Commentary on Article 419. Knowingly False Reporting under the Criminal Code of the Republic of Kazakhstan

1. Knowingly false reporting of the commission of a criminal misdemeanor shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to two hundred hours.

2. Knowingly false reporting of the commission of a crime shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to five years, or deprivation of liberty for the same period.

3. An act provided for in Part Two of this Article, involving the accusation of a person of committing a corruption-related, serious or particularly serious crime, or committed for mercenary motives, shall be punishable by deprivation of liberty for a period of three to eight years.

4. Acts provided for in Parts Two or Three of this Article, committed in the interests of a criminal group, shall be punishable by deprivation of liberty for a period of five to twelve years.

The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanor, while Parts 2 and 3 constitute crimes) lies in the fact that such an infringement disrupts the normal functioning of law enforcement agencies and the courts, infringes upon individual rights, and reduces the level of public trust in law enforcement agencies and the courts. It may also result in unjustified pre-trial investigations, prosecution and conviction of an innocent person.

The object of the offence is the public relations ensuring the normal (lawful) functioning of the courts, prosecution authorities and pre-trial investigation bodies. An additional object is the public relations protected by criminal law concerning the protection of the honour and dignity, health and personal liberty of the individual accused of committing a criminal offence.

The objective element consists of knowingly false reporting of the commission of a criminal misdemeanor.

False reporting is an active act consisting of communicating information about the commission of a criminal offence orally or in writing, through other persons, by post, etc. In this regard, the information concerning the fact of commission of a criminal misdemeanor and/or the person who committed it must be false, i.e. partially or completely inconsistent with reality. The falsity of the information reported may consist in reporting a criminal misdemeanor that did not actually occur, attributing an unsolved criminal misdemeanor to a particular person, or providing false information concerning individual circumstances (the place, time, method, instruments and means of the unlawful act, the amount of damage, the form of guilt, etc.).

The falsity of the report must concern the factual circumstances of the criminal offence rather than their legal assessment. An incorrect legal classification of the committed act does not constitute false reporting. For example, if a person reports that a robbery involving violence was committed, whereas in fact a theft openly committed (robbery under the relevant legal classification) took place, i.e. provides an incorrect legal qualification, the elements of knowingly false reporting are absent. An honest mistake in assessing the reported information excludes the possibility of qualifying the act as false reporting.

The authorities to which a false report may be submitted include the courts, prosecution authorities and pre-trial investigation bodies. The concepts of these authorities are explained in the commentary to Article 407 of the Criminal Code.

The authorities to which a false report may be submitted should also include other institutions which, although they do not directly exercise criminal prosecution functions, are nevertheless obliged to forward information about criminal offences being prepared or committed to institutions vested with the relevant authority. These may include public authorities, local self-government bodies, etc.

By its legal structure, the elements of the criminal misdemeanor are formal. The offence is considered completed from the moment the knowingly false report concerning the commission of a criminal misdemeanor is received.

The subjective element is characterised by direct intent. The person is aware of the social danger of their conduct, understands that the information contained in the report is false, i.e. does not correspond to reality, foresees the commission of the act and desires it. The term “knowingly false reporting” also indicates the presence of direct intent.

If a person honestly misunderstands the nature of the information being reported (believing it to be accurate when, in fact, it is false), such actions do not constitute the elements of the criminal offence provided for in Article 419 of the Criminal Code.

Motive is not an obligatory element of this offence. The most common motives for knowingly false reporting are envy, revenge, personal hostility, mercenary interests, careerism, the desire to avoid trouble, and fear of being exposed.

The purpose is not specified in the disposition of the Article under consideration; however, according to its meaning, such purpose is to bring an innocent person to criminal liability.

The subject of the offence is a sane natural person who has attained the age of sixteen.

If knowingly false reporting is committed by an official through the use of their official position, their actions should be qualified cumulatively under Article 361, “Abuse of Official Authority”, or Article 362, “Exceeding Authority or Official Powers”, and knowingly false reporting (Article 419 of the Criminal Code).

Part Two of the Article under consideration provides for liability for knowingly false reporting of the commission of a crime.

The actions characterising the objective and subjective elements of this criminal offence, as well as its subject, are identical to the corresponding concepts contained in Part One of Article 419 of the Criminal Code.

Knowingly false reporting is a completed crime from the moment the report concerning the commission of a crime is received. Consequences (for example, registration in the Unified Register of Pre-Trial Investigations, conducting a pre-trial investigation, judicial proceedings, or the conviction of an innocent person) do not affect the legal qualification of the crime, but may be taken into account by the court when determining the punishment.

If the false report does not reach its intended recipient due to circumstances beyond the control of the perpetrator, the act should be classified as an attempt to commit a crime. In this regard, the requirements set out in Article 24 of the Criminal Code must be taken into account.

If knowingly false reporting constitutes a method of committing another crime, additional qualification under the rules governing the cumulative commission of crimes is not required. For example, if a perpetrator makes a false report about the theft of a vehicle for the purpose of obtaining insurance compensation, it is sufficient to qualify these actions under Article 190 of the Criminal Code, “Fraud”.

Part Three of Article 419 of the Criminal Code provides for liability for knowingly false reporting involving the accusation of a person of committing a corruption-related, serious or particularly serious crime, or reporting committed for mercenary motives.

The list of corruption-related crimes is provided in Subparagraph 29) of Article 3 of the Criminal Code.

The concepts of serious and particularly serious crimes are set out in Parts 4 and 5 of Article 11 of the Criminal Code.

The increased public danger of knowingly false reporting involving the accusation of a person of committing a corruption-related, serious or particularly serious crime is explained by the fact that, in addition to causing harm to the interests of justice, it may result in significant adverse consequences for an innocent person (being brought to criminal liability, having pre-trial detention imposed as a preventive measure, having property seized, being suspended from office, etc.), which entails more severe liability.

Liability for a knowingly false report concerning an act of terrorism is provided for by a special provision in relation to Article 419 of the Criminal Code, namely Article 273 of the Criminal Code. It should be noted that the objective element of the offence provided for in Article 273 of the Criminal Code is structured in such a way that liability arises only for a knowingly false report about a planned act of terrorism. Consequently, in the event of knowingly false reporting about an act of terrorism that has already been committed, the perpetrator's actions should be qualified under Article 419 of the Criminal Code.

Part Three of the Article under consideration also provides for liability where this act is committed for mercenary motives.

Mercenary motive means the perpetrator's desire to obtain material or property benefits either for themselves or for the benefit of other persons whose financial situation is of interest to the perpetrator. Its purpose is the ultimate desire, aspiration or intention to achieve something. Reporting should be considered knowingly false and committed for mercenary motives if, when committing this crime, the perpetrator seeks to obtain material benefits, regardless of whether the intended objective has been achieved.

Part Four of Article 419 of the Criminal Code provides for liability for knowingly false reporting of the commission of a crime where such reporting is committed in the interests of a criminal group.

The concept of a criminal group is provided in Subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.

To establish the existence of this qualifying circumstance, it is necessary to determine that the knowingly false report was beneficial to the aforementioned groups, so that their members could remain beyond suspicion after committing a crime.

In such cases, knowingly false reporting may be carried out in order to mislead pre-trial investigation bodies and direct them down a false investigative path.

The act provided for in Part One of Article 419 of the Criminal Code is classified as a criminal misdemeanor.

The act provided for in Part Two of Article 419 of the Criminal Code is classified as a crime of medium gravity.

The acts provided for in Parts Three and Four of Article 419 of the Criminal Code are classified as serious crimes.

Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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