Structures of corruptions
1. Abuse of official authority (Article 307, the Code of Crimes of RK).
According to part 1, aarticle 307 of the Code of Crimes of RK, if a person
authorized to perform public functions or a person who has equal authority uses his/her authority against the interests of his/her service in order to derive benefit and advantages for himself/herself either for other persons or entities, or if he/she harms other persons or entities with such actions, and if it brings to substantial breach of rights and legitimate interests of citizens or organizations, or legally protected interests of society or the state the authorized person is fined at the rate of from one hundred up to two hundred monthly design index or monthly salary or from other incomes for one or two month periods of the convicted person, or is deprived of the right to occupy certain positions or not allowed to be engaged to do the certain functions for up to three years, either is arrested for up to four months or imprisoned for up to two years.
According to part 2, article 307 the Code of Crimes of RK the same act done by an official is fined at the rate of from three hundred up to five hundred monthly design index or monthly salary or from other incomes for three up to five month periods of the convicted person, or is deprived of the right to occupy certain positions or not allowed to be engaged to do the certain functions for up to five years, either is arrested for up to four years. For the same action committed by a person holding a liable official position this person is fined at the rate of from five hundred up to eight hundred monthly design index or monthly salary or from other incomes for five up to eight month periods of the convicted person, either is arrested for up to six years with deprivation of the right to occupy certain positions or not allowed to be engaged to do the certain functions for up to five years or even it will be forbidden. Actions provided in parts 1,2 or 3, article 307 of the Code of Crimes of RK Criminal Code entailing serious consequences are punished by imprisonment for up to eight year deprivation of the right to occupy certain posts or not allowed to be engaged in certain activities for up to seven years.
2. Excess of power or official authority (Article 308 of the Code of Crimes)
Cases pronouncing judgements by officials such as illegal decision on the allocation of land, personnel matters, a tender, making decisions in favour of others, etc are well-known fact to everybody. Such rights and powers, where officials go beyond the bound committing the crimes, are governed by laws and regulations, orders, directives, instructions, etc. If a committed action contains three following conditions then it will be regarded as a crime: the actions overstepped the bounds of the authority limits of the authorized person, and these actions shall result in significant breach of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, for example, misappropriation of rights to lead investigative actions on corruption crimes by an employee of other public bodies. According to law this right shall be given only to employees of the Anti-economic crime and corruption Agency of RK and the National Security Committee.
Corruption crime lying in power or official authority excess differs from the abuse of official authority with that an authorized person commits an abuse of illegal acts within the functional limits/framework of his official powers.
In accordance with article 308 of the Code of Crimes of RK in case of power or authority excess of a person authorized to perform public functions or a person who has equal authority, i.e. committeemen of actions obviously overstepping the limits of his rights and authority and entailing substantial breach of rights and legitimate interests of citizens or organizations, or legally protected interests of society or the state that person is fined at the rate of from two hundred up to five hundred monthly design index or monthly salary or from other incomes for two to five month periods of the convicted person, or is deprived of the right to occupy certain positions or not allowed to be engaged to do the certain functions for up to three years, either is arrested for up from four to six months or imprisoned for up to three years.
Aggravating category feature is the commission of the act by an official (part 2 of art. 308 of the Code of Crimes of RK). It is punished by a fine of three hundred to seven hundred monthly design index or in a monthly salary or from other incomes for three to seven month periods of the convicted person, or is deprived of the right to occupy certain positions or not allowed to be engaged to do the certain functions for up to five years, either is arrested for up to five years months or imprisoned for up to five years.
Particularly categorizing circumstance is considered commission of the act by a person holding liable public authority that falls into part 3, article 308 of the Code of Crimes, and it is punished by a fine of five hundred to one thousand monthly design index, or at a rate of monthly salary or other incomes of the convicted official of a period of five to ten months, or imprisonment for up to eight years' deprivation of the right to occupy certain positions or to be engaged in certain activities for up to five years or without it.
If these actions have resulted in serious consequences or committed with:
a) the use of violence or threat to use it;
b) the use of arms or special instruments/means;
c) in order to derive the benefits and advantages for themselves or other persons or entities or harm to other persons or entities, - are punished by imprisonment up to ten years, with deprivation of the right to occupy certain positions or be engaged in certain activities for up to seven years.
3. Appropriation of authorities of officials (Article 309 of the Code of Crimes of RK)
The powers of an official shall be assigned to carry out illegal activities that entail substantial breach of the rights and legitimate interests of citizens and organizations. An example of such illegal acts shall be commitment of criminal investigation actions concerning citizens by those who are not eligible, or, for example, when an employee of an akimat who is not an official takes decision instead of his/her Chief, of course, for his/her own benefit, and etc.
If this kind of crime contains following two conditions:
- misappropriation of authority by an official leads to significant violations of the rights and legitimate interests of citizens and organizations;
- there is a causal link between the illegal actions and there coming consequences.
