Comment to Article 348. Falsification of evidence of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Falsification of evidence in a civil case by a person participating in the case or his representative —

    is punishable by a fine in the amount of five hundred to eight hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months, or correctional labor for a term of one to two years, or arrest for a term of two to four months, or restriction of liberty for a term of up to two years.    

2. Falsification of evidence in a criminal case by the person conducting the inquiry, the investigator, the prosecutor or the defense attorney —      

is punishable by imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.   

  3. Falsification of evidence in a criminal case on a grave or especially grave crime, as well as entailing grave consequences, —    

is punishable by imprisonment for a term of three to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     The public danger of the crime in question lies in the fact that, as a result of falsification of evidence, it is difficult to establish the truth in criminal and civil cases, which may lead to a violation of the rule of law in law enforcement activities and significantly infringe on the rights and interests of citizens.    

 The object of this crime is the interests of justice. An optional object may be the rights, freedoms, interests of an individual, society, or the State.     

 348 of the Criminal Code provides for liability for falsification of evidence in a civil case by a person participating in the case or his representative. Civil cases should be recognized as cases considered by the courts in the order of civil proceedings, including economic disputes, materials on administrative offenses, cases on labor and other disputes, with the exception of criminal cases.  

    Falsification is the falsification of evidence. According to Article 64 of the CPC, evidence in a case is recognized as factual data obtained in a lawful manner, on the basis of which, in accordance with the procedure provided for by law, the court establishes the presence or absence of circumstances justifying the claims and objections of the parties, as well as other circumstances relevant to the proper resolution of the case. These factual data are established by explanations of the parties and third parties, witness statements, physical evidence, expert opinions, protocols of procedural actions and other documents.   

   Falsification can take a variety of forms: deliberately incorrect entry in documents, destruction, seizure or replacement of documents in the case, forgery of examination certificates, the addition of false physical evidence to the case, and similar actions. In case of falsification, there may be both material forgery of documents as sources of evidence (destruction of objects that could be used as evidence, erasure of documents, etc.) and intellectual forgery (for example, the content of the document is distorted).    

 The article of the Criminal Code in question contains a formal composition. The crime is considered to be over from the moment false documents and other evidence are presented to the court.    

 On the subjective side, this crime is characterized by direct intent. The motives of this crime may be revenge, personal interest in the outcome of the case, self-interest, misunderstood interests of the service, etc. They do not affect qualifications, but they are taken into account when sentencing.   

  The subject of this crime may be a sane person who has reached the age of 16, who is involved in a civil case or his representative. In accordance with art . 44 CPC, the parties involved in the case are recognized as parties, third parties who make independent claims on the subject of the dispute, the prosecutor, state bodies, local governments, organizations or individual citizens who enter into the process to protect the rights of others, public and state interests or to give an opinion on the case, applicants and other interested parties. persons in cases considered by the court in the order of special proceedings.    

 Part two of the article under consideration of the Criminal Code provides for liability for falsification of evidence in a criminal case. In accordance with art . 115 CPC evidence in a criminal case is legally obtained factual data, on the basis of which, in accordance with the procedure established by the criminal procedure legislation, the inquirer, investigator, prosecutor, and court establish the presence or absence of an act provided for by the Criminal Code of the Republic of Kazakhstan, the commission or non-commission of this act by the accused and the guilt or innocence of the accused, as well as other circumstances relevant to proper resolution of the case. The testimony of a suspect, accused, victim, witness may be used as such data.; expert opinion; physical evidence; protocols of procedural actions and other documents.    

 Falsification of evidence in a criminal case can be carried out by falsifying the protocol of interrogation, confrontation, identification; checking testimony on the spot, examining the scene, searching, examining physical evidence, etc.; by compiling fictitious procedural and other documents that are attached to the case; staging a crime that did not actually take place, planting narcotic drugs, weapons and other fictitious evidence. The objective side of the crimes contained in the analyzed article of the Criminal Code includes the falsification of both accusing and exculpatory evidence.   

  This crime is considered completed from the moment of falsification (forgery) of evidence and their attachment to the criminal case (attachment to the case), regardless of how the examination or investigation of the case ended. The falsification of evidence by the defense attorney is considered completed from the moment the false evidence is presented for inclusion in the case.    

 The subject of a crime under the second part of Article 348 of the Criminal Code may be persons conducting an inquiry, an investigator, a prosecutor, a specialist involved in procedural actions, or a defender, including a public one.   

  The qualifying signs of the crime specified in part three of Article 348 of the Criminal Code are forgery and fabrication of evidence in a case of a serious or especially serious crime, or the occurrence of serious consequences as a result of falsification of evidence in both civil and criminal cases. The signs of grave and especially grave crimes are set out in article 10 of the Criminal Code.    

  The occurrence of serious consequences as a result of falsification of evidence should be understood as an unlawful conviction in a criminal case to imprisonment or death, suicide, causing serious harm to the health of a person against whom evidence has been fabricated, and other consequences.

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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases