Concepts and signs of corruption
We do believe it is worth to make clear the difference between ordinary
crime and corruption offences for our readers. Above all not every entrepreneur has an opportunity to employ a full-time lawyer and he/she always might not have the possibility to pay for the lawyer’s service when there is a necessity to assess a situation if the entrepreneur’s business contradicts the law and when it is punishable. As the official who bribed takes some reacting measures the businessperson should be confident and legally heeled to prove his/her rightness.
1. Crime, firstly, is a socially dangerous act.
Social danger - necessary and compound part of corruptive crimes and is a tangible ground which reveals social nature of criminal infringement. This aspect is particularly emphasized in Part 2. Art. 9 of the Criminal Code of RK. An act or inactivity is not considered as a crime which is described in the particular part of the CC of RK, because of its insignificancy it does not endanger to community, i.e. does not harm and threaten people, the community and the state.
2. Crime – a criminal unlawful act.
Socially dangerous act can not be a crime if at the moment of its commitment it was not a statutory. Unlawfulness is a legal expression of public danger indicating that a person, who committed socially dangerous acts, violated a ban which is included in the criminal law.
Often corruption crimes, violating criminal law, violate law acts of other branches of law. For example, when officials abuse their official powers they take decision which will be favourable to certain juridicial persons and individuals, and doing so they violate the antitrust law, the law on licensing, the civil laws which allocate the right of citizens to own, use and dispose of their own property.
It should be emphasized that the violation of other branches of law, particularly violation of morality norms is not enough for the recognition of socially dangerous acts as a crime. It is required that the act should be criminal illegality, i.e. to be stipulated by the criminal law.
The current criminal law says that public danger and criminal unlawfulness, stated within the notion of crime, are inseparable. It is necessary to remember only presence of these two traits defines the crime.
3. Nevertheless, except of these essential traits - social danger and criminal illegality – the criminal law provides criminal liability and punishment only if a person is guilty of a crime, i.e. he/she has committed intentionally or because of carelessness.
In Russian language the word "liability" is explained as "duty, the need to record their actions and deeds that is to take the blame for their possible consequences."
The criminal liability hence is conviction of a person for his/her committed crime, expressed by the Court on behalf of the State in the conviction, even if the person on bases prescribed by the law was exempted from the criminal punishment.
According to part 1, article 19 of the Criminal Code of RK, a person shall be criminally liable only for t socially dangerous acts (or inactions), and if it has socially dangerous consequences, for which his blame is defined. According to part 1 of the article 20 of the Criminal Code of RK crime committed deliberately is an act committed with direct or indirect intentions. Parts 2, 3 of the same Article state it is recognized that a crime is committed with direct intention, if a person is aware of public danger of his actions (inactions), foresees the possibility or the inevitability of socially dangerous consequences, and will their approach; it is recognized that a crime is committed with indirect intention, if a person is aware of public danger of his actions (inactions), foresees the possibility of socially dangerous consequences, does not will but deliberately let their approach or they are indifferent to him/her.
Therefore, it is necessary that the ability of a person during the commitment of socially dangerous acts he/she should give account of his/her actions, be aware of the actual nature and public danger of his/her actions and control them, i.e. be responsible is a mandatory prerequisite of fault.
4. Another sign of a crime is its punishability, but it is not always necessary consequence of the crime.
Punishability should be understood as a threat of punishment, not the factual punishment for committing a specific crime.
The notions of crime, including corruption - are a set of established criminal law traits that defines a socially dangerous act as a crime. This set of crimes constitutes 4 groups of signs that characterize an object of the crime, objective positions, a subject of crimes and subjective positions. The specific formulations of corruption offences are given in articles of the Criminal Code of RK.
4.1. What crimes in Kazakhstan are considered as corruption crimes?
Corruption crimes are those crimes prescribed in point D of the third part, article 176, point C of part 2, article 192, point A of the third part, article 193, point A of the third part, article 209, article 307, point C of the fourth part, article 308, articles 310-315, article 380 of the Criminal Code of RK.
Corruption and other crimes against the interests of the public service are contained in chapter 13 of the Criminal Code of RK.
Corruption crimes as a social and legal phenomena represent socially dangerous encroachments on protected relations by public criminal law. Public dangerous of such crimes determine their social nature. They are dangerous because they cause enormous harm to society and members of society, causing political, material and other damages, and harm social values and principles of the society as well.
The bodies of the Financial Police for 5 months of the year 2008 revealed 4 645 crimes, which is more for 2% than in the same period of 2007 (4 552). The number of identified most serious crimes increased by 2.8% (from 2 258 to 2 321).
