The court acquitted him for lack of a criminal offense.

The Zhitikarinsky district court of the Kostanay region, consisting of: the presiding judge Korchinskaya L.A., with the secretary of the court session Dusugalieva A.A., with the participation of the private prosecutor T.K.N., the defendant Zh.M.R., the defense lawyer Nigmetov S.D., having considered in open court, using audio and video recording, the criminal case of the private prosecution, according to which: J.M.R., born on November 27, 1981, a native of Kostanay region, living at the address: Kostanay region, city of Zh., ...- house 28- Apartment 107, who is not working, has secondary special education, and is married, is accused of committing a criminal offense under part 2 of Article 131 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). J.M.R. is accused by a private prosecutor of having publicly expressed obscenities on Instagram, as well as during a telephone conversation with T.L.P.'s mother, on November 26, 2020, at one o'clock in the morning, while in apartment No. 107, house No. 28 in ...., located in the city of Zhitikara, Kostanay region. with abuse, she insulted T.K.N., humiliating her honor and dignity in an indecent manner. At the hearing, the private prosecutor and the victim, T.K.N., supported the charge against her and showed the court that she and her mother, T.L.P., had previously communicated with J.M.R. A store burned down in the city of Gitikara, and many entrepreneurs provided assistance. In this regard, on November 26, 2020, she wrote on Instagram that there are responsive people. To which J.M.R. began to write to her. She began to answer her. As a result of the correspondence, J.M.R. began to use obscenities against her. She also answered her. After that, J.M.R. called her mother, T.L.P., where she began to insult her mother with obscenities, as well as her. M.R. Zharova's mother recorded the entire conversation and sent it to her. As a result, she experienced moral suffering and intense emotions. Requests to find M.R. Zharova guilty under part 2 of Article 131 of the Criminal Code (file No. 3944-20-00-1-118- 0102202195321.mp4(mp3) from 09:03-24:12; file No. 3944-20-00-1-118- 2602202021145020.mp4(mp3) from 19:27-26:33; 35:32-38:40; 43:38-44:08;52:21- 53:01). The defendant, J.M.R., pleaded not guilty to the charge against her, explaining to the court that she had previously communicated well with T.K.N. and her mother, T.L.P. On November 26, 2020, at one o'clock in the morning, T.K.N. I wrote on Instagram about the burnt-out store. She began to answer her. They began to correspond, as K.N. was the first to use foul language against her. She did not insult K.N., the expressions that are in the screenshots are not offensive words to K.N., she wrote them for a "bunch" of words, as this is her usual colloquial speech. Also, on the night of November 26, 2020, she received a call from T.K.N.'s mother, T.L.P., and began swearing at her. However, T.L.P. immediately deleted her call. It angered her that because K.N. He writes about her on Instagram, and also that her mother used foul language on the phone. That's why she called T.'s mother.. During the conversation, she used obscene words, but this is her style of conversation, and not addressed to K.N. she spoke obscenely, because K.N. is known to talk like this because they had previously communicated.

 

