Commentary on Article 420 of the Criminal Code of the Republic of Kazakhstan. Knowingly False Testimony, Expert or Specialist Opinions, or Incorrect Translation

1. Knowingly giving false testimony by a witness or victim, or knowingly providing a false opinion by an expert or specialist in court or during pre-trial investigation, as well as knowingly providing an incorrect translation by an interpreter in the same circumstances, and also during the enforcement of enforcement documents, —

shall be punishable by restriction of liberty for a term of up to six years or imprisonment for the same term.

2. The same acts committed in a criminal case concerning a corruption-related, serious or particularly serious crime, or for mercenary motives, —

shall be punishable by imprisonment for a term of five to ten years.

The public danger of this crime lies in the fact that the testimony of witnesses and victims, the opinions of experts and specialists, and the translations provided by interpreters constitute important means of proving the circumstances of a case and establishing the truth. Knowingly false testimony, opinions or translations provided by these persons may result in a change in the course of an investigation or enforcement proceedings.

The protected legal interest is the public relations ensuring the proper functioning of courts, prosecution authorities, pre-trial investigation bodies and judicial enforcement officers. An additional protected interest is the legally protected rights and interests of individuals, as well as public or state interests.

The subject matter of the crime consists of information contained in false testimony given by a witness or victim, false opinions provided by an expert or specialist, as well as incorrect translations.

The objective element of the crime consists of one of the following acts:

knowingly giving false testimony by a witness;

knowingly giving false testimony by a victim;

knowingly providing a false opinion by an expert;

knowingly providing a false opinion by a specialist;

knowingly providing an incorrect translation by an interpreter.

The above acts are committed in the course of pre-trial investigation or court proceedings in a criminal or civil case, as well as during the enforcement of enforcement documents, notwithstanding the fact that the persons concerned were previously warned of criminal liability for giving false testimony, providing a false opinion or making an incorrect translation.

Knowingly false testimony given by a witness or victim, or a false opinion provided by an expert to a body (official) when considering a case of an administrative offence or during an examination of medical activities, as well as knowingly incorrect translation provided by an interpreter in the same circumstances, shall be classified under Article 659 of the Code of Administrative Offences.

Knowingly false testimony given by a witness, victim, expert or specialist is characterised by the provision to an inquiry body, investigator or court of false information concerning facts and circumstances subject to proof and having substantial significance for a criminal or civil case, as well as by denying facts known to them that actually occurred. Such information may be either incriminating or exculpatory in nature.

Taking into account the importance of witness testimony, victim testimony, expert opinions and the accuracy of translations performed by interpreters for the investigation and resolution of cases, the legislator, in Articles 78, 79, 80 and 81 of the Criminal Procedure Code, requires that the above-mentioned persons be warned, before interrogation, upon appointment of an examination or before performing a translation, of liability under Article 420 of the Criminal Code in the event of giving false testimony, providing a false opinion or making an incorrect translation.

A witness's or victim's failure to disclose certain circumstances of a case known to them cannot be recognised as giving false testimony. Consequently, the crime under consideration can be committed only through active conduct. Concealing certain circumstances of a case constitutes evasion by a witness of giving testimony. The legislation of our country does not provide for criminal liability for evading the giving of testimony. At the same time, it cannot be ruled out that silence should be regarded as a disguised form of refusal by a witness or victim to give testimony (Article 421 of the Criminal Code).

According to Part 1 of Article 115 of the Criminal Procedure Code, testimony of a suspect, victim or witness means information communicated by them in written or oral form during an interrogation conducted in the course of pre-trial investigation in accordance with the procedure established by Chapter 26 of the Criminal Procedure Code.

Testimony shall be considered false if it completely or partially distorts the circumstances of the criminal offence committed or other significant circumstances of the case. In criminal proceedings, such circumstances primarily relate to the subject matter of proof. In accordance with Part 1 of Article 113 of the Criminal Procedure Code, the following matters are subject to proof in a criminal case:

the event of the criminal offence and the elements of the offence prescribed by criminal law (the time, place, method and other circumstances of its commission);

the person who committed the act prohibited by criminal law;

the guilt of the person in committing the act prohibited by criminal law, the form of their guilt, the motives for the act committed, and legal and factual errors;

circumstances affecting the degree and nature of the liability of the suspect or accused;

circumstances characterising the personality of the suspect or accused;

the consequences of the criminal offence committed;

the nature and amount of damage caused by the criminal offence;

circumstances excluding the criminal unlawfulness of the act;

circumstances giving rise to exemption from criminal liability and punishment.

Additional circumstances subject to proof in cases involving criminal offences committed by minors are specified in Article 531 of the Criminal Procedure Code, while those concerning socially dangerous acts committed by persons who are legally insane are specified in Article 510 of the Criminal Procedure Code (Part 2 of Article 113 of the Criminal Procedure Code).

