Commentary on Article 385. Forgery, Manufacture or Sale of Forged Documents, Stamps, Seals, Forms, State Postage Payment Marks, and State Awards of the Criminal Code of the Republic of Kazakhstan

1. Forgery of an identity document or other official document granting rights or releasing from obligations, or the sale of such a document, as well as the manufacture or sale of forged stamps, seals, forms, state postage payment marks, and state awards of the Republic of Kazakhstan or the USSR —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

2. The same acts, committed repeatedly or by a group of persons upon prior conspiracy —

shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period.

3. Use of a knowingly forged document —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

The public danger of the criminal offence provided for in Article 385 of the Criminal Code (Parts 1 and 2 constitute crimes, while Part 3 constitutes a criminal misdemeanour) lies in the fact that it violates the established procedure for handling official documents, stamps, seals, forms, state postage payment marks, and state awards, as well as the rights of citizens.

Forged documents that distort actual events and facts are frequently put into circulation. They prevent state bodies, other organisations and institutions from properly assessing the actual rights and interests of citizens, lead to the adoption of incorrect decisions, and make it possible to unlawfully obtain exemption from certain obligations or, conversely, acquire such obligations. The public danger is also обусловлен by the fact that such “documents” serve as a means of committing or concealing other criminal offences, in particular, the theft of another person's property.

The object of the criminal offence under consideration is public relations ensuring the activities of state authorities and administration, as well as establishing the procedure for documentary certification of facts having legal significance. An additional object is public relations ensuring the rights and legitimate interests of citizens and legal entities.

The subject matter of the crime provided for in Parts 1 and 2 of Article 385 of the Criminal Code comprises identity documents, official documents, stamps, seals, forms, state postage payment marks, and state awards of the Republic of Kazakhstan or the USSR.

An identity document is a type of official document issued by the relevant state and non-state bodies, containing information about its holder and certifying the identity of its holder: a passport, military identification card, driver's licence, service identification card, and others.

The definition of the concept of an “official document” is provided in subparagraph 21) of Article 1 of the Law of the Republic of Kazakhstan “On the National Archival Fund and Archives” and subparagraph 28-1) of Article 1 of the Criminal Code of the Republic of Kazakhstan (see the commentary to Article 383 of the Criminal Code).

The definitions of the concepts of an official document, stamp and seal are provided in the commentary to Article 384 of the Criminal Code.

The subject matter of the offence does not include all official documents, but only those that grant rights or release persons from obligations. This may be expressly indicated in the official document or follow from its content.

Official documents granting rights include diplomas, certificates, documents confirming the receipt of education, pension certificates, driver's licences, patents, licences, etc. Documents releasing persons from obligations may include service, pension and other certificates exempting their holders from paying fares for travel; certificates exempting persons from paying utility and other charges, and others.

Official documents that have legal significance but do not grant rights or release persons from obligations cannot constitute the subject matter of the criminal offence commented on.

Forms are sheets of paper of a specific format containing partially printed text of a document and requiring the completion of variable details. Forms sometimes bear a stamp containing information about the organisation, the date of issue of the document and its registration number (diploma forms, passport forms, marriage certificate forms, etc.).

In accordance with subparagraph 41) of Article 1 of the Law of the Republic of Kazakhstan dated 9 April 2016 “On Postal Services”, state postage payment marks are postage stamps, stamp sheets, stamped envelopes and/or postal cards, impressions of franking machines, electronic and other marks introduced into circulation by the authorised body, which confirm payment for the services of the National Postal Operator.

The concept, types and conditions for awarding state awards are set out in the Law of the Republic of Kazakhstan “On State Awards of the Republic of Kazakhstan” (for a detailed description of the state awards of the Republic of Kazakhstan and the USSR, see the commentary to Article 383 of the Criminal Code of the Republic of Kazakhstan).

State awards of foreign countries are not the subject matter of the crime under consideration.

The objective element of the crime provided for in Part 1 of Article 385 of the Criminal Code consists in the forgery of an identity document or other official document granting rights or releasing persons from obligations, or the sale of such a document, as well as the manufacture or sale of forged stamps, seals, forms, state postage payment marks, and state awards of the Republic of Kazakhstan or the USSR.

Forgery may be carried out in two ways: falsification and the manufacture of an entirely forged document. Falsification may be material, where amendments distorting the content of an authentic document are introduced (erasures, additions, insertions, chemical removal, correction of text, replacement of text with other text, alteration of the date or surname, forgery of a signature or seal impression, etc.), that is, changes are made to the original text of the authentic document; or intellectual, where false information is indicated in a document that is authentic in form and complies with the relevant requirements.

Material falsification is, as a rule, the meticulous work of knowledgeable persons who are familiar with document studies, understand document security systems and know the procedures for their manufacture. Intellectual falsification is characterised by the use of original seal and stamp dies which, for example, have been stolen from an enterprise, the placement of impressions on blank forms followed by the insertion of information, or the substitution of pages bearing the signatures of officials.

