Knowingly false denunciation accusing a person of committing a serious crime and knowingly giving false testimony as a witness

By the verdict of the Abai District Court of Shymkent, South Kazakhstan region, dated March 3, 2016, D., previously convicted on August 10, 2015 under part 2 of Article 296, part 1 of Article 297 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison, with confiscation of personal property, was convicted under part 3 of Article 419 of the Criminal Code to 3 years of imprisonment, under part 2 of Article 420 of the Criminal Code to 5 years of imprisonment. Based on part 3 of Article 58 of the Criminal Code, 5 years of imprisonment were finally imposed by absorbing a less severe punishment with a more severe one. According to part 6 of Article 58 of the Criminal Code, by partially adding the newly imposed punishment to the punishment imposed by the verdict of August 10, 2015, 5 years and 3 months of imprisonment, with confiscation of personal property, and serving the sentence in a general regime penal colony, were finally imposed. By the verdict of the Court of D. He was found guilty of the fact that on July 10, 2015, while in the ICH-167/11 pre-trial detention facility located in the Saule microdistrict of Shymkent, he deliberately made a false denunciation accusing a person of committing a serious crime and gave deliberately false testimony as a witness that illegal methods were used against him by DEA officers. physical and psychological pressure in order to force them to admit guilt in a criminal case of a serious crime. The case was considered in the conciliation proceedings. The criminal case was not considered on appeal.

Knowingly false denunciation accusing a person of committing a serious crime and knowingly giving false testimony as a witness

In the protest, the Prosecutor General of the Republic of Kazakhstan asks the court's verdict against D. to cancel, the criminal case to be terminated for lack of corpus delicti provided for in part 3 of Article 419, part 2 of Article 420 of the Criminal Code. In accordance with paragraph 5 of the regulatory decree of the Supreme Court No. 19 of August 15, 2002 "On judicial verdict", a guilty verdict is issued if the court has indisputably established that a crime has been committed and it was committed by the defendant, his guilt is confirmed by evidence collected in compliance with the requirements of the law. According to paragraphs 17 and 18 of the said regulatory resolution, due to the presumption of innocence and in accordance with article 19 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. Contrary to these legal requirements, the conviction against D. is based on assumptions and is not substantiated by any evidence. Thus, it follows from the materials of this criminal case that on June 12, 2015, at a preliminary hearing in the criminal case against D. under paragraphs 1), 2) of part 3 of Article 297 of the Criminal Code, he stated that illegal methods of physical and mental influence were used against him during the pre-trial investigation by the DEA of the Department of Internal Affairs of South Kazakhstan region, as a result Why did he give false testimony against Yu. regarding the sale of narcotic drugs to them. In accordance with paragraph 13 of the normative Resolution of the Supreme Court No. 7 of December 28, 2009 "On the application of the norms of criminal and criminal procedure legislation on the observance of personal freedom and inviolability of human dignity, countering torture, violence, and other cruel or degrading treatment or punishment", in the case when a complaint about the use of torture, violence, other cruel or degrading treatment stated at the court hearing, The court is obliged to take measures provided for by law for its immediate consideration.

Taking into account the requirements of this regulatory resolution and the defendant's statement, the court in the criminal case against D. under paragraphs 1), 2) of part 3 of Article 297 of the Criminal Code issued a resolution dated June 12, 2015 on conducting an audit on these arguments, which was registered by the district prosecutor on July 2, 2015 in the Unified Register of Pre-Trial Investigations under paragraph 1) part 2 of Article 146 of the Criminal Code. According to the results of the investigation, the fact of torture against D. It was not confirmed by the police officers, and therefore, on August 6, 2015, the pre-trial investigation was discontinued for lack of evidence of a crime. D.'s statement about the use of torture by police officers cannot be recognized as a deliberately false denunciation, since his status as a defendant in a criminal case under paragraphs 1), 2) of part 3 of Article 297 of the Criminal Code granted him the right to defense in the form of giving the testimony he desired, up to their refusal. His allegations in the same case about the use of torture by police officers cannot be recognized as giving deliberately false testimony. He used his statements about police officers as a way of defending himself. In accordance with articles 64, 65 of the CPC, D., under paragraphs 1), 2) of part 3 of Article 297 of the Criminal Code, was entitled to refuse to testify, to complain about the actions and decisions of the investigator, inquirer, prosecutor and court, to defend his rights and legitimate interests in other ways that do not contradict the law.

However, the pre-trial investigation body in this criminal case, in violation of the above requirements, unreasonably took away a statement from D. on July 10, 2015, warning him of criminal liability for false denunciation under Article 419 of the Criminal Code, although his complaint about the use of illegal methods of physical and mental influence against him during the pre-trial investigation by employees of the DEA of the Department of Internal Affairs of South Kazakhstan Region, as a result of which he gave false testimony against Yu. regarding the sale of narcotic drugs to them, it was considered in court on June 12, 2015. Implementation of D. his right to protection in the form of statements about torture was an illegal basis for bringing him to criminal responsibility. According to article 13 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UN General Assembly resolution 39/46 of December 10, 1984, each State Party guarantees any person who claims to have been subjected to torture in any territory under the jurisdiction of that State the right to bring charges. complaints to the competent authorities of that State and for their prompt and impartial consideration of such a complaint. Measures are being taken to ensure that the plaintiff and witnesses are protected from any form of ill-treatment or intimidation in connection with his complaint or any witness testimony. In accordance with part 3 of Article 31 of the CPC, it is not allowed to file a complaint to the detriment of the person who filed the complaint or in whose interests it was filed. Under such circumstances, in the actions of D. There are no elements of crimes provided for in part 3 of Article 419, part 2 of Article 420 of the Criminal Code, the conviction against him is subject to cancellation with the termination of the proceedings 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.  According to paragraph 1) of part 1 of Article 485 of the CPC, the grounds for cassation review of judicial acts that have entered into force, as specified in part one of Article 484 of this Code, are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of a case, or improper application of criminal and criminal procedure laws that led to the conviction of an innocent person. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the verdict of the court of first instance in respect of D. and she terminated the criminal proceedings on the basis of paragraph 2) of part 1 of Article 35 of the CPC due to the absence of corpus delicti provided for in part 3 of Article 419, part 2 of Article 420 of the Criminal Code. D. was recognized as having the right to compensation for damage caused by illegal actions of the bodies conducting the criminal process. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

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