Along with other circumstances in a criminal case, circumstances confirming that property subject to confiscation in accordance with Article 48 of the Criminal Code was obtained unlawfully, including as a result of the commission of a criminal offence, or constitutes income derived from such property, or was used or intended to be used as an instrument or means of committing a criminal offence, or for financing or otherwise supporting extremist or terrorist activities or a criminal group, are also subject to proof (Part 3 of Article 113 of the Criminal Procedure Code).

Circumstances that contributed to the commission of a criminal offence must also be identified in a criminal case (Part 4 of Article 113 of the Criminal Procedure Code).

In civil proceedings, in accordance with Part 1 of Article 63 of the Civil Procedure Code, evidence in a case consists of information concerning facts obtained by lawful means, on the basis of which the court establishes the existence or absence of circumstances substantiating the claims and objections of the parties, as well as other circumstances relevant to the proper consideration and resolution of the case.

Information concerning facts may be obtained from explanations provided by the parties and third parties, witness testimony, expert opinions, physical evidence, records of procedural actions, minutes of court hearings, audio and video recordings, data obtained through the use of videoconferencing systems reflecting the course and results of procedural actions, and other sources (Part 2 of Article 63 of the Civil Procedure Code).

Conscious distortion of events and facts that do not affect the outcome of the case does not constitute this crime (for example, when a witness conceals a previous conviction while the investigator is filling in personal details in the interrogation record, incorrectly states their place of employment or study, and so forth).

Knowingly false testimony falls within the elements of this crime if it was obtained by a person or body authorised to do so (an inquiry officer, investigator or court) and formally documented in accordance with the procedure established by law (in an interrogation record, confrontation record, identification record, and so forth). In accordance with Part 1 of Article 214 of the Criminal Procedure Code, a witness or victim shall be warned of criminal liability for knowingly giving false testimony.

An expert opinion is a document prepared in accordance with the requirements of the Criminal Procedure Code and reflecting the course and results of a forensic examination (Part 1 of Article 116 of the Criminal Procedure Code). An expert opinion is an important source of evidence and constitutes a written document containing the stages of the examination and its conclusions on the questions submitted by the court or by the person conducting the pre-trial investigation.

Expert testimony consists of information communicated by the expert during an interrogation conducted after the expert opinion has been obtained, for the purpose of explaining or clarifying that opinion (Part 4 of Article 116 of the Criminal Procedure Code).

The falsity of an expert opinion may be expressed in the deliberate distortion of facts established by the expert, the omission of such facts, or the drawing of false conclusions based on the evidence submitted for examination. These facts may concern issues in respect of which certain conclusions must be established.

According to Part 1 of Article 271 of the Criminal Procedure Code, the appointment and performance of an examination are mandatory if it is necessary to establish:

the causes of death;

the nature and degree of severity of harm caused to health;

the age of the suspect, accused or victim, where this is relevant to the case and documents confirming their age are absent or give rise to doubt;

the mental or physical condition of the suspect or accused, where doubts arise as to their sanity or their ability to independently defend their rights and legitimate interests in criminal proceedings;

the mental or physical condition of the victim or witness in cases where doubts arise as to their ability to correctly perceive circumstances relevant to the case and give testimony concerning them;

other circumstances of the case that cannot be reliably established by other evidence.

The appointment and performance of a forensic psychiatric examination are mandatory if doubts arise concerning the mental condition of a suspect or accused who has committed a crime for which the Criminal Code provides for the death penalty or life imprisonment (Part 2 of Article 271 of the Criminal Procedure Code).

In accordance with Article 117 of the Criminal Procedure Code, a specialist's opinion is an official document prepared in writing in compliance with the requirements of Part 3 of Article 117 of the Criminal Procedure Code and submitted in written form, reflecting the substance of the examination and the conclusions on the questions submitted to the specialist by the person conducting the criminal proceedings or by the parties. A knowingly false specialist's opinion may result in an incorrect resolution of the case.

Specialist testimony consists of information communicated by the specialist during an interrogation conducted after the opinion has been obtained, for the purpose of explaining or clarifying that opinion (Part 6 of Article 117 of the Criminal Procedure Code).

In accordance with Part 1 of Article 81 of the Criminal Procedure Code, an interpreter is a person who is not interested in the outcome of the case, possesses the language skills necessary for translation and is engaged to participate in investigative and judicial actions in cases where the suspect, accused, defendant, their defence counsel, the victim, civil claimant, civil defendant or their representatives, as well as witnesses and other participants in the proceedings, do not know the language in which the proceedings are conducted, as well as for the translation of written documents.

