Commentary on Article 421 of the Criminal Code of the Republic of Kazakhstan. Refusal of a Witness or Victim to Give Testimony

1. Refusal by a witness or victim to give testimony in court or during pre-trial investigation shall be punishable by:

a fine in the amount of two thousand to five thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period.

Note. A person shall not be subject to criminal liability for refusing to testify against himself or herself, his or her spouse, or close relatives. The same exemption applies to clergy members who refuse to testify against persons who have confided in them during confession; mediators who refuse to testify against persons or concerning circumstances that became known to them in connection with mediation; and participants in the national preventive mechanism who refuse to testify against persons or concerning circumstances that became known to them through conversations with persons held in special institutions providing temporary isolation from society.

The public danger of the offence lies in the failure to fulfil every citizen's duty to assist in the administration of justice. A witness's or victim's refusal or evasion of giving testimony may constitute a serious obstacle to the successful investigation and judicial examination of a case, the interests of justice, and the normal functioning of the bodies involved in the administration of justice.

The protected legal interest is the social relations ensuring the normal (lawful) functioning of courts and pre-trial investigation bodies. An additional protected interest is the rights and freedoms of individuals and citizens, as well as the legitimate rights and interests of individuals and legal entities.

The objective element consists in a witness's or victim's refusal to give testimony in court or during pre-trial investigation.

According to subparagraph 41) of Article 7 of the Criminal Procedure Code (CPC), pre-trial proceedings mean proceedings in a case from the commencement of pre-trial investigation until the prosecutor refers the criminal case to court for consideration on the merits or terminates the proceedings, as well as the preparation of criminal case materials by a private prosecutor and the defence.

Pursuant to Part 1 of Article 115 of the CPC, the 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 CPC.

Under Part 1 of Article 78 of the CPC, any person who may possess information concerning circumstances relevant to the case may be summoned and questioned as a witness for the purpose of giving testimony. Part 2 of Article 78 of the CPC lists persons who may not be questioned as witnesses, while Part 3 of Article 78 of the CPC sets out the rights of a witness.

In accordance with Part 4 of Article 78 of the CPC, a witness is obliged to:

appear when summoned by an inquirer, investigator, prosecutor or court;

truthfully report everything known to them concerning the case and answer the questions asked;

not disclose information concerning circumstances of which they became aware in connection with the case, if they were warned about this by an inquirer, investigator or prosecutor;

comply with the established procedure during investigative actions and court hearings.

In criminal proceedings, a victim is recognised as a person in respect of whom there are grounds to believe that moral, physical or property damage has been directly caused by a criminal offence (Part 1 of Article 71 of the CPC). Part 6 of Article 71 of the CPC sets out the list of the victim's rights (24 rights in total), beginning with the right to know about the suspicion and charges brought and extending to the right to receive compensation in accordance with the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund.

A victim is obliged to: appear when summoned by the body conducting criminal proceedings; truthfully report all circumstances of the case known to them and answer the questions asked; not disclose information concerning circumstances of which they became aware in connection with the case; and comply with the established procedure during investigative actions and court hearings (Part 8 of Article 71 of the CPC).

For refusing to give testimony and for knowingly giving false testimony, a victim (Part 10 of Article 71 of the CPC) and a witness (Part 8 of Article 78 of the CPC) shall bear liability in accordance with criminal law.

Refusal to give testimony means an openly and clearly expressed unwillingness to give testimony during pre-trial proceedings. Such refusal may be expressed in written or oral form. It may be complete or partial, that is, it may consist of an unwillingness to give testimony concerning the case as a whole or its individual episodes, or to answer certain questions. The essence of the socially dangerous act lies in omission, since the subject fails to fulfil the obligation imposed on them to give testimony.

If a witness or victim, during interrogation, conceals factual information known to them concerning the case, such conduct should be classified under this Article as refusal to give testimony. According to Part 1 of Article 214 of the CPC, before interrogation, such persons are warned of criminal liability for refusing to give testimony. Failure to warn a witness or victim of criminal liability in the event of refusal to give testimony constitutes one of the essential elements of the offence and excludes criminal liability.

