Commentary on Article 158. Obstruction of the Lawful Professional Activities of a Journalist of the Criminal Code of the Republic of Kazakhstan
1. Obstruction of the lawful professional activities of a journalist by coercing the journalist to disseminate information or to refuse to disseminate information, as well as by creating conditions that impede the journalist's performance of lawful professional activities or completely deprive the journalist of such an opportunity, —
shall be punishable by a fine in an amount of up to one hundred monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to forty-five days.
2. The same act committed by a person using his or her official position, as well as through the use of violence or the threat of its use against a journalist or the journalist's close relatives, or through damage to or destruction of their property, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
The public danger of the criminal offense under consideration (Part 1 — a criminal misdemeanor, Part 2 — a crime) is expressed in the violation of freedom of speech and the press. By obstructing the lawful professional activities of a journalist, the perpetrator infringes upon the aforementioned rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan.
Article 20 of the Constitution of the Republic of Kazakhstan guarantees freedom of speech and creativity, which means the right of everyone to freely receive and disseminate information by any means not prohibited by law.
In accordance with the Law of the Republic of Kazakhstan dated July 23, 1999, "On Mass Media", freedom of speech, creativity, expression of one's views and beliefs in printed and other forms, and the receipt and dissemination of information by any means not prohibited by law are guaranteed by the Constitution of the Republic of Kazakhstan. Censorship is prohibited (paragraph 1 of Article 2).
According to Article 20 of the aforementioned Law, a journalist has the right to search for, request, receive and disseminate information without restrictions, except in cases provided for by the legislation of the Republic of Kazakhstan.
The object of the criminal offense is freedom of speech, the press and creativity.
The objective elements of the act under analysis consist of:
obstruction of the lawful professional activities of a journalist by coercing the journalist to disseminate information;
obstruction of the lawful professional activities of a journalist by coercing the journalist to refuse to disseminate information.
Obstruction shall be understood as the creation of impediments or obstacles to the lawful professional activities of a journalist.
Coercion consists of unlawful psychological or physical influence exerted on a journalist. Most often, coercion is carried out through threats. Giving a journalist advice not to publish information that has become known to him or her does not constitute the elements of the criminal offense under consideration.
In terms of its legal construction, the offense is formal, and the criminal offense is considered completed from the moment the actions specified in the disposition of the article are committed.
From the subjective perspective, the act is characterized by guilt in the form of direct intent, that is, the person is aware that he or she is obstructing the lawful activities of a journalist, foresees the possibility or inevitability of negative consequences and desires their occurrence.
The subject of the criminal offense under consideration is a general subject — a sane natural person who has reached the age of 16.
If obstruction of the lawful professional activities of a journalist was committed by an official who used his or her official position for these purposes, the act should be classified under Part 2 of Article 158 of the Criminal Code.
As another qualifying element, the legislator identifies the use of physical or psychological violence against a journalist for the purpose of forcing the journalist, for example, to make information public against his or her will, or to refuse to do so, contrary to the journalist's intention to carry it out. In this regard, violence may be expressed in causing minor or moderate harm to the journalist's health. Causing grievous bodily harm requires classification based on the cumulative commission of criminal offenses: under Articles 158 and 106 of the Criminal Code.
The act provided for in Part 1 of Article 158 of the Criminal Code belongs to criminal misdemeanors.
The act provided for in Part 2 of Article 158 of the Criminal Code belongs to crimes of minor gravity.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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