The composition of defamation is the appeal of a citizen to various state and public bodies in order to protect his rights and legally protected interests, is the realization of his constitutional right and cannot be regarded as the dissemination of deliberately false information.
By the verdict of the Atyrau city Court No. 2 of Atyrau region dated December 15, 2017: K., who had no previous criminal record, was sentenced under part 1 of Article 130 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to a fine of 500 monthly calculation indices (hereinafter referred to as MCI) in the amount of 1,134,500 tenge. By the verdict of the court of K. she was found guilty of being an employee of the State Institution "Department of Physical Culture and Sports of Atyrau region", by sending appeals to the authorized bodies, she spread deliberately false information discrediting the honor and dignity of the head of the State Institution "Department of Physical Culture and Sports of Atyrau region" B. By a decision of the judicial board for Criminal Cases of Atyrau Regional Court On February 8, 2018, the verdict was upheld. The Chairman of the Supreme Court, based on the results of consideration of the petition of the convicted K. A proposal has been made to review judicial acts in cassation due to a violation of uniformity in the interpretation and application of legal norms by the courts, which led to the conviction of an innocent person. In the submission, the Chairman of the Supreme Court indicates that K.'s appeals to the Chairman of the Agency for Combating Corruption and Civil Service Affairs of the Republic of Kazakhstan, K., the Prosecutor General of the Republic of Kazakhstan, A., Deputy of the Senate of the Parliament of the Republic of Kazakhstan, N., and the Prime Minister of the Republic of Kazakhstan, S. It is an exercise of her constitutional right in order to protect her rights and legally protected interests, and these actions cannot be considered as spreading deliberately false information. As follows from the verdict, K. was found guilty of being an employee of the State Institution "Department of Physical Culture and Sports of Atyrau region" and making statements: - on October 2, 2016, to the Chairman of the Agency for Combating Corruption and Civil Service Affairs of the Republic of Kazakhstan; - on April 27, 2017, to a deputy of the Senate of the Parliament of the Republic Kazakhstan N.; - On July 3, 2017, addressed to the Prime Minister of the Republic of Kazakhstan, in which she pointed out that B., being the head of the State Institution "Department of Physical Culture and Sports of Atyrau region", being an official and a person of the akim of Atyrau region, abusing his powers, illegally dismissed her, persecuted her, hurt her honor and dignity, illegally dismissed employees of the State Institution "Department of Physical Culture and Sports of Atyrau region" I., K., E., having committed corrupt acts.
The composition of defamation is the appeal of a citizen to various state and public bodies in order to protect his rights and legally protected interests, is the realization of his constitutional right and cannot be regarded as the dissemination of deliberately false information.
The Court concluded that K. she was aware of the deliberate falsity of the information she provided and thereby slandered B., which was justified by the following evidence: - the results of inspections conducted on K.'s appeals about the absence of violations of legal requirements by B.; - the decision of the Atyrau City Court of January 13, 2017 to dismiss K.'s claim. to the State Institution "Department of Physical Culture and Sports of Atyrau region" on the recognition as illegal and cancellation of the notification dated August 29, 2016 on the reduction of the position of deputy head of the department and the offer of the position of chief specialist of the Department of Organizational and Mass Sports, reinstatement in the former position of deputy head of the State Institution "Department of Physical Culture and Sports of Atyrau region", recovery of moral damage in in the amount of one million tenge; - by the decision of the Atyrau City Court dated October 11, 2017, by which B.'s claim against K. I am partially satisfied with the protection of honor, dignity and business reputation and compensation for moral damage. However, these conclusions of the court are not based on the law. Within the meaning of the law, criminal liability for defamation under Article 130 of the Criminal Code occurs only when it is established that there is a mandatory element of this crime – the deliberate falsity of the information disseminated and the existence of direct intent to disseminate it. Knowingly means that the perpetrator is aware that the information he is spreading is really false and does not correspond to reality. In the event that a person, assuming the reliability of the information provided by him, is in good faith mistaken about its authenticity, these actions do not constitute defamation. Meanwhile, no evidence has been established that K. was reliably aware of the falsity of the information and had the intention to disseminate it. The accusation is based only on K.'s appeals to various State institutions and court decisions. K.'s arguments that, when contacting the authorized bodies, she reported violations committed by B. and she had no intention of slandering B., but only wanted to protect her rights and legally protected interests, they have not been refuted. So, K. claims that the information stated in her appeals is not generally known, which does not need to be proved. That is, K. She could not have known about the unreliability of the information she provided, because she was based on the information she knew and expressed her opinion. For example, regarding the command movements in the akimat of the West Kazakhstan region, as she wrote in an address to the Prime Minister dated July 3, 2017, K. He claims that such publications are available on Internet resources. Regarding B.'s actions against the female entrepreneur who won the purchase, as K. stated in an address to the deputy of the Senate N. dated April 27, 2017, she indicates that this information was based on the content of the article "Not a sports story at all", published on December 1, 2016 in the newspaper "A." K. indicates that in the address to the Prime Minister S. On July 3, 2017, she stated her opinion regarding the abuse by B. related to the illegal transfer of her from the position of deputy chief to the position of chief specialist, since she was unable to work during this period, and transfer during temporary disability is prohibited. Also in this appeal, K., having provided information about the dismissals of specialists, asked whether it was correct that B. did not allow subordinate employees to work, and her statements were not in the nature of a statement.
