Giving deliberately false testimony while being questioned as a witness in a criminal case

By the verdict of the Aktau garrison military court dated May 15, 2017: B., who had no previous criminal record, was sentenced under part 1 of Article 420 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 3 years of restriction of liberty. On the basis of part 2 of Article 4 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" dated December 13, 2016, the unserved part of B.'s sentence was reduced by one-fourth and he was finally sentenced to 2 years and 3 months of restriction of freedom with probation control. B. was stripped of the military rank of "Sergeant major 3rd class". By the verdict of court B. He was found guilty of knowingly making false statements, having been questioned as a witness on November 2, 2016 in a criminal case against T. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated June 28, 2017. In the petition, R.'s lawyer, in the interests of convicted B., disagreeing with the judicial acts, indicates that the court's conclusions in the verdict do not correspond to the factual circumstances of the case and are not supported by evidence. Referring to significant violations of the law during the pre-trial investigation and challenging the reliability and admissibility of the evidence used to substantiate the conclusions about B.'s guilt in the alleged crime, he points out that judicial acts are based only on the conclusions of expert examinations, which contradict each other.

Giving deliberately false testimony while being questioned as a witness in a criminal case

Considering that the court of first instance and the court of appeal did not give a proper legal assessment of all the evidence, he requests that the judicial acts against B. be annulled and acquitted. In accordance with the explanations contained in paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4 "On certain issues of evidence assessment in criminal cases", the correct resolution of the case should be based only on factual data established by the testimony of the suspect, accused, defendant, victim, witness entitled to defense., expert opinion, physical evidence, protocols of procedural actions and other documents. However, the courts of the first and appellate instances, in violation of the specified requirements of the regulatory resolution and Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), did not take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary for the proper resolution of the case, as a result of which the conclusion about the guilt of convicted B. is illegal and unfounded on the following grounds. The materials of the criminal case established that on April 25, 2016, the foreman of the motorized crew of the border ship Karaganda-308, B. Under the command of Senior Lieutenant T., he took up combat duty among the personnel of the border guard ship for the protection of the State Border of the Republic of Kazakhstan. On April 29, 2016, at about 03:19 hours, at a distance of 6 miles from the coastline in the territorial waters of the Republic of Kazakhstan, a motorboat of the Amur type was discovered, in which there were residents of Aktau P., E. and D., who did not respond to the ship's requests. To detain this boat, by order of the ship's commander, B. and M. were deployed to the bow of the ship as an inspection group.

Subsequently, a ship collided with a boat, as a result of which the Amur boat was flooded, which caused the death of D. in the boat. By the verdict of the Aktau garrison military court dated January 18, 2017, the ship's commander T. was sentenced under Article 465 of the Criminal Code to 4 years in prison with the application of Article 63 of the Criminal Code on probation. By the resolution of the Judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated February 24, 2017, on the basis of paragraph 2) of part 3 of Article 2 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" dated December 13, 2016, T. was released from serving his sentence. By the resolution of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated January 9, 2020, the judicial acts against T. were canceled, the criminal case against T. under Article 465 of the Criminal Code, he was terminated on the basis of paragraph 2) of part 1 of Article 35 of the CPC for the absence of elements of a criminal offense in his actions. As follows from the verdict against B., when questioned on November 2, 2016 as a witness in the criminal case against T. under Article 465 of the Criminal Code, he knowingly gave false testimony that at the time of the approach of the border ship Karaganda-308, the motor of the Amur boat was functioning because the boat was trying to escape, He also denied the fact of a collision between a border patrol ship and this boat.

Giving deliberately false testimony while being questioned as a witness in a criminal case

