Corruption, principles of anti-corruption activities
Etymological approach to the explanation of the content of the concept of
"corruption" lets determine it as "bribery", "bribe" from the Latin word "corruptio". In Roman law there is also the notion to it as "corrumpire" which is interpreted as the most general way as "burst, deface, destroy, damage, falsify, corrupt", and refers to the relevant illegal act. Russian explanatory dictionary describes the term corruption as bribery, bribes, corruption done by officials, politicians.
Law of the Republic of Kazakhstan "On corruption" gives the following definition of the word corruption:
"... directly or indirectly reception of property benefits and advantages of persons who are performing public functions, and persons who are equal to this position use their official powers and related capabilities, or any other use of their authority to have property benefits as well as bribery of such persons by providing them with illegal way the benefits and advantages by legal and individual persons. "
The basic principles of combating against corruption include followings:
1. Equal protection of the law and the court.
To follow and implement this principle is very important in combating against corruption. Unfortunately, it is quite often that there are cases which let so-called selective application of the law where the law works for some persons, but does not for others. Individual judges, government officials, law-enforcement bodies officials also are exposed to corruption.
The guarantee to keep this principle is the anti-corruption activity of citizens by themselves: cover corruption acts in mass media including attendance of media representatives, community at trials; appeals to the prosecutor's office, the Agency of anti-economic crime and corruption, and other law enforcement agencies.
2. Provide a clear legal regulation of acts of public authorities, legality and transparency of such activities, state and public control over it. Currently, in accordance with the state program on combating against corruption for 2006-2010, approved by the Decree of the President of the Republic of Kazakhstan on 23 December 2005, by 2008 measures ensuarance of informational transparency of decision taking process by public authorities, optimization of licensing and administrative authorities of public administrations as well as the reformation of state purchase on the basis of the transition to a system of electronic forms of state purchase will have been implemented.
A special attention in the program is given to the process of involving into anti-corruption activities organizations of civil society, formation of legal awareness and legal culture in sphere of following the anti-corruption legislation. It is provided for the introduction of an effective mechanism for expert examination of legislations in anti-corruption purpose, establishing a system of public control over budget consumption, transference of certain licensing rights to civil society institutions, introduction of methods to minimize the turnover in cash and take anti actions against legalization of money obtained by illegal way.
The Ministry of Justice RK a draft law “On lobbying” was developed and submitted to the Parliament that strengthen the legal regulation of lobbying of legislative draft and preventing interest conflicts of officials during the execution of their duties.
3. Improvement of public administration mechanism, personnel and procedures relevant to issues affecting the rights and legitimate interests of juridical persons and individual persons. The state program provides a clear legal standing order on forms and mechanisms of state bodies and business entities interactions as well as procedures facilitating transparency of judicial decisions and their execution in a fixed-time.
Under the law above listed principles should recognize and ensure:
- permissibility of limitation of rights and freedom of officials and other persons authorized to perform public functions as well as those equal to them in accordance with point 1, article 39 of the Constitution of the Republic of Kazakhstan;
- restoration the violated rights and lawful interests of individual and juridical persons, eliminate and prevention the harmful effects of corruption offences;
- personal security of persons assisting in anti- corruption offences;
- inadmissibility of delegating the authority for governmental regulations of
business to juridical and individual persons running the business as well as control over it.
Corruption in most cases restricts free functioning of economic laws and reduces the country's prestige in the world community’s opinion, and is one of the main obstacles leading to favourable foreign investments. Honest and socially-oriented businesses are displaced from the market because corruption makes these businesses unprofitable.
Especially corruption in government bodies is much more dangerous. In this case it represents a symbiosis of monopoly power, discretionary power of civil servants in taking decisions and lack of strong legal accountability and under control of officials. As the experience has shown that corruption destroys whole system of government management, brings its effect to the decrease of the authority of state power and prestige of public service. Corruption ties up the economic development and promotes to the growth of organized crime, especially in the economic sphere.
