Commentary on Article 131. Insult of the Criminal Code of the Republic of Kazakhstan
1. Insult, that is, humiliation of the honour and dignity of another person, expressed in an indecent form, —
shall be punishable by a fine of up to one hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and twenty hours.
2. The same act committed publicly or through the use of mass media or telecommunications networks —
shall be punishable by a fine of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and eighty hours.
The public danger of the criminal misdemeanor is expressed in the insult, that is, the humiliation of the honour and dignity of another person, expressed in an indecent form.
The object of the criminal misdemeanor is the honour and dignity of a person.
The objective aspect consists of actions aimed at humiliating the honour and dignity of another person, expressed in an indecent form by means of a negative assessment of the victim's personality. An indecent form is intended to cause the victim a feeling of offence and humiliation; it contradicts the generally accepted rules of human conduct in society. When deciding whether a negative assessment has been expressed in an indecent form, the court must proceed from the moral standards of our society, and not solely from the victim's own perception of it, since the victim may have an excessively high opinion of themselves and consider any critical remarks directed at them to be insulting. It is irrelevant whether the negative assessment of the victim corresponds to reality or not.
Humiliation of honour and dignity occurs through addressing the victim in an indecent manner. An insult may be expressed publicly or privately, directly to the victim or in their 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 individual or specific individuals. For example, the use of obscene language in a public place that is not directed at any particular person is classified as hooliganism.
Critical remarks expressed in harsh terms, negative judgments about a particular person, references to their negative qualities, and emphasis on the shortcomings of their character, if expressed in a proper and decent manner, do not constitute the offence of insult.
In judicial practice, difficulties may arise in distinguishing insult from hooliganism. The reason for these difficulties lies in the complex structure of the offence of hooliganism, in which hooligan actions may, in certain cases, outwardly appear as an infringement upon a person's honour and dignity.
Hooligan actions are often committed in an insulting manner: harassing citizens, using obscene language, and making other statements or performing actions that demean the dignity of citizens. In such cases, the distinction between hooliganism and insult is determined by the direction of intent. Hooliganism is aimed at violating public order, whereas insult is aimed at diminishing the honour and dignity of specific individuals.
If the perpetrator commits an insult at the time of an especially flagrant violation of public order, the insult is absorbed by the offence of hooliganism.
The circumstances and manner in which these criminal offences are committed are of considerable importance in distinguishing between them. Various acts against the honour and dignity of an individual committed within the family, among relatives, and arising from personal hostility or wrongful actions of the victims should be classified under Article 131 of the Criminal Code.
When distinguishing insult from hooliganism, it should be taken into account that such actions may be classified as hooliganism only in cases where they were simultaneously accompanied by an especially flagrant violation of public order, obvious to the perpetrator, and expressed clear disrespect for society. If insults are made in the course of hooliganism, such actions do not require additional classification, since they are fully covered by the elements of the offence of hooliganism.
By its legal structure, the elements of the criminal misdemeanor are formal. Consequently, the act is deemed completed from the moment an insulting statement or gesture in an indecent form is made concerning the personal or social qualities of the victim.
Paragraph 2-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006, “On Judicial Practice in Cases of Private Prosecution,” states:
“When determining the jurisdiction of private prosecution cases, the provisions of Article 314 of the Criminal Procedure Code must be observed, according to which a criminal case is subject to consideration by the court at the place where the criminal offence was committed.
When determining the jurisdiction of cases involving criminal misdemeanors provided for in Article 131 of the Criminal Code, the following provisions should be taken into account. The offence of insult is deemed completed when the insult is heard (received) by the person to whom it is addressed. In this regard, criminal cases concerning insults expressed by sending a message to the addressee by postal or facsimile communication, through social networks, or orally over the telephone must be considered by the court at the location of the person against whom the insult was directed.”
The subjective aspect is characterized by direct intent. The perpetrator is aware that they are committing actions that humiliate the honour and dignity of another person in an indecent form, foresees the occurrence of socially dangerous consequences and desires their occurrence.
In terms of the subjective aspect, insult differs from hooliganism. The motives behind insulting statements and actions are обусловлены by personal hostility, whereas the motives for hooliganism are based on clear disrespect for society.
The subject is a physically competent individual who has reached the age of 16.
Part 2 of Article 131 of the Criminal Code provides for liability for insult committed publicly or through the use of mass media or telecommunications networks.
The acts provided for in Parts 1 and 2 of Article 131 of the Criminal Code are classified as criminal misdemeanors.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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