Commentary to article 353. Refusal of a witness or victim from giving evidence of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

    Refusal of a witness or victim to testify in court or during an inquiry or preliminary investigation — is punishable by a fine in the amount of fifty to one hundred monthly calculation indices or in the amount of wages or other income of the convicted person for a period of up to one month, or community service for a period of one hundred twenty to one hundred eighty hours, or correctional works for up to one year, or arrest for up to three months.

    Note. A person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives, as well as clergymen for refusing to testify against those who confided in them in confession.

    Any person summoned to the bodies of inquiry, preliminary investigation or to court as a witness or victim is obliged to appear before these bodies and give truthful testimony in the case. This is not only a moral duty, but also a legal obligation of every person.      

The public danger of this crime lies in the failure to fulfill the duty of every citizen to promote the administration of justice, especially by those who are witnesses or victims. The Criminal Procedure Law of the Republic of Kazakhstan considers the appearance of these persons in court, the body of inquiry or preliminary investigation mandatory. Without their assistance, the administration of justice is impossible or difficult.      

The refusal or evasion of testimony by these persons may prove to be a serious obstacle to a successful investigation and consideration of the case in court. The object of these acts is the interests of justice or the normal activities of the bodies involved in the administration of justice.    

On the objective side, the corpus delicti under consideration is expressed in the refusal of a witness or victim to testify in court or during an inquiry or preliminary investigation. Refusal to give evidence is a statement of unwillingness to give evidence, which can be made both orally and in writing. Responsibility comes only in cases where the witness or victim has the required information. It is necessary to recognize the existence of this corpus delicti both in case of refusal to answer all questions and some of them. It is necessary that the witness or victim does not want to testify in the absence of valid reasons. There will be no corpus delicti in the act of a witness or victim who refused to answer questions unrelated to the case under consideration.      

This crime is committed only through inaction. If during the interrogation the perpetrator declares that he will not testify and leaves the place of interrogation, this behavior should also be considered as inaction. In such cases, a person is only physically active, but socially passive: he does not fulfill the duties assigned to him by law. Thus, the perpetrator violates the criminal law prohibition that he cannot refuse to testify.      

The crime is considered over from the moment of refusal to testify, regardless of the consequences.      The method of committing the crime does not matter for this corpus delicti. The perpetrator uses a variety of ways to refuse to testify: keeping silent about the circumstances known to him in the case during interrogation, confrontation, identification; during verification, clarifying testimony on the spot, the subject demonstrates unwillingness to fulfill his duty and tell what he knows about the case, evading appearance when summoned for questioning, etc.      

The current Criminal Code does not provide for criminal liability for evading a witness or victim from appearing for questioning by law enforcement agencies. 521 of the Administrative Code provides for administrative liability for the specified offense. A person who evades appearing before law enforcement agencies upon their summons may be forcibly brought in accordance with Article 158 of the CPC.      Evasion from giving evidence is a type of refusal to give evidence. Therefore, the legislator quite rightly did not consider it necessary to further single it out separately as a type of criminal behavior of the perpetrator, entailing liability under art. 353 of the Criminal Code.      

Evasion is a disguised form of refusal to testify. It can be expressed in failure to appear without valid reasons when summoned to the bodies of inquiry, preliminary investigation or court in order not to give evidence, in a false statement about ignorance of the circumstances of the case of interest to the court or investigation, as well as in a change of residence, a change of surname, etc.    

A witness or victim usually uses deception to avoid giving evidence. For example, by referring to employment or illness, they do not appear for questioning, thereby avoiding giving evidence.  

 Failure to appear for questioning by law enforcement agencies without valid reasons could be qualified as preparation for refusing to testify if it is established that the witness or victim evaded appearing for questioning by law enforcement agencies in order to refuse to testify. However, the crime provided for in Article 353 of the Criminal Code is classified as a minor crime, and in accordance with part 2 of Article 24 of the Criminal Code, preparation for its commission is not recognized as an unlawful and criminal act.    

On the subjective side, the crime provided for in Article 353 of the Criminal Code is committed with direct intent. The person is aware that he must fulfill his duty to assist justice by giving truthful testimony, but does not want to do so. The motives for refusing or evading testimony do not matter for qualification, but they can be taken into account when imposing punishment.      

