Commentary to article 363. Concealment of a crime of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     The non-promised concealment of a grave or especially grave crime —    

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by arrest for a term of three to six months, or by restriction of liberty for a term of up to two years, or by imprisonment for a term of up to two years.

     Note. A person is not subject to criminal liability for not promising in advance to conceal a crime committed by his spouse or a close relative.

     Concealment of crimes is one of the forms of obstruction of justice. It makes it difficult to solve a crime in a timely manner and bring the perpetrator to justice. There are two types of concealment of a crime: promised in advance, which is recognized as complicity in a crime in the form of complicity (Article 28 of the Criminal Code), and not promised in advance, which in some cases is liable under Article 363 of the Criminal Code.   

   The object of the previously promised concealment is the normal activities of the bodies of inquiry, preliminary investigation and court to uncover, expose the criminal, and sentence.    

 The subject of this crime may be instruments or other means of committing a crime, traces of a crime, or objects obtained by criminal means.    

 The objective side of this crime is characterized by active actions aimed at concealing the perpetrator, tools and other means of committing a crime, traces of a crime or objects obtained by criminal means, as well as promising in advance to purchase or sell such objects.    

 Harboring a criminal should be understood as providing him with shelter, means of transportation, providing false documents, providing assistance in changing his appearance, etc.  

   Concealment of tools and means of committing a crime is the concealment of weapons and other objects with which a crime was committed, or their destruction or modification. A weapon is any object, including a weapon, that is used to directly affect the subject of a crime or the victim. The means of committing a crime are those objects, the use of which facilitates the commission of a crime. For example, a car, communications equipment, and other items.  

   Concealment of traces of a crime can take place, for example, when destroying traces of blood, fingerprints at the crime scene, replacing the bumper of a car on which a pedestrian was hit, etc. Concealment of objects obtained by criminal means can be carried out by hiding them, transporting them to another place, destroying, changing their appearance, forging a factory stamp, part numbers, etc.     

 A cover-up that has not been promised in advance can be committed either immediately after the end of the crime being covered up, or after a certain time has elapsed, when the threat of exposure of the criminal looms.       Responsibility is provided for under the article of the Criminal Code in question for the non-promised concealment of not any, but only two categories of crimes: grave and especially grave. Responsibility under this article of the Criminal Code is not provided for the non-promised concealment of crimes belonging to other categories in advance.  

    If the concealment is systematic, which gives the perpetrator reason to expect assistance in committing a crime, then such actions should be qualified as complicity.    

 The subjective side of this crime is characterized by guilt in the form of intent. The subject must be aware that he is harboring a criminal who has committed a grave or especially grave crime, tools or means of committing such crimes, traces of a crime or objects obtained as a result of committing grave or especially grave crimes.    

 The motives for this crime can be very diverse (greed, fear of the criminal, revenge on the judicial authorities, kinship, friendly relations with the person being sheltered, etc.). The purpose, as well as the motive for concealment, lies beyond the scope of the crime and is taken into account by the court when sentencing.   

  The subject of this crime may be a sane person who has reached the age of 16.  

   A note to the analyzed article of the Criminal Code establishes the provision that a person is not subject to criminal liability for previously not promised concealment of a crime committed by his spouse or a close relative.   

  This crime is similar to knowingly giving false testimony to a witness or victim, knowingly giving a false conclusion to an expert, or knowingly making a wrong translation by an interpreter in order to mislead law enforcement officials, judges and shield the real criminal.    

  Such perjury is a type of intellectual concealment, for which liability is provided under a special rule. Since in such cases it is possible to see the existence of competition between general and special norms of the Criminal Code, in our opinion, a special norm should be applied – art. 352 of the Criminal Code (Knowingly false testimony, expert opinion or incorrect translation).  

   The non-promised concealment also has similarities with the non-promised acquisition or sale of property knowingly obtained by criminal means (art. 183 of the Criminal Code). The difference is that when committing the crime in question, a person hides not only the items specified in Part 5 of Article 28 of the Criminal Code, but also the criminal himself, as well as the traces of the crime. 183 of the Criminal Code provides for liability for hiding only items obtained by criminal means.

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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