The number of identified serious crimes in the country has increased for 28% (from 849 to 1083). Among the identified 2 894 economic crimes recorded illegal business run shows 12.6% (from 223 to 251), economic smuggling - at 28.8% (from 52 to 67), tax evasion of citizens - at 32.7% (from 52 to 69) and tax evasion of organizations - 10% (from 229 to 252).
For 5 months of the year 2008 identified 712 corruption crimes, the ratio/specific weight of the total number of all recorded crimes by law enforcement agencies in this category reached 77.2%. Among the articles assigned to corruption, it was identified that more crimes were related to misappropriation or embezzlement of entrusted to someone else's property (from 90 to 172) and illegal participation in business (from 2 to 5).
For the corruption crimes over 215 persons matters were brought to the court: including Judges - 5, akims - 13, officials of Internal Affairs, Ministry of Internal Affairs IM - 15, Justice - 7, the tax service - 1, customs authorities - 1, of EA - 8, the judicial administration - 10, employees of other state structures - 155.
The number of findings of criminal activity in the five priority areas identified by the Security Council of Kazakhstan 1 June 2006 increase up to 7.4%, i.e. - 188 (175) matters, including state purchases - 97 (88), land use - 58 (38), the traffic police - 17 (14).
The damage identified by criminal cases which were over amounted to 52.0 billion tenge, which of 31.2 billion tenge of it reimbursed, i.e. - 60%. Bribery is the most common manifestation of corruption, practically, in all public bodies. Among other types of corruption crimes committed by officials, the fact of forgery of officials dominates and shows 42.6%. It should be noted that the most vulnerable point of corruption is still in state purchases, the provision of public services, investment and privatization processes, permits and licensing systems, reallocation of budgets and land tax collection, appointments to senior posts and getting jobs in public service, activities of local governments.
4.2. Who is the subject of corruption crimes?
For all people the articles of the Criminal Code of RK providing corruption offences it is significant that as committers of such crimes may become particular committers - persons who, in addition to common features (a certain age and sanity), must have other special additional features to be sued to criminal liability.
Committers of crimes, who are involved into corruption according to legislative Decree “On the court practice investigating criminal cases on crimes related to corruption’ by the Supreme Court of the Republic of Kazakhstan dated from December 13, 2001 # 18, are officials of public bodies, local self-governments, armed forces and other military units and troops of the country, and as well as those who hold state/public position.
According to explanatory note to Article 307 of the Criminal Code of RK officials are persons exercising/fulfilling permanently, temporarily, or by given special power the functions of authority representatives, or persons performing their duty in public bodies, local self-governments, as well as administrative or administrative housekeeping functions of the Armed Forces of the Republic of Kazakhstan, and other troops and military units of the Republic.
Persons holding positions of public authority are persons holding positions ordained by the Constitution of the Republic of Kazakhstan, the Constitutional and other Laws of the Republic of Kazakhstan in order to execute directly public functions and powers of public authorities, as well as persons, according to the legislation on Public Administration, holding civil servants’ political positions.
In accordance with the Law of the Republic of Kazakhstan on Public Service, it is recognised that persons authorized to perform public functions are officials, members of Parliament and Maslikhats, Judges and all other public servants.
The following persons are equal to persons authorized to perform public functions:
- persons who are elected to local self-government authorities;
- citizens registered in accordance with the Law as a candidate for Presidential post of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan and Maslikhats, as well as members of elective bodies of a local self-government;
- employees, permanently or temporarily employed in local self-government, whose labour remuneration is paid from the state budget of the Republic of Kazakhstan;
- persons performing managerial functions in public institutions and an organization which in its authorized capital stock the state share is not less than thirty-five per cent.
4.3. What kind of abusive acts of official authorities are reckoned among corruption offences?
Abusive acts done by authorities, as practice shows are the most widely spread sort of crimes, as well as they provoke to commitment of other crimes including corruption. Officials crimes provoke to commitment of other crimes, and are often combined with, for example:
- bribery of officials for accelerating and bypassing the various procedures and rules, extortion, illegal checks, up to spot-checks and capturing someone else's property, illegal usage of public funds and lands, issuing licenses and other permits for money;
- illegal use of public property, buildings, structures, natural resources, illegal
privatization, embezzlement of public funds and the payment of excessive fees, abusive acts on tenders and state purchases;
- violations of the antitrust law and healthy/sound competition, personnel matters
in their own interests, up to a political corruption and a corruption of spheres of influence, selling votes during the voting for favourable laws, buying and selling of court decisions and other media bribes.
