Comment to article 345. Knowingly illegal exemption from criminal liability of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Knowingly unlawful release from criminal liability of a person suspected or accused of committing a crime by a prosecutor, investigator or a person conducting an inquiry, —
is punishable by imprisonment for a term of two to seven years.
According to Article 36 of the CPC, in order to fulfill the tasks of criminal proceedings, the criminal prosecution body is obliged, within its competence, in each case of detection of signs of a crime, to take all measures provided for by law to establish the event of the crime, expose the perpetrators of the crime, and punish them. This provision of the law underlines the need to comply with the principle of the inevitability of responsibility and punishment in the activities of law enforcement agencies. Compliance with this principle is hindered by various objective and subjective factors, including the commission of a crime, the responsibility for which is established by art. 345 of the Criminal Code, which provides for liability for knowingly unlawful exemption from criminal liability.
The public danger of this crime lies in the fact that when it is committed, the interests of justice, as well as the interests of the victim of the crime, are violated.
The object of this crime is the interests of justice, the normal activities of the preliminary investigation bodies and the prosecutor's office.
The objective side is that a person who has committed an act containing all the elements of a crime provided for by law is unlawfully, without sufficient grounds, released from criminal liability. For example, part 2 of art. 9 of art. 3 is unreasonably applied to a person. 15, 65, 66, 67, 68, 69, 76 The Criminal Code or it is declared innocent in the presence of guilt, etc.
It is known that criminal law relations arise between their subjects from the moment of the commission of a crime. They are usually implemented by bringing the perpetrator to justice, assigning and serving a sentence, as well as expunging or removing a criminal record. In cases where the crime remains hidden, unregistered, criminal law relations remain unrealized, but remain until the expiration of the statute of limitations for criminal prosecution provided for in Articles 69 and 85 of the Criminal Code.
Certain grounds are required to recognize exemption from criminal liability as lawful and justified. The current criminal legislation provides for eight grounds for exemption from criminal liability: exemption from criminal liability in connection with active repentance (Article 65 of the Criminal Code); exemption from criminal liability if the limits of necessary defense are exceeded (Article 66 of the Criminal Code); exemption from criminal liability in connection with reconciliation with the victim (Article 67 of the Criminal Code); exemption from criminal liability responsibility in connection with a change in the situation (art. 68 of the Criminal Code); exemption from criminal liability in connection with the expiration of the statute of limitations (Article 69 of the Criminal Code); exemption from criminal liability in connection with an act of amnesty (Article 76 of the Criminal Code); exemption of minors from criminal liability (part 1 of Article 81 of the Criminal Code); special types of exemption from criminal liability provided for by the norms of the Special Part of the Criminal Code the Code (notes to Articles 125, 165, etc. articles of the Criminal Code). Thus, the basis for exemption from criminal liability is the existence of a criminal law norm governing the possibility of making a decision on exemption from criminal liability of a person who has committed a crime.
But in order to have these grounds, it is necessary to have certain conditions stipulated by law. The grounds and conditions for exemption from criminal liability are inseparable and closely related concepts. To release a person from criminal liability, it is necessary to have both the grounds and the conditions provided for by the criminal law.
There is no single, common basis for all types of exemption from criminal liability.
It should be emphasized that the legislator names as conditions those that are of a procedural nature, the totality of which determines the procedural procedure for exemption from criminal liability.
Thus, in accordance with Part 4 of Article 37 and Part 5 of Article 38 of the CPC, it is not allowed to be released from criminal liability in connection with an amnesty act, with the expiration of the statute of limitations for criminal prosecution, in connection with reconciliation of the victim with the suspect or accused, as well as for other non-rehabilitating circumstances, if the person being prosecuted, objects to the termination of the criminal case.
It should be noted that not every illegal termination of a criminal case should be recognized as a crime. The correct decision on recognizing the act of a person who unlawfully released him from criminal liability as criminal is important due to the fact that the crime provided for in Article 345 of the Criminal Code is classified as serious.
To distinguish between cases of unlawful exemption from criminal liability, which can be considered criminal acts, and cases of unlawful exemption from criminal liability, which can be considered a disciplinary offense, it is necessary to proceed from whether this act contains signs of public danger or it does not have such a sign.
When resolving this issue, the nature and degree of public danger of a crime committed by a person who has been unlawfully released from criminal liability are taken into account. An important role is also played by such an issue as the type of regulatory act that was violated during the illegal release of a person from criminal liability. For example, it is impossible to call criminal the behavior of an investigator who terminates a criminal case, referring to the lack of evidence of the guilt of the suspect in the commission of a crime, when in fact there was no corpus delicti. In this case, the procedural procedure for terminating a criminal case is violated, which must be terminated on other procedural grounds.
