Commentary on Article 413. Knowingly Unlawful Exemption from Criminal Liability of the Criminal Code of the Republic of Kazakhstan
1. Knowingly unlawful exemption from criminal liability of a person suspected or accused of committing a criminal offence by a prosecutor or a person conducting pre-trial investigation —
shall be punishable by restriction of liberty for a term of three to seven years or deprivation of liberty 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 public danger of the offence under consideration lies in the fact that it violates the interests of justice, as well as the interests of victims of crime, and significantly undermines the authority of law enforcement agencies. As a result of the commission of this offence, the fundamental principle of justice is violated: no innocent person should be convicted, and no guilty person should escape punishment. At the same time, public confidence in social justice and the equality of citizens before the law declines, while persons who have committed crimes develop a sense of impunity, which may lead to the commission of new offences.
The object of the offence is the public relations ensuring the proper functioning of the prosecution authorities, preliminary investigation bodies and bodies of inquiry in conducting pre-trial investigations.
The interests of the victim in restoring their rights violated as a result of the commission of a criminal offence may constitute an additional object.
From the objective side, the offence consists in the unlawful exemption from criminal liability of a person suspected or accused of committing a criminal offence.
Exemption from criminal liability shall be deemed unlawful where it is carried out in gross violation of the provisions of criminal and criminal procedure legislation, without taking into account the actual circumstances of the committed offence and through distortion of the truth.
Exemption from criminal liability is an act of a law enforcement official whereby the state establishes its refusal to exercise its right to recognize a person as guilty of committing a crime. The procedural expression of such a decision is the termination of the criminal case.
Exemption from criminal liability may take the form of either termination of the criminal case or termination of criminal prosecution. The law clearly defines the procedural status of the person in respect of whom an unlawful decision to exempt from criminal liability has been adopted. Such a person is identified as a suspect or an accused.
According to Article 64 of the Criminal Procedure Code (CPC), a suspect is a person: 1) in respect of whom a resolution recognizing the person as a suspect has been issued; 2) who has been detained in accordance with the procedure established by Article 131 of the CPC; 3) in respect of whom a resolution on the qualification of the suspect's act has been issued; 4) who has been questioned in connection with the existence of suspicion of committing a criminal misdemeanor.
According to Article 65 of the CPC, an accused is a person in respect of whom: 1) the prosecutor has approved an indictment; 2) the prosecutor has approved a protocol on a criminal misdemeanor and adopted a decision to refer the criminal case to court under the relevant article (articles) of the criminal law; 3) the pre-trial investigation has been completed by concluding a procedural agreement in accordance with the procedure provided for in Part 4 of Article 617 of the CPC; 4) the head of the body of inquiry has approved a resolution on the application of summary proceedings in a criminal misdemeanor case.
A suspect and an accused acquire the status of participants in criminal proceedings only after the adoption of the above-mentioned procedural decisions. Therefore, for example, an unlawful refusal to register a statement in the Unified Register of Pre-Trial Investigations (URPI) cannot be classified under this Article.
Knowingly unlawful exemption from criminal liability consists in issuing a resolution terminating a criminal case or criminal prosecution in respect of a person suspected or accused of committing a crime.
The following specific types of exemption from criminal liability provided for by the Criminal Code are recognized as lawful: exemption from criminal liability in connection with active repentance (Article 65 of the Criminal Code); exemption from criminal liability in cases of exceeding the limits of necessary defence (Article 66 of the Criminal Code); exemption from criminal liability upon fulfilment of the terms of a procedural agreement (Article 67 of the Criminal Code); exemption from criminal liability in connection with reconciliation (Article 68 of the Criminal Code); exemption from criminal liability due to a change in circumstances (Article 70 of the Criminal Code); exemption from criminal liability due to the expiration of the limitation period (Article 71 of the Criminal Code); exemption from criminal liability on the basis of an amnesty act (Part 2 of Article 78 of the Criminal Code); exemption from criminal liability in cases provided for in the notes to the articles of the Special Part of the Criminal Code. Exemption from criminal liability is also possible in respect of minors on the basis of Parts 1 and 3 of Article 83 of the Criminal Code.
In addition to the grounds for exemption from criminal liability provided for by the Criminal Code, there are also procedural grounds that preclude proceedings in a criminal case (Articles 35 and 36 of the CPC).
Knowingly unlawful exemption from criminal liability shall be recognized as such if:
the actions of the person in respect of whom the criminal case (criminal prosecution) was terminated contained the elements of a criminal offence;
there were no grounds for exemption from criminal liability provided for by the Criminal Code;
there were procedural impediments to the termination of the criminal case (criminal prosecution) provided for by the CPC.
The prosecutor or the person conducting the pre-trial investigation, abusing their official powers, disregard the above-mentioned requirements and unlawfully exempt the person from criminal liability. The forms of such abuse may vary considerably and include distortion of the factual circumstances of the incident, knowingly incorrect determination of the form of guilt that excludes criminal liability, and so forth.
The following actions (omissions) may be recognized as methods of committing this offence:
failure to detain a person suspected of committing a criminal offence when grounds for detention exist;
unlawful refusal to issue a resolution recognizing a person as a suspect or a resolution on the qualification of the suspect's actions;
d) issuing a resolution terminating a criminal case (criminal prosecution) in respect of a suspect or accused in the absence of lawful grounds for doing so.
According to the law, the commission of the offence under consideration is possible only at the pre-trial investigation stage.
By its construction, the corpus delicti is formal. The offence is deemed completed from the moment a suspect or accused is unlawfully exempted from criminal liability.
If the offence is committed through the falsification of evidence, the act should additionally be classified under Article 416 of the Criminal Code.
The subjective side of the offence is characterized by guilt in the form of direct intent, as evidenced by the indication of the person's knowledge of the unlawfulness of the act.
When unlawfully exempting a suspect or accused from criminal liability, the perpetrator is aware of the socially dangerous nature of their actions, foresees the consequences and desires them.
The motives guiding the perpetrator may vary and do not affect the legal classification of the offence. If the above-mentioned actions are motivated by the receipt of a bribe, the act should be classified under the aggregate of offences provided for by Articles 413 and 366 of the Criminal Code.
The subject of the offence is a special subject. The disposition of the Article under commentary identifies a prosecutor or a person conducting a pre-trial investigation as the subjects of the offence.
Pre-trial investigation is conducted in the form of inquiry, preliminary investigation (expedited pre-trial investigation) and protocol-based proceedings.
Pre-trial investigation in the form of inquiry is conducted by the criminal prosecution authority in respect of crimes specified in Parts 2–12 of Article 191 of the CPC (Part 2 of Article 189 of the CPC).
Pre-trial investigation in the form of preliminary investigation is conducted in respect of crimes specified in Article 187 of the CPC, all criminal offences committed by minors or persons who, due to their physical or mental disabilities, are unable to exercise their right to defence independently, as well as inquiry cases in which the person suspected of committing the crime is unknown, with the exception of cases involving criminal offences specified in Part 2 of Article 32 of the CPC (Part 3 of Article 189 of the CPC).
Pre-trial investigation in the form of protocol-based proceedings is conducted by the criminal prosecution authority in respect of criminal misdemeanors provided for in Parts 16–24 of Article 191 of the CPC (Part 6 of Article 189 of the CPC).
According to Subparagraph 23) of Article 7 of the CPC, the criminal prosecution authorities (officials) are the prosecutor (public prosecutor), investigator, body of inquiry and inquiry officer.
The act provided for by Article 413 of the Criminal Code is classified as a serious crime.
Commentary of 2021 on 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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