The object of these crimes is an encroachment to administration orders, property-sheet mode/normal work, and interests of the public service of all branches of government authority, legislative, executive, judicial and local self-governments. It is necessary to stress that abusive acts by procuracy in any business or other organizations does not fall within the jurisdiction of this Article and provided in other articles of the Criminal Code.
Objective side of the corruption crimes listed in Article 307 part 1 which says: В«The use of a person authorized to perform public functions or any other equal position in his/her official powers against the interests of his/her service in purpose to get benefit and advantages for himself/herself or for other persons or entities, or endamage to other persons or entities, if it resulted in significant violence of rights and legitimate interests of citizens or organizations, or legally protected interests of society or the stateВ».
An abusive act perfomed by using his/her authority is violence of fixed
duties laid down to civil servants and implementation of acts which do not fall within their competence governed by the laws, regulations, instructions and others.
Impulse to commit a crime in this case is to extract the benefits and advantages for themselves or other persons and organizations. Abuse of power/abuse using one’s power can occur in forms of action as well as in forms of inaction. Moreover, it is necessary to point out that a person may commit the act only because of his/her position. And by inaction form it is understood not to fulfil his/her official duties.
To subjects of this sort of crime belong, according to Article 307 parts 1-3 of the Criminal Code of RK, "Abuse of power", the persons authorized to perform public functions, or equal persons, officials, and persons holding public authority.
Abuse of power can cause substantial harm to constitutional rights and freedoms of citizens, to undermine the credibility of public authorities, commitment and concealing of other crimes.
4.4. What is considered as significant violation of the rights and legitimate interests of citizens, organizations?
Significant violation of the rights and legitimate interests of citizens, organizations or protected interests is violation causing substantial material harm. Caused significant/material harm may be property, personal and institutional.
Property material harm is defined in monetary terms in multiple amount of minimal estimate at the time of the crime commitment.
Personal harm, caused by the crime of corruption - abuse of officials when they harm people estimated as significant, while causing light, moderate health problems of a victim.
The harm caused to legal entity as a result of corruption crimes is halt the activities of the entity as a result of downtime, halting production, obstacles to the normal functioning of the organization.
4.5. How to protect the rights violated as a result of abuse of official capacity?
Calling for protection of infringed rights to the authority or administration
does not preclude to the judicial recourse with claim on the protection of rights if legislature acts do not provide another one.
Under the current legislation protection of civil right is carried out by the courts, the arbitral tribunals or the tribunal referee by recognition of rights; restoring the situation that existed before the violation of rights; suppression of acts that violate rights or posing a threat to its violation; adjudge to fulfil duties specifically; recover damages, forfeits; recognition of contracts invalid; compensation for moral harm; break or change of legal relationships, declare invalidity or non-applicability of the act of public administration, or local representative or executive body which is irrelevant to the legislations; a fine recovery from a public authority or officer for obstructing a citizen or legal person to acquire or the realization of his/her right, as well as by other means provided by/within the Laws.
A person, whose rights have been violated, may seek full recovery of the damages caused to him/her if the acts or the contract do not provide for otherwise. A loss means the costs are incurred or to be made to the person whose rights have been violated, loss of or damage to its property (real damage), as well as lost revenue, which that person would have received under normal turnover conditions, if his/her right was not violated (loss of revenue).
4.6. What actions of bodies pleading the criminal procedures are illegal?
The illegal actions of authorities pleading criminal procedures are improper application of criminal law acts in identifying the sort of the offence; unlawful application of punishment or other measures prescribed by the Law which cause procedural enforcement; keep a person detained on suspicion for committing a crime, or a person whose punishment measure is established to be arrested in conditions which is hazard to the life and health; enforce a person who is not under the guard into a medical medical facility in order to do a forensic-psychiatric or forensic-medical examination without the Court’s decision; the use of violence, cruel or disgracing treatment; plead a procedural acts in conditions endangering the life or health of persons involved in the procedure; adoption of decisions and actions humiliating honour or disgracing dignity of persons involved in criminal proceedings; use and dissemination for purposes not covered by the Code of Criminal Procedure details of private life as well as other information of personal nature that the person considers to preserve confidentially; illegal conviction, illegal application of coercive measures of a medical nature; illegal use of bringing up measures, and others.
The Decree of the Plenary Session of Supreme Court of the Republic of Kazakhstan from July 9 1999, Number 7 “On Practice of law application for loss recoveries caused by illegal actions of authorities pleading criminal procedures ", says that during adoption of decisions on rehabilitation as well as other decisions, as the result of these decisions the persons have chance for compensation, the courts in the procedural documents should indicate the recognition of their rights to claim loss compensation, but should not explain the order of getting compensation.
