Commentary to article 659. Knowingly false testimony of a witness, victim, expert opinion, or incorrect translation The Code of the Republic of Kazakhstan on Administrative Offences
1. Knowingly false testimony of a witness, victim, expert opinion to an authority (official) during the consideration of a case of an administrative offense and during the examination of medical activities, as well as knowingly incorrect translation made by an interpreter in the same cases, –
they impose a fine on individuals in the amount of ten, and on officials in the amount of twenty monthly calculation indices.
2. The same acts committed by experts during the examination of medical activities repeatedly within a year after the imposition of an administrative penalty, –
they impose a fine on individuals in the amount of twenty, on officials – in the amount of thirty monthly calculation indices.
Note. A witness, victim, expert, or translator shall be released from administrative responsibility if they voluntarily stated the falsity of their testimony, conclusion, or incorrect translation during the consideration of an administrative offense case before the decision on the case was made by an authorized body (official).
One of the most common forms of obstruction of justice is the giving of deliberately false testimony by a witness or victim. Deliberately false testimony, expert opinions, or incorrect translation are dangerous because they can disorient the proper person in charge of the administrative offense case and lead to a violation of the rule of law. As a result of deliberately false testimony, translation, or expert opinion, it is possible to bring an innocent person to administrative responsibility, and the guilty person, in turn, will escape punishment.
The general object of the offense is the established procedure for ensuring the functioning of public authorities.
The generic object of the offense is the social and legal relations that arise as a result of non-fulfillment of duties by a witness, victim, expert, translator.
A witness, victim, expert, or translator, by virtue of their legal status in an administrative offense case, have the rights and obligations set out in Chapter 38 of the Administrative Code.
So, for example, a witness is obliged to appear at the summons of a judge, an authority (official) in charge of an administrative offense case, truthfully report everything he knows about the case and answer the questions raised, certify with his signature in the relevant protocol the correctness of his testimony. The witness is warned about administrative responsibility for evading or refusing to testify, giving deliberately false testimony to the body (official) authorized to consider cases of administrative offenses, and about criminal liability for committing these acts in court (Parts 3, 4 of art. 754 of the Administrative Code).
The victim may be questioned as a witness in accordance with the procedure provided for in article 754 of the Code. If the victim is a legal entity, his representative may be interviewed as a witness (Part 4 of Article 745 of the Administrative Code).
In turn, the expert is responsible for giving a deliberately false conclusion in accordance with the Administrative Code. An expert who is an employee of a judicial examination body is considered to be familiar with his rights and duties by the nature of his activity and warned about responsibility for knowingly giving a false conclusion in court, provided for by the Code (parts 5, 6 of art. 757 of the Administrative Code).
In addition to the duties stipulated by the Administrative Code, the expert is charged with the duties of the Law of the Republic of Kazakhstan dated February 10, 2017 No. 44-VI "On Forensic expertise", these include:
- appear at the summons of the body conducting the criminal process, the investigating judge, the court, the body (official) in whose proceedings the case of an administrative offense is;
- to conduct a comprehensive, complete and objective study of the objects presented to him, to give a reasoned written opinion on the issues put to him;
- in cases stipulated by law, refuse to give an opinion, make a reasoned written statement about the impossibility of giving an opinion and issue (send) it to the body (person) who appointed the forensic examination.;
- to give evidence on issues related to the conducted research and this conclusion.
The translator must: appear at the summons of the judge, the body (official) in charge of the administrative offense case, and perform the translation fully and accurately assigned to him; certify the correctness of the translation with his signature in the relevant protocol. The translator is warned about administrative responsibility for performing a deliberately false translation when considering a case of an administrative offense by an authority (official) authorized to consider cases of administrative offenses, and about criminal liability for committing this act in court (parts 4, 5 of art. 758 of the Administrative Code). A person who understands the signs of the deaf or dumb, and who is assigned to sign language translation, is equated to a translator.
The objective side of the act is manifested in illegal actions (inactions) that violate the rules, according to which a judge or official determines the presence or absence of an administrative offense event, the guilt of an individual, as well as circumstances relevant to the proper resolution of the case.
Violation of these rules is possible by:
giving deliberately false testimony by a witness;
giving deliberately false testimony to victims;
giving a deliberately false conclusion by an expert;
making a deliberately false transfer.
