Commentary on Article 412. Bringing a Person Known to Be Innocent to Criminal Liability under the Criminal Code of the Republic of Kazakhstan
1. Bringing a person known to be innocent to criminal liability shall be punishable by restriction of liberty for a term of up to seven years or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.
The same act, when accompanied by accusing a person of committing a serious or particularly serious crime, or resulting in grave consequences, shall be —
2. punishable by imprisonment for a term of seven to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years.
The public danger of the crime under consideration lies not only in the fact that the principles of criminal proceedings are violated and the authority of law enforcement agencies is undermined, but also in the violation of the rights and freedoms of law-abiding citizens, the formation among people of a sense of legal insecurity, and the infliction of serious harm on the victim (moral and physical).
The object of the crime is the public relations ensuring the proper functioning of the bodies of inquiry, investigation and the prosecutor's office in the administration of justice.
The additional object is always the lawful rights and interests of the individual (liberty, honour, dignity, health and property interests).
Any natural person who has knowingly and unlawfully been brought to criminal liability may be recognised as a victim.
The objective element of the crime is characterised by bringing a person known to be innocent to criminal liability.
Paragraph 1 of Article 11 of the Universal Declaration of Human Rights of 10 December 1948 establishes that everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have been afforded all the guarantees necessary for their defence.
Article 4 of the Criminal Code establishes that the sole basis for criminal liability is the commission of a criminal offence, that is, an act containing all the elements of a crime or a criminal misdemeanour provided for by the Criminal Code.
Article 34 of the Criminal Procedure Code contains an exhaustive list of circumstances precluding criminal proceedings.
A person may be brought to criminal liability only where there is sufficient evidence providing grounds for bringing a charge of committing a crime.
For the purposes of Article 412 of the Criminal Code, a person known to be innocent shall be understood as a person being brought to criminal liability who did not commit the criminal act imputed to them. This may mean the following: 1) the event of the criminal offence did not occur at all; 2) the victim's conduct does not contain the elements of a criminal offence; 3) the victim is charged with a criminal offence committed by another person.
A person may be brought to criminal liability through recognition of that person as a suspect and determination of the legal classification of the suspect's act.
According to Article 64 of the Criminal Procedure Code, a suspect is a person:
in respect of whom a resolution recognising them as a suspect has been issued;
who has been detained in accordance with the procedure established by Article 131 of the Criminal Procedure Code of the Republic of Kazakhstan;
in respect of whom a resolution on the classification of the suspect's act has been issued;
who has been questioned due to the existence of suspicion of committing a criminal misdemeanour.
In the science of criminal law, there is no consensus among legal scholars as to the point from which a person is considered to have been brought to criminal liability. There is also no unanimity of opinion on this issue among law enforcement agencies. The correct determination of the moment when the crime under consideration is completed depends on the proper resolution of this issue. The majority of scholars, and especially specialists in criminal procedural law, believe that liability arises from the moment a resolution is issued bringing a specific person in as an accused, or from the moment an indictment is drawn up against that person. In my opinion, the objective element of the analysed corpus delicti is expressed in the issuance of a resolution recognising a person as a suspect or on the classification of the suspect's act, or in the person's detention in accordance with the procedure established by Article 131 of the Criminal Procedure Code, or in questioning them due to the existence of suspicion of committing a criminal misdemeanour.
The objective element of the crime under consideration is also constituted by bringing a person to criminal liability where there are grounds provided for by law for terminating the criminal case (for example, in accordance with Part 4 of Article 10 and Part 3 of Article 15 of the Criminal Code), as well as bringing to liability a person whose act falls under an amnesty, provided that the guilty person consents to the application of the amnesty act in respect of them.
Consequently, the crime provided for by Article 412 of the Criminal Code should be considered completed from the moment the above-mentioned procedural actions are performed in respect of an innocent person, since from that moment the person's right to defence and other rights are ensured. Actions such as unlawful imposition of administrative liability are not covered by the elements of the objective side of the crime under consideration.
