Commentary on Article 422. Bribery or Coercion to Give False Testimony or to Evade Giving Testimony, to Provide a False Expert Opinion, or to Make an Incorrect Translation of the Criminal Code of the Republic of Kazakhstan
1. Bribery of a witness or victim for the purpose of inducing them to give false testimony, or of an expert for the purpose of inducing them to provide a false expert opinion or false testimony, as well as of an interpreter for the purpose of inducing them to make an incorrect translation —
shall be punishable by a fine of up to four thousand monthly calculation indices, or corrective labor 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.
2. Coercion of a witness or victim to give false testimony, an expert to provide a false expert opinion, or an interpreter to make an incorrect translation, as well as coercion of the aforementioned persons to evade giving testimony, accompanied by blackmail, a threat to kill, cause harm to health, or destroy the property of these persons or their close relatives —
shall be punishable by a fine of up to five thousand monthly calculation indices, or corrective labor 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.
3. The acts provided for in Part Two of this Article, committed with the use of violence that is not dangerous to the life or health of the aforementioned persons —
shall be punishable by restriction of liberty for a period of up to six years or imprisonment for the same period.
Acts provided for in Parts One or Two of this Article, committed by a criminal group or involving the use of violence dangerous to the life or health of the aforementioned persons, as well as acts connected with an accusation of committing a corruption-related, serious, or especially serious crime —
shall be punishable by imprisonment for a period of two to eight years.
The public danger of this crime lies in the fact that it constitutes one of the forms of obstruction of justice in establishing the truth in a case and affects the interests of the individual. The result of committing the acts specified in this provision may be the adoption by a court of an unlawful and unfounded decision or ruling, or an unlawful and unfounded conviction or acquittal.
The object of the crime provided for in Part 1 of Article 422 of the Criminal Code is the public relations ensuring the normal functioning of the court, prosecutor's office, and pre-trial investigation bodies. The additional object is the lawful rights and interests of the individual.
According to Article 7 of the Code of Conduct for Law Enforcement Officials, adopted by United Nations General Assembly Resolution 34/169 of December 17, 1979, law enforcement officials shall not commit any act of corruption. They shall also vigorously oppose and combat all such acts.
The victims of bribery are witnesses, victims, experts, and interpreters.
The objective aspect consists of bribing the persons specified in the law for the purpose of inducing them to give false testimony or provide a false expert opinion, as well as bribing an interpreter for the purpose of inducing them to make an incorrect translation.
Bribery of a witness or victim for the purpose of inducing them to give false testimony, or of an expert for the purpose of inducing them to provide a false expert opinion or false testimony, as well as bribery of an interpreter for the purpose of inducing them to make an incorrect translation, should be understood as the offering of material remuneration (payment of money, transfer of valuables, release from debt obligations, provision of other material benefits) personally or through intermediaries to a witness, victim, expert, or interpreter in exchange for giving false testimony, providing a false expert opinion, or making an incorrect translation.
In the case of bribery, the person imposes on the witness or victim the condition of giving false testimony, on the expert the condition of providing a false expert opinion or false testimony, and on the interpreter the condition of making an incorrect translation.
Giving false testimony means communicating information that is knowingly inconsistent with the actual circumstances and with the information known to the witness, victim, or expert during questioning both in the course of pre-trial proceedings and in court.
Providing a false expert opinion means the submission by an expert, in written form, of conclusions containing knowingly distorted data on the questions submitted to them by the person conducting the criminal proceedings or by the parties.
Making an incorrect translation means translating from one language into another with the deliberate alteration or concealment of the original meaning of the speech or text being translated.
The subject matter of bribery under Article 422 of the Criminal Code is similar to the subject matter of the crimes provided for in Article 366 of the Criminal Code, "Acceptance of a Bribe", and Article 253 of the Criminal Code, "Commercial Bribery".
Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, "On the Practice of Considering Certain Corruption-Related Crimes", states that the subject matter of a bribe may include money, securities, material valuables, rights to property, as well as the unlawful provision of services of a property-related nature, including release from property obligations. The time of their transfer (before or after the performance of actions in the interests of the giver) does not affect the legal classification of the act.
The Article under consideration does not specify in relation to which type of case the witness, victim, expert, or interpreter is bribed. It may be a criminal case, a civil case, or a case concerning an administrative offense.
By its structure, the elements of this crime are formal. The crime is considered completed from the moment the perpetrator transfers the subject matter of the bribe and the recipient accepts at least part of the valuables being transferred.
If the aforementioned persons refuse to accept the subject matter of the bribe, the actions of the perpetrator should be classified under Part 3 of Article 24 and Part 1 of Article 422 of the Criminal Code.
If the agreed transfer of valuables does not take place due to circumstances beyond the control of the persons attempting to transfer the subject matter of the bribe, their actions should be classified as an attempted bribery.
Liability of recipients of bribes under Article 422 of the Criminal Code is not предусмотрed; they are liable only for giving false testimony and other related acts (Article 420 of the Criminal Code).