The subject of the crime is a special one. They can only be a witness or a victim.      According to Article 82 of the CPC, the following persons are not subject to interrogation as a witness: a) the judge – about the circumstances of the criminal case that he became aware of in connection with participation in the criminal case, as well as during the discussion in the conference room of issues that arose during the court decision.;  

 b) the defender of the suspect, the accused, as well as the representative of the victim, the civil plaintiff and the civil defendant - about the circumstances that became known to him in connection with the performance of his duties in a criminal case; c) the clergyman - about the circumstances known to him from confession; d) a person who, due to his young age or mental or physical disabilities are not able to correctly perceive the circumstances relevant to the case and give evidence about them.      

According to the note to Article 353 of the Criminal Code, refusal to testify against oneself, one's spouse or one's close relatives, as well as when a clergyman refuses to testify against those who confided in him in confession, cannot be considered a crime.      Close relatives, in accordance with Article 7 of the CPC of the Republic of Kazakhstan, are parents, children, adoptive parents, full and half-siblings, grandparents, grandchildren.      From the note to this article. 353 of the Criminal Code leads to the conclusion that these persons may give incriminating testimony against a spouse, relatives, as well as persons who confided in them in confession, and such testimony can be used as evidence of the guilt of a criminal. This is a moral duty, but it is not a legal obligation. That is, these persons have the right to refuse to testify and in this case will not be held accountable under the commented article of the Criminal Code.      In art . 353 of the Criminal Code provides for the responsibility of a witness for refusing to testify in court, and it does not matter when considering a criminal, civil case or other cases and materials where a witness may participate in the process.      

Of no small importance for this issue is whether there were reasons justifying the perpetrator. If the refusal to testify was related to the interrogated person's painful condition or other justifying circumstances, and he subsequently testified, then it is unlikely that it would be correct to apply Article 353 of the Criminal Code to him, although this crime is considered over from the moment of refusal to testify in the absence of valid reasons. It should be noted that the refusal of a witness to testify in cases of administrative offenses is subject to liability under Article 515 of the Administrative Code. According to art .  521 of the said Code provides for administrative liability for refusing to give evidence to a prosecutor, investigator, or body of inquiry.    

The legal literature quite justifiably raises the question of whether it is lawful to refuse to testify in order to prevent the disclosure of information constituting state secrets, medical, commercial, banking, or adoption secrets, if the person being interrogated has signed a promise that he will not disclose information entrusted to him. It should be noted that the disclosure of this information during interrogation entails different legal consequences, depending on the content of the information disclosed. If information constituting a medical secret is disclosed by a witness or victim during their interrogation, then in accordance with Articles 31, 40 of the Law of the Republic of Kazakhstan dated May 19, 1997 "On the protection of the health of citizens in the Republic of Kazakhstan" such behavior of a person will be lawful. K090000193_ If information constituting a banking secret is disclosed, then in accordance with art. 50 of the Decree of the President of the Republic of Kazakhstan, which has the force of the law of August 31, 1995 "On Banks and banking activities in the Republic of Kazakhstan", such an act will also be recognized as lawful. In contrast to these acts, the disclosure of information constituting state secrets, in accordance with the Law of the Republic of Kazakhstan dated March 15, 1999 "On State Secrets" under no circumstances, including during interrogation by law enforcement agencies, cannot be justified.    

A person who is interrogated by law enforcement agencies as a witness or victim on issues related to information constituting a state secret finds himself in a difficult situation: if he refuses to testify, he may be prosecuted under the article of the Criminal Code in question, and if he gives the required testimony, he risks being prosecuted under Article 172 of the Criminal Code.    

The disclosure of information constituting State secrets at a trial cannot be justified by any interests, including the interests of justice. Their disclosure can cause serious consequences for the state as a whole. Therefore, the refusal to give evidence that contains information constituting state secrets does not contain signs of the crime in question, if such refusal was in the interests of the safety of this information. This act is not subject to criminal liability in accordance with Article 34 of the Criminal Code (Extreme necessity).    

A valid reason for a witness or victim's refusal to testify may be the use of violence against them, as a result of which the witness or victim, fearing reprisals, refuses to testify, changes testimony, and renounces his earlier testimony. In cases where the refusal to testify took place under the influence of threats or violence against a witness or victim who refused to testify, the issue of liability under the article in question should be resolved in accordance with Article 36 of the Criminal Code.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

The Criminal Code, Comments to the Criminal Code, the Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan

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