In 2014, Kazakhstan adopted a new criminal code . This code, as the previous one, contains provisions on criminal responsibility for defamation and insult.
Defamation (Criminal Code Art. 130): The spreading of deliberately falsified information that denigrates the honour and dignity of another person or undermines his/her reputation. Defamation is a crime of private prosecution and can be initiated only at the request of the victim (an individual).
In order for defamation to constitute a crime, it is imperative that the information was false, i.e., that it was untrue and discredited the honour and dignity of a person or undermined his/her reputation. “Information” should include a description of specific facts, rather than a description of general assessment of the victim’s personality and behaviour. There must be dissemination to at least one third party. Direct intent is imperative. The guilty person must be aware of the falsity of the disseminated information as well as of the fact that this information defames the honour and dignity of another person and undermines that person’s reputation. The motives of the guilty person for disseminating the false information (jealousy, revenge, etc.) are irrelevant for criminal liability. A person who had a false perception of the situation in good faith shall not be liable for defamation.
Since there is a presumption of innocence, the defendant should not have to prove anything as part of the criminal procedure, including his/her innocence. According to the Constitution of the Republic of Kazakhstan a person is considered innocent until conviction. The State as represented by the prosecution has to prove guilt.
The Criminal Code identifies three types of defamation:
• Defamation committed through public speech, for which the penalty is a fine, correctional labour for up to one year, or restriction of liberty for up to one year .
• Defamation committed through a publicly displayed production or through the mass media, for which the penalty is a fine, correctional labour for up to two years, or restriction of liberty for up to two years.
• Defamation consisting of the accusation of a serious or extremely serious crime (slander), for which the penalty is a fine, correctional labour, restriction of liberty for up to three years or deprivation of liberty (imprisonment) for up to three years.
Insult (Criminal Code Art. 131): The denigration of the honour and dignity of another person, expressed in indecent form. The object of the crime is the honour and dignity of the citizen. A victim under this article can only be a private individual.
In contrast to defamation, the crime of insult does not depend on whether the statement in question was valid (true or false), but rather whether it was expressed in an indecent manner. In deciding this question, courts take into account public morals rather than the perception of the victim him/herself, as s/he may have a high self-conceit and consider any criticism addressed to him/her as insult.
The penalty for insult is a fine, correctional labour, or community service for a term of up to 120 hours. When insulted is committed through public speech or through the mass media, the potential community service term increases to 180 hours.
Insult is distinguished from defamation in that, in the case of insult, the honour and dignity of a person are humiliated by the abusive language of a general nature. Slander, on the other hand, concerns the dissemination of false information about specific facts.
Criminal Defamation of Public Officials
In addition to the general provisions on insult and defamation, the Criminal Code of Kazakhstan contains certain articles providing special protection for public officials.
Infringement of honour and dignity of the deputy of the Parliament of the Republic of Kazakhstan and impeding their activity (Criminal Code Art. 376): Provides for the crime of public insult of a MP of the Republic of Kazakhstan in the performance of their parliamentary duties or in connection with this performance. The penalty is a fine, correctional labour, community service for a period of up to 240 hours, or imprisonment for up to 75 days.
The second part of Art. 376 provides liability for public insult against MPs using the mass media or telecommunications networks, the penalty is a fine, correctional labour, restriction of liberty for up to two years, or deprivation of liberty (imprisonment) for up to two years.
The last part of Art. 376 provides for liability for any form of attempt to influence an MP of the Republic of Kazakhstan or an MP’s close relatives, with the aim of impeding execution of the MP’s duties. The penalty in this case is a fine, correctional labour, restriction of liberty for up to three years, or imprisonment for up to three years.
It should be noted that the article includes a provision stating that any public statement containing criticism of the parliamentary activities of an MP of the Republic of Kazakhstan does not entail criminal liability.
Insult of a public officer (Criminal Code Art. 378): Insulting a government official in the performance of his/her duties or in connection with the execution thereof. The penalty is a fine, correctional labour, community service for up to 120 hours, or imprisonment for up to 45 days. If the act is committed publicly or through the media, the Internet, or other means of telecommunications, the possible penalty, in addition to the above sanctions under this article is arrest for up to 75 days.
