Commentary to article 352. Knowingly false testimony, expert opinion or incorrect translation of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Knowingly false testimony of a witness, victim, or expert opinion in court or during an inquiry or preliminary investigation, as well as knowingly incorrect translation made by an interpreter in the same cases., —      

are punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by community service for a period of one hundred and eighty to two hundred and forty hours, or correctional labor for up to two years, or arrest for up to three months.      

2. The same acts connected with the accusation of a person of committing a corrupt, grave or especially grave crime, connected with the artificial creation of evidence of the accusation, as well as committed with a mercenary purpose, —    

are punishable by imprisonment for a term of up to eight years.

     Note. A witness, victim, expert, or translator shall be released from criminal liability if they voluntarily declared the falsity of their testimony, conclusion, or incorrect translation during an inquiry, preliminary investigation, or trial before the court passed a verdict or decision.

     One of the most common forms of obstruction of justice is the giving of false testimony by a witness or victim. It is often necessary to terminate criminal prosecution against persons who have committed serious or especially serious crimes, precisely because of false testimony by a witness or victim. Deliberately false testimony, expert opinion, or incorrect translation are dangerous because they can disorient persons conducting inquiries, preliminary investigations, or judicial proceedings in criminal and civil cases, lead them down the wrong path, and lead to violations of the rule of law. As a result of deliberately false testimony, translation or expert opinion, it is possible to convict innocent people, unlawfully release the person who committed the crime from responsibility, as well as making an incorrect, illegal decision in a civil or administrative case.    

  The public danger of this crime lies in the fact that participants in criminal procedural activities give false testimony, conclusions, and incorrect translations, which may lead to a change in the course of the investigation.   

  Therefore, the object of this crime is the normal activities of the bodies of inquiry, preliminary investigation and trial. The optional object of this crime may be the legally protected rights and interests of the individual, public or State interests.    

 The objective side of the crime consists in giving false testimony by a witness, a victim, giving a false opinion by an expert or in an incorrect translation made by an interpreter during the preliminary investigation or trial in a criminal or civil case, despite the fact that these persons were previously warned about criminal liability for giving false testimony, for false conclusion or incorrect transfer.   

  The falsity of the testimony of a witness or victim consists in the distortion of information provided by them that is essential for the resolution of a particular case, as well as in the form of denial of facts known to them that actually took place. Such information can be either accusatory or exculpatory.    

 Given the importance of the testimony of the witness, the victim, the expert's opinion and the correctness of the translation performed by the translator for the investigation and resolution of the case, the criminal procedure legislation (Articles 75, 82, 83, 85 of the CPC) obliges to warn these persons before interrogation, when appointing an expert examination or before making a transfer about responsibility under Article 352 of the Criminal Code in the case of giving false testimony, false conclusion, or incorrect translation.    

  The issue of the range of circumstances is controversial, the deliberate distortion of which during the interrogation of a witness or victim forms the composition of perjury. In accordance with articles 75, 82 of the CPC, the witness and the victim are obliged to truthfully report during the interrogation everything they know about the case and answer the questions raised. It follows from this that the testimony of a witness or victim may relate not only to the event of the crime, but also to other circumstances relevant to the resolution of the case and the imposition of punishment. In criminal proceedings, such statements are those relating to the subject of evidence, in civil proceedings – the subject of a claim.   

   In particular, the witness and the victim may be questioned on issues related to the characteristics of the identity of the person who committed the crime, the relationship between him and the victim or witness, the form of guilt, the conditions that contributed to the commission of the crime, the consequences of the crime, etc.   

   The silence of a witness or victim about any circumstances of the case known to them cannot be recognized as giving false testimony. The crime in question can only be committed through active actions. Omission of any circumstances in the case should be regarded as evasion of the witness from testifying.       Part 8 of Article 75 and Part 4 of Article 82 of the CPC oblige the witness and the victim to give truthful testimony, to report everything they know about the case, and to answer the questions raised. If a witness intentionally keeps silent about any facts that are reliably known to him, thus stating that he no longer knows anything about the case in connection with which he is being questioned, then he evades giving evidence. Under the current criminal legislation of the Republic of Kazakhstan, liability for evasion from giving evidence is not provided. However, silence should be considered as a veiled form of refusal by a witness or victim to testify (art. 353 of the Criminal Code).    