4.7. How to compensate property and moral damages caused by illegal actions of officials?
It is important for both physical and legal persons to know that they may apply to the court to claim for both property and moral damages caused by the illegal actions of officials.
The responsibility for the harm caused by public authorities, local governments and their officials is provided in article 922 of the Civil Code of the Republic of Kazakhstan:
- damage caused by the publication of acts by the public authorities which do not comply with legislations is considered to be recovered on the basis of a court decision, regardless of fault of bodies and officials issued the act. The damage is reimbursed from the State Treasury Fund. A representative of Treasury Fund may become financial institutions or other bodies and authorized citizens;
- local governments are responsible for the harm caused by their bodies and officials juridically. The harm caused by illegal actions (inaction) of public officials in the sphere of management control is recovered on general ground from the disposal budget of the body. If the budget is not enough the harm is refunded from State Treasury Fund in a subsidiary method/subsidiarally.
The Legislative Decree of the Supreme Court of the Republic of Kazakhstan dated to 21 June 2001, Number 3 “On the application of laws on moral harm compensations by the courts " (including amendments by the Legislative Decree of the Supreme Court of RK from 20 March 2003, Number 3) stresses out under the non-property rights and good it must be understood the good belonging to a person from his/her birth and rights by act of law which are inextricably linked to his/her personality, and violation, deprivation or denial of abovesaid can cause harm to the victim. The good belonging to a person from his/her birth includes life, health, honour, freedom, personal immunity, and the rights of a citizen includes such rights as the right to privacy of the home or property, the right to a personal and family privacy, the right of confidentiality for telephone calls, telegraphs and correspondence; the right to use the name, the right for representation, the right for authorship and other personal non-property rights provided by copyright and related laws, the right for free movement and residence choice; the right for obtaining true information, as well as other rights within the legislative acts of the Republic.
Under the moral damage it should be understood mental or physical suffering experienced by a citizen as a result of the illegal violation, denial or deprivation of non-property rights and the good belonging to him/her.
It is necessary to know that in accordance with paragraphs 1of article 187 of the Civil Code of RK it does not apply any term limitation to claim for moral damage.
According to paragraph 1, article 922, paragraphs 1 and 2 of article 923, paragraph 3 of article 951 of the Civil Code, regardless of the fault of tortfeasor compensation for moral damage in monetary terms is recovered from the National Treasury (the republican and local administrations’ budgets) to a citizen exposed to harm in the result of:
- issuing acts by the public authorities do not complying with legislations;
- illegal adjudjment;
- illegal prosecution;
- illegal application of preventive punishment as custodial placement, house arrest, ban extract;
- illegal imposition of administrative penalty as a form of arrest;
- illegal placement of a victim into a psychiatric or other medical institution;
- in other cases stipulated by law.
Since the defendant to claims for compensation for moral damage in monetary
a term from the National Treasury (republican and local budgets) is the Government, and jurisdiction of this legal cause category is determined by courts according to the location of the National Treasury fund representative. A representative of the National Treasury may be Ministry of Finance of the Republic of Kazakhstan, or other public authorities, legal persons or citizens with special authority to represent the interests of the State treasury fund.
During the judicial trial of these type of cases the courts must establish a representative of the National Treasury as well as an executive of the relevant budget program and his/her participation in the case considering claims of citizens for moral damage in monetary terms.
The moral damage, caused to the victim by joint illegal actions of several entities or persons, in accordance with paragraphs 1-4 of article 287 and article 932 of the Civil Code, should be reimbursed by the tortfeasures in full amount for the damage in solidarity or sharing basis.
In the statement of claim the complainant should provide evidence of a violation of his non-property rights and good as well as their protection ways. In the statement a claim for compensation for moral damage in monetary terms must be showed by the complainant specifying the amount of compensation which, in his opinion, covers compensations for the moral damage caused to him.
Claims for compensation of citizens for moral damage in monetary terms caused by authorities pleading criminal proceedings are the subject to be proceeded according to the order of civil trial.
By the Decree the courts should take into account that with reference to the requirements of article 221 of the Civil Procedure Code the decision in each legal case for moral damages should contain:
- description the nature of the offence by that the victim exposed to moral damage;
- point out those moral rights and good/benefits of the victim that are violated;
- facts about mental or physical sufferings that the victim experiences;
- ways to protect the non-property rights (restoring the situation that existed before the violation of law, elimination of the consequences of moral damages; reimburse compensation for moral damage in monetary terms), as well as to ground the reimbursement amount for moral damage in monetary terms;
- norms of property rights that the court is guided to make judgement.
