Protection of rights in criminal proceedings from false denunciation of the use of torture
Currently, the Supreme Court, in accordance with the UN Convention against Torture, paragraph "d" of Article 21 and paragraph "d" of Article 22 of the Concluding Comment of the UN Human Rights Committee dated August 9, 2016 on the second periodic report of the Republic of Kazakhstan on compliance with the provisions of the International Covenant on Civil and Political Rights, has developed judicial practice aimed at to distinguish between the actions of suspects and other persons to protect their rights in criminal proceedings from false denunciation of the use of torture. Thus, by the verdict of court No. 2 of the Zyryanovsky district of the East Kazakhstan region dated November 14, 2014, M. was convicted under part 2 of Article 351 of the Criminal Code (as amended in 1997) for knowingly making a false denunciation. According to the materials of the criminal case, on July 20, 2013, M. was detained by police officers on suspicion of committing theft of other people's property. On July 24, 2013, M. applied to the prosecutor's office with a statement about the use of illegal investigative methods against him.
Protection of rights in criminal proceedings against false denunciation of the use of torture
According to the results of the investigation, the fact of torture against M. was not confirmed, and a decision was issued to refuse to institute criminal proceedings due to the lack of corpus delicti in the actions of the police officers. The criminal case against M. himself under part 1 of Article 175 of the Criminal Code was terminated on the basis of Article 67 of the Criminal Code after reconciliation of the parties. Subsequently, a criminal case was opened against M. for knowingly false denunciation, and a lower court found him guilty of contacting the prosecutor's office with a false statement that torture had been used against him. By a decision of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated November 20, 2018, the court's verdict against M. was overturned due to the absence of elements of a criminal offense in his actions on the following grounds. The mere fact of the termination of the criminal case on M.'s statement about the use of torture against him cannot serve as a basis for finding him guilty of false denunciation. M.'s statement, filed during the pre-trial investigation about the use of illegal investigative methods against him, cannot be recognized as a deliberately false denunciation due to the fact that, in accordance with article 64 of the CPC, having the status of a suspect, he was entitled to put forward arguments and give evidence in order to ensure his defense, as well as to refuse to testify, to bring complaints against the actions and decisions of the investigator, the inquirer, the prosecutor and the court, to protect their rights and legitimate interests in other ways that do not contradict the law. Thus, he used the statement against the police officers as a way of his defense. It should also be noted that, 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. In such circumstances, M.'s actions lack the elements of a crime provided for in part 2 of Article 351 of the Criminal Code (as amended in 1997). On similar grounds, the Judicial Board for Criminal Cases of the Supreme Court overturned the court's verdict against E. due to the absence of elements of a criminal offense in her actions. The court of first instance found that E. had filed a written statement addressed to the regional prosecutor about bringing to criminal responsibility the officers of the Zhezkazgan city Department of Internal Affairs for putting pressure on her and threatening her with violence, forcing her to confess to committing four thefts that she had not committed.
This application was registered with the ERDR. Later, she again applied to the regional prosecutor's office with a written statement to terminate the criminal case against the police officers, due to the fact that she had slandered them in order to avoid criminal liability. According to the ERDR database, four criminal cases were indeed registered against E. under part 1 of Article 188 of the Criminal Code, in which procedural decisions were then taken to interrupt the pre-trial investigations in accordance with paragraph 1 of Part 7 of Article 45 of the CPC (failure to identify the person who committed the criminal offense). Thus, at the time of the pre-trial investigation and conviction of E. under part 2 of Article 419 of the Criminal Code, she was completely dependent on the criminal prosecution authorities, since a pre-trial investigation into thefts was being conducted against her. According to article 13 of the UN Convention against Torture, each State Party shall ensure that any person who claims to have been subjected to torture in any territory under the jurisdiction of that State has the right to file a complaint with the competent authorities of that State and to have such complaint promptly and impartially examined by them. 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. Also, in accordance with the requirements of 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. In such circumstances, E.'s actions, which consisted in the fact that, in order to protect herself from suspicion of committing criminal offenses, she filed a complaint against police officers about the use of torture against her, and then, while continuing to be under criminal prosecution, withdrew her complaint, lacked the elements of a crime provided for in part 2 of Article 419 of the Criminal Code. The conclusions of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan, made in these cases, in order to ensure uniform application of the criminal law, are subject to inclusion in the regulatory resolution in the form of an official explanation.
In the analysis of judicial practice, the issue of the application by the courts of the provision of the Note to Article 146 of the Criminal Code stating that physical and mental suffering caused as a result of lawful actions of officials is not recognized as torture, or the court substantiating its conclusions on the provisions of this Note. A study of judicial acts has shown that the courts have never based their conclusions on the provisions of the Note to Article 146 of the Criminal Code. The fact that physical and mental suffering caused as a result of lawful actions of officials is not recognized as torture is in itself an obvious and indisputable circumstance and does not require its consolidation in the form of a norm of criminal law. In this regard, and taking into account the repeated comments of the UN Committee that the definition contained in the Note to Article 146 of the Criminal Code does not comply with the Convention and can be used to de facto circumvent the absolute prohibition of torture, it would be correct to exclude this Note from the Criminal Code.
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