Commentary to article 344. Bringing an obviously innocent person to criminal responsibility of the Criminal Code of the Republic of Kazakhstan

     1. Bringing an obviously innocent person to criminal responsibility —   

  is punishable by imprisonment for a term of up to five years.      

2. The same act connected with the accusation of a person of committing a grave or especially grave crime, —

    is punishable by imprisonment for a term of three to ten years.

     The public danger of bringing an obviously innocent person to criminal responsibility lies in the fact that when committing it, the constitutional principles of protecting human rights, freedoms and dignity are violated, and the authority of justice and all law enforcement agencies is undermined.      

The object of this crime is the activities of the bodies of inquiry, investigation for the disclosure and investigation of criminal cases. An additional object is the interests of the individual. Therefore, the crime is a two-object one.      The objective side of this crime is to bring an obviously innocent person to criminal responsibility. The question of when a person is considered to be criminally liable is controversial. The correct determination of the moment of the end of this crime depends on the correct solution of this issue. We believe that bringing a person to criminal responsibility means presenting a person with a decision to bring him as an accused.      

Therefore, a crime, the responsibility for which is provided for under Article 344 of the Criminal Code, should be considered completed from the moment an innocent person is charged, because from that moment on he is provided with the right to defense, he can use other rights established by law. For example, the right provided for in the second part of Article 217 of the CPC to refuse to testify.   

  Innocent should be considered: a) a person who is charged with committing an act that is not a crime (for example, after committing a socially dangerous act, it was decriminalized); b) a person brought to criminal responsibility for a crime that was not actually committed (accused of murdering a person who is actually alive); (c) A person who is not involved in the commission of a crime, or a person is reasonably held criminally liable for a crime committed by him or her and, at the same time, knowingly unreasonably for another crime that he or she did not commit; (d) a person guilty of committing a less serious crime if he or she is held criminally liable for committing a more serious crime e) a person charged with committing an act that does not contain all the elements of a crime. For example, a socially dangerous act was committed by an insane person or another person who has not reached the age of criminal responsibility; f) a person is brought to criminal responsibility if there are grounds provided for by law to terminate a criminal case (for example, in accordance with Part 2 of art. 9; part 3 of Article 15); g) a person whose act has been granted amnesty, if the perpetrator agrees to apply an amnesty act against him, is subject to criminal prosecution. Such actions as unlawful initiation of criminal proceedings, unjustified refusal to bring criminal charges, termination of criminal proceedings against a known perpetrator, illegal bringing to administrative or disciplinary responsibility are not covered by the signs of the objective side of the considered corpus delicti.    

  If it is established that a criminal case was knowingly unlawfully initiated with the aim of unlawfully bringing a person to criminal responsibility, then preparations will be made for the commission of the crime in question. In other cases, these actions of the perpetrator may result in disciplinary liability.    

  In our opinion, instituting criminal proceedings that are not sufficiently justified against a certain person does not pose such a great public danger to regard this behavior as criminal. The initiation of a criminal case does not always end with bringing an obviously innocent person to criminal responsibility. If a criminal case is initiated against an innocent person, and then the criminal case is terminated without charge, then such behavior will not pose a great public danger in order to criminalize it.    

  Illegal bringing to administrative, disciplinary or other responsibility, other than criminal, may be qualified, if the necessary grounds are established, as an official offense (Articles 307, 308 of the Criminal Code). Knowingly unlawful release from criminal liability, as well as unjustified refusal to bring a person to criminal responsibility, may entail liability under art. 345 of the Criminal Code.    

  The unjustified continuation of criminal prosecution of a person in cases where the law prescribes its termination (for example, when a person is granted amnesty and the criminal case must be terminated) should be recognized as one of the forms of bringing an obviously innocent person to criminal responsibility.    

  This crime contains a formal composition. It is considered completed from the moment the charges are filed in accordance with the decision to bring an innocent person to criminal responsibility, regardless of the further course of the investigation of the case. Possible consequences of the commission of the crime in question, such as the unlawful conviction of an innocent person, the prolonged stay of the victim in custody or in places of deprivation of liberty, the loss of work – a permanent source of livelihood for the victim and his dependents, may affect the type and amount of punishment imposed by the court on the perpetrator.   

  The subjective side of this crime is characterized only by direct intent. The perpetrator is aware that he is bringing an innocent person to criminal responsibility, anticipates the possibility that as a result of his socially dangerous act, an innocent person will be brought to criminal responsibility and wants to charge him with a crime that this person did not commit.   

  Actions such as bringing a person to criminal responsibility when there were legitimate grounds excluding the proceedings (expiration of the statute of limitations, mental illness of the person who committed a socially dangerous act, amnesty), incorrect qualification of the crime (for example, instead of causing death by negligence, the perpetrator is charged with murder) may form part of the crime in question if they will be committed with direct intent. If there are no signs of direct intent, then the possibility of applying Article 344 of the Criminal Code will be excluded. For example, if the investigator did not know that the person was under amnesty and did not stop the criminal prosecution. But if it is established that the investigator extorted a bribe from a person who was granted amnesty, and therefore did not stop the criminal prosecution against this person, then there are signs of direct intent, since he wants to unlawfully bring the person to criminal responsibility because he did not give him a bribe.    

  Knowledge means that the perpetrator was aware of the illegality of his act. If it is not established in the case that he reliably knew that the person being prosecuted was not guilty of committing a crime, there will be no corpus delicti in question.  

   The goals and motives of a crime can be very diverse: revenge, greed, envy, careerism, the desire to hide shortcomings in their work or the work of the unit of which the perpetrator is an employee – they do not matter for qualifications, but they are necessarily taken into account by the court when determining the penalty. The composition of this crime is also present in cases where the perpetrator unlawfully brings a person to criminal responsibility, guided by the misunderstood interests of the service.  

   The subject of a crime can only be persons conducting an inquiry, a preliminary investigation, or a prosecutor. Responsibility under this article is primarily borne by the person who makes the accusation knowingly unlawfully. The immediate superior of the investigator, inquirer or prosecutor, who has given written instructions on the clearly illegal involvement of a person as an accused, may be held criminally liable under the article of the Criminal Code in question as an accomplice to a crime in the form of an instigator.   

  Responsibility under the first part of Article 344 of the Criminal Code occurs in the case of unlawful criminal prosecution for minor or moderate crimes. The public danger of bringing an obviously innocent person to criminal responsibility increases if it is combined with accusing a person of committing a grave or especially grave crime. Therefore, the second part of this article contains this qualifying feature.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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