It should be noted that these actions must be characterized by the direct intent.
The peculiarity of the commission of corruption is that the actors committing these corruptions shall be only civil servants who are not officials. It is worth to remind that the officials under existing laws of the Republic of Kazakhstan are recognized the persons who permanently, temporarily or according to a special functions exercise functions of a representative of the government or perform the organizational-administrative or administrative-management functions in the government bodies, local self-government bodies as well as at the Armed Forces of the Republic Kazakhstan, other troops and military units of the Republic of Kazakhstan. In accordance with article 309 of the Code of Crime, misappropriation authorities of officials by civil servants who are not an official, and commitment crimes by them which shall be resulted in substantial breach of the rights and legitimate interests of citizens or organizations shall be punished in a fine of fifty to a hundred monthly design index or at a rate of monthly salary or other income s of convicted civil servant of a period of up to one month, either is involved into public work (free work) for a period of one hundred twenty to one hundred and eighty hours, or correctional labour for up to two years or arrest for up to three months.
4. Illegal involvement in business activities (Article 310 of the Code of Crime of RK)
Law of the Republic of Kazakhstan dated from 23 July 1999, # 453-I
"On public service" prohibits the followings after being accepted in public service. Thus, in accordance with the law, civil servants are prohibited from:
- engagement in other chargeable activity except from educational, scientific and other creative activities;
- engagement in business activities including those involved in managing a business, regardless of their organizational and legal form, if it is not directly part of his duties (Article 10).
In the Act of RK dated from 2 July 1998, # 267-I "On anti-corruption activities," officials and other persons authorized to perform public functions it is forbidden to do business, independently participate in the management of economic entities, if the management or participation in the management of economic entity is not part of his duties according to the law, to assist in satisfying material interests of entities or persons through misuse of his official powers to obtain material benefits (part 2, Article 10).
The above listed persons during a month after entering official position shall be required to pass belonging to him/her properties involving incomes except for money legally belonging to these individuals, as well as other properties transferred to property rentals in trust to asset management for the duration of his/her functions according to the order prescribed by the laws of the Republic of Kazakhstan. In accordance with the Law “On anti-corruption activities” officials and other persons who have equal authority to perform public functions and involved in activities incompatible with the authorized functions are to be dismissed or otherwise sacked from the respective functions in accordance with the law. A person who is authorized to perform public functions or a personn who holds equal positions with him/her, freed from performing these functions in connection with the activities that are incompatible with the fulfilment of these functions can not be re-authorized to perform such functions until he/she stops to do the activities.
In addition, it is necessary to know that according to law a civil servant in the statute-established order should transfer in trust to asset management his/her owning shares and other properties entailing benefits except from legally belonging money and other properties passed to property rent within a month after entering official position. A civil servant shall have the right to receive income from transferred in trust assets, including in the form of remuneration, dividends, winnings, income from the property rent and other legal sources.
In accordance with part 8 of article 10 of the Law “On anti-corruption activities in RK" persons authorized to perform public functions or a personn who holds equal positions are forbidden to do civil agreements not under his own name, or man of straw, anonymously, under a pseudonym, etc. These agreements are recognized as invalid in accordance with the law.
Conditions and actions of illegal business activities necessary to commit the crime of corruption - Objective point of the crime lies in the establishment of an organization realizing entrepreneur activities by a person authorized to perform public functions or a person who holds equal positions, or his/her participation in the management of the organization, either in person or via trusted person despite the prohibitions imposed by law, and if these acts are linked to the provision of the organization benefits and advantages to him/her or patronage him/her in some other forms. Thus, committing a corruption, the official founds an organization doing business, or participates in the management of the organization personally or through a trusted person, although both of these actions can be possible.
What conditions are necessary to put either this or that official on criminal liability?
The subject of this crime is a person authorized to perform public functions or a person who holds equal positions. This form of crime is formal without the consequences of the effects characterized by direct intent; to commit a crime commitment of an act is enough. It is necessary to prove the link between the action and the official in the establishment of the organization or his/her leadership to provide it with certain benefits and advantages. For example: providing beneficial purchase orders, tax and other privileges and preferences, credits, winning tenders, receiving purchase orders, all kinds of decontrolling, and creating other favourable business environment. Other actions of guilty officials are considered as a disciplinary offence.
What sanctions are applied to this type of crime?
According to part 1, article 310 of the Code of Crimes the establishment of an organization realizing entrepreneur activities by a person authorized to perform public functions or a person who holds equal positions or his/her participation in the management of the organization, either in person or via trusted person despite the prohibitions imposed by law, and if these acts are linked to the provision of the organization benefits and advantages to him/her or patronage him/her in some other forms shall be punished with deprivation of the right to occupy certain positions or engage in certain activities for up to five years with a fine of one hundred to two hundred monthly design index, or at a rate of a salary or other incomes of the convicted official of a period of one to two months, or involvement in public work for a period of one hundred and eighty to two hundred forty hours, or arrest for a period of three to six months, or imprisonment for up to one year.
