Commentary on Article 183. Granting Permission to Publish Extremist Materials in the Mass Media of the Criminal Code of the Republic of Kazakhstan
Granting permission to publish in the press and other mass media information and materials aimed at inciting national, tribal, racial, social and religious discord, promoting class exclusivity, war, containing calls for the forcible seizure of power, the forcible retention of power, undermining state security or the forcible alteration of the constitutional order, as well as violating the territorial integrity of the Republic of Kazakhstan, —
shall be punishable by a fine in the amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years, or without such deprivation.
The public danger of this criminal misdemeanour lies in the threat it poses to the existing political system of the state. Granting permission to publish extremist materials contributes to the incitement of religious, national and other forms of discord and may lead to major social conflicts.
The object of the criminal misdemeanour is the foundations of the constitutional order of the Republic of Kazakhstan.
The subject matter of the criminal misdemeanour is information and materials aimed at inciting national, tribal, racial, social and religious discord, promoting class exclusivity and war, containing calls for the forcible seizure of power, the forcible retention of power, undermining state security or the forcible alteration of the constitutional order, as well as violating the territorial integrity of the Republic of Kazakhstan.
In accordance with paragraph 3 of Article 2 of the Law of the Republic of Kazakhstan “On Mass Media”, the disclosure of information constituting state secrets or other legally protected secrets, the propaganda and justification of extremism or terrorism, the dissemination of information revealing the technical methods and tactics of counter-terrorism operations during their conduct, the propaganda of narcotic drugs, psychotropic substances, their analogues and precursors, as well as the cult of cruelty, violence and pornography, are prohibited. The use of mass media for the purpose of committing criminal and administrative offences is prohibited (paragraph 4 of Article 2 of the Law).
The objective element of the act consists of granting permission to publish in the press and other mass media information and materials aimed at inciting national, tribal, racial, social and religious discord, promoting class exclusivity and war, containing calls for the forcible seizure and forcible retention of power, undermining state security or the forcible alteration of the constitutional order, as well as violating the territorial integrity of the Republic of Kazakhstan.
Publication means the placement of materials in the mass media for the purpose of ensuring open access to them for a wide range of people.
Mass media (media) means a periodical printed publication, television or radio channel, documentary cinematography, audiovisual recording and any other form of periodic or continuous public dissemination of mass information, including Internet resources (paragraph 4 of Article 1 of the Law of the Republic of Kazakhstan “On Mass Media”).
The dissemination among a wide range of people of extremist materials (literary works, leaflets, films, etc.) is aimed at generating in them a negative perception of the existing constitutional order and a determination to act against that order, as well as at disseminating discriminatory, hostile or hateful ideas and views towards representatives of another nationality, race, religious denomination, family way of life or culture.
Article 14 of the Constitution of the Republic of Kazakhstan establishes equality of all persons before the law and the courts and prohibits any discrimination on the grounds of origin, social, official or property status, sex, race, nationality, language, attitude towards religion, beliefs, place of residence or any other circumstances.
The elements of the criminal misdemeanour in this form are complete from the moment actions aimed at granting permission to publish extremist materials are committed, regardless of the results.
The subjective element of the criminal misdemeanour is characterised by direct intent. The person is aware of the public danger of granting permission to publish extremist materials and seeks to commit the specified actions for the purpose of bringing about the desired consequences.
The purpose of the criminal misdemeanour is to incite discord in society, promote war, undermine state security or alter the constitutional order, as well as violate the territorial integrity of Kazakhstan.
The motives for this act do not affect its legal classification and may be highly diverse, ranging from ideological rejection to outright hatred of the existing constitutional order of the Republic of Kazakhstan.
The subject is special, since the person must possess the authority to grant permission for publication in the mass media. Such persons include the editor, editor-in-chief and owner of the mass media outlet.
The editor-in-chief (editor) is a natural person who heads the editorial office of a mass media outlet and has the relevant authority to issue and distribute it and to broadcast it.
The owner is a natural or legal person, or an association of natural and (or) legal persons, exercising the rights of ownership, use and disposal in respect of a mass media outlet.
The act provided for in Article 183 of the Criminal Code is classified as a criminal misdemeanour.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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