Besides, she was just offended that she was being insulted. Therefore, she simply expressed her emotions obscenely, but did not offend anyone. She had no intention of insulting anyone (file no. 3944-20-00-1-118- 0102202195321.mp4(mp3) from 24:14-30:16; file no. 3944-20- 00-1-118- 26022021145020 .mp4(mp3) with 26:34-27:58; 32:32-35:31; 38:39:41:53; 53:02-53:24). Witness T.L.P. testified that at the end of November 2020, T.K.N.'s daughter called, who was crying, saying that J.M.R. had insulted her. She called J.M.K. herself, began to ask why she insulted her daughter. J.M.R. She began to use obscenities against both her and her daughter, while humiliating the honor and dignity of both her and her daughter. She recorded J.M.R.'s conversation and passed it on to her daughter. The daughter later contacted the police with a statement (file # 3944-20-00-1-118- 0102202195321.mp4(mp3) from 33:15-45:12). Witness K. N.V. testified that she knows J.M.R., they are friends. Indeed, J.M.R. always uses foul language when talking. She does it like a joke (file # 3944-20-00-1-118- 0102202195321.mp4(mp3) from 58:20-01:05:21). The court clarified the possibility of reconciliation, but the parties did not reach reconciliation. After listening to the participants in the trial, having studied the submitted materials, the court comes to the following conclusions. The disposition of part 2 of Article 131 of the Criminal Code, under which J.M.R. is accused, provides for responsibility for insulting, that is, humiliating the honor and dignity of another person, expressed in an indecent form, committed in public or using mass media or telecommunications networks. The public danger of an act provided for in Article 131 of the Criminal Code is expressed in insulting, that is, humiliating the honor and dignity of another person, expressed in an indecent form. The object of the crime is the honor and dignity of a person. The objective side of the crime consists in actions aimed at humiliating the honor and dignity of another person, expressed in an indecent manner through a negative assessment of the victim's personality. The indecent form is designed to cause the victim to feel offended and humiliated, it contradicts the generally accepted rules of human behavior in society. When deciding whether a negative assessment is expressed in an indecent form, the court should proceed from the norms of morality of our society, and not only from its perception by the victim himself, because he may have an increased conceit and consider any critical statements to be offensive. It does not matter whether the victim's negative assessment corresponds to reality or not. Humiliation of honor and dignity occurs in an indecent form (a mandatory sign of the objective side) of treatment of the victim. The insult can be expressed both publicly and face-to-face, directly to the victim or in his absence through third parties (the perpetrator assumes that the fact of the insult will become known to the victim). The insult must be directed at a specific person or specific persons. For example, swearing in a public place that does not offend anyone personally qualifies as hooliganism. The crime should be considered over from the moment of an offensive statement or gesture in an indecent form regarding the personal or social qualities of the victim. The subjective side of the crime is characterized by direct intent. The perpetrator is aware that he is committing acts that degrade the honor and dignity of another person in an indecent manner, and desires this. Thus, in order to bring a person to criminal responsibility under this article, it is necessary that the insult be expressed in an indecent form and addressed to a specific person. Due to the requirements of articles 410, 411 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter CPC), the burden of proving a private accusation lies with the prosecutor. In support of the arguments of the complaint about the commission of J.M.R. of a criminal offense, Because K.N. presents screenshots and an audio recording with the words that the defendant uttered to her, insulting her at the same time. These screenshots and the recording were attached to the case, examined by the court. J.M.R. explained that she had used foul language, but she had it for a "bunch" of words, as well as a reaction to the foul language directed at her by T.K.N. and T.L.P., who themselves provoked her. The court does not agree with the arguments of the defense that the screenshots could have been forged. The screenshots provided to the court were not disputed by anyone. However, an analysis of the screenshots and recordings allows the court to conclude that some of the words of J.M.R., although expressed in an indecent form, are not aimed at humiliating the honor and dignity of T.K.N., as they were used during correspondence and conversation, and not addressed to the victim herself. In addition, according to the screenshots provided by the private prosecutor himself, the first obscenity was written by T.K.N. herself. The court does not see any grounds for recognizing the screenshots as unacceptable, since the source of origin has not been established. So, from the screenshots provided, it was established that the correspondence took place between T.K.N. and J.M.R., the time of correspondence has been set. Thus, the screenshots provided do not prove both the objective and the subjective sides of the composition of part 2 of Article 131 of the Criminal Code. After examining the voice recording provided by T.K.N., the court came to the following conclusion. The court session did not identify the source of the recording. That is, because K.N. did not provide evidence to the court of where this recording came from, that is, the phones to which the messages were sent were not examined. It is not established from the specified record when, under what conditions and for what reasons it was received. In addition, there is only one voice on the recording. The voice of the second subscriber is not available. Moreover, it is not specifically established from the recording which person the conversation was with. Also, in the court's opinion, if there was a conversation between witness T.L.P. and J.M.R., then the private prosecutor provided only part of the voice message, which, in the court's opinion, is unacceptable, since this circumstance infringed on the rights of the defendant, who explained that she was first called by the mother of the private prosecutor T. L.P. and expressed obscenity, the recording of which T.L.P. I deleted it, which provoked her behavior. In this part, the testimony of J.M.R. has not been refuted. In addition, during the consideration of the case, the private prosecutor, in response to numerous questions from the court, could not specify what actions, what humiliation of honor and dignity took place, explaining that there was obscenity.

According to part 1 of Article 112 of the CPC, factual data must be declared inadmissible as evidence if they were obtained in violation of the requirements of the Code, which, by depriving or restricting the legally guaranteed rights of participants in the process or violating other rules of criminal procedure during the pre-trial investigation or trial of the case, affected or could affect the reliability of the factual data obtained, in particular including: from an unknown source or from a source that cannot be identified at a court hearing. Explanations of the private prosecutor T.K.N. and witness T.The fact that the recording was made on the phone of the witness, T.L.P., who in turn redirected the recording to her daughter, is not sufficient to recognize this recording as permissible on the above grounds, that is, cell phones were not provided and examined. Also, in the court's opinion, it is impossible to base a guilty verdict on the explanations of J.M.R., who does not dispute that her voice is on the presented disc, on the above grounds. Based on the above, the court considers that the provided disc with the recording of the conversation cannot be considered admissible and recognizes it as inadmissible as evidence. The court does not see any grounds for the appointment of an expert examination, as there was profanity. However, she was not used by the defendant to insult, humiliate the honor and dignity of T.K.N. Also, the defendant's arguments that such behavior was provoked by T.K.N. and T.L.P. The fact that J.M.R. She used obscene words, which cannot be used as the basis for the accusation, since they were not aimed at insulting and humiliating the honor and dignity of T.K.N., but were used as colloquial speech. In accordance with the requirements of article 19 of the CPC, a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. Thus, there is no reliable evidence of J.M.R.'s guilt. The charge of deliberate insult aimed at humiliating the personality of T.K.N. was not presented at the hearing, and therefore the private accusation was not confirmed.

 

In these circumstances, J.M.R. is subject to acquittal for the absence of elements of a criminal offense in her actions. In accordance with the requirements of article 400 of the CPC, a justified person has the right to compensation for damage caused by unlawful criminal prosecution. No civil claim has been filed against T.K.N. in the case. There are no procedural costs in the case. The fate of the material evidence in the case is subject to resolution in accordance with the requirements of Article 118 of the CPC. Guided by articles 118, 387-390, 394, 399-401, 412 of the CPC, the court SENTENCED: J. M.R. to find her innocent of committing a crime under part 2 of Article 131 of the Criminal Code and acquit her for the lack of corpus delicti in her actions. The obligation to appear at court summons in respect of J.M.R. should be lifted after the verdict enters into legal force. To recognize for J.M.R. the right to compensation for damage caused by a private prosecutor for unlawfully bringing her to criminal responsibility.

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