According to part 2, article 310, the same acts committed by an official are punished by deprivation of the right to occupy certain posts or be engaged in certain activities for up to ten years with a fine of three to five monthly design index, or at a rate of salary or other incomes of a convicted official of a period of three to five months or imprisonment for up to two years.
Part 3, article 310 of the Code of Crime states that a commission of acts by officials that entailing transference of authority for the licensing of non-governmental organizations, including associations are punished by a fine of one hundred to two hundred monthly design index or deprivation of the right to occupy certain positions or be engaged in certain activities for up to three years.
5. Receiving a bribe (Article 311, the CC of RK)
Typical motives and situations for bribery. In order to combat effectively against bribery, one of the most dangerous forms of corruption, it is necessary to start with its roots, to understand the motives that drive people to pay bribes, and the consequences that corruption entails on other people. There are four main types of situations:
Category 1. Bribes are offered in order to (a) gain access to scarce benefits or privileges or (b) reduce their own costs.
Category 2. Bribes are offered in order to receive benefits and privileges that are not scarce, but are administered by individual government officials who dispose of them (also belongs to situations where cost reduction is also dependent on the will of officials).
Category 3. Bribes are given not for proper provision for a specific privileges, but for additional services related to its receipt (or related with reduced costs), for example, for the urgency or confidential information.
Category 4. Bribes are offered in order that (a) the others could not obtain any benefit or privilege or (b) the cost of competitors would increase to receive it.
Category 1 includes situations when the corrupter because of the solution of the official takes at an advantage over competitors. Those situations include obtaining licenses for the export-import operations with foreign currency transactions; granting government contracts or all sorts of benefits, a concession to develop oil and other minerals, the allocation of public land purchase; purchase of privatized firms, access to scarce funds which are under the hands of the state, obtain licenses to businesses at a time when the number of licenses is limited, access to public goods, such as housing, subsidies, enhanced protection of enterprise by the police forces. In all these cases there may be competition between the corrupters that are often provoked or even purposely created by officials and politicians. If the development of public programs is run by officials they can either create an artificial shortage for personal gain or to lay into the project over-expenditure of public funds (the phenomenon is known as "stretching resources").
Examples of category 2 are the reduction of tax base or the removal of higher profits in the absence of a clearly defined tax rates, the opportunity to circumvent customs regulations and do not pay duty, to avoid price controls; granting licenses to do in any activity only for those who knowingly corresponds " qualifications ", providing privileges in the use of public services (as well as the right to implement such services); receive posts in government or municipal service; evade criminal and administrative responsibility (especially for official crime and a crime without causing harm to individuals); permission of local authorities for construction projects, lowering the requirements for compliance with safety regulations and measures to protect the environment. Arbitrary behaviour of officials often leads to take bribe. The police can pay for the gangsters to fear entrepreneurs and at the same time they can take bribes from the same businessmen for their protection. Similarly, politicians may state that they will support laws that increase business costs, or, conversely, promise them the granting of special privileges, of course, it is not without a motive.
Category 3 is linked to the previous two, and the essence of it is, rather, not getting benefits and privileges, but some other additional services, such as: confidential information about the specific details of contracts; accelerated service, reduce red tape paper; advance notice of police actions; reduce uncertainty or obtain a favourable audit opinion to cut taxes. Often officials-bureaucrats create the conditions that give rise to this kind of bribery. For example, officials may delay the proceedings or to set too strict formal requirements for applications for the implementation of a project.
Category 4 as category 1, also assumes that if someone wins another loses. Examples include cases when the owner of an illegal enterprise pays law enforcement agencies to ensure that they will create problems of his/her competitors. The owners of legal businesses through giving bribes to officials can get their own way that competitors will have been created problems, or even that they will have revoked their license.
An example of the real situation is when the head of the Tax Committee extorted from businessmen who runs a shop selling construction materials. He extorted construction materials worth over 50 thousand tenge for the repair of his apartments. In addition, the official demanded from the leaders of commercial structures of the city to provide financial assistance grants totalling more than 4 million tinge. The former Chairman of the Tax Committee convicted of bribery and for abuse of power.
Other examples. An entrepreneur needed a deed of convent in order to obtain state licenses for retail sales of alcoholic products, but for a legitimate signature the document he lacked some documents. Head of the department of urban land planning of Territorial Administration offered his help for a bribe of 25 thousand tenge.
The administrator of courts received a bribe of 100 dollars from a businessman for an accelerated return of bail deposited by this department to bid on the sale of property.
