Commentary to article 350. Making a knowingly unlawful verdict, decision or other judicial act of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The pronouncement by a judge (judges) of a knowingly unlawful verdict, decision or other judicial act —
is punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months or by imprisonment for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years.
2. The same act related to the imposition of an unlawful court sentence to imprisonment or entailing other grave consequences, —
is punishable by imprisonment for a term of two to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
In accordance with Article 22 of the CPC, a judge is independent in the administration of justice and is subject only to the Constitution of the Republic of Kazakhstan and the law. The passing by judges of a deliberately unlawful verdict, decision or other judicial act is a gross violation of the rule of law. The particular danger of this crime is related to the fact that it is committed by representatives of a third, judicial power, who are endowed with great powers by law, and faith in this branch of government depends on their proper performance of their functions.
The object of this crime is the normal activity of the court in the administration of justice, based on compliance with the norms of substantive and procedural criminal, as well as civil legislation. The optional direct object of this crime may also be the legitimate interests of individual citizens, organizations, as well as the interests of the State. When committing this crime, the wrongfully convicted person, the victim, the plaintiff, and the defendant often suffer from moral, physical, and property damage.
The objective side of the crime in question is the imposition of an unlawful judicial act – a verdict, decision, resolution.
A verdict is the most important act of justice passed by a judicial body that establishes the guilt or innocence of a defendant, the measure of punishment imposed, and other legal consequences of committing a crime.
A decision is a document that ends the consideration and resolution of a civil case on its merits.
A ruling is a decision made by a court on certain procedural issues unrelated to questions about the guilt or innocence of the defendant or a dispute over civil law issues. Decisions may be taken regarding a change in the measure of restraint for the defendant, on the termination of the case, on the appointment of compulsory educational or medical measures. Rulings are also issued on many other issues by the courts of first instance, appeal and supervisory instance.
According to Article 369 of the CPC, the sentence must be lawful and justified. It is recognized as legitimate if it is passed in compliance with all the requirements of the law and on the basis of the law. A verdict is considered justified if it is made on the basis of a comprehensive and objective examination of the evidence presented to the court at a court hearing.
A verdict or other judicial act on the conviction of an innocent person, on the acquittal of a guilty person, on the imposition of a punishment that does not correspond to the deed in its mildness or severity, distorts the factual circumstances of the case, or with a deliberately incorrect qualification of the crime, on the unjustified termination of a criminal case or illegal release from criminal liability, is considered unlawful. The illegality of a decision in a civil case may consist, for example, in an unjustified refusal to satisfy a claim, in its unlawful satisfaction, in a deliberately incorrect determination (increase or decrease) of the amount of the claim to be satisfied.
A decision of a court of appeal or supervisory instance on unjustified modification or cancellation of a verdict or decision, on unjustified satisfaction or rejection of a protest, may be considered unlawful. A decision to leave a sentence, decision, or other judicial act that is subject to cancellation or amendment without modification is also considered unlawful.
The violations committed by the court in the commission of this crime are divided into two groups:
1) violations of the law (procedural or substantive law);
2) distortion of the factual circumstances of the case.
In particular, the improper application of substantive law can include unjustified imposition of punishment below the lowest limit, a suspended sentence without sufficient grounds, unjustified application of a delay in serving a sentence, unjustified release from criminal liability or punishment.
Violations of the norms of procedural law in the imposition of an unjustified sentence include an unjustified change in the measure of restraint and the release of a person who has committed a serious or especially serious crime from custody, an unjustified referral of the case for additional investigation.
In cases where the court makes an unlawful decision, it is not always possible to recognize the act as a crime. It all depends on the issue on which the unlawful decision was made. If it is made on secondary issues and cannot influence the consideration of the case on its merits, then the question of the judge's criminal responsibility for making such a ruling should not be raised. For example, for making an unlawful private decision in a criminal case (Article 387 of the CPC), as well as in cases of making an unlawful decision in cases of administrative offenses.
The same selective approach is required when deciding on the criminal liability of a judge under the article of the Criminal Code in question in the event of an unlawful verdict, decision or other judicial act in violation of the norms of procedural legislation. Article 412 of the CPC specifies a significant violation of the criminal procedure law as one of the grounds for revoking or changing the verdict of the court of first instance, which gives reason to say that violations of the procedural law may be significant or insignificant.
The Code of Criminal Procedure in Article 415 contains explanations on the distinction between essential and non-essential violations of the Criminal procedure law. Violations of the principles and other general provisions of the criminal procedure legislation during the judicial review of a case are recognized as significant, which, by depriving or restricting the rights of persons participating in the case guaranteed by law, non-compliance with the procedure of judicial proceedings or otherwise prevent a comprehensive, complete and objective investigation of the circumstances of the case, affect or may affect the decision of a judicial verdict or other court decision.