  The crime is considered over regardless of whether giving false testimony, false conclusion or incorrect translation influenced the outcome of the case. However, law enforcement agencies in most cases raise the issue of responsibility for the crime in question when false testimony or expert opinion influenced the outcome of the case, which cannot be considered correct.  

   The moment of the end of the crime in question depends on the stage of the criminal process at which the deliberately false testimony was given. Thus, at the stage of inquiry and preliminary investigation, the crime is considered completed from the moment the witness gives deliberately false testimony, which is recorded in the protocol and signed by the witness.    

 At the stage of the trial, the crime in question is considered to be over from the moment the interrogation of the witness ends.    

  For the existence of deliberately false testimony, it is necessary that they be given to the bodies of inquiry, investigation, prosecutor's office or in court. Only the listed authorities have the right to conduct interrogations in accordance with the criminal procedure legislation. Reporting false information to any other authorities (for example, an employee of a private organization, a private detective, members of a commission to investigate any events, etc.) does not constitute a crime in question.    

 Like false testimony from a witness or a victim, a false expert opinion can lead to an incorrect resolution of the case. A victim is a person who is interested in the outcome of a case. It is not uncommon for a witness to be interested in helping someone evade responsibility. For example, if he is forced to testify against his friend or relative. Nevertheless, they (the victim and the witness) must be questioned about the case.    

  The falsity of an expert's conclusion may be expressed in deliberate distortion of the facts revealed by him, or in omission about them, or in false conclusions drawn from the evidence presented for research. These facts may relate to the issues of the involvement or non-involvement of the person against whom criminal prosecution is taking place in the event of the crime, or they are deliberately incorrectly covered and explained, or they need scientific or other special explanation in civil, administrative and criminal cases.  

   A deliberately false expert opinion should be distinguished from an insufficiently clear or complete conclusion, which usually occurs due to a lack of materials submitted for examination, lack of equipment, materials, and insufficient expert competence. In such cases, an additional or commission examination may be re-appointed.  

    The majority of participants in a criminal, civil, or administrative case have the right to give evidence or opinion in their native language or in a language they speak, and to use the free assistance of an interpreter (Articles 69, 70, 77, 82, 83 of the CPC, Articles 14 of the CPC, Article 21 of the Administrative Code).   

   The content of the evidence collected in the case may be distorted if the correct translation is not provided. An incorrect translation may result in a distortion of the meaning of the translated testimony or the content of the documents submitted for translation, as a result of which the court and the investigating authorities are misled about the circumstances of the case being investigated.     

This crime is considered completed from the moment of signing the protocol of the interrogation of the witness, the victim, or the document translated by the translator, as well as the expert's opinion at the stage of inquiry or preliminary investigation, and at the stage of judicial proceedings – from the moment of the end of giving false testimony, false conclusion, or incorrect translation, regardless of the consequences of these actions.  

On the subjective side, the acts listed in the article in question are committed with direct intent. Direct intent as a form of guilt in this crime is indicated by the use of the word "knowingly" in the disposition of art. 352 of the Criminal Code. The perpetrator is aware that he is giving false testimony, a false conclusion, or incorrectly translating testimony, documents, etc.  

   Giving false testimony by a witness or victim in the absence of awareness of their falsity does not constitute the composition of the crime in question. This also applies to giving a false conclusion by an expert and to incorrect translation. The reason for carelessly giving a false conclusion or incorrect translation may be lack of knowledge, incompetence, or lack of experience as an expert or translator. The careless giving of false testimony by a witness or victim is usually called a conscientious error.  

   The issue of liability under the article of the Criminal Code in question for persons who have given false testimony, false conclusions or made a wrong translation under the influence of physical or mental violence, due to fear of reprisals, must be resolved in accordance with art. 36 of the Criminal Code.   

  The motives, with the exception of self-interest, which are guided by the perpetrator, do not matter in qualifying this crime, but can be taken into account when imposing punishment.  

    The subject of the crimes listed in the disposition of Article 352 of the Criminal Code may be persons who have reached the age of 16, who have been informed that they are being interrogated as a witness, victim in a criminal case, or invited as an interpreter. Persons who have not reached the specified age are not criminally liable for giving false testimony. An expert is a person who has been assigned by the bodies of inquiry, preliminary investigation or court to conduct an expert examination, regardless of whether he is an employee of an expert institution or not.