Citizens applied to the regional department of NSC for the extortion of five thousand US dollars of District Court judge for commutation of his son. The former district judge was accused under the crime part 2, article 24, and part 3 of article 311 of the Code of Crimes of RK.
The object of abuse of the crime is a violation of law based order of the government and local governments. Objective side of the crime is a bribe taking of a person authorized to perform public functions or a person holding equal functions personally or through an intermediary for actions (inactions) in favour of the corrupter or a vested person, if such actions (inactions) fall within the authority of a person authorized to perform public functions, or a person holding equal functions or this action because of authority can facilitate such actions (inactions) which is equal for general patronage or connivance on the service.
To the subjects of corruption crimes should be included persons authorized to perform public functions or a person holding equal functions.
The Decree of the Supreme Court Plenary Session of the Republic of Kazakhstan of December 22, 1995 # 9 “On the practical application of legislation on liability for bribery” underlines that the subject of this crime should be recognized those officials who although not have the authority to perform bribery act for the benefit of a bribe giver but via his/her official position takes steps to be committed bribery acts by other officials.
Subjects of bribes can be money, securities, stocks of materials and capital equipment provided for free of charge but are liable to pay, also preferences that give rights to property (construction and repair works, providing sanatorium or travel vouchers, travel tickets; provision of confessional loans or credits, etc.). Exempt money and other valuables that are the subject of bribes and if they are found as material evidence they shall be converted into state revenue.
If the subject of bribe has not been detected its cost as groundlessly acquired is recovered by court to the state revenue in accordance with the existing civil law.
Transfer of official right to property to an official can be considered as a bribe subject as well as transfer of possession, use or dispose of that property, for example, a letter of attorney for a car with the right of sale, or delivery of expensive cottages at the lowest cost.
The lucre may be building houses, work on territory improvement, expensive repairs, arrange recreations and others carried out free of charge. And the amount of bribes does not affect the decision on the components of a crime.
To determine the size of bribes the bribe subjects should be given a pecuniary valuation on the basis of current prices or rates for services. If the illegal remuneration in the large amount shall be received in parts these actions represent the scenes of one extendable crime, the committed action must be characterized as a bribe in large quantities.
The definition to large size of bribes is given in note 1 of article 311 of the Code of Crimes of RK: large size of bribes shall be recognized the amount of money, the value of securities, other assets or property gains of more than five monthly design indexes.
The difference between receiving and giving bribes from receiving illicit rewards and a servant corruption
It is worth to note that the subject of bribe receiving is an official. The subject of illegal remuneration receiving may be a civil servant, employee of a cooperative, private or other agencies and businesses who is not an official.
Bribe is different from commercial bribery in that the subject of commercial bribery is the person performing managerial responsibilities in a business or other organizations.
Receiving money or other valuable things by an official from subordinates or persons controlled by him for patronage or condensations for the benefit of matters that shall be within his/her competence must be regarded as a bribe.
What is meant by extortion?
The Decree of the Supreme Court Plenary Session of the Republic of Kazakhstan of December 22, 1995 # 9 “On the practical application of legislation on liability for bribery” says that the extortion means demand of bribes by an official threatening a corrupter to commit actions that may damage his/her legitimate interests, either intentionally leave the corrupter in the conditions where he/she will be forced to give bribes in order to prevent harmful effects to his/her legally protected interest.
What is a bribe received by prior agreement?
Bribes shall be considered as received if there is a prior agreement between groups of people, and if it involves two or more officials agreed on the joint commission of the crime in advance. Here the corruption act shall be considered as completed action since receiving moment of the bribe at least by one of the officials, and irrespective of the fact that whether the corrupter is aware that the receipt of bribes shall involve several officials. On receipt of bribes by prior agreement of a group of officials its size shall be determined by the total value of goods and services, and in the recovery of groundlessly obtained things or values into the state revenue it is necessary to reason from the amount of money or the amount of material benefit received by each bribe taker. An official, who receives money without prior agreement with another official about a bribe, and then passes bribery to the last one in the interests of the corrupter, is responsible for double offences: for receiving and giving bribes. Actions of an official, which have links with bribery and if he/she agrees upon it, can not be considered as bribe taking by group prior agreement.
Bribery recurrence
Recurrence of receiving, giving bribery or intermediation in bribery implies the commission of the same crime at least twice, and if, in addition, prescription of criminal responsibility is not expired. Bribe taking from several people simultaneously, and if in the interests of each corrupter a single action is committed, it shall be categorized as recurrent corruption as well. Giving or receiving bribes several times for committing or non committing acts providing desired result for the corrupter but as well as bribe giving to a group of officials who have committed a crime by prior agreement among themselves, or intermediation in these circumstances can not be considered as a crime committed recurrently. There are cases where a person receives from the corrupter money or other valuables as if to transfer to an official as a bribe, and not intending to do so he/she peculates it, and the committed action in this case shall be qualified as fraud. If in order to capture the values he/she (official) induces the corrupter to give bribes, in this case the bribe takers action shall be considered both fraud and incitement to give bribes, and the action of the corrupter in such cases shall be characterized as attempted bribery. However, it shall not matter whether the name of an official is identified to whom the bribe must be transferred.
