Commentary on Article 369. Official Forgery of the Criminal Code of the Republic of Kazakhstan

1. Official forgery, that is, the insertion by a person authorized to perform state functions, or a person equated to such a person, or an official, into official documents of knowingly false information, or the insertion into such documents of amendments that distort their actual content, or the issuance of knowingly false or forged documents, provided that these acts are committed for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, -

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

2. Excluded by Law of the Republic of Kazakhstan dated 12 July 2018 No. 180-VI. 2-1.

2-1. The same act, committed by an employee of a law enforcement agency, -

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or correctional labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

3. The act provided for in Part One of this Article, if committed by a person holding a responsible public position, -

shall be punishable by restriction of liberty for a period of up to five years or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

4. The act provided for in Part One of this Article, if committed by a person holding a responsible public position in a law enforcement agency, or by a judge, -

shall be punishable by restriction of liberty for a period of up to seven years or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of official forgery lies in the fact that its commission violates the established procedure for maintaining official records, thereby creating conditions for the embezzlement of budget funds and the commission of other corruption-related crimes.

The object of official forgery is the interests of public service, expressed in the procedure established by law for the functioning of public authorities and officials.

The subject matter of the crime is an official document certifying facts that entail legal consequences in the form of granting or depriving persons of rights, imposing or releasing them from obligations, or changing the scope of their rights and obligations. Such documents include, in particular, temporary disability certificates, medical record books, examination registers, grade books, salary certificates, minutes of procurement commissions, and vehicle registration certificates.

According to Subparagraph 28-1) of Article 3 of the Criminal Code, an official document is a document created by an individual or legal entity, оформatted and certified in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

The objective element of the composition of official forgery is expressed in the commission of the following active acts:

• inserting knowingly false information into official documents;
• inserting amendments into official documents that distort their actual content;
• issuing knowingly false or forged documents.

The insertion of knowingly false information into official documents consists of entering information into such documents that does not correspond to reality and does not reflect actual circumstances or facts. Such an act may be committed both by altering existing official documents (erasure, additions, etc.) and by producing a new document, including through the use of the relevant document form. The element of knowingly implies that the perpetrator is fully aware that the information being entered into such documents is false and untrue.

For example, such acts include cases involving the signing, within the framework of public procurement contracts, of certificates of completed construction and installation works containing volumes of work that do not correspond to reality, or the drawing up of an administrative offence report against a person who did not actually commit the relevant offence.

The insertion into official documents of amendments that distort their actual content means actions aimed at altering information already contained in existing documents for the purpose of distorting it. Such actions may include, for example, correcting (adjusting) figures in an accounting certificate on the basis of which monthly pension payments are determined, or making amendments to an already completed time and attendance sheet, as a result of which an employee who was actually absent from the workplace is recorded as having been present, followed by the unlawful payment of wages to that employee.

The issuance of knowingly false or forged documents means the issuance of official documents that grant rights and powers or impose obligations but in fact contain false information or are forged. For example, this includes the unlawful issuance of an official identification card of a law enforcement officer to a person who is not employed by the relevant law enforcement agency, or the forgery of such an identification card, even if it is indistinguishable from the original but is issued in the name of an unauthorized person.

Official forgery exists only where the insertion of knowingly false information or amendments into a document is connected with the official functions of the perpetrator, that is, where it is carried out in connection with the performance of the perpetrator's official duties. If the persons specified in Article 369 of the Criminal Code commit the same acts without reference to the authority or opportunity available to them by virtue of their official position, the elements of this crime are absent. Under certain circumstances, such an act should be classified under Article 385 of the Criminal Code.

The composition of the crime is formal. The crime shall be considered completed from the moment knowingly false information or amendments distorting the actual content of an official document are inserted, regardless of whether the document was subsequently used. If the perpetrator uses a forged document in the commission of another crime, their actions should be classified under the aggregate of crimes: official forgery together with the relevant crime (for example, those provided for in Articles 189 and 190 of the Criminal Code).

The insertion of false information or amendments into an official document for the purpose of subsequently using it to commit a serious or especially serious crime should be regarded as an aggregate of crimes: official forgery and preparation for the corresponding serious or especially serious crime.

According to Part 2 of Article 24 of the Criminal Code, criminal liability arises for preparation to commit a serious or especially serious crime.

From the subjective side, official forgery is characterized by direct intent. The perpetrator realizes that they are inserting false information or amendments that distort the actual content of an official document and desires to commit such acts. An obligatory element of the subjective side is the motive for the crime – obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations.

This means that official forgery, in itself, cannot constitute a completed crime if the perpetrator does not pursue the above-mentioned purposes. Benefits and advantages may be both material and non-material in nature.

Material benefits are property-related assets and advantages. Their acquisition should be understood as the acceptance by a person belonging to the category of criminal subjects of various services provided free of charge or services that are subject to payment, or the unlawful use of privileges granting preferential rights to property, the performance of construction and repair works, the provision of health resort or tourist vouchers, travel tickets, loans or credits on preferential terms, and the like.

Non-material benefits and advantages should be understood as an apparent improvement in work efficiency, an increase in performance indicators and productivity, and other similar benefits.

According to Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the Practice of Consideration of Certain Corruption-Related Crimes", the acquisition of property-related benefits and advantages should be understood as the acceptance by a person belonging to the category of criminal subjects, not only for themselves but also for other persons or organizations, of various services provided free of charge or services subject to payment, or the unlawful use of privileges, the performance of construction and repair works, the provision of health resort or tourist vouchers, travel tickets, loans or credits on preferential terms, and the like.

The subjects of the crime may include a person vested with the authority to certify the above-mentioned facts, a person authorized to perform state functions, a person equated to such a person, or an official, whose definitions are regulated by Subparagraphs 26), 27) and 28) of Article 3 of the Criminal Code, as well as an employee of a law enforcement agency. The characteristics of these persons and their list are described in detail in the commentary to Article 361 of the Criminal Code.

For the proper classification of official forgery on the grounds of its commission by an official, it is necessary to conduct a comparative analysis of the powers of the perpetrator with the concepts of a representative of authority, organizational and administrative functions, and administrative and economic functions, which are set out in Subparagraphs 5), 9) and 37) of Article 3 of the Criminal Code of the Republic of Kazakhstan.

Part 2-1 of the Article under consideration provides for criminal liability for the same act specified in Part 1 of Article 369 of the Criminal Code, if committed by an employee of a law enforcement agency (see the commentary to Article 361 of the Criminal Code).

Part 3 of Article 369 of the Criminal Code provides for a qualifying element: the commission of this crime by a person holding a responsible public position (see the commentary to Article 361 of the Criminal Code).

In Part 4 of the Article under consideration, the legislator established increased criminal liability in cases where this crime is committed by a person holding a responsible public position in a law enforcement agency, or by a judge.

The act provided for in Part 1 of Article 369 of the Criminal Code belongs to the category of minor crimes.

The acts provided for in Parts 2-1 and 3 of Article 369 of the Criminal Code belong to the category of crimes of medium gravity.

The act provided for in Part 4 of Article 369 of the Criminal Code belongs to the category of serious crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Act Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Note Rules Program Charter Charter Article Commentary Resolution Regulation Protocol Draft Program Rules Addresses