3.1. What public authorities are empowered to carry out anti-corruption activities?
To detect, suppress, prevent corruption offences and bringing committers of such to account within its competence are undertaken by prosecutors offices, national security bodies, bodies of internal affairs, tax bodies, the Customs and the Frontier services, Financial and Military Police bodies.
Officers of the above listed bodies should report in writing form, within the fixed term by law, to the person or body submitted the case material, the protocol of the offences of corruption, administrative offence about the results of their proceedings.
It is important to know that under the law these bodies are obliged to take measures within their authority, and immediately send information to the bodies of legal statistics and information on all cases of corruption crime detection committed by persons who hold public positions.
In accordance with article 192 of Criminal Legal Code on criminal cases on crimes provided in paragraph D, part 3, article 176, part 3 of article 193, part 3 of article 209, part 1 of article 307, part 1 of article 308, parts 1 and 2 of articles 310, 311, article 312-315 of the Criminal Code of RK the preliminary investigations are carried out by crime investigators of the Financial Police.
In criminal cases the crimes committed under parts 2, 3, 4 of article 307, parts 2, 3, 4 of article 308, parts 3 and 4 of article 311 of the Criminal Code of RK, the preliminary investigations are carried out by national security or financial police bodies initiating criminal cases.
In criminal cases involving crimes going under article 380 of the Criminal Code of RK the preliminary investigation is carried out by the bodies of internal affairs, national security or financial police initiating criminal cases.
Operative-search or another activity in order to detect, reveal, suppress and prevent crimes linked with corruptions as well as application of special measures of financial control within the law in purpose of exclusion the legalization of illegally received money and other properties should be carried out strictly in accordance with the Law of the Republic of Kazakhstan "On operative-search activities” from 15 September 1994.
3.2. The guarantees on personal immunity assisting in anti-corruption activities
Active actions of citizens who do not tolerate corruption give their results.
As an example we may state a real situation when a businessman asked the chief of criminal police department with a request to assist to identify persons attacked on him. For the patronage and protection from criminal gangs (as well as from police officers, which in itself is interesting) he demanded from a businessman one hundred thousand tenge monthly, and saying that in the event of rejection his service he does not guarantee his safety. The entrepreneur agreed with his proposal. Next time the extorter received from the victim a part of the required amount with the help of the man who feigned as a city criminal authority. The entrepreneur asked the Deputy Chief of the Main Department with a request to protect from illegal activities of the Chief of Criminal Police Department. The Deputy Chief willingly agreed, however previously taking four discs for "Mercedes" car from his store which costs 58 thousand tenge. Moreover, he asked to sponsor a volleyball team in the amount of 200 thousand tenge.
Seeing that employees of Internal Affairs together with the criminals extort money from him the businessman made a statement to DNSC whose staff arrested employees of Internal Affairs Ministry for the extortion of 200 thousand tenge and 500 dollars. It is also necessary to emphasize that in addition to other duties in carrying out tasks of operative-research activities the bodies are obliged to undertake, in accordance with the competence, necessary steps to protect legally protected rights, freedoms and interests of individuals and juridical persons, properties, public and state safety, and strengthen its economic and defence potentials.
Article 7 of the Law “On anti corruption activities" states the following guarantees of persons imminities assisting in anti-corruption activities:
- a person reporting the corruption fact or otherwise assisting in anti-coruption activities is under the State protection;
- information about the person assisting in anti-corruption activities is a state secret and is presented only at the request of prosecutors, national security, internal affairs, taxation, customs and frontier services, financial and military police bodies, or the court in the order fixed by law. Disclosure of this information is punishable by the law;
- if it is necessary, authorities carrying out anti- corruption activities provide
personal security of individuals assisting in anti-corruption activities.