Terms of responsibility for bribery
Responsibility for bribery occurs regardless of time of receipt of bribes by an official - before or after the commission of an act or inaction, and regardless of whether the bribe in advance is due, or performed any actions for the interests of the corrupter. In cases where the conditions for acquiring property, services or facilities are not specifically stipulated this action shall be recognized as giving and accepting a bribe, when participants are aware of crimes that the bribe is awarded to meet the interests of the corrupter. Regardless of the fact that law enforcement agencies are aware of the forthcoming crime, if an official has accepted a bribe in fact such actions of the official shall be considered as completed act of bribe acceptance. Categorizing signs characterizing increased risk of social crime (extortion, a large amount of bribes, the responsible official position of a bribe taker) shall be imputed to assisting people in accepting bribes, and if the circumstances are covered intentionally. Responsibility for giving and receiving bribes shall not preclude simultaneous prosecution for the actions though they are related to bribery but forming a separate crime (abuse of authority, complicity in the theft of someone else's property, etc.). In such cases, the act shall be qualified according to totality of the offences.
It is necessary that oral or written statement about giving bribes applied to a police, a prosecutor agency, courts or other public authority by a corrupter entails exemption from criminal responsibility. Whatever the motive which he/she will guide the statement must be voluntary. The statement, made in connection with that the bribe giving act has become known to authorities, can not be recognized as voluntary. When the voluntary statement of the crime is made not only the corrupter but also their accomplices will be exempted from criminal liability.
The release of the corrupter of criminal responsibility on grounds of extorting bribes or voluntary statement of giving bribes do not mean that these persons shall be out of crime stuff, that is why they will not be considered as victims and will not have right to demand to recover the values transferred as a bribe.
In cases where there is an extortion act and until the transference of it the corrupter has stated to law enforcement authorities, then the bribe will be returned to its owner.
Plenum of the Supreme Court gives a direction to courts that in cases of bribery during the gathering of evidence through technical means (video and audio records, processing of bribes with special dyes, etc.) the facts of deviation from law requirements are allowed. It is necessary for courts to check carefully the compliance of criminal prosecution bodies’ work with the norms of CCL in obtaining evidence in a such way with later decision of the issue, either it will be allowed or not.
2. What are the measures of criminal penalty for bribery?
Bribe taking by a person authorized to perform public functions or a person holding equal functions personally or via an intermediary in the form of money, securities or other property, the right to property or benefits which has property character for actions (inactions) in favour of the corrupter or an agent of this person, and if such actions (inactions) fall within the authority of a person authorized to perform public functions, or of a person holding equal functions, or it shall facilitate such actions (inaction) because of the authorized position as well as for general patronage or connivance on the service is punished in a fine of ranging from seven hundred to two thousand monthly design index, or at a rate of salary or from other incomes of a convicted person of a period of seven months to one year, or restriction of liberty for up to five years, or imprisonment for the same period with deprivation of the right to occupy certain positions or be engaged in certain activities for up to five years with property confiscation or without it.
The same act committed by official as well as receiving bribes for illegal actions (inactions) shall be punished with imprisonment from three to seven years, with deprivation of the right to occupy certain positions or be engaged in certain activities for up to seven years, with property confiscation or without it.
For committed actions provided in the first or second parts of article 311 by a person holding liable public official position shall be punished with imprisonment from five to ten years with deprivation of the right to occupy certain positions or be engaged in certain activities for up to seven years, with property confiscation or without it.
Actions provided in parts first, second or third of article 311 if they are committed: a) through extortion, b) a group of persons acting in previous conspiracy or an organized group, c) in a large amount d) recurrently in this case a committer is punished with imprisonment from seven to twelve years with confiscation of property.
6. Bribery (Article 312 of the Code of Crimes of RK)
To try to solve their problems many citizens give bribes evading existing rules. Doing so they forget that corruption of a person authorized to perform public functions or a person holding equal functions personally or via an intermediary is a criminal offence. As an example of this we can say a sentence imposed on a citizen of China who was head of the Chinese companies: for attempted bribery he was sentenced to two years' imprisonment of general regime. The foreigner’s visa date was expired to stay in Kazakhstan. After the expiry of his visa he expected to obtain a residence permit, for this he asked assistance from the Chief of one of the department of NSC. As remuneration the foreign citizen handed the officer 1 thousand dollars in the room for visitors in the building of the Department of NSC. However, the staff member of DNSC did not do offence, and the corrupter was detained red-handed. The subject of the crime can be any person aged 16 years old or over. This corruption offence’s subject and object of the crime are identical, and are fully agrees with each other, as it is provided in article 311 of the CC of RK.
