Commentary on Article 351. Knowingly False Reporting of a Crime of the Criminal Code of the Republic of Kazakhstan

1. Knowingly false reporting of a crime — shall be punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by engagement in community service for a period of one hundred and eighty to two hundred and forty hours, or by correctional labor for a period of one to two years, or by arrest for a period of three to six months, or by deprivation of liberty for a period of up to two years.

2. The same act, combined with accusing a person of committing a corruption-related, serious or particularly serious crime, or with the fabrication of artificial evidence of accusation, or committed for mercenary motives — shall be punishable by deprivation of liberty for a period of up to six years.

3. The acts provided for in Parts One or Two of this Article, committed in the interests of an organized group or a criminal community (criminal organization) — shall be punishable by deprivation of liberty for a period of three to eight years.

Reports by citizens concerning crimes that have been committed or are being prepared play an important role in combating crime. Law enforcement agencies initiate criminal cases, as a rule, when there is an application from citizens or a report from the head of an organization that has suffered damage as a result of a crime committed. In accordance with Article 177 of the Criminal Procedure Code, in addition to the two aforementioned grounds, a voluntary confession, a report in the mass media, and the direct discovery of information about a crime by officials and bodies authorized to initiate criminal proceedings may also serve as grounds and reasons for initiating a criminal case.

Knowingly false reporting constitutes a serious obstacle to the normal functioning of law enforcement agencies, since criminal cases are initiated and preliminary investigations are conducted on the basis of a significant proportion of false reports. In some criminal cases initiated on the basis of false reports, the investigation concludes with the consideration of the case in court and the unjustified and unlawful conviction of an innocent person.

The public danger of the crime under consideration lies in the fact that, as a result of reporting knowingly false information about a crime that has been committed, innocent persons may be held criminally liable.

The object of the crime provided for in Article 351 of the Criminal Code is the normal functioning of law enforcement agencies aimed at administering justice. Since, as a result of a false report, an innocent person is often subjected to criminal prosecution, the individual, their rights and interests are recognized as the optional object of this crime.

The objective element of knowingly false reporting consists in communicating fabricated information about an allegedly committed or impending crime to the bodies of inquiry, preliminary investigation bodies, the prosecutor's office or the court, as well as to other state bodies that are obliged to forward reports of this kind to law enforcement agencies.

Regarding the question of whether knowingly false reporting can be recognized where false information about an impending or committed crime is communicated not only to law enforcement agencies but also to other bodies, different opinions exist in legal literature. We consider the position more correct according to which the communication of knowingly false information about an allegedly impending or committed crime exclusively to bodies entitled to initiate criminal proceedings in accordance with the criminal procedure legislation of the Republic of Kazakhstan, and to officials who are employees of the aforementioned bodies, constitutes the elements of knowingly false reporting. The communication of the specified information to other bodies and officials may constitute the elements of the crime under consideration if this information reaches the criminal prosecution authorities, where the truthfulness or falsity of the received information is verified and the issue of initiating a criminal case is decided. False reporting will constitute a public danger only when the report of a crime reaches the criminal prosecution authorities, regardless of how it reached them.

For the purposes of qualification under Article 351 of the Criminal Code, it does not matter whether, in knowingly false reporting, a specific person who committed the crime is identified or whether the false report about an allegedly impending or committed crime is made without identifying such a person. In cases where a knowingly false report about a committed or impending crime, submitted to a court or law enforcement agencies, identifies a specific person involved in the commission of the crime, the act may be qualified as false reporting (Article 351 of the Criminal Code) or as defamation (Article 129 of the Criminal Code). Practitioners apply Article 351 of the Criminal Code in such cases, which is correct, since the provision contained in Article 351 of the Criminal Code is a special provision in relation to the general provision contained in Article 129 of the Criminal Code.

False reporting can be committed only through active actions. The methods of committing this crime may be very different and do not affect the qualification of the crime. A report about an allegedly committed or impending crime may be delivered to law enforcement agencies personally by the applicant or transmitted through other persons, by mail, telegraph, telephone, fax, electronic mail, etc.

The question of the content of false reporting is of particular interest. First, knowingly false reporting may be regarded as criminal conduct if it contains information about an allegedly committed or impending crime. A knowingly false report about an allegedly committed administrative or other offense, or about a person's immoral conduct, does not entail liability under Article 351 of the Criminal Code. An act of this kind may be qualified as defamation (Article 129 of the Criminal Code).

In the case of knowingly false reporting, the report must be made in the form of an assertion rather than in the form of an assumption about the possible commission of a crime or a crime being prepared.

In legal literature, the opinion has been expressed that false information communicated in a report may also relate to the legal nature and legal assessment of the crime committed. For example, it has been proposed that a false report about the commission of murder at a time when, in reality, death was caused by negligence, or a false report about the commission of robbery at a time when theft had actually been committed, should be recognized as knowingly false reporting.

However, this point of view appears to be incorrect, since an obviously incorrect legal assessment of a committed crime cannot constitute the elements of the crime under consideration, because "the applicant's legal assessment is of no significance whatsoever to the judicial and investigative authorities. The legal classification of the act committed is the exclusive prerogative of the investigative authorities and the court."

On this issue, the position of those authors who believe that the falsity of a report concerning the legal classification of an allegedly committed crime is of no significance whatsoever for the elements of false reporting appears to be more correct. An incorrect report about an allegedly committed robbery will not constitute the elements of the crime under consideration if a different type of crime, for example, theft, actually took place.

