Transfer Defamation to the the Civil Code!

“The International Foundation for the Protection of Freedom of Speech Adil Soz welcomes the decision of the President of Kazakhstan to decriminalize defamation. Thus, our country will implement the recommendation that the Committee and the Human Rights Council of the UN, OSCE, UNESCO and other authoritative international organizations were giving to Kazakhstan for many years.

The generally recognized international documents on freedom of expression stipulate that the mere fact of the criminal nature of the sanction for defamation produces a disproportionate chilling effect, when even a suspended sentence has a long-term effect on the activities of journalists.

However, the proposed transfer of defamation into the category of administrative offenses causes bewilderment and concern. The Adil Soz Foundation believes that “defamatory” offenses cannot be classified as administrative ones by their legal nature. Defamation is the only criminal charge  in Kazakhstan under which there are several times more acquittals than convictions. This is the result of the adversary nature of the judicial process that for obvious reasons faces less obstales in privates chareges.

Defamation is currently categorized as private prosecution cases (Article 32 of the Code of Criminal Procedure of the Republic of Kazakhstan). This means that a case is initiated at the request of the victim. There a victim does not want to initiate a case, does not feel humiliated, there is no prosecution. In other words, there is no public function in a defamation offense. Sure a state body or an official has the right to defend themself against defamation, but these are interpersonal relations, and not public ones, where one of the perties is a governmental agency.

Administrative law, on the other hand, is a system of legal norms that regulates social relations in the field of managerial activity of state bodies and officials. It shouldn not give a fair trial to private relations.

The Adil Soz Foundation strongly believes  that defamation must be decriminalized, but this type of offense should be transferred to the Civil Code. In fact, defamation is the same as humiliation of honor, dignity and business reputation, that is regulated in accordance with Art. 143 of the Civil Code of the Republic of Kazakhstan, and differs from the latter only in intent on humiliation. Besides the Civil Code gives a victim a right for  complete  recovery of finanical and non-pecuniary damage  that was caused by dissimination of defamatory information. The state has absolutely nothing to do with it, and administrative prosecution is redundant.

We hope that future developers of the bill and deputies will take into account the peculiarities of legal relations arising from the dissemination of knowingly false information that discredit someone's honor and dignity. Specialists of the Adil Soz Foundation are ready to take part in the development of this bill. ”