The objective side of the corruption offence is bribe giving to the person authorized to perform public functions or a person holding equal functions as well as to an official and officials of foreign countries.
The Decree of the Supreme Court Plenary Session of the Republic of Kazakhstan of December 22, 1995 # 9 “On the practical application of legislation on liability for bribery” emphasis on that the actions of individuals giving a bribe to obtain any benefits for the state, public or private organizations should be classified as a fact of bribery, and if there are grounds it is classified according to conjunctions with other crimes (theft, abuse of authority, and etc.).
The heads of state, public or private enterprises, institutions or organizations offering their subordinates to seek the desired actions or inactions by giving bribes to another official are punished as corrupters.
These corruptive acts are punished in a fine of seven hundred up to two thousand monthly design index, or at a rate of salary, or from other incomes of a convicted person of a period of two to five months, or correctional labour for up to two years, or restriction of liberty for up to three years, or arrest for a period of three to six months, or imprisonment for up to three years.
7. Intermediation in a bribery act (Article 313 of the CC of RK)
The object and subject of the intermediation of bribery act fully coincides with the object and subject of a crime provided in article 311 of the Code of Crimes of RK - accepting a bribe.
The subjective side of the components of the offence is in:
- intermediation in a bribery act, i.e. promoting bribe taker and corrupter in reaching agreement among themselves on the receiving and giving bribes;
- intermediation in a bribery act, i.e. promoting bribe taker and corrupter in realization agreement among themselves on the receiving and giving bribes;
The subject of the crime is any person aged 16 years old. The subjective side of the act is the direct intention, the person obviously knows that the bribe would be given a corrupter and promises the corrupter to pass the bribe to a bribe taker.
The Decree of the Supreme Court Plenary Session of the Republic of Kazakhstan of December 22, 1995 # 9 “On the practical application of legislation on liability for bribery” notes that the official or another person, who organizes the giving or receiving acts of bribery or who is an aider or abettor of giving or receiving bribes and at the same time acts as intermediate, is responsible for complicity in the giving or receiving bribes. The question of qualification of the action shall be decided taking into account the direction of his/her intention on the assumption for whose benefit, on whose side and on whose initiative either for the corrupter or for the bribe taker he/she acts.
It is necessary to distinguish intermediation act of taking bribes from giving and receiving bribes, taking into account that the intermediate is a person acting on behalf of the corrupter or the bribe taker directly transfers the bribes. In this case it does not matter either this person gets money from the bribe giver of from bribe taker. The fact that he/she is involved will be enough to be accused.
The employee agreeing on the implementation of collusive actions and handing over a bribe will be liable as accomplice bribery.
If he/she only transfers a bribe knowing the nature of orders his/her actions are qualified as an intermediation of bribery. The simultaneous intermediation of giving bribes to one official from a few corrupter or intermediation in receiving bribes of several officials from one corrupter is viewed as recurrent corruption if the bribe taker performs (does not perform) single act for each interest of the corrupter, or each official acts in favour of bribe giver to fulfil his/her interests and this circumstances are understood by the intermediary. According to part 1, article 313 of the Code of Crimes an intermediation of bribery, i.e. promoting purposes of a bribe taker and a corrupter in achieving or implementing agreements between receiving and giving bribes, is punished in a fine of five hundred to one thousand monthly design index, or at a rate of salary, or from other incomes of the convicted person of a period of five to seven months, or correctional labour for up to one year or restriction of liberty for up to two years, or arrest for up to four months, or imprisonment for up to two years.
Aggravating circumstances are set in part 2 of above said article: the same act committed recurrently, or by a group of people or a person using his official position is punished in a fine of between seven hundred to two thousand monthly design index, at a rate of his/her salary, or from other incomes of the convicted person of period from seven months to one year, or restriction of liberty for up to six years, or imprisonment for the same period.
It is important to know that the intermediation for bribery acts committed by using his/her official position is considered only when the officer uses his/her authorized rights and power in the intermediation acts. This act can not be considered as the corruption act used with authorized power, if this act is not linked with his/her service job of the guilty person or when this person is not an official.
If an intermediate knows in advance that the article of bribe is stolen from someone else's property by a bribe giver and he/she promises to pass it to a bribe taker, he/she will be accused for two offences – for the intermediation of bribery and complicity in the theft action. If the bribe is not received in full or in part because of some circumstances beyond the will of a bribe taker the act committed by him/her will be characterized as an attempt to obtain a conditional bribe. In case of refusal of an official to receive bribes the actions of the corrupter will be classified as an attempted bribery, and the intermediate’s act will be classified as an attempted intermediation. In cases when the transferred money to an official as bribe money is turned out false money or partially simulates money signs, the actions of a bribe taker will be described as an attempt to obtain a collusive sum of bribes.