In the practical activities of law enforcement agencies, there are frequent cases when a person reports to them an allegedly committed crime, but upon verification it turns out that the event that actually took place contains no elements of a crime, and the person who submitted the report was mistaken regarding the legal assessment of another person's conduct. For example, a man persuades a woman to engage in sexual intercourse by promising to marry her. Upon discovering that he deceived her, the woman files a report alleging that she was raped. In cases of this kind, the actions of the female applicant do not contain the elements of the crime under consideration, since, due to her lack of knowledge of the law, she incorrectly assessed what had occurred, that is, she made an error in the legal classification of the act committed.

False reporting is understood as a report about an impending or committed crime, and not about another offense or immoral conduct.

Thus, false reporting may be made in written form as an application signed by its author, anonymously, or orally, addressed directly to officials of law enforcement agencies. It may be made either with the identification of a specific person who allegedly committed the crime or without identifying such a person.

A written report is usually signed by the applicant. Criminal procedure legislation obliges the person accepting a written application concerning an impending or committed crime to warn the individual about criminal liability for knowingly false reporting under Article 351 of the Criminal Code. However, the absence of a signature on a written application (which may occur when it is sent by mail, as well as in the case of anonymous false reporting) does not release its author from criminal liability, despite the fact that, in such cases, the perpetrator cannot be warned in advance about criminal liability for knowingly false reporting.

Knowingly false reporting is considered a completed crime from the moment the report is received by the aforementioned bodies, regardless of the reaction of law enforcement agencies to that report and whether a criminal case was initiated or not. The consequence is not a mandatory element of the composition of the crime under consideration.

The subjective element of knowingly false reporting is characterized by direct intent. The perpetrator is aware that they are communicating knowingly false information about an impending or allegedly committed crime to the relevant authorities and desires to do so. If a person acted under an honest mistake when reporting an allegedly committed crime, the actions of such a person cannot be regarded as false reporting.

There are no elements of false reporting in the actions of a person who communicates suspicions they have concerning an impending or committed crime so that law enforcement agencies can verify the information received from them. This conclusion follows from the fact that the report must be knowingly false to the perpetrator, that is, the person committing this crime must not merely suspect, but must be certain that the information they are reporting about an impending or committed crime is false.

False reporting may be committed for a variety of motives (revenge, careerism, hostile relations, the desire to conceal the actual offender, etc.). A motive, with the exception of a mercenary motive, does not affect the determination of liability for the crime under consideration or the qualification of the act, but may be taken into account when imposing punishment.

The disposition of Article 351 of the Criminal Code does not contain any reference to a special purpose. Therefore, the purpose of false reporting is not a mandatory element of the composition of the crime under consideration, but may be taken into account when imposing punishment on the perpetrator. In most cases, this crime is committed for the purpose of initiating a criminal case and subjecting a specific person to criminal prosecution.

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

In cases involving private or private-public prosecution and accusation, the subject of knowingly false reporting may only be the victim themselves, since criminal prosecution in cases belonging to these categories is possible only upon the application of the victim (a criminal case is not initiated on the basis of reports from other persons or organizations).

If knowingly false reporting is committed by an official through the use of their official position, their actions should be qualified under the aggregate of the Articles of the Criminal Code providing for liability for abuse of official powers (Article 307 of the Criminal Code) and knowingly false reporting (Article 351 of the Criminal Code).

The qualifying features of the type of crime under consideration include knowingly false reporting combined with accusing a person of committing a serious or particularly serious crime, or with the fabrication of artificial evidence of accusation, or committed for mercenary motives — Part 2 of Article 351 of the Criminal Code. Definitions of the concepts of serious and particularly serious crimes are contained in Article 10 of the Criminal Code.

The fabrication of artificial evidence of accusation should be understood as the falsification of incriminating evidence, which may take various forms: the manufacture and submission to the criminal prosecution authorities, as well as the planting or transfer through other persons, of forged documents, objects or other material evidence.

In the case of knowingly false reporting combined with the fabrication of artificial evidence of accusation, the actions of the perpetrator should be qualified only under Part 2 of Article 351 of the Criminal Code, without additional qualification for falsification of evidence under Article 348 of the Criminal Code, because, in this case, the falsification of evidence is considered a method of committing the crime under consideration.

Knowingly false reporting should be considered committed for mercenary motives if, by committing this crime, the perpetrator sought to obtain material benefit, and it is not at all necessary for them to have achieved their goal. For example, a person made a false report about a crime allegedly committed by someone (for instance, by a candidate for deputy in order to discredit that person), but, having been deceived, did not receive the promised money. In this case, knowingly false reporting shall be considered to have been committed for mercenary motives.

Part 3 of Article 351 of the Criminal Code applies if the crime under consideration is committed in the interests of an organized group or a criminal community. The characteristics of an organized group and a criminal community (criminal organization) are specified in Article 31 of the Criminal Code. To establish the presence of this qualifying feature, it is necessary to determine that knowingly false reporting was beneficial to the aforementioned criminal formations in order for their members to remain beyond suspicion after committing a crime. In such cases, false reporting may be carried out in order to direct the preliminary investigation and judicial consideration of the case along a false path.

Defamation combined with a false accusation of committing a crime bears similarities to the crime under consideration. Defamation differs from false reporting in that, in the case of false reporting, the perpetrator's intent is directed towards bringing the victim to criminal liability, whereas in the case of defamation, it is directed towards humiliating the victim's honor and dignity.

Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan.

By I. Sh. Borchashvili, Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.

Date of amendment of the act: 02.08.2007

Date of adoption of the act: 02.08.2007

Place of adoption: NONE

Body that adopted the act: 180000000000

Territory of application: 100000000000

Registration number of the normative legal act assigned by the rule-making body: 167

Status of the act: new

Sphere of legal relations: 028000000000

Form of the act: COMMENTARY

Legal force: 1900

Language of the act: Russian 

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