If a document forged in both form and content has been manufactured, this constitutes material and intellectual forgery.

Sale means the transfer of the subject matter of the crime to another person, resulting in a change of ownership. As in the case of forgery, the method of sale is irrelevant to the elements of the criminal offence. Sale may be carried out through purchase and sale, exchange, donation, transfer in payment of a debt, etc.

The sale of forged documents, stamps, seals, forms, state postage payment marks and state awards means transferring them to another person under the guise of authentic items.

The sale of forged documents, stamps, seals, forms, state postage payment marks and state awards may be committed both by persons engaged in their manufacture and by persons who have come into possession of them as a result of certain circumstances.

The manufacture of duplicate stamps, seals, forms, state postage payment marks and state awards involves both the complete unlawful manufacture of these items and the falsification of authentic documents by introducing changes that alter their appearance, text or status. For example, changing a “Barys” Order of the II Degree into a “Barys” Order of the I Degree. Unlawfulness means the manufacture of the specified items in violation of existing legal requirements.

The composition of the crime under consideration is formal in its structure. Criminal liability arises from the moment the listed items are forged or manufactured, regardless of whether the person managed to use the relevant item for its intended purpose. The sale of a forged document, stamp, seal, form, state postage payment mark or state award constitutes a completed crime from the moment at least one of the forged items listed above is transferred to another person.

The subjective element of the crime under consideration is characterised by direct intent. The guilty person is aware that they are forging or manufacturing documents, stamps, seals, forms, state postage payment marks or state awards, or selling the above-mentioned forged items, and desires to do so.

Forgery of official documents, as well as the manufacture of state awards, seals, stamps and forms, is committed either for the purpose of their use by the guilty person themselves or for the purpose of their subsequent sale. Manufacture or forgery that does not pursue these purposes does not constitute the elements of the criminal offence being analysed.

The subject of the crime provided for in the article under consideration may be any sane person who has reached the age of sixteen. As a rule, this is the person who forged the document or item specified in the disposition of the article.

Forgery of official documents by an official, provided that all the necessary elements are present, should be classified under Article 369 of the Criminal Code, “Official Forgery”, or Article 250 of the Criminal Code, “Abuse of Authority”.

Part 2 of Article 385 of the Criminal Code provides for qualifying elements of the forgery of an identity document or other official document granting rights or releasing persons from obligations, or the sale of such a document, as well as the manufacture or sale of forged stamps, seals, forms, state postage payment marks and state awards of the Republic of Kazakhstan or the USSR. These include repeated commission or commission by a group of persons upon prior conspiracy.

For the purposes of this article, repeated commission means the commission of two or more acts provided for in Part 1 of Article 385 of the Criminal Code. The forgery, manufacture or sale of forged documents, stamps, seals, forms, state postage payment marks or state awards cannot be recognised as repeated if the person was convicted for a previously committed criminal offence or was released from criminal liability on grounds established by law.

The forgery of an identity document or other official document granting rights or releasing persons from obligations, or the sale of such a document, as well as the manufacture or sale of forged stamps, seals, forms, state postage payment marks and state awards of the Republic of Kazakhstan or the USSR, committed by a group of persons upon prior conspiracy, is recognised as the commission of acts involving persons who had previously agreed to jointly commit a criminal offence of this kind.

In Part 3 of Article 385 of the Criminal Code, the legislator has provided for the use of a knowingly forged document as an independent element of a criminal misdemeanour.

The objective element of the criminal misdemeanour provided for in Part 3 of Article 385 of the Criminal Code consists in the use of a knowingly forged document.

The use of a forged document means presenting a knowingly forged document to state bodies, officials or citizens for the purpose of obtaining certain rights or being released from obligations. When presenting such a document, the person, passing off a false document as genuine, makes certain persons acquainted with its contents. For example, the person presents it to a traffic police inspector during a document check.

If, instead of their own identity document, a person presents the genuine document of a colleague, the elements of the criminal misdemeanour being analysed are absent.

Part 3 of Article 385 of the Criminal Code does not contain an indication that the criminal-law prohibition concerns the use specifically of an official document. Therefore, a personal document should also be recognised as the subject matter of this crime.

Personal documents are documents issued by state authorities and containing biographical information for the identification of their holder. They are required when carrying out real estate transactions, arranging loans, purchasing tickets, formalising employment relationships, etc. Personal documents include a passport, identity card, residence permit of a foreigner in the Republic of Kazakhstan, certificate of a stateless person, refugee certificate, seafarer's identity document of the Republic of Kazakhstan, return certificate, birth certificate, marriage certificate, educational diploma, driver's licence, military identification card, employment record book, pension certificate, etc.

The use of a forged document may be a one-time act or may constitute a continuing crime. This circumstance should be taken into account when calculating the limitation periods for criminal prosecution (Article 71 of the Criminal Code).