The falsity of the testimony of a witness or victim consists in the distortion of information provided by them that is essential to the case, as well as in the form of denial of facts known to them that actually took place.
There is no consensus in the legal literature on whether it is possible to knowingly give false testimony by omission, i.e. by omission about the circumstances of the case known to the person. Some authors believe that lying when committing the act in question can be expressed not only in asserting something that did not actually happen, but also in omission about the circumstances of the case.
As Professor Korenev A.P. rightly believes, the offense is considered over regardless of whether giving false testimony, false conclusion or incorrect translation influenced the outcome of the case. However, the note to the commented article states that if a witness, victim, expert or translator independently reports that there is a lie in the testimony, conclusions or translation provided by them, then these persons are released from liability under the article under investigation.
Like false testimony from a witness and a victim, a false expert opinion can lead to an incorrect resolution of the case. A false expert opinion may be aimed at misjudging the actions of the person against whom proceedings have been initiated or the victim. That is, an expert, having experimentally identified facts relevant to the case, begins to distort or conceal them, similar to the testimony of a witness.
In accordance with Article 738 of the Administrative Code, proceedings on administrative offenses in the Republic of Kazakhstan are conducted in the official language, and if necessary, Russian or other languages are used in the proceedings along with the state language. Persons participating in the case who do not speak or do not speak the language in which the proceedings are conducted are explained and provided with the right to make statements, give explanations and testimony, file petitions, bring complaints, get acquainted with the case materials, speak during its consideration in their native language or another language they speak, and use the services free of charge. the translator.
The content of the evidence collected in the case may be distorted as a result of incorrect translation. An incorrect translation may result in a distortion of the meaning of the translated testimony or the contents of the documents provided for translation, as a result of which the court or the body (official) is misled.
This offense will be considered completed from the moment the protocol is signed by the witness, the victim, the document is signed by the translator or the translation is announced, as well as the signature of the expert opinion and its transfer to the persons who appointed the examination.
On the subjective side, the acts listed in this article are committed with direct intent. The direct intent is embedded in the disposition of the article by the word "obviously." That is, the participant in the proceedings is aware that he is giving false testimony, a false conclusion or a false translation.
The subject of the offenses indicated in the disposition of the article under study may be persons who have reached the age of 16, to whom their procedural status in the case of an administrative offense has been declared. An expert will be recognized as a person invited by a court or body to conduct an expert examination, regardless of whether he is an employee of an expert organization or not.
The right to initiate proceedings and draw up a protocol on an administrative offense belongs to:
- officials of the anti-corruption service (paragraph 30 of Part 1 of Article 804 of the Administrative Code );
- bailiffs and other court staff authorized by the chairman of the court or the chairman of the court session (paragraph 57, part 1, Article 804 of the Administrative Code);
- officials of the Economic Investigation Service (paragraph 68 of part 1 of Article 804 of the Administrative Code ).
The judge, the official considering the case of an administrative offense, having established the falsity of the testimony of the witness, the victim, the inaccuracy of the translation, or the falsity of the expert opinion, must record such a fact. One of the forms of detection of such an offense will be the filing of petitions and protests against such testimony, translations and conclusions by other participants in the process. After that, transfer the case materials and a report indicating the content of the offense to authorized officials specified in Article 804 of the Administrative Code to draw up a protocol on an administrative offense. When drawing up the protocol, officials must find confirmation in the deliberate falsity of the information that was provided earlier.
The consideration of the case, in accordance with Part 1 of Article 684 of the Administrative Code, belongs to the jurisdiction of judges of specialized district and equivalent administrative courts. According to Part 1, this offense is punishable by a fine of ten for individuals and twenty MCI for officials.
According to Part 2, the qualifying feature is the repetition of the commission of the offense provided for in part 1 of the article under study, applicable to experts regarding the examination of medical activities, within 1 year after the imposition of an administrative penalty.
A copy of the effective court order (official) confirming the fact of repeated commission of the offense, or information from the bodies of the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan, must be attached to the materials of the administrative offense case.
When determining the repetition, the court must proceed from the provisions of the general part of the Administrative Code on the period during which a person is considered to have been subjected to an administrative penalty provided for in Article 61 of the Administrative Code.
In the Republic of Kazakhstan, in 2018, two administrative offenses were registered under Article 659 of the Administrative Code, of which one case was terminated and a fine was ordered for one case by the court.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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