8. Official forgery (Article 314)
Another type of corruption committed by persons authorized to perform public functions or a person holding equal functions includes official forgery.
The instruments used in this case are the official documents. Under the official documents it should be understood documents issued only to public bodies that provide rights and duties, finding the facts, giving legal value. For example, such documents include birth certificates, passports, diplomas of education, military tickets and documents for exemption from military service as well as the right to property, land, a driver's license, various licenses, permits and certificates giving allowance to engage in certain activities, and others. Specialists distinguish 2 types of official forgery:
- substantial, when some kind of mechanical changes will be in the form of
Documents, different erasure, reapplying photos, falsified signatures, stamps and others.
- intellectual, when a form of the document will not be changed, but at the same time some changes will be inserted into its content. For example, by submitting false data on place of birth, issue of driving licence to a person deprived from the right to drive a transport according to the decision of the court, certainly for money, an extract of sham diplomas of educational institutions, and etc.
It is important to know that regardless of the consequences the crime is considered as committed in the result of issuing false documents.
Subjective side of official forgery is wittingly entering false information into official documents as well as making corrections in the documents distorting their actual content, or issuing false or forged documents.
Here, as we have already discussed within the components of corruption we have a deal with a special subject of crime - a person authorized to perform public functions or a person holding equal position. This criminal act will be found as crime in the case of containing direct intention. The guilty person is aware of the public danger of the offence and wills its commission. Moreover, these acts will be committed for the benefit and advantage for him/her or other persons or entities or to harm other persons or entities. According to article 314 of the CC of RK an official forgery, that is, inserting wittingly false information into official documents by a person authorized to perform public functions or a person holding equal position as well as making corrections in the documents, distorting their actual content, or issuing false or forged documents and if these acts have been committed for the benefit and advantage for himself or other persons or entities or harm other persons or entities, in this case he/she is punished in a fine of one hundred to two hundred monthly design index, or at a rate of salary, or from other incomes of the accused person of a period of one up to two months, or involvement in public work for a period of one hundred and eighty to two hundred forty hours, or correctional labour for up to two years or arrest for up to six months, or imprisonment for up to two years. The same action committed by an official is punished in a fine of three hundred to five hundred monthly design index, or at a rate of salary, or from other incomes of the accused person of a period of three to five months, or imprisonment of one to three years with deprivation of the right to occupy certain positions or be engaged in certain activities for up to six years.
The actions provided in part one of this article are committed by a person holding liable positions of public authority he/she is punished in a fine of five hundred to one thousand monthly design index, or at a rate of salary, or from other incomes of the accused person of a period of three to seven months, or imprisonment up to five years with deprivation of the right to occupy certain positions or be engaged in certain activities for up to seven years.
9. Official inaction (Article 315 of the CC of RK)
Another corruptive crime in accordance with Kazakhstan’s law is official inaction. The point of such crimes is because of selfish ends or other interests. This offence is encroaching on the management order of the state.
The point of this crime is a non-execution of duties by a person authorized to perform public functions or a person holding equal position in order to derive the benefits and advantages for him/her or for other persons or entities or harm to other persons or entities. In order to commit this crime three conditions are required:
- official inaction should involve substantial breach of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the State;
- a person must exercise inaction upon his duties pursuing selfish interests for himself/herself or other persons or entities; a causal connection is necessary between these two actions.
This type of crime is punished in a fine of one hundred to two hundred monthly design index, or at a rate of salary, or from other incomes of the accused person of a period of one to two months or deprivation of the right to occupy certain posts or be engaged in certain activities for up to three years, or detention for up to four months, or imprisonment for up to two years. The same act committed by an official is punished in a fine of three hundred to five hundred monthly design index, or at a rate of salary, or from other incomes of the convicted person of a period of three to five months, or imprisonment up to three years with deprivation of the right to occupy certain positions or be engaged in certain activities for up to five years. The same action committed by a person holding a liable position of public authority is punished in a fine of five hundred to eight hundred monthly design index, or at a rate of salary, or from other incomes of the convicted person of a period of five to eight months, or imprisonment for up to five years with deprivation of rights to hold certain positions or be engaged in certain activities for up to five years or without it.
The actions provided in parts 1, 2 or 3 of article 315 entailing serious consequences shall be punished by imprisonment for up to eight years including deprivation of the right to occupy certain posts or be engaged in certain activities for up to seven years.
10. Embezzlement or misappropriation of entrusted property (Article 176 of the CC of RK)
The object of misappropriation or embezzlement of entrusted property is a property. According to the CC of RK proprietorship is right of the subject recognized and protected by legislation at his/her discretion to possess, use and dispose of his/her property. The owner has rights of possession, use and dispose of his/her property.