However, the court's conclusions about B.'s guilt, as set out in the verdict, do not correspond to the actual circumstances of the case and are not supported by any evidence, based only on materials extracted from the criminal case against T. Meanwhile, the courts of both the first and the appellate instances did not give a proper assessment to these materials when considering the criminal case against B. which led to his unjustified condemnation. Thus, according to the protocol of the inspection of the accident site dated July 1, 2016, an Amur-type boat was lifted from the seabed and placed on board the tugboat Batyr. Upon arrival on shore, the boat was transported by a Mercedes Benz truck to the territory of the Western Regional Armed Forces of the Ministry of Internal Affairs. However, this protocol does not specify the position of the ignition keys and the gearshift lever of the Amur boat, what damage was caused to the boat when it was placed on board the tugboat and transported in a car and tow. These circumstances were essential for the expert determination of whether the engine of the specified motorboat was in good working condition, whether the engine was in working condition and whether the boat was in motion immediately before the sinking, whether damage was sustained on the boat immediately before its sinking or when it was lifted from the sea and placed on its means transportation. The defense party indicated that the boat was moving against the wind immediately before the collision with the border ship, having a fuel reserve of about 40 liters. These arguments of the defense have not been analyzed or refuted. Also, despite the requirement of part 1 of Article 220 of the CPC that an inspection is usually carried out immediately when necessary, the inspection of the specified boat was carried out only on July 6, 2016, that is, a long time after its extraction from the seabed. Due to the disregard and omission of these circumstances in the protocol of the inspection of the accident site dated July 1, 2016, subsequent expert studies and their results: conclusions of the forensic tracological examination dated August 24, 2016 No. 688, forensic examination of paint and varnish materials, coatings and polymer materials dated August 12, 2016 No. 686, forensic examination of the vehicle for Dated October 4, 2016, No. 877 - are biased and raise reasonable doubts, and therefore they must be excluded as unreliable and inadmissible evidence. As proof of the convict B.'s guilt, the court also referred to "a forensic expert study of computer technology, to the conclusions of which a video recording was attached," without specifying by whom it was conducted and the time, noting that "analysis of this video leads to the conclusion that B. was a direct eyewitness to the circumstances of the collision of the border ship."Karaganda" with an Amur-type boat and its subsequent flooding on the night of the incident."

Meanwhile, it follows from the explanations of convict B. that the video camera installed on the border ship Karaganda had infrared illumination, as a result of which it is capable of recording at night, having night vision functions. The image captured by this camera cannot be fully perceived by the human eye, so it could not see the silhouette of the boat. Besides, he and K. they stood on the bow of the ship, holding on to the railing, the bow of the ship blocked forward visibility by 5-6 meters from their eyes, and the impact with the boat, as established, occurred with the stem, which is located at an acute angle behind them. From the vantage point where they were standing, it was impossible to see the collision in daylight. However, the courts did not assess these facts, contrary to the requirements of article 379 of the CPC, they did not take measures to verify and clarify the testimony of convicted B. at the scene of the incident and conduct an experiment on the border ship on which the latter served. Thus, the judicial authorities did not give a proper assessment to the procedural documents isolated from the criminal case against T. regarding the guilt of convicted B. in the act charged against him, limiting themselves to listing them, without analyzing or comparing them with each other, contrary to the requirements of Article 19 of the CPC, the conclusions of the judicial instance about his guilt are based on assumptions and are not confirmed. a sufficient set of acceptable and reliable evidence. In addition, the composition of the criminal offense provided for in part 1 of Article 420 of the Criminal Code, that is, giving deliberately false testimony by a witness during a pre-trial investigation, provides for a direct intentional form of guilt. However, the court of first instance and the court of appeal, when B. was found guilty of knowingly making false statements, did not take into account that the incident that caused the death of a person took place at night in adverse weather conditions, during the pursuit of a motor boat at sea by a border patrol ship. So, from the testimony of witness K. It follows that there was a storm, the wind was north-westerly, a strong roll, the height of the waves reached 0.25-0.30 meters, and the strength was 2-3 points. Explaining his position, B. testified, referring to poor visibility, that he himself had not personally seen the collision of the ship with the boat, he had seen a white foam trail from the propeller of the boat's engine, so he decided that the boat's engine was working.

Thus, taking into account the specific circumstances of the case, adverse weather conditions at sea, storms, and nighttime, which made visibility difficult, B. could have been mistaken in good faith when testifying as a witness about the circumstances of the detention of the indicated motorboat by border guards. According to paragraph 26 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19 "On the court verdict", in accordance with the third part of Article 393 of the CPC, the court has no right to convict unless all the arguments in defense of the defendant have been verified and evaluated, and all doubts about his guilt have not been eliminated. According to paragraph 1) of part 1 of Article 485 of the CPC, violations of the constitutional rights and freedoms of citizens committed during the investigation or improper application by the court of the norms of the criminal procedure law, which led to the conviction of an innocent person, are grounds for a cassation review of court verdicts and rulings that have entered into force. Based on the above, the judicial board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts against B., and terminated the criminal proceedings under part 1 of Article 420 of the Criminal Code on the basis of paragraph 2) of part 1 of Article 35 of the CPC due to the absence of elements of a criminal offense in his actions. In accordance with the procedure provided for in Chapter 4 of the CPC, B. was granted the right to rehabilitation and compensation for damage caused by illegal actions of the bodies conducting the criminal proceedings. The petition of R.'s lawyer in the interests of convicted B. was granted. 

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