Knowingly incorrect translation consists of providing a false translation of materials (documents, witness testimony, questions asked by the court, answers given by the defendant, and so forth) submitted for translation. It may be committed by distorting the meaning of what was said or by the interpreter's omission of information that they are obliged to translate. At the same time, it is required that the knowingly incorrect translation be addressed to judicial and investigative authorities and also be performed during enforcement proceedings.

According to Subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated 2 April 2010, “On Enforcement Proceedings and the Status of Judicial Enforcement Officers”, enforcement proceedings are measures aimed at the compulsory enforcement of enforcement documents, including the recovery from the debtor of the enforcement sanction, penalty, expenses incurred in enforcement proceedings and payment for the activities of a private judicial enforcement officer.

Paragraph 1 of Article 9 of the Law “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” specifies which documents constitute enforcement documents:

“Enforcement documents shall include: writs of execution issued on the basis of judicial acts;

1-1) writs of execution issued on the basis of decisions of the court of the Astana International Financial Centre;

court orders issued in accordance with civil procedural legislation of the Republic of Kazakhstan;

writs of execution issued on the basis of judicial acts concerning the compulsory enforcement within the territory of the Republic of Kazakhstan of decisions of international and foreign courts and arbitral tribunals;

writs of execution issued on the basis of a court ruling on the compulsory enforcement of arbitral awards;

4-1) court rulings on securing a claim or cancelling the securing of a claim;

4-2) orders of the court of the Astana International Financial Centre on securing a claim or cancelling the securing of a claim;

court rulings issued in administrative offence cases in the circumstances provided for by the Code of Administrative Offences;

resolutions of a body (official) authorised to consider administrative offence cases in the circumstances provided for by the Code of Administrative Offences;

6-1) an order requiring an employer to pay wages;

repealed;

resolutions of a judicial enforcement officer on the recovery of an enforcement sanction;

resolutions of a judicial enforcement officer on reimbursement of expenses incurred in carrying out enforcement actions;

resolutions of a private judicial enforcement officer approving the amounts payable for their activities;

orders requiring payment of a fine issued by a body (official) authorised to impose administrative penalties;

11-1) an enforcement endorsement;

a court ruling on the seizure of property issued in a criminal case;

a tax order for the recovery of an individual's debt”.

By its structure, the composition of the crime is formal. The crime shall be considered completed from the moment knowingly false testimony is given, a false opinion is provided or an incorrect translation is made, regardless of when any adverse consequences occur.

The moment of completion of the crime depends on the type of proceedings (criminal or civil) and the stage thereof. Thus, at the pre-trial investigation stage, the crime is considered completed from the moment a witness or victim gives knowingly false testimony that is entered into the record and signed by the witness or victim.

At the trial stage, the crime under consideration is considered completed upon completion of the interrogation of the witness or victim.

At the pre-trial investigation stage, the giving of a knowingly false expert or specialist opinion, or the provision of an incorrect translation, is considered completed from the moment the interpreter signs the translated document or the expert or specialist signs their opinion. At the trial stage or during enforcement proceedings, it is considered completed upon completion of the submission of the false opinion or incorrect translation to the court or during the enforcement of enforcement documents.

An honest mistake by a witness or victim concerning the accuracy of the information reported does not constitute the elements of this crime. False testimony may sometimes result from incomplete or incorrect perception of facts or an erroneous assessment of what occurred.

An expert or specialist may provide a false opinion due to insufficient qualifications, while an interpreter may make an incorrect translation due to inadequate knowledge of the language. In all these cases, liability under Article 420 of the Criminal Code is excluded, since the persons concerned lack the element of knowingly committing the relevant acts.

Knowingly false testimony, an opinion or testimony given by an expert or specialist, as well as an incorrect translation in court or during pre-trial investigation, may result in harmful consequences of varying severity: the unjustified prosecution of a person, the conviction of an innocent person, or the mitigation or aggravation of punishment. Although the occurrence of consequences is not a mandatory element of this crime, the nature and extent of the harm caused to the protected legal interest must be taken into account by the court when imposing punishment.

From the subjective standpoint, the crime under consideration must be committed only with direct intent, as indicated by the element of knowingly committing the acts. This means that the witness, victim, expert, specialist or interpreter is aware of the public danger of their conduct, understands that their testimony, opinion or translation is false or incorrect, foresees the commission of the relevant acts and desires to commit them.

The subject of the crime is special: a sane individual who has reached the age of sixteen and acts as a witness, victim, expert, specialist or interpreter during pre-trial investigation.

Part 2 of Article 420 of the Criminal Code establishes increased liability for the same acts committed in a criminal case concerning a corruption-related, serious or particularly serious crime, or for mercenary motives. The characteristics of these elements are set out in the commentary to Article 419 of the Criminal Code.

The acts provided for in Parts 1 and 2 of Article 420 of the Criminal Code are classified as serious crimes.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021 edition, 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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