of others. By virtue of paragraph 1 of Article 18 of the Constitution, everyone has the right to defend their honor and dignity. The disposition of Part 2 of Article 130 of the Criminal Code provides for criminal liability for defamation, that is, the dissemination of knowingly false information discrediting the honor and dignity of another person or undermining his reputation, committed using telecommunications networks. The subjective side of this criminal offense is characterized by intentional guilt in the form of direct intent, that is, when a person was aware of the falsity of facts reported by him that discredit the honor and dignity of another person or undermine his reputation, and wanted to do so. The objective side of this criminal offense is expressed in actions consisting in the dissemination of deliberately false information discrediting the honor and dignity of another person or undermining his reputation, committed using telecommunications networks. Within the meaning of the criminal law, the corpus delicti is formal – slander is over from the moment of dissemination of the specified information, regardless of whether they caused any harm to the legally protected interests of the victim. In the court session, the fact of the distribution of P.I.A. in the Odnoklassniki social network, deliberately false information in the form of the text "Slut takes 5,000 tenge for 1 hour" posted under a photo depicting K.I.V., discrediting the honor and dignity of K.I.V., undermining her reputation, was established indisputably by the own testimony of the defendant P.I.A., the private prosecutor (victim) K.I.V., witnesses F.Y.V., B.E.V., a photograph with the image of K.I.V. and the text under it "Slut takes 5,000 tenge for 1 hour", the conclusion of linguistic research and other evidence examined in court. The court found that P.I.A. She was aware of the falsity of the text she had printed, "Slut charges 5,000 tenge for 1 hour" under the photo with K.I.V.'s image, and realizing that this information discredited K.I.V.'s honor and dignity and undermined her reputation, she intentionally posted it on the Odnoklassniki social network in order to generate negative information about her from users.

Therefore, the actions of the defendant P.I.A. are qualified by the court under art.130 Part 2 of the Criminal Code as slander, that is, the dissemination of knowingly false information discrediting the honor and dignity of another person or undermining his reputation, committed using telecommunications networks. During the proceedings, a forensic psychiatric examination of the defendant was not conducted, P.I.A. is not registered with the narcologist and psychiatrist, and there were no deviations in her behavior during the trial. The court has no reason to doubt the defendant's sanity. The arguments of the defender – lawyer B.V.P. on the release of the defendant P.I.A. from criminal liability in connection with active repentance, they are unfounded on the following grounds. By virtue of Part 1 of Article 65 of the Criminal Code, a person who has committed a criminal offense or has committed a crime for the first time may be released from criminal liability, taking into account the identity of the perpetrator, his surrender, his assistance in uncovering, investigating a criminal offense, and making amends for the harm caused by a criminal offense. Within the meaning of the above–mentioned norm of the criminal law, active repentance is the moral condemnation of the criminal offense committed by the perpetrator. It manifests itself in active actions. Such actions include, first of all, a confession, which consists in the voluntary arrival of a person who has committed an offense to law enforcement agencies, a court, etc. with a statement about the commission of an offense before it became known to the body conducting the criminal process. The court session established that the body conducting the criminal process became aware of the criminal offense from the statement and complaint of the private prosecutor K.I.V., and not from the defendant P.I.A. Also, one of the grounds for exemption from criminal liability in connection with active repentance is the reparation by the person who committed the criminal offense, the harm caused by the criminal offense.. However, throughout the entire time of the trial, until the end of the judicial investigation, from the private prosecutor K.I.V. and her representative Nigmetov S.D. The court has not received an application for compensation to the defendant P.I.A. for the damage caused. In the court arguments, the private prosecutor K.I.V. and her representative Nigmetov S.D. insisted on the appointment of the defendant P.I.A. punishment in the form of restriction of freedom. Moreover, it is important to pay attention to the fact that the application of art.65 part 1 of the Criminal Code is not an obligation, but the right of the court to make such a decision based on the results of a study of the materials of the criminal case. In view of the above, the court concludes that there are no grounds for releasing P.I.A. from criminal liability in connection with active repentance. In accordance with Part 3 of Article 52 of the Criminal Code, when imposing punishment, the nature and degree of public danger of a criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense, circumstances mitigating and aggravating responsibility and punishment, as well as the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or persons, those who are dependent on him. At the place of residence, the defendant P.I.A. is characterized mediocre by the district police inspector. In accordance with paragraphs 4, 11, part 1 of Article 53 of the Criminal Code, the circumstances mitigating criminal liability and punishment, the court recognizes the sincere repentance of the defendant P.I.A. for what she had done, her admission of guilt and the presence of a dependent minor child. The court did not establish any circumstances aggravating criminal liability and punishment in the defendant's actions.