     In order to recognize the above-mentioned persons as the subject of a crime, it is necessary to establish that before the start of investigative actions with their participation or interrogation at a court hearing, they were warned of criminal liability for giving false testimony, false conclusion or incorrect translation.  

    The suspect, the accused, the defendant, the plaintiff, the defendant cannot be the subject of this crime, therefore they are not warned about responsibility under art. 352 of the Criminal Code for giving false testimony.   

   The subject of the crime in question may be not only persons summoned to the bodies of inquiry, preliminary investigation or to court as a witness, victim, expert or interpreter. They can be interrogated without being called to the appropriate institutions. The interrogation of a witness or victim may be conducted not only in the premises of the specified law enforcement agencies, but also in other places, including at the place of residence or temporary residence of the victim or witness. For example, in an apartment, in a hospital, in a hotel, in compliance with all the requirements of the criminal procedure legislation, and giving deliberately false testimony may contain signs of a crime under art. 352 of the Criminal Code.   

   A person who has been questioned as a witness with a prior warning of responsibility for knowingly making false statements cannot be the subject of this crime if he has been questioned about circumstances indicating his involvement in the crime under investigation. In such cases, it will be considered that he was actually a suspect in the case, but was mistakenly questioned as a witness. Therefore, it will have no legal significance that he was warned about responsibility for giving deliberately false testimony.  

   Giving deliberately false testimony should be distinguished from giving explanations (in writing) to the investigating authorities as an eyewitness to an event or incident. In the case of giving a deliberately false explanation, such a person is not liable under Article 352 of the Criminal Code, since he could not be considered a witness at the time of the interview. It becomes such only after a criminal case is initiated.   

   The actions of a person who first committed a false denunciation, and then, during interrogation as a witness or victim, confirmed a previously made false report, do not contain the elements of two independent crimes: deliberately false denunciation and deliberately false testimony, since deliberately false denunciation and subsequent giving of false testimony by the same person are the realization of one criminal plan. A false informer, as a person who has committed a crime, being subsequently interrogated on the circumstances relating to the crime committed by him, cannot be responsible for giving deliberately false testimony, since during the interrogation he is actually not a witness, but a person who has committed a crime in the form of deliberately false denunciation.   

  The application of part 2 of Article 352 of the Criminal Code requires the presence of at least one of the qualifying features: knowingly false testimony of a witness, victim, expert, as well as incorrect translation, combined with the accusation of a person of committing a grave or especially grave crime, with the artificial creation of evidence of the accusation, as well as committed for selfish purposes.   

   Deliberately false testimony, false conclusion, and false translation, combined with the artificial creation of evidence for the prosecution, occur in cases where the perpetrator uses false evidence to convince law enforcement agencies of the truthfulness of the testimony, conclusion, or translation. Artificially creating evidence for an accusation means falsifying or destroying evidence already available in the case, referring to false witnesses, and similar actions. In order to qualify deliberately false testimony, deliberately false expert opinion and incorrect translation on this qualifying basis, it is necessary that fabricated evidence be used to incriminate a person in the commission of a crime, that is, to be of an accusatory nature. This is evidenced by the wording "with the artificial creation of evidence of the accusation."   

   This wording of the law does not allow the application of the second part of Article 352 of the Criminal Code, if deliberately false testimony, false expert opinion were made with the artificial creation of evidence not accusatory, but exculpatory in order to deflect the criminal from responsibility.   

   Committing this crime for personal gain means that the perpetrator knowingly gives false testimony, a false conclusion, or carries out an incorrect translation in order to obtain property benefits. This is most often the case when they are bribed. For example, a witness who initially gave truthful testimony later refuses to give evidence during his interrogation and, after receiving a reward, gives false testimony.    

  The note to the article in question states that a witness, victim, expert or translator are exempt from criminal liability if they: 1) voluntarily, 2) before the court pronounces a verdict or decision, they declared the falsity of their testimony, conclusion or incorrect translation. A note to the relevant article of the Criminal Code can be applied if both of these conditions are met.    

  One of the conditions for exemption from criminal liability in accordance with this note is a statement about the falsity of testimony, conclusion or incorrect translation, which must be made during the inquiry, preliminary investigation or in the court of first instance before the verdict or decision is announced by the court.

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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