It should be noted that this article states that any public statements containing criticism of the official activities of a public officer do not entail criminal liability under this article.
Defamation against a judge, juror, prosecutor, person carrying out pre-trial investigation, expert, bailiff, or judicial custodian (Criminal Code Art. 411)
• Defamation committed against a judge or a jury must be related to the hearing of cases or materials in court. The penalty is a fine, correctional labour, restriction of liberty for up to two years, or imprisonment for up to two years (Art. 411(1)).
• Defamation committed against a prosecutor, a person carrying out pre-trial investigations, an expert, a bailiff or judicial custodian in connection with a pre-trial investigation, forensic examination or the execution of a court sentenced or any other judicial act is punishable by a fine, corrective labour, restriction of liberty for up to two years, or imprisonment for up to two years (Art. 411(2)).
• When the acts described under paragraphs 1 and 2 of Art. 411 are committed in connection with the accusation of serious or extremely serious charges, the penalty is a fine, corrective labour, restriction of liberty for up to four years or imprisonment for up to four years (Art. 411(3)).
Criminal Defamation of the Head of State
A separate chapter of the Criminal Code – Chapter 16 – provides for criminal liability in the case of infringement upon the honour and dignity of the President of the Republic of Kazakhstan, obstruction of the president’s activities and influencing his close relatives to prevent the president’s execution of his duties.
Criminal Code Art. 373 criminalises infringing upon the honour and dignity of the president and implies influence in whatever form, greatly expanding the possibility of pressure on the news media.
The article covers the following: Public insult and other infringement on the honour and dignity of the First President of the Republic of Kazakhstan – Leader of the Nation, desecration of the image of the First President of the Republic of Kazakhstan – Leader of the Nation, and obstruction of the lawful activity of the First President of Kazakhstan – Leader of the Nation
The target of the crime is activities of the First President of the Republic of Kazakhstan to ensure coherent functioning of all branches of government. The objective aspect of the crime is expressed in public insult or other encroachment on the honour and dignity of the president.
“Insult” refers to acts that insult not only the personal, human, professional, employment-related, and official dignity of the president as a representative of authority, but also the dignity of the president as the head of state, i.e., the highest official tasked with determining the main directions of domestic and foreign policy and representing Kazakhstan within the country and in international relations.
The insult must be public. Note that liability under this article does not apply to offensive actions or statements that are aimed at government agencies, enterprises or organisations in general, but not specifically at the president.
The penalty for this article is a fine, correctional labour, restriction of liberty for up to two years or imprisonment for up to two years. For insult committed via the media or telecommunications networks, the possible prison term is three years.
Art. 373 also provides liability for influencing members of the president’s family who live together with him. The punishment for this offence is a fine, correctional labour, restriction of liberty for up to five years, or imprisonment for up to five years.
In addition, Art. 375 of the Criminal Code also punishes infringement on the honour and dignity of the President of the Republic of Kazakhstan and obstruction of his activities.
This article is nearly the same as Art. 373 in terms of composition and sanctions. However, in Art. 375 there is a note, not included in Art. 373, stating that public speeches containing critical statements on the policy pursued by the president do not entail criminal liability under this article.
A well-known example of the application of provisions protecting the head of state is the sentencing in 1998 of opposition activist Madel Ismailov to one year in prison for insulting the president. Speaking at a rally, Ismailov called the president a scoundrel.
Criminal Defamation of the State and its Symbols
Under its constitution, the Republic of Kazakhstan has the following state symbols: flag, coat of arms and anthem. The description and the order of official use of these symbols are to be established by the Constitutional Law of the Republic of Kazakhstan “On state symbols of the Republic of Kazakhstan” of 24 January 1996. According to Art. 3 of this law, citizens and other persons on Kazakh territory are obliged to honour the national flag, coat of arms and anthem of Kazakhstan.
In addition, the Criminal Code provides liability for abuse of state symbols.