By virtue of Article 10, Part 3 of the Criminal Code, the criminal offense committed by the defendant is classified as crimes of minor gravity. Taking into account the category of the criminal offense committed by the defendant, her personality, her difficult property and marital status, the presence of mitigating and non-aggravating circumstances, in order to prevent new criminal offenses and achieve the goals of punishment, the court concludes that it is necessary to impose on the defendant P.I.A. punishment in the form of restriction of freedom. Taking into account the presence of mitigating circumstances and the absence of aggravating circumstances for her criminal responsibility and punishment, the court, when determining her term of punishment, is guided by the requirements of paragraph 1, part 2, Article 55 of the Criminal Code, according to which, in the presence of a mitigating circumstance not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not when committing a crime of minor gravity, exceed half of the maximum period or amount provided for in the relevant article of the Special Part of the Criminal Code. The sanction of Part 2 of Article 130 of the Criminal Code provides for a maximum term of imprisonment of up to two years. Consequently, the term of restriction of liberty imposed by the defendant P.I.A. cannot exceed 1 year. In accordance with Part 1 of Article 44 of the Criminal Code, the defendant P.I.A. should be subjected to forced labor for one hundred hours annually during the entire term of serving her sentence, since she is not pregnant, does not have a permanent job, is not engaged in studies, is not a disabled person of the first or second group, and her young child is 12 years old. According to part 3 of Article 44 of the Criminal Code of P.I.A. It should be clarified that in the case of malicious evasion from serving the restriction of freedom, his unserved term is replaced by imprisonment at the rate of one day of imprisonment for one day of restriction of freedom. The measure of procedural coercion chosen in relation to P.I.A. in the form of an obligation to appear at court summons should be abolished after the verdict enters into legal force. The private prosecutor (victim) K.I.V. filed a civil lawsuit against the defendant P.I.A. for compensation for moral damage in the amount of 300,000 tenge and representation costs in the amount of 25,000 tenge. The defendant P.I.A. She partially acknowledged the civil claim in terms of compensation for moral damage, and fully acknowledged the costs of representation.

 

In accordance with paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated November 27, 2015 "On the application by courts of legislation on compensation for moral harm", moral harm should be understood as moral or physical suffering experienced by a citizen as a result of unlawful violation, diminution or deprivation of personal non-property benefits and rights belonging to him. Moral suffering (emotional and volitional experiences of a person) should be understood as feelings of humiliation, irritation, depression, shame, discomfort, etc. These feelings may be caused, for example, by the dissemination of untrue information discrediting the honor and dignity of a citizen, etc. The court session found that as a result of the dissemination of deliberately false information by the defendant P.I.A. through a social network discrediting the honor and dignity of Kiselyova I.V., undermining her reputation, the latter experienced feelings of humiliation, irritation, depression, shame, despair. Her mood before the upcoming vacation was spoiled. By virtue of Articles 143, paragraphs 6, 952 of the Civil Code and paragraph 17 of the above-mentioned Regulatory Resolution and paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated December 18, 1992 "On the application in judicial practice of 10 legislation on the protection of honor, dignity and business reputation of individuals and legal entities", the court, having assessed the evidence presented, based on criteria of reasonableness and fairness, determining the amount of compensation for moral damage, should take into account the nature of the information disseminated, the limits of its dissemination, and the forms of guilt of the defendant., his financial situation and other noteworthy circumstances. Therefore, the court, taking into account both the victim's subjective assessment of the severity of the moral suffering inflicted on him, and objective data indicating this, in particular: the vital importance of personal non–property benefits – honor and dignity, the degree of moral suffering experienced by the victim - the dissemination of untrue information discrediting the honor and dignity of K.I.V.; the form of guilt – direct intent; as well as the financial situation of the defendant P.I.A., who does not work and has no other property income, has one dependent minor child and documented debt on a bank loan in the amount of 897 022 tenge. Considering the above, the court concludes that the claims filed by the private prosecutor (victim) K.I.V. regarding compensation for moral damage are overstated and, taking into account reasonableness, fairness and sufficiency, are subject to reduction with the recovery of 100,000 tenge from the defendant P.I.A. in favor of the private prosecutor (victim) K.I.V. The claims of the private prosecutor (victim) K.I.V. against the defendant P.I.A. for reimbursement of representation costs in the amount of 25,000 tenge are also subject to full satisfaction. A state duty on a non-property claim in the amount of 50% of the monthly calculation index is subject to collection from the defendant P.I.A. to the state income. The court sets the time limit for the voluntary execution of a decision on a civil claim for one month from the date of entry into force of the verdict. At the end of this period, the verdict regarding the civil claim is subject to compulsory execution. There is no physical evidence in the case. According to Articles 177, 178 of the CPC, the procedural costs for the production of linguistic research dated June 27, 2019 in the amount of 35,350 tenge (volume 1, l.d.102) should be recovered from the defendant in favor of linguist specialist Mustakimova G.V. In accordance with Articles 98-1, 98-2, paragraph 2 of the Criminal Code with defendant P.I.A. A compulsory payment in the amount of 10 monthly calculation indices to the Victims Compensation Fund is subject to collection.