By its construction, the corpus delicti of the article under consideration is formal. The crime is considered completed from the moment one of the above-mentioned actions is committed.
This article of the Criminal Code refers to bringing an innocent person to liability, that is, a narrower range of persons than the range of persons who are not subject to criminal liability. For the existence of the corpus delicti, it is irrelevant whether the case has been referred to court or whether a conviction has been delivered. Even if the criminal case is terminated or an acquittal is delivered, liability for bringing a person known to be innocent to criminal liability is not excluded in these circumstances either.
Bringing persons who do not possess the characteristics of the subject of a crime (minors below the age of criminal responsibility and persons who are legally insane) to criminal liability does not fall within the scope of Article 412 of the Criminal Code. Incorrect classification of a crime also does not fall within the elements of this offence. Where the relevant elements are present, the actions of officials should be classified under Article 361 or Article 371 of the Criminal Code.
If, in order to bring a person known to be innocent to criminal liability, the guilty person falsifies evidence, thereby artificially creating the appearance that sufficient evidence exists, the act should be classified as a concurrence of crimes under Articles 412 and 416 of the Criminal Code.
The crime under consideration may be associated with violations of other constitutional rights of the victim. Bringing a person known to be innocent to criminal liability may be preceded by actions involving violations of the inviolability of private life, personal or family secrets, the inviolability of the home, the confidentiality of correspondence, telephone conversations, postal, telegraphic or other communications, unlawful detention, arrest or custody, and so forth. Such actions are not covered by the corpus delicti provided for in Article 412 of the Criminal Code of the Republic of Kazakhstan and require separate legal classification.
From the subjective perspective, bringing a person known to be innocent to criminal liability can be committed only with direct intent, as evidenced by the indication of the person's knowingly innocent status.
The content of the intent includes, in particular, the subject's awareness of the public danger of the act committed, awareness of the innocence of the person being brought to criminal liability, as well as foreseeing and desiring to bring a person known to be innocent to criminal liability.
If the person who brought an innocent individual to liability was unaware that they were acting unlawfully and was honestly mistaken in assessing the latter's actions, the corpus delicti of the crime under consideration is absent. At the same time, it cannot be ruled out that the said actions, where the necessary elements are present, may be classified as negligence under Article 371 of the Criminal Code.
The motives that prompted the subject to commit the crime may vary, for example, careerism, revenge, envy or other personal interests, and do not affect the legal classification of the offence.
The subject of the crime under consideration is a person authorised to bring individuals to criminal liability, namely, an investigator or an officer conducting an inquiry. It is precisely these persons who, in accordance with Part 1 of Article 202 of the Criminal Procedure Code, have the right to adopt the relevant procedural decisions.
A prosecutor may be regarded as the subject of the crime only in the event that they have accepted the case into their own proceedings and personally issued, and subsequently announced, the relevant resolution to a person known to be innocent.
The range of persons falling within the categories of prosecutor, investigator and officer conducting an inquiry is discussed in detail in the commentary to Article 407 of the Criminal Code.
Liability under Part 1 of Article 412 of the Criminal Code arises in the event of unlawful bringing to criminal liability for committing a criminal misdemeanour or a crime of minor or medium gravity.
In accordance with Part 2 of Article 412 of the Criminal Code, the qualified corpus delicti of the crime under consideration exists where a person known to be innocent is brought to liability for committing a serious or particularly serious crime, or where the act has resulted in grave consequences. In this case, the public danger of the crime increases.
The definitions of serious and particularly serious crimes are provided in Parts 4 and 5 of Article 11 of the Criminal Code.
The list of grave consequences is provided in Subparagraph 4) of Article 3 of the Criminal Code.
Thus, where grave consequences are caused as a result of bringing a person known to be innocent to criminal liability, the corpus delicti provided for in Part 2 of Article 412 of the Criminal Code is, by its construction, material.
The acts provided for in Parts 1 and 2 of Article 412 of the Criminal Code are classified as serious crimes.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure 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 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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