Criminal legislation does not provide for criminal liability for a witness's or victim's evasion of appearing before law enforcement authorities. A person who evades appearing before law enforcement authorities when summoned may be subjected to compulsory attendance in accordance with the procedure provided for in Article 157 of the CPC, and a monetary penalty may be imposed on them in accordance with the procedure established by Article 160 of the CPC.

Evasion of giving testimony is a form of refusal to give testimony. Evasion is a concealed form of refusal to give testimony. It may take the form of failure to appear, without valid reasons, when summoned by inquiry bodies, preliminary investigation authorities or a court, for the purpose of avoiding giving testimony; falsely claiming not to know the circumstances of the case in which the court and investigation authorities are interested; as well as changing one's place of residence, changing one's surname, and so forth.

A refusal or failure, without valid reasons, by a person subject to questioning as a witness by a body (official) authorised to consider administrative offence cases shall, pursuant to Article 658 of the Code of Administrative Offences (CAO), entail administrative liability. Consequently, criminal liability should not arise for the aforementioned actions.

In law enforcement practice, the following question may arise: can a refusal to give testimony be recognised as lawful if its purpose is to prevent the disclosure of information constituting state secrets, commercial secrets, banking secrecy or tax secrecy obtained in the course of horizontal monitoring, the secrecy of microcredit provision, the confidentiality of collection activities, information related to the legalisation of property, or the secrecy of adoption, where the person being questioned has signed an undertaking not to disclose the information entrusted to them?

It is considered that disclosure of the aforementioned information during interrogation excludes criminal liability under Articles 138 and 223 of the Criminal Code. The exception is the disclosure of information constituting state secrets, which, in accordance with the Law of the Republic of Kazakhstan dated 15 March 1999, "On State Secrets", cannot be justified under any circumstances, including during interrogation by law enforcement authorities or in court. Therefore, if the refusal was made in the interests of preserving such information, the person shall not be subject to criminal liability under Article 421 of the Criminal Code pursuant to Article 34, "Extreme Necessity", of the Criminal Code.

According to subparagraph 7) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, no one is obliged to give testimony against themselves, their spouse, or close relatives, the scope of whom is determined by law. Clergy members are not obliged to testify against persons who have confided in them during confession.

The Note to the Article under consideration implements the aforementioned constitutional principle and specifies the cases in which a person shall not be subject to criminal liability for refusing to give testimony against themselves, their spouse or close relatives. These cases also include clergy members refusing to testify against persons who have confided in them during confession; mediators refusing to testify against persons or concerning circumstances that became known to them in connection with mediation; and participants in the national preventive mechanism refusing to testify against persons or concerning circumstances that became known to them through conversations with persons held in special institutions providing temporary isolation from society.

By its legal structure, the composition of the offence under consideration is formal. The offence shall be deemed completed from the moment the witness or victim refuses to give testimony, regardless of whether harmful consequences occur. In this regard, it does not matter whether the witness or victim gave testimony previously. Subsequently giving testimony does not release the person from liability either; however, this circumstance may be taken into account by the court when imposing punishment.

If a witness or victim intentionally distorts factual circumstances relating to the subject matter of proof or the subject matter of a claim, their actions fall within the elements of Article 420 of the Criminal Code.

The subjective element is characterised by direct intent. The witness or victim is aware of the public danger of their conduct, understands that they are refusing to give testimony, foresees the occurrence of negative consequences and desires to act in this manner. The motives and purposes of the refusal may vary (the desire to ease the position of the accused, a negative attitude towards law enforcement authorities, etc.) and do not affect the legal classification of the act.

The subject is special: a witness or victim, that is, a person who has reached the age of 16 and has been summoned for interrogation by pre-trial investigation authorities or a court.

The act provided for in Article 421 of the Criminal Code belongs to the category of offences of medium gravity.

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