According to the text of the disposition of the article of the Criminal Code on liability for unlawful exemption from criminal liability, it is difficult to understand what the legislator means: exemption from criminal liability in the absence of criminal law grounds or in violation of the criminal procedure procedure, or both.
We believe that the third answer to this question would be more correct, but again with the caveat that in order to recognize as illegal the release from criminal liability of a person suspected or accused of committing a crime, it is necessary to establish that this person actually committed a crime and should not have been released from criminal liability. Only in this case, the act of a person who unlawfully released a criminal from responsibility may have a sign of public danger, since the prescriptions of art. 344 of the Criminal Code is aimed at preventing cases of exoneration of persons guilty of committing a crime. To recognize the existence of this feature, it does not matter whether the norms of substantive or procedural law were violated by the subject of the crime in question.
In our opinion, in all cases of violations of substantive law when unlawfully released from criminal liability, the presence of the corpus delicti in question may be recognized. For example, the illegal release from criminal liability of a person under an amnesty act, if the amnesty law does not apply to him; the illegal release from criminal liability of a deserter allegedly in connection with his voluntary surrender for further military service, when there was actually no voluntary appearance.
If the unlawful release from criminal liability was accompanied by a violation of the criminal procedure legislation of a purely formal nature, as in the example above, then in such cases it is possible not to recognize the existence of the corpus delicti in question.
Illegal release from criminal liability is possible in the following forms::
1) by refusing to institute criminal proceedings in cases where there are sufficient grounds for initiating criminal proceedings against the person who committed the crime;
2) by terminating a criminal case in the absence of sufficient grounds for making such a decision of a criminal law or a criminal procedural nature.
The article in question deals with the illegal release from criminal liability of a suspect or accused of committing a crime. A suspect is a person against whom, on the grounds and in accordance with the procedure established by law, a criminal case has been initiated in connection with suspicion of committing a crime, which has been announced to him by an investigator, an inquirer, or an arrest has been carried out, or a preventive measure has been applied before charges are brought (Article 68 of the CPC).
An accused person is a person against whom, in accordance with the procedure established by the criminal procedure legislation, a decision has been issued to bring an accused person, or a person against whom a criminal case has been initiated in court on private charges, as well as against whom a protocol of accusation has been drawn up and approved by the head of the body of inquiry (Article 69 of the CPC).
The current version of Article 345 of the Criminal Code indicates that this crime is committed only within the framework of an initiated criminal case. If a decision is knowingly unlawfully issued against a person guilty of committing a crime to refuse to institute criminal proceedings, the act cannot be qualified under the article of the Criminal Code under consideration.
The list of grounds for termination of a criminal case is established by part one of Article 37 of the CPC.
Exemption from criminal liability on the grounds provided for in Article 37 of the CPC should always be recognized as lawful. It is also recognized as lawful to terminate criminal prosecution against a person guilty of committing a crime on the basis of Articles 65-68, 76, in accordance with the notes to the articles. 251, 259, 372, 373, 375 – 379, 381 The Criminal Code, termination of criminal prosecution for minor crimes that do not pose a great public danger, but illegal acts in accordance with part 2 of art. 9 or on the grounds provided for in Part 3 of art. 15 of the Criminal Code, as well as in accordance with note 2 to art. 231, note 1 to art. 312 of the Criminal Code.
The composition of the crime in question is one of the formal ones. The crime is considered completed from the moment of signing an illegal decision to terminate the case, regardless of the further fate of the criminal case and regardless of whether the person being prosecuted has actually been released from criminal liability. The crime is also recognized as completed, regardless of whether this decision is subsequently canceled or it comes into force.
The subjective side of the crime under consideration is characterized by direct intent. The person is aware that he is knowingly unlawfully releasing the person who committed the crime from criminal liability.
The motive and purpose of the crime may be different and are not mandatory elements of the composition of the crime in question, they do not influence the decision on responsibility for this crime. If the unlawful release from criminal liability took place for the purpose of receiving a bribe, then the actions of the perpetrator should be additionally qualified under art. 311 of the Criminal Code.
The subject of this crime may be persons who, in accordance with the criminal procedure legislation, have the authority to release a person from criminal liability: a prosecutor, an investigator, and an inquirer. A judge with the same powers may be held responsible for such an act under Article 350 of the Criminal Code.
In practice, there are cases when a person who has committed a crime has been identified but is not wanted due to the personal interest of law enforcement officials in avoiding responsibility. A law enforcement officer may be inactive, not engaged in the search for a criminal at the request of someone or simply due to negligence. This kind of passive behavior has a certain prevalence. It can be regarded as assistance in avoiding criminals from responsibility for a crime that may entail liability under Article 315 of the Criminal Code (Inaction in the service).
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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