Desecration of state symbols (Criminal Code Art. 372): Stipulates that the penalty for desecrating state symbols is a fine, correctional labour, restriction of liberty for up to two years, or imprisonment for up to two years.
The objective aspect of this crime is the abuse (desecration) of state symbols. This must be an active form of behaviour, evidencing explicit disrespect for symbols and insult to symbols. Desecration can be expressed through ripping the coat of arms or flag, interrupting the sound of the anthem, destroying or damaging symbols, or expressing a clear disrespect for symbols accompanied by violence or the threat of violence or offence of gross indecency. The Criminal Code does not strictly separate physical and verbal desecration, but implies that verbal desecration may also be penalised. However, to date there are not believed to have been any criminal prosecutions under this article
The offense should be considered as completed from the moment of action, expressed in the desecration of state symbols. Actions should be public, with a demonstrative character. Specific intent is the obligatory condition. The subject of the crime is an individual who has reached the age of 16 and sane participant in a crime.
Criminal Defamation of Foreign Heads of State
However, Art. 174 of the Criminal Code, which provides liability for inciting ethnic hatred, has been applied in cases concerning criticism of policies pursued by the president of a foreign state. For example, in December 2016, a Kazakh citizen was reported to face three years in prison for comments in which he called Russian President Vladimir Putin and the United States fascists who were responsible for the deaths of millions .
Criminal Defamation of Foreign States and Symbols
Criminal Defamation of the Deceased
However, a successor of a deceased person has the possibility of filing a case based on Art. 130 of the Criminal Code for defamation. However, there is no precedent for this in Kazakhstan.
There is no separate article in the Criminal Code of Kazakhstan that provides liability for religious criticism or insult. General criminal liability for insult is provided in Art. 174. This article also provides liability for inciting social, national, tribal, racial, class and religious discord. This is the most commonly litigated article in Kazakhstan. Unfortunately, in many cases it is used against civil society activists.
This article establishes criminal liability for deliberate actions aimed at inciting religious hatred, which involves insult to the religious feelings of citizens as well as propaganda of exclusivity, superiority or inferiority of citizens based on their attitude toward religion. Acts under this article must be committed publicly, through the media/telecommunications networks, through producing or distributing literature or through other media.
Incitement of religious hatred or discord is understood to be an attempt to create conflicts between citizens of different nationalities, tribes, races or religions. This can involve hate speech, physical violence or the threat thereof, destruction or damage to property, isolation, exclusion or restrictions in rights, privileges, benefits, etc.
The penalty for acts covered by this article is restriction of liberty for two to seven years or imprisonment for two to seven years.
If the act is committed by a group of persona, a group of person in collusion, or repeatedly, or in connection with violence or the threat of violence, or committed by a person exercising the powers vested in them by virtue of their office, or leaders of a non-government association, including with the use of funds received from foreign sources, the penalty is imprisonment for a term of five to 10 years with or without a ban on holding certain positions or practicing certain professions for up to three years.
If the act is committed by a criminal group or entailed grave consequences, the penalty is imprisonment for a term of 12 to 20 years, with or without a ban on holding certain positions or practicing certain professions for up to three years.
Grave consequences shall be understood to be a person’s death, grievous bodily harm, causing a major financial or other material damage to organiations and institutions, individual citizens; destruction of buildings, disruption of transportation routes or normal activities of enterprises or institutions; involuntary resettlement of people from permanent places of their residence, disruption of important events, etc.
Criminal Law and Media
• In 2015, a court heard a criminal defamation case brought by a public prosecution service officer against a civil activist, A. Batyrbekov. The latter had published an article in the newspaper Adilet in which he accused the public prosecutor of illegally and without foundation taking a criminal case to court related to robbery. The court ruled that the information contained in the article had not been proven, and was therefore false and constituted defamation. It found Batyrbekov guilty of defamation and sentenced him to one year and six months in prison. The court further ordered Batyrbekov and the newspaper Adilet to refute the false information. However, an appeals court overturned the conviction, ruling that the information in the article. had been directly related to the officer’s official activities as a prosecutor. Therefore, the prosecutor should have filed charges under Criminal Code Art. 411, which provides criminal liability for defamation of prosecutors and other court officials, and not as a private prosecutor.