If a person receives the subject matter of a bribe without intending to perform the required actions, their actions must be classified as fraud under Article 190 of the Criminal Code.
If a person receives money or other valuables from someone for the purpose of transferring them as the subject matter of a bribe but, without intending to do so, appropriates them, their actions must also be classified as fraud. The actions of the person who transferred the money or other valuables as the subject matter of the bribe should be classified as attempted bribery.
From the subjective side, bribery is committed only with direct intent. The person realizes that they are bribing one of the victims specified in the law for the purpose of inducing them to give false testimony, provide a false expert opinion, or make an incorrect translation, foresees the commission of these actions, and desires them.
An obligatory feature of the subjective side is the purpose of obtaining false testimony, a false expert opinion, or an incorrect translation from the aforementioned persons. The motives for committing bribery may vary: revenge, greed, the desire to avoid criminal liability, the desire to shield relatives or friends from liability, and so on. They do not affect the legal classification of the act.
The subject of bribery is a general subject: a sane natural person who has reached the age of 16.
Part 2 of Article 422 of the Criminal Code provides for liability for coercing a witness or victim to give false testimony, an expert to provide a false expert opinion, or an interpreter to make an incorrect translation, as well as coercing the aforementioned persons to evade giving testimony, when such coercion is accompanied by blackmail, a threat to kill, cause harm to health, or destroy or damage the property of these persons or their close relatives.
The object of this act is the public relations ensuring the normal functioning of the court, prosecutor's office, and preliminary investigation bodies. The additional object is public relations concerning the health or property of the victims.
In accordance with Article 2 of the Code of Conduct for Law Enforcement Officials, adopted by United Nations General Assembly Resolution 34/169 of December 17, 1979, law enforcement officials shall, in the performance of their duties, respect and protect human dignity and uphold and protect human rights in relation to all persons.
The victims of this act are witnesses, victims, experts, interpreters, and persons close to them.
According to Part 1 of Article 78 of the Criminal Procedure Code, a witness is any person who may be aware of any circumstances relevant to the case and who may be summoned and questioned.
According to Part 1 of Article 71 of the Criminal Procedure Code, a victim in criminal proceedings is a person in respect of whom there are grounds to believe that they have suffered moral, physical, or property damage directly as a result of a criminal offense. A person is also recognized as a victim where the harm was caused by an act prohibited by the Criminal Code and committed by an insane person (Part 2 of Article 71 of the Criminal Procedure Code).
According to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 24, 1992, "On the Practice of Applying Legislation Regulating the Rights and Obligations of Persons Who Have Suffered from Criminal Offenses":
"A victim is a person to whom moral, physical, or property damage has been directly caused by a socially dangerous act, regardless of whether the person who committed that act has been identified or brought to justice. In cases involving unfinished criminal activity (preparation for a criminal offense, attempted criminal offense), recognition of a person as a victim shall take place where moral, physical, or property damage has actually been caused.
A person cannot be recognized as a victim if moral, physical, or property damage resulted from their voluntary consent to the infliction of such harm (for example, in the case of seeking an abortion performed unlawfully, when giving a bribe, etc.).
A legal entity may be recognized as a victim if it has suffered property damage as a result of a criminal offense. In such cases, the rights and obligations of the victim shall be exercised by a representative of the legal entity whose authority has been formalized by an appropriate power of attorney."
A person who has suffered harm as a result of a socially dangerous act acquires the corresponding procedural rights and is assigned the obligations established by law only after a resolution recognizing them as a victim or civil claimant has been issued.
The resolution recognizing a person as a victim must specify what type of harm has been caused to them. Where several types of harm have been caused, this circumstance must be reflected in the resolution.
The concept and characteristics of an expert are set out in the commentary to Article 408 of the Criminal Code.
An interpreter is a person who has no interest in the case, is proficient in the language necessary for translation, and is engaged to participate in investigative and judicial actions in cases where a suspect, accused, defendant, their defense counsel, or a victim, civil claimant, civil defendant, or their representatives, as well as witnesses and other participants in the proceedings, do not speak the language in which the proceedings are conducted, and also for the translation of written documents (Part 1 of Article 81 of the Criminal Procedure Code).
The objective aspect of the crime provided for in Part 2 of Article 422 consists of coercing a witness or victim to give false testimony, an expert to provide a false expert opinion, or an interpreter to make an incorrect translation, as well as coercing the aforementioned persons to evade giving testimony, when such coercion is accompanied by blackmail, a threat to kill, cause harm to health, or destroy or damage the property of these persons or their close relatives.
Coercion to give false testimony, provide a false expert opinion, or make an incorrect translation should be understood as unlawful influence on the will and behavior of the persons specified in the provision, depriving them of the ability to act at their own discretion. In fact, the person coerces the victim into committing unlawful acts.