Further, the law provides an approximate list of significant violations of the criminal procedure law. In particular, Article 315 of the CPC provides for the grounds for considering the case in the main court proceedings in the absence of the defendant. Violation of this procedure in accordance with paragraph 3 of Part 3 of Article 415 of the CPC is recognized as a significant violation of the procedural law.
The imposition of an unlawful sentence, decision, or other judicial act with an insignificant violation of the procedural law should not be recognized as a crime due to its insignificance (Part 2 of Article 9 of the Criminal Code). This kind of act can be classified as disciplinary misconduct, since it cannot improve or worsen the situation of the defendant, plaintiff, defendant or victim. According to the degree of public danger, the imposition of an unlawful sentence, decision or other judicial act with a significant violation of the procedural law is more dangerous than with an insignificant one. In order to recognize the existence of the corpus delicti of this crime, it is sufficient for the court to pronounce an unlawful sentence or decision. The crime is considered completed from the moment the unlawful act is pronounced, i.e. from the moment it is signed by the judge(s), regardless of whether it has entered into legal force or not.
The illegality of judicial acts may be obvious. For example, in the case of violations of the rule of law listed in Article 412 of the CPC, which are grounds for the cancellation or amendment of the sentence. If, in the presence of such violations, the verdict has entered into legal force due to the fact that it has not been appealed and protested, it will not cease to be unjustified.
Therefore, the moment of the end of this crime should not be associated with the moment of cancellation or amendment of a sentence, decision or other judicial act by a higher court.
On the subjective side, this crime can only be committed with direct intent. The perpetrator is aware that he is making or participating in making an illegal and unjustified judicial act and wishes to do so. In the absence of intent, the act should be considered as criminal negligence (Article 316 of the Criminal Code) or disciplinary misconduct, depending on the consequences. For example, if the verdict can be recognized as legitimate and justified in its content, but it was not signed by the judge (or the presiding judge, in the case of a collegial review of the case) due to absent–mindedness.
The motives of the crime (revenge, greed, family or friendly relationships, misunderstood interests of the service) do not affect the decision on the responsibility of the perpetrator or the qualification of the crime, but are taken into account when imposing punishment.
Most often, this crime is committed for selfish reasons, for a reward. In such cases, a combination of crimes will take place in the actions of the perpetrator: Articles 350 and 311 of the Criminal Code (Receiving a bribe). Despite the fact that these actions are covered by Article 311 of the Criminal Code, the additional qualification under Article 350 of the Criminal Code allows us to take into account the harm caused by such acts to the interests of justice.
The subject of this crime may be a judge or a juror. When an unlawful judicial act is collectively pronounced, not all judges and jurors who participated in the consideration of the issue may be held criminally liable under this article of the Criminal Code, but only those who knowingly knew that the judicial act was unlawful, but at the same time insisted on its pronouncement.
In the case of a collegial review, the verdict is preceded by a meeting of judges and jurors. If any of the judges or jurors involved in the case disagree with the majority's decision, they can express their dissenting opinion in writing in the conference room (Article 373 of the CPC). If an unlawful verdict, decision or other judicial act is passed by a majority of judges or jurors, the judge or juror who had a dissenting opinion and voted against such a court decision is not liable under the article of the Criminal Code in question.
Thus, the subject of the crime in question may be judges of the Supreme Court of the Republic of Kazakhstan, regional and equivalent courts, district (city) and equivalent courts, military, economic courts, as well as jurors. Persons involved in the consideration of economic disputes in arbitration courts may not be subjects of a crime under Article 350 of the Criminal Code.
Part two of the article under consideration of the Criminal Code provides for liability for the same act related to the imposition of an unlawful court sentence to imprisonment or entailing other grave consequences. A qualified type of this crime can be considered the action of a person who has issued an unjustified conviction with the imposition of a custodial sentence. For example, when a court issues a guilty verdict with a custodial sentence imposed on a defendant, when there was no corpus delicti in the person's act, when there was no crime event, or when there were other grounds provided for in Article 376 of the Criminal Procedure Code of the Republic of Kazakhstan for an acquittal.
Other grave consequences of this crime include the imposition of punishment as a result of an unjustified death sentence, suicide, or causing serious harm to the health of a person against whom an unjustified judicial act has been passed. Other grave consequences of the crime in question may also include the unlawful conviction or acquittal of several persons.
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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