Guided by art.387-390, 393, 395-398, 401-402, 412 According to the Code of Criminal Procedure, the court SENTENCED: To find P.I.A. guilty of committing a criminal offense under part 2 of Article 130 of the Criminal Code, and to impose a sentence of restriction of liberty for a period of 1 (one) year. To involve P.I.A. in forced labor for 100 (one hundred) hours annually during the entire term of serving the sentence. Install for P.I.A. probation control for the entire term of her sentence, with the assignment to her of the following duties provided for in part 2 of Article 44 of the Criminal Code: - not to change her permanent place of residence or work without notifying the probation service; - not to visit entertainment and entertainment establishments (cafes, bars, restaurants, nightclubs, etc.), specialty stores selling alcoholic beverages- do not leave your place of residence during the period from 22:00 to 06:00 (in your free time); - do not travel to other localities (towns) without notifying the probation service; - provide financial support to the family; - comply with the requirements of the probation service; - report to the probation service on the prescribed days for registration and educational work with her. The execution of the punishment in the form of restriction of freedom and supervision of the convicted P.I.A., as well as the performance of her duties, should be entrusted to the probation service of the Zhitikarinsky district. To oblige the convicted P.I.A. to report to the probation service of the Zhitikarinsky district for registration within ten days after the verdict enters into force. Explain to the convicted P.I.A. that in case of malicious evasion from serving the restriction of freedom, his unserved term is replaced by imprisonment at the rate of one day of imprisonment for one day of restriction of freedom. The measure of procedural coercion chosen in relation to P.I.A. in the form of an obligation to appear at the summons of the court should be canceled after the verdict enters into legal force. To partially satisfy the civil claim of the private prosecutor (victim) K.I.V. for compensation of moral damage, and to fully satisfy the costs of representation. To recover from P.I.A. in favor of K.I.V. compensation for moral damage in the amount of 100,000 (one hundred thousand) tenge and representation costs in the amount of 25,000 (twenty-five thousand) tenge, a total of 125,000 (one hundred twenty-five thousand) tenge. To collect from P.I.A. to the state revenue a state duty in the amount of 1,263 (one thousand two hundred and sixty-three) tenge. Provide P.I.A. with a time limit for the voluntary execution of the sentence regarding the civil claim within one month from the date of entry into force of the sentence. At the end of this period, the verdict regarding the civil claim is subject to compulsory execution. To recover in favor of the linguist M.G.V. with P.I.A the procedural costs associated with the production of linguistic research dated June 27, 2019 in the amount of 35,350 (thirty-five thousand three hundred and fifty) tenge. Collect from P.I.A. a compulsory payment in the amount of 10 (ten) monthly calculation indices in the amount of 25,250 (twenty-five thousand two hundred and fifty) tenge to the Compensation Fund for Victims. 

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