The subject of a crime is special, it is a person with sound mind aged 16 years old that is entrusted with property in lawful possession of a person authorized to perform public functions. For the components of embezzlement or misappropriation of entrusted property the law provides it with qualifying signs. It is important to understand the difference between misappropriation or embezzlement of entrusted property and actions of a person authorized to perform public functions. The property entrusted to the guilty person is an item of theft. It is necessary to note here that the property mentioned under this article always has material character and has a certain value and can have monetary expression, and in that human labour is put. This property does not belong to a person accused for embezzlement or misappropriation of the entrusted property. Objective side of the crime is embezzlement and misappropriation of entrusted property.
Embezzlement (of property, money) (embezzlement) - illegal retention of someone else's property obtained through legitimate way (in debt, deposit, etc.) with aim to dispose of it as his/her own. It is recognized as a completed crime from the moment of removing and isolation somebody's property and adjoining it to his/her own property. The following actions of the guilty person for illegal misappropriation may take another independent form of theft - embezzlement.
Embezzlement should be understood as illegal use of money or property of the person owning them lawfully. Here an entrusted property is consumed illegally, passed to the others and / or consumed for the own needs by the subject of the offence. These crimes in both cases will be considered as completed when property is confiscated and the offender has a real opportunity to use or dispose of them at his/her discretion. The subjective aspect of the crime involves motive with which the guilty person guides as well as selfish purpose which he/she keeps in committing the crime. To recognize a person as a criminal it is necessary that the person should have committed a theft or embezzlement intentionally and been aware of public danger, foreseen the substantial harm to the owner and kept in mind selfish will he/she desires the realization of the action. Misappropriation or embezzlement, that is, a theft of someone else's property entrusted to the guilty person authorized to perform public functions or a person holding equal position, if they are involved the use of his/her official position then this person shall be punished with imprisonment from five to ten years with confiscation of property and deprivation of the right to occupy certain posts or be engaged in certain activities for up to three years and, in some cases provided for in paragraph G of article 176 of the CC of RK - up to seven years. Crimes done 1) by a group of persons with prior agreement; 2) committed recurrently, 3) the use of official position are punished in a fine of five hundred to one thousand monthly design index, or at a rate of salary, or from other incomes of the convicted person of a period of five months to one year or restriction of liberty for up to four years, or imprisonment for a term of two to five years with property confiscation or without it including deprivation of the right to occupy certain posts or be engaged in certain activities for up to three years.
The actions, provided in parts 1, 2 of article 176, if they are committed: a) by an organized group, b) in a large amount c) by a person who has previously two or more times convicted for theft or extortion, d) by a person authorized to perform public functions or a person holding equal position, and if they involve into it his/her official position, shall be punished with imprisonment from five to ten years with confiscation of property and deprivation of the right to occupy certain posts or be engaged in certain activities for up to three years and, in some cases provided for in paragraph G up to seven years.
11. Obstruction of legitimate business activities (Article 189 of the CC of RK)
In addition to the main corruption offences in practice we can see often the facts of obstruction of legitimate business activity. This crime is an encroachment on enterprise freedom, and expressed as a violation of constitutional guarantees of entrepreneurial activity provided in article 6 and 26 of the Basic Law of the Republic of Kazakhstan. Accordingly, as set out, all businesses have equal access to the market, a different type of resources (natural, physical, financial, information, etc.). Restricting the rights and legitimate interests of entrepreneurs can only be based on existing legislation that in order to protect the rights and legitimate interests of person and citizen, property rights and legitimate interests of organizations, public order and safety, the environment, constitutional order of the Republic of Kazakhstan provides restrictions for individual entrepreneurs and commercial organizations having right to exercise certain types of business, imposes certain restrictions in obtaining a special permit (license), etc. Only in some cases, actions of state bodies and officials requiring interference in the activity of enterprise possible: in the exercise of the powers to restrict the monopolistic activity and unfair competition, environmental compliance, information security, combating violations of trade rules, and etc.
Only an official is responsible for commission of this crime. One may see appendix 3 of the CC of RK to clarify the meaning of the notion “an official”. The notion of an official covers such varieties as a representative of the government, an official performing the administrative functions and performing administrative and management functions. An official - a representative of the government. The activities of the representative of the government are reflected in based on law and mandatory orders or actions containing legal significance in respect of citizens and legal persons regardless of their characteristics and subordination. For example, the representative of the government is a policeman has right to check citizens' identity documents in certain cases, can enter freely into homes and other premises of citizens. An official performing the administrative functions. The person performing such functions manages the agencies, organizations, businesses, departments, sections, and etc. (selects staff, directs the actions of his subordinate employees, plans and provides the realization of plans, and etc.). The implementation of organizational and administrative duties invariably is associated with the management of other person’s activities.
