Comment to Article 354. Bribery or coercion to give false testimony or evasion from giving evidence, false imprisonment or to an incorrect translation of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Bribing a witness, a victim in order to give false testimony, or an expert in order to give them a false conclusion or false testimony, as well as an interpreter in order to carry out an incorrect translation. —
is punishable by a fine in the amount of up to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to ten months, or by restriction of liberty for a term of up to three years, or by imprisonment for the same term.
2. Forcing a witness or victim to give false testimony, an expert to give a false conclusion, or an interpreter to translate incorrectly, as well as forcing these persons to evade testimony, combined with blackmail, death threats, injury to health, or destruction of property of these persons or their loved ones., —
is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by arrest for a term of three to six months, or by imprisonment for a term of up to three years.
3. An act provided for in the second part of this Article, committed with the use of violence that is not dangerous to the life or health of the specified persons., —
is punishable by imprisonment for a term of up to five years.
4. The acts provided for in the first or second parts of this article, committed by an organized group or with the use of violence dangerous to the life or health of said persons, as well as those related to charges of committing corruption, grave or especially grave crimes, —
are punishable by imprisonment for a term of two to eight years.
The public danger of this crime lies in the fact that it represents one of the forms of opposition to justice in establishing the truth in the case.
The law provides for liability for acts that are similar in content, but relatively independent: bribery and coercion. Coercion is a more dangerous form of obstruction of justice, as it additionally affects the interests of citizens.
The object of the crime is the normal activities of the bodies of inquiry, preliminary investigation and the court for the administration of justice. An additional direct object is the identity of the criminally affected person.
The subject of this crime when bribing witnesses, victims, experts or translators may be money, securities, other property, the right to property, services of a proprietary and non-proprietary nature. The subject of bribery under the article of the Criminal Code in question may be services of a non-property nature, for example, a promise to marry. Non-property services are recognized as the subject of this type of crime, because when committing this crime, it does not matter what services the perpetrator offered to bribe the persons specified in art. 354 of the Criminal Code. The degree of public danger of the crime in question does not depend on the type of services. The main thing for this crime is to obtain the consent of a witness, victim, expert, or translator to give false testimony, false conclusions, or incorrect translations, regardless of the type of remuneration they receive or the service they provide.
The article in question of the Criminal Code contains two elements of crime, which differ in terms of the objective side.
The objective side of the crime provided for in the first part of Article 354 of the Criminal Code may be expressed in bribery.: 1) a witness who has been injured in order for them to give false testimony; 2) an expert in order for them to give a false conclusion or false testimony; 3) an interpreter in order for them to carry out an incorrect translation.
Bribery of a witness, victim, expert, or translator consists in transferring or promising to transfer to named persons in case they give false testimony, make a false conclusion, or carry out an incorrect translation, any material benefits, or provide services of a property or non-property nature. For example, the transfer of money, other property, payment of the cost of a trip to a resort, a promise to get a job, etc.
Bribery may take place during the preliminary investigation and consideration of a criminal case in a court of any instance, during the consideration of a civil case, as well as an administrative offense case. Remuneration may be transferred to the bribed person before or after they perform the actions stipulated by the agreement.
Bribery should be considered completed from the moment a witness, victim, expert, or translator agrees to give false testimony, false conclusion, or incorrect translation for a fee, regardless of whether they subsequently gave false testimony, false conclusion, or whether the translator performed a false translation, as well as regardless of whether this affected establishing the truth of the case or not. Bribery is also considered completed regardless of whether or not the perpetrator has transferred the promised remuneration to the specified persons, whether or not he has provided services of a property or non-property nature that he promised at the time of the bribery. In our opinion, it is not necessary to link the moment of the end of the bribery with the moment when the guilty party transfers the reward to the bribed person, because there may be cases when the deceived witness, victim, expert or translator fulfilled the will of the guilty party, gave false testimony, false conclusion or carried out an incorrect translation without receiving the promised reward. It is hardly possible to admit that the degree of public danger of such an act will be less due to the fact that the perpetrator fraudulently obtained consent for the witness, the victim to give false testimony, the expert to give a false conclusion and the translator to make an incorrect translation.
If the persons indicated in the disposition of art. 354 of the Criminal Code rejected an attempt to bribe them, refused to accept money, valuables or other remuneration, the actions of the persons who tried to bribe should be qualified as attempted bribery (Part 3 of art. 24 and Part 1 of art. 354 of the Criminal Code).
The subjective side of this crime presupposes intent. The perpetrator is aware that he is bribing a witness, victim, expert, or translator to give false testimony, false conclusions, or incorrect translations to the preliminary investigation authorities or the court, and is aware of the public danger of his actions.
A mandatory feature of the composition of the crime provided for in the first part of Article 354 of the Criminal Code is the purpose of committing this crime - to obtain false testimony, false conclusion or incorrect translation. The motives of the crime can be different: revenge, greed, the desire to avoid responsibility for a crime previously committed by a bribe taker, the desire to deflect responsibility from relatives, friends, etc. They do not affect the decision on the responsibility of the perpetrator and the qualification of the crime.
The objective side of the crime provided for in the second part of the specified article of the Criminal Code may be expressed in coercion.: 1) the witness, the victim, to give false testimony; 2) the expert, to give a false conclusion; 3) the translator, to carry out an incorrect translation; 4) the witness or the victim, to evade testimony.
Coercion should be understood as exerting mental influence on a witness, victim, expert or translator in order to force them to give false testimony, a false conclusion or to carry out an incorrect translation. 354 of the Criminal Code, alternatively provides for the following methods of committing this crime: blackmail, threat of murder, injury to health, destruction of property of a witness, victim, expert, translator or their relatives. Therefore, the establishment of any of these methods of coercion is sufficient to recognize the existence of the corpus delicti in question.