A knowingly forged document may also be used in the commission of other criminal offences. Thus, the theft of another person's property or the acquisition of rights to such property through deception or abuse of trust, committed using an official document forged by the same person and granting rights or releasing persons from obligations, is classified as a combination of crimes provided for in Part 1 or Part 2 of Article 385 of the Criminal Code and the relevant part of Article 190 of the Criminal Code, “Fraud”.

The theft of another person's property or the acquisition of rights to such property through deception or abuse of trust by a person using a forged official document manufactured by another person is fully covered by the elements of fraud and does not require additional classification under Article 385 of the Criminal Code.

In cases where a person, for the purpose of evading the payment of taxes and/or other mandatory payments to the budget, forges official documents of an organisation granting rights or releasing persons from obligations, as well as stamps, seals and forms, the acts committed by that person, where the relevant grounds exist, entail criminal liability for the combination of crimes provided for in Article 244 of the Criminal Code, “Evasion by a Citizen of Payment of Taxes and/or Other Mandatory Payments to the Budget”, or Article 245 of the Criminal Code, “Evasion by Organisations of Payment of Taxes and/or Other Mandatory Payments to the Budget”, and Article 385 of the Criminal Code.

The criminal misdemeanour provided for in Part 3 of Article 385 of the Criminal Code is considered completed at the moment the forged document is used, that is, when the document is presented or submitted, regardless of whether the guilty person succeeded in obtaining the desired rights or being released from obligations.

The subjective element of the act provided for in Part 3 of Article 385 of the Criminal Code is characterised by direct intent. The guilty person is aware that they are using a knowingly forged document and desires to do so. The term “knowingly” indicates that, before beginning to use the document, the guilty person must know that it is forged or fictitious.

A person is not subject to criminal liability under Part 3 of Article 385 of the Criminal Code if they merely demonstrate a forged document without the purpose of using it or do so as a joke.

The subject of the act being analysed is a sane person who has reached the age of sixteen. As a rule, this is a person who is not the manufacturer of the forged document.

The use of a knowingly forged document by the person who forged it is covered by Part 1 of the article under consideration and does not require additional classification under Part 3 of the same article.

If a person has forged an official document but, due to circumstances beyond their control, has not actually used it, the act should be classified under Part 1 of Article 385 of the Criminal Code.

The criminal offence provided for in Article 385 of the Criminal Code should be distinguished from the crime provided for in Article 151 of the Criminal Code, “Falsification of Election Documents, Referendum Documents or Incorrect Vote Counting”.

Unlike the criminal offence provided for in Article 385 of the Criminal Code, the object of which is public relations ensuring the activities of state authorities and administration, as well as establishing the procedure for documentary certification of facts having legal significance, the object of the crime provided for in Article 151 of the Criminal Code is public relations ensuring the procedure for voting and conducting referendums established by law.

Furthermore, the subject matter of the crime provided for in Article 151 of the Criminal Code consists of special types of official documents: election documents and referendum documents, whereas the subject matter of the criminal offence provided for in Article 385 of the Criminal Code is considerably broader.

The subject of the criminal offence provided for in Article 385 of the Criminal Code is a sane individual who has reached the age of sixteen, whereas the subject of the crime provided for in Article 151 of the Criminal Code is a trusted representative of a candidate for President of the Republic of Kazakhstan or a trusted representative of a candidate for deputy, as well as a member of an election commission or a commission for conducting a referendum.

The criminal offence commented on should also be distinguished from the crime provided for in Article 416 of the Criminal Code, “Falsification of Evidence and Operational-Search and Counterintelligence Materials”.

Unlike the object of the crime provided for in Article 385 of the Criminal Code, the object of the crime provided for in Article 416 of the Criminal Code is public relations ensuring the administration of justice by the court, as well as the rights, freedoms and interests of a participant in legal proceedings (the plaintiff or defendant).

Furthermore, the subject matter of the crime provided for in Article 416 of the Criminal Code, depending on the part of the article, consists of evidence in civil, administrative or criminal cases, whereas the subject matter of the act provided for in Article 385 of the Criminal Code, depending on the part of the article, consists of identity documents, official documents, stamps, seals, forms, state postage payment marks, and state awards of the Republic of Kazakhstan or the USSR.

Differences also exist in the subjects of the acts under consideration. Unlike the subject of the crime provided for in Article 385 of the Criminal Code, the falsification of evidence and operational-search and counterintelligence materials is committed only by a special subject, namely, a person participating in the case or their representative.

The act provided for in Part 1 of Article 385 of the Criminal Code belongs to the category of minor offences.

The act provided for in Part 2 of Article 385 of the Criminal Code belongs to the category of medium-gravity offences.

The act provided for in Part 3 of Article 385 of the Criminal Code constitutes a criminal misdemeanour.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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