According to K., the employees of the department of D., E., and I., who had worked for many years, did not write their resignations on their own initiative, so she believes that their dismissal occurred with the knowledge of B. The decision of the Atyrau City Court dated January 13, 2017 on K.'s claim to the State Institution "Department of Physical Culture and Sports of Atyrau region" established what is valid in connection with the absence of K.'s application for dismissal from his position as Deputy head of the Department, by the order of the head dated October 16, 2016 No. 170j K. She was appointed Chief Specialist of the Department of Organizational and Mass Sports Management on October 6, 2016. During this period, that is, from September 20, 2016 to December 16, 2016, K. was undergoing outpatient treatment according to temporary disability certificates. Thus, K. had reason to believe that her transfer from her position was illegal. As can be seen from the conclusion of the internal investigation conducted against B., the head of the Department of Physical Culture and Sports of Atyrau region, the statement of D. His voluntary dismissal was registered on September 13, 2016, although he was on another work leave during this period. After that, D. submitted an application to the head of B.'s Department for the invalidation of registered order No. 141 dated September 13, 2016. It is also established that the statement of the head of the department And. His release from work at his own request was registered on September 1, 2016, then from September 26 to October 6, 2016, he was undergoing treatment due to temporary disability, and on October 7, 2016, by order of the head of the department, B. for No. 173, I. was dismissed. The circumstances of the dismissal of these employees could have created the assumption of K. that these employees were unlawfully dismissed. Under such circumstances, K.'s arguments The fact that she has no intention of spreading deliberately false information discrediting the honor and dignity of another person or undermining his reputation has not been refuted. Innocence in the commission of a criminal offense should be refuted only through the procedures provided for by the criminal procedure law, only within the framework of criminal proceedings and only as a result of independent investigation of the factual circumstances that form the elements of a criminal offense, regardless of the available decisions in civil cases or the results of departmental inspections, where these signs of a criminal offense were not and are not they could be the subject of research. Decisions of the courts in civil cases:
Atyrau City Court dated January 13, 2017 on K.'s claim to the State Institution "Department of Physical Culture and Sports of Atyrau region", Atyrau City Court dated October 11, 2017 on B.'s claim to K. for the protection of honor, dignity and business reputation and compensation for moral damage, as well as the conclusions of inspections on K.'s appeals, to which the court refers the verdict cannot serve as evidence of K.'s guilt in this criminal case. According to article 127 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the factual circumstances established by the effective court decision that resolved the case in civil proceedings do not prejudice the court's conclusions about the guilt of this person in the criminal case. A court decision that resolved a case in civil proceedings may not prevent the consideration of a criminal case based on the principle of the presumption of innocence of a person accused of committing a criminal offense.
There is no body of evidence in the case other than K.'s appeals, audit reports on her appeals, and decisions in civil cases that confirm K.'s guilt. The private prosecution did not provide sufficient evidence to prove that K. she deliberately disseminated information that was obviously untrue and discredited the honor and dignity of B. The court's conclusions in the verdict were that on the part of defendant K. There is no evidence of the truthfulness of the statements in his appeals to the authorized bodies about B.'s corrupt acts, they are not based on the law. In accordance with article 77 of the Constitution of the Republic of Kazakhstan and article 19 of the CPC, no one is required to prove his innocence, and irremediable doubts about the guilt of the accused are interpreted in his favor. The stated constitutional provisions in this case were not respected by the court of first instance. In addition, K. has the right to contact government agencies and report violations of the law. Therefore, her appeals to the Chairman of the Agency for Combating Corruption and Civil Service Affairs of the Republic of Kazakhstan K., the Prosecutor General of the Republic of Kazakhstan A., the deputy of the Senate of the Parliament of the Republic of Kazakhstan N., the Prime Minister of the Republic of Kazakhstan S. cannot be regarded as dissemination of false information. Under such circumstances, in the actions of K. The composition of the criminally punishable act provided for in part 1 of Article 130 of the Criminal Code has not been established. In addition, the court violated the language of the proceedings. Russian Russian was established by the court decision of November 23, 2017. The language of the proceedings in the case is Russian, respectively, the proceedings in the case must be conducted in Russian. However, the available case materials in the official language were not translated into the language of the proceedings, which is a significant violation of the requirements of article 30 of the CPC. Moreover, as can be seen from the descriptive part of the verdict, the court did not establish K.'s criminal actions. According to article 397 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the criminal offense.
Whereas in the descriptive part of the verdict by the court, with reference to the court's decision of November 20, 2017 on the acceptance into court proceedings of the complaint of B.'s private prosecution on bringing K. to criminal responsibility under part 1 of Article 130 of the Criminal Code, only the arguments of this complaint are given, and not the description of the criminal offense recognized by the court as proven. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts against K. due to the absence of corpus delicti in her actions, the proceedings were terminated. Recognized for K. the right to compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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