• In 2011, journalist Valery Surganov was found guilty of libel and sentenced to one year and six months of custodial restraint [restriction of freedom] . The charges related to an article titled “Strongmen of the Financial Police”, posted on the news site Guljan and that reported on the alleged rape of a girl by a financial police officer. Surganov pled not guilty and showed that in publishing the article he used all available resources, including Internet resources. However, the court ruled that Surganov presented no written evidence or testimony or audio or video recordings or any other evidence that confirmed the veracity of the information claimed. On appeal, Surganov argued that the article was written in a critical tone and that he did not knowingly or intentionally disseminate defamatory information. The appeals court did not change the sentence.
• In March 2014, for the first time in Kazakhstan, a court issued a warrant for the arrest of a journalist on libel charges. A former member of Kazakhstan’s lower house of Parliament (Maijilis), Maral Itegulov, accused the journalist Natalia Sadykova of intentionally defaming him and damaging his reputation in an article on the news site Respublika. The article, “Not enough tenders for everyone”, was written using a pseudonym. Sadykova has denied she wrote the article. A court issued an arrest warrant in absentia for Sadykova and placed the journalist on a wanted list. The warrant was ordered due to the fact that, despite proper notice, Sadykova failed to appear in court without providing an excuse. Currently, Sadykova is in Ukraine. She says that she left Kazakhstan out of fear for the safety of her two young children, having learned from official sources about the impending trial .
• In 2016, civil society activists Max Bokayev, head of the NGO “Arlan”, and Talgat Ayan, a lawyer, were sentenced to five years’ imprisonment and to disqualification from public activities for three years. They were sentenced under Criminal Code Art. 174, as well as under Arts. 274 (“dissemination of knowingly false information”) and 400 (“violation of the procedure of an organisation and holding of meetings, rallies, pickets, street processions and demonstrations”. The criminal prosecution was related to posts on Bokayev and Ayan’s personal Facebook pages in which they reported they had applied for a permit to hold a rally related to the Land Code on 21 May 2016, and discussed how to behave at the rally so as not to violate the law. Human rights activists have called the charges against Bokayev and Alan politically motivated .
• In 2013, police arrested an atheist journalist, blogger and civil activist named Aleksandr Kharlamov for allegedly inciting religious hatred through articles critical of religious though in general. Investigators reportedly conducted searches of Kharlamov’s apartment and the offices of the local newspaper. At this trial, prosecutors stated: “The presence of negative and critical evaluation in the materials, due to the heterogeneity of the audience, i.e. the readers, to whom the materials are addressed, their different cultural background, educational level, world view and life experience may lead to a point where the analysed texts achieve not only a functional effect, but also a dysfunctional effect, resulting in the formation of a negative and critical attitude towards the existing religious system and religion in general”. Kharlamov was detained for several months and forced to undergo a psychiatric evaluation .
Recent Legal Changes
In January 2015, a new criminal code came into effect in Kazakhstan. Unfortunately, criminal liability for defamation and insult was preserved in the new code despite years of advocacy by human rights activists, journalists and media experts.
The code also includes a new Art. 274, which punishes spreading false information with up to seven years in prison. The penalty is up to 10 years in prison if the information creates the risk of disturbance of public peace, or causes substantial harm to the rights and legitimate interests of citizens or organisations or legally protected interests of society or the state. Unfortunately, this article can be interpreted broadly and, in accordance with its sense, any person can be held liable for the dissemination of opinions (although not true facts).
In addition, Art. 174 of the Criminal Code on incitement to hatred does not comply with international standards. It was created exclusively to deal with objectionable activists and journalists.
A further novelty of the new criminal code is the new concept of ‘leader of a public association’. This concept is used as a special subject for a number of crimes and entails more severe liability. This is considered to discriminate against leaders and members of public associations on the basis of their social status.
Notes and Acknowledgements
Information for Kazakhstan was originally collected by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). It is reprinted here with the permission of the OSCE. Last update: March 2017.
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.