In Kazakhstan was adopted a law on 05.07.2000 # 72-II «On the protection of persons involved in criminal proceedings» (with amendments introduced by the Law of RK 20.12.2004 № 13-III). With the aim to implement the Act in 2005 an inter-ministerial Instruction «On expense order of the authorized public bodies on security measures to protect persons involved in criminal proceedings» was confirmed. As a result at the AACC under the CIS there is a department of protection of persons involved in criminal proceedings, and consequently in the territorial entities of the financial police there are acting departments for the protection of persons involved in criminal proceedings. The immunity guarantees are not applied to those who knowingly give false information and they are subjected to liability under the law. In addition, according to the article 17 of the Law “On Anti-Corruption activities of the Republic of Kazakhstan" a civil servant, a law enforcement agency employee reporting the body leading anti- corruption activities false information about the corruption offences against another civil servant, a law enforcement agency employee shall be punished within the disciplinary procedures up to sack and other discharges from functions according to the proposal of the body carrying out anti-corruption activities.
3.3. What actions of persons authorized to perform public functions, or persons equal to them are considered offensive which can be basis for creating conditions for corruption?
In accordance with article 12 of the Law "On anti-corruption activities" to the actions of persons authorized to perform public functions, or persons equal to them are offensive which can be basis for creating conditions for corruption:
- illegal interference in the work of other public agencies, organizations;
- use of their official powers in dealing with satisfaction the financial interests of these persons or their close relatives and legally related persons;
- provision of advantages (protectionism, nepotism) upon recruitment which does not provided by the law and promotion of career development in public, or other equal institutions;
- provision of illegal preference to legal and individual persons in the preparation and making decisions;
- provision of assistance to anyone which does not provided by law in implementing the entrepreneurial, or other activities related to revenue incomes;
- use for personal or group interests the information obtained during the execution of public functions, if it does not belong to be officially distribution;
- unreasonable refuse to give information to individual and juridical persons which is permitted by the law, its delay, or deliver misleading or incomplete information;
- require from individual or juridical persons the information, deliver of information of these persons is not provided by the law;
- transfer of public financial and material resources to the election funds of certain candidates or associations;
- recurrent violation of the legal order of proceedings of applications of individuals and juridical persons, and making decisions on other matters which are within their competence;
- gift delivery and do service which is out of service to officials holding high positions, except gifts and attention of symbolic character in accordance with generally accepted standards of courtesy and hospitality as well as during the protocol and other official events;
- a clear obstruction to individual and juridical persons in the realization of their rights and legitimate interests;
- delegating authorities for the governmental regulation of businesses to individual or juridical persons involved in such activities as well as control over it;
- transfer of state control and oversight functions to organizations that do not have the status of a public body;
- participation in games gambling money or other properties with persons of higher or lower position, or with a person who is under the dependence on the service or the position.
Corruption offences of persons authorized to perform public functions, or persons holding equal positions that have link with illegal reception of good/benefits and advantages are considered bribing for the execution of their public or similar functions in payment in the form of money, for services or in other forms from organizations where an official person do not fulfil relevant responsibilities, as well as from individuals if other forms are not provided by the law.
3.4. What steps can be taken to eliminate the effects of corruption crimes?
In accordance with the law in all cases of illicit enrichment of persons authorized to perform public functions or persons holding equal positions as a result of corruption offences of illegally obtained assets, and these belong to the turnover, and the cost of illegal services is recovered into government revenues.
In case of refusal to turn voluntarily the illegally obtained assets or to pay the State the cost or value of illegal income for services the recovery is carried out by the court into the State income by the claim of prosecutor, the tax service or other public bodies, and officials authorized to fulfil identified by the law. These authorities seize property belonging to the offender until a court decision is declared.
If the person who performs public functions, or a person holding equal position after being sacking, or discharged from the respective functions for the commission of a corruption offence refuses to fulfil the requirements, an official or agency making decision on such discharge sends a notice about his/her illegal income to the tax authority where the guilty person’s residential is.
Moreover, transactions done in connection with corruption offences are recognized invalid by court in accordance with the law. The acts or actions done as a result of corruption offences can be cancelled by an authority or officer authorized to adopt or repeal the act, either by the court according to the claim of individual or juridical persons' interests or by the public prosecutor.