Coercion to evade giving testimony means coercing the victim into inaction, that is, behavior indicating an intention to avoid giving testimony (failure to appear when summoned, leaving their permanent place of residence, etc.) or avoiding the performance of the functions of an expert (unjustified references to incompetence, lack of experience, workload, etc.).
Coercion to give false testimony, provide a false expert opinion, or make an incorrect translation, as well as coercion to evade giving testimony, is carried out using the methods specified in the law: blackmail, threats to kill, cause harm to health, destroy or damage the property of the victims or their close relatives.
The concept of blackmail as a method of coercion to give false testimony is analogous to the concept examined in the commentary to Article 415 of the Criminal Code.
A threat, as an action, is intimidation or a promise to cause harm to someone. For an act to be recognized as criminal, the threat must be real. A threat may be expressed orally, in writing, through intermediaries, and in other ways. The law provides an exhaustive list of threats. A threat to kill or cause harm to health is a type of psychological violence expressed through the intention to deprive another person of life or cause harm to their health of any degree of severity. A threat to destroy or damage property constitutes an expression of the intention to render the property of the aforementioned persons or their close relatives completely unusable, thereby preventing its use for its intended purpose, or to deteriorate the quality, characteristics, or value of such property.
A threat to commit other acts not specified in the provision of Part 2 of Article 422 of the Criminal Code does not constitute the elements of the crime under consideration.
For the purposes of legal classification, it is irrelevant whether the perpetrator intended to carry out the threat. The form in which the threat is expressed is also irrelevant for legal classification.
The actions of a person who has offered another person to give false testimony but has not threatened that person with violence, destruction of property, or, especially, murder do not constitute the elements of the crime under consideration.
If the perpetrator carries out their threat, they may be held criminally liable for a combination of crimes: under Article 422 and for a crime against the person or property, except in the cases specified in Parts 3 and 4 of Article 422 of the Criminal Code.
By its structure, the elements of this crime are formal. The crime should be considered completed from the moment coercion is applied in the form of blackmail or a threat. The crime is considered completed regardless of whether the witness or victim gives false testimony as a result of the influence exerted, whether the expert provides a false expert opinion, or whether the interpreter makes an incorrect translation.
The subjective side is characterized by direct intent. The perpetrator realizes the public danger of the coercion being committed, understands that their actions suppress the will of the witness, victim, expert, or interpreter and force these persons to give false testimony or evade giving testimony, provide a false expert opinion, or make an incorrect translation by one of the methods specified in the law, foresees this and desires it.
The purpose of the perpetrator's actions is to compel the victims to give false testimony, provide a false expert opinion, make an incorrect translation, or evade giving testimony. This purpose is not expressly named as a mandatory feature of the subjective side; however, such a conclusion follows from the wording of the provision.
The subject of the crime is a sane natural person who has reached the age of 16 at the time of committing the crime.
Part 3 of Article 422 of the Criminal Code establishes criminal liability for acts provided for in Part 2 of this Article when committed with the use of violence that is not dangerous to the life or health of the aforementioned persons.
Violence that is not dangerous to life or health means physical violence expressed in the form of beatings, blows, restriction or deprivation of liberty, causing minor harm to the victim's health, and other violent acts that do not cause substantial harm to health.
Part 4 of the Article under consideration provides for increased criminal liability for acts provided for in Parts 1 and 2 of this Article, committed by a criminal group or involving the use of violence dangerous to the life or health of the aforementioned persons, as well as acts connected with an accusation of committing a corruption-related, serious, or especially serious crime. The concept of a criminal group is contained in Subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan.
According to Paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, "On Judicial Practice in Cases of Theft", violence dangerous to life or health should be understood as causing bodily harm through the use of weapons or objects used as weapons and adapted to inflict bodily harm, as well as other violence resulting in the infliction of grievous or moderate bodily injury on the victim.
At the same time, minor bodily injury may also be recognized as dangerous to the life or health of the victim if it is inflicted under circumstances dangerous to their life or health (for example, multiple blows with hands or feet to vital parts of the body, etc.) and requires outpatient or inpatient treatment for recovery.
The concept of violence dangerous to life or health in the elements of the crime under Part 4 of Article 422 of the Criminal Code covers the infliction of minor, moderate, or grievous bodily harm provided for in Part 1 of Article 106 of the Criminal Code.
Where aggravating circumstances are present, the act should be classified as a combination of crimes under Part 4 of Article 422 and Parts 2 or 3 of Article 106 of the Criminal Code.
The list of corruption-related crimes is contained in Subparagraph 29) of Article 3 of the Criminal Code.
The concepts of serious and especially serious crimes are contained in Parts 4 and 5 of Article 11 of the Criminal Code, respectively.
The acts provided for in Parts 1 and 2 of Article 422 of the Criminal Code are classified as crimes of medium severity.
The acts provided for in Parts 3 and 4 of Article 422 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, Honored 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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Statute Charter Article Commentary Resolution Regulation Protocol Draft Program Rules Addresses