There will be no corpus delicti in question if the perpetrator, under duress, used threats of a different nature not provided for in part two of Article 354 of the Criminal Code. For example, he threatened to dismiss from his job, demote, etc.
Blackmail and threats can be applied both to the witness, the victim, the expert or the translator, and to their relatives. Relatives should be understood as close relatives (parents, children, adoptive parents, adopted children, full and half-siblings, grandfathers, grandmothers, grandchildren), as well as other relatives of a person who has been subjected to criminal influence. For example, a spouse, a groom, or friends.
Coercion is recognized as a completed crime from the moment of an oral or written demand to give false testimony or evade testimony, which is accompanied by a threat to disclose information compromising the victim, witness, expert, translator or their loved ones, or a threat to take their lives, harm their health, destroy or damage their property. The crime is considered completed regardless of whether or not the witness or the victim gave false testimony as a result of the influence exerted on them, the expert gave a false conclusion, or the translator made a false translation.
If the perpetrator implements his threat, he may be held criminally liable for a combination of crimes: under art. 354 of the Criminal Code and for crimes against the person or against property. If the listed persons, as a result of criminal influence on them by the perpetrator, fulfilled his demand and gave false testimony, false conclusion, or made an incorrect translation, then the actions of the person who forced them are subject to qualification under Articles 354 and Articles 28, 352 of the Criminal Code (Incitement to knowingly false testimony, expert opinion, or incorrect translation). If, as a result of the criminal influence of the perpetrator, the witness or victim evaded testimony, the person who forced them to evade testimony is liable under Articles 354 and Articles 28, 353 of the Criminal Code (Incitement to the refusal of a witness or victim to testify).
Forcing an expert to evade giving an opinion, forcing an interpreter to evade translation do not constitute the composition of the crime under consideration. These actions against an expert can be qualified as a threat or violent actions in connection with the administration of justice or the conduct of a preliminary investigation (Article 341 of the Criminal Code). If these actions are committed against an interpreter, they may qualify as a crime against a person.
On the subjective side, the crimes provided for in the second part of Article 354 of the Criminal Code are characterized by intent. The perpetrator is aware that by suppressing the will of a witness, victim, expert, or translator through blackmail or threats, he forces them to give false testimony, make a false conclusion, or translate incorrectly, or evade testimony. In addition, the consciousness of the perpetrator covers the fact that he forces the persons specified in the law to commit a crime – to give false testimony, a false conclusion, to carry out an incorrect translation.
If the coerced person does not realize that he is being forced to give false testimony, and, while giving false testimony, does not realize that they do not correspond to reality, the perpetrator who forced him to give such testimony, in accordance with Part 1 of Article 28 of the Criminal Code (Types of accomplices to a crime) may be recognized as the perpetrator of the crime provided for by 352 of the Criminal Code, because he commits a crime by using persons who commit an act of negligence (part 2 of Article 28 of the Criminal Code). For example, the perpetrator seeks false testimony from a witness or victim by deceiving them, abusing their trust, convincing them that such testimony is true. In addition, he is liable, if there are grounds for that, under art. 354 of the Criminal Code.
The purpose of committing this crime is most often to evade the responsibility of the person who committed the crime. The motives for committing this crime may be different. Both the purpose and motive of the crime do not affect the decision on responsibility for the crime in question, but can be taken into account when assigning punishment to the perpetrator.
354 of the Criminal Code may be a sane person who has reached the age of 16. They are usually a person who is interested in the outcome of the case: the suspect himself, his close relatives, family members, friends of the person who committed the crime.
Thus, parts one and two of Article 354 of the Criminal Code contain two independent elements of a crime, which differ in the main feature of the objective side – the act. Bribery and coercion of a witness or victim to give false testimony are special types of incitement, which, due to their particular danger to the interests of justice, are singled out as an independent crime under Article 354 of the Criminal Code. Therefore, in the case of bribery or coercion of a witness, a victim to give false testimony, an expert to give a false conclusion and an interpreter to carry out an incorrect translation, the article in question of the Criminal Code should be applied. These acts should not be qualified as incitement to crimes provided for in articles 352 and 353 of the Criminal Code, since in this case, as it seems to us, there is competition between general and special norms. In accordance with the third part of art. 12 of the Criminal Code (A set of crimes) in such competition, responsibility comes under the article of the Special Part of the Criminal Code, which contains a special rule.
354 of the Criminal Code provides for liability for forcing a witness or victim to give false testimony, to evade testimony, for forcing an expert to give a false conclusion, or for forcing a victim to make an incorrect translation using violence that is not dangerous to the life or health of these persons.
Since Part two of Article 354 of the Criminal Code provides for liability for the use of mental violence (threats of murder, injury to health) in the commission of this crime, in our opinion, part three of the article in question provides for liability for the commission of the crime in question using only physical violence that is not dangerous to life and health. In accordance with paragraph 23 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 "On judicial practice in cases of embezzlement" "violence that is not dangerous to life and health should be understood as beatings or other violent acts related to causing physical pain to the victim that did not cause short-term health problems or minor permanent disability."
Part four of the article in question of the Criminal Code provides for liability for bribing or forcing a witness, victim to give false testimony or to evade testimony, expert to give a false conclusion, translator to translate incorrectly, if these actions: a) committed by an organized group; b) committed with the use of violence dangerous to the life or health of these persons; c) related to the accusation of corruption, grave or especially grave crimes.
An exhaustive list of corruption crimes is contained in the note to Article 41 of the Criminal Code.
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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus
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