In pursuance of the instructions of the Head of State, including those voiced in his Message to the People of Kazakhstan dated September 1, 2020, the following legislative amendments on anti-corruption issues are provided for under the Law of the Republic of Kazakhstan "On Amendments and Additions to the Criminal and Criminal Procedure Codes of the Republic of Kazakhstan on strengthening the protection of citizens' rights in criminal proceedings and anti–corruption" dated December 19, 2020 (hereinafter referred to as the Law).
In accordance with the amendments to Article 72 of the Criminal Code (hereinafter referred to as the Criminal Code), conditional early release (hereinafter referred to as parole) does
not apply to persons convicted of a grave and especially grave corruption crime.
There are only two exceptions:
- commission of such crimes by socially vulnerable citizens (pregnant women; women with young children; men raising young children alone; women aged 58 and over; men aged 63 and above; disabled people of the first and second groups);
- the commission of such crimes by convicted persons who have fulfilled all the conditions of the procedural agreement on cooperation.
Subject to compensation for damages and the absence of penalties in places of deprivation of liberty, these categories of citizens may be released on parole after their actual departure
- at least half of the sentence imposed for a serious corruption crime;
- at least two-thirds of the sentence imposed for a particularly serious corruption crime.
It should be noted that according to the previously existing norms, the above-mentioned socially vulnerable categories of citizens could apply for parole after serving at least one third of the sentence for a serious corruption crime and at least half of the sentence for a particularly serious corruption crime.
That is, the Law has strengthened the responsibility for corruption even for socially vulnerable categories.
As for persons who have fulfilled all the conditions of the procedural cooperation agreement, who are eligible for parole, they should not be confused with persons entering into a plea agreement.
According to Article 612 of the CPC , there are two types of procedural agreement:
1) in the form of a plea bargain – for crimes of small, medium gravity or serious crimes - if the suspect, the accused agrees with suspicion, the prosecution;
2) in the form of a cooperation agreement - for all categories of crimes in facilitating the disclosure and investigation of crimes committed by a criminal group, especially serious crimes committed by other persons, as well as extremist and terrorist crimes.
The law provides for a norm that allows the use of parole against persons convicted of committing a serious and especially serious corruption crime, if all the conditions of a procedural cooperation agreement are fulfilled, i.e. the second type of procedural agreement, which can be concluded only on two grounds:
1) in the presence of a qualifying attribute - the commission of a crime in a criminal group (organized criminal group);
2) for particularly serious corruption crimes (according to the Criminal Code - this is part four of Article 366 of the Criminal Code (taking a bribe on a particularly large scale), part four of Article 367 of the Criminal Code (giving a bribe on a particularly large scale), as well as three military crimes under parts three and four of Article 450, part four of Article 452 of the Criminal Code).
According to the earlier version of article 46 of the Criminal Code ("Deprivation of liberty"), those convicted of corruption, regardless of the severity of the crime, could be immediately sent by the court to serve their sentence in a minimum security penal institution (the so-called colonies-settlements).
Such a privileged position for corrupt officials, unlike those convicted of ordinary crimes, who need to spend at least two years in closed correctional institutions to serve their sentences in a penal colony, caused some criticism and formed a stable public opinion about the unacceptably soft attitude of the state to corruption.
Now those convicted of serious forms of bribery, and this is receiving and giving bribes in significant (from 50 to 3000 MCI) and large (over 3000 to 10000 MCI) sizes, receiving a bribe by a law enforcement officer or a judge, repeated mediation in bribery will be sent to medium security penal institutions for serving their sentences, and persons who have received or given a bribe in a particularly large amount (over 10000 MCI) - to maximum security penal institutions.
And in order to transfer to a colony-settlement, now these persons, along with compensation for damage, exemplary behavior, must serve part of the sentence in correctional institutions of medium or maximum security.
Tougher penalties for corruption of law enforcement officers and judges are implemented through the introduction in Articles 361, 364, 365, 366, 369 and 370 of the Criminal Code of such qualifying features as
- "commission of a corrupt act by a law enforcement officer";
- "committed by a person holding a responsible public position in a law enforcement agency, or by a judge" with a heavier penalty.
Regarding Article 361 of the Criminal Code ("Abuse of official authority"):
For example, according to the first part of Article 361 of the Criminal Code, the sanction for civil servants, officials, including law enforcement officers, was up to 2 years, now, having singled out law enforcement officers in a separate part 2-1, in case of abuse of official powers, a policeman, an employee of the GP, anti-corruption service or SIR faces a criminal penalty of up to 4 years in prison.
According to the third part of Article 361 of the Criminal Code for abuse of official powers by persons holding responsible public office (which includes members of Parliament, judges, political civil servants and administrative civil servants of the "A" corps) is sanctioned in the form of imprisonment for up to 5 years.
In accordance with the amendments, the sanction against persons holding a responsible state duty in a law enforcement agency (first managers, their deputies) and judges has been increased to 7 years.
Accordingly, the crime provided for in Article 361 of the Criminal Code, committed by political civil servants of law enforcement agencies and judges, passes into the category of serious, which in turn:
- in accordance with paragraph 4 of Article 12 of the Law "On Operational Investigative Activities", it makes it possible to carry out special operational investigative measures with the approval of the prosecutor (secret audio and (or) video monitoring of a person or place; secret control, interception and removal of information transmitted over electrical (telecommunication) communication networks, etc.) (hereinafter - SORM) in relation to suspects, accused;
- in accordance with the imposed ban on parole of persons convicted of a grave and especially grave corruption crime, deprives these persons of the possibility of release on parole.
Regarding article 364 of the criminal code ("Illegal participation in entrepreneurial activities"):
In the first part of article 364 of the criminal sanction for civil servants, officials, including law enforcement officers, was up to 1 year, now, highlighting law enforcement officers in a separate part 2-1, in the case of illegal participation in entrepreneurial activities, the police officer, employee of GP, antikorlar SIR or face criminal penalty of imprisonment up to 2 years.
The sanction against persons holding a responsible state position in a law enforcement agency (first managers, their deputies) and judges has been increased from 4 to 5 years.
Regarding Article 365 of the Criminal Code ("Obstruction of lawful entrepreneurial activity"):
In Article 365 of the Criminal Code, the maximum sanction against law enforcement officers has been increased from 2 to 5 years.
The sanction against persons holding a responsible state position in a law enforcement agency (first managers, their deputies) and judges has been increased from 7 to 8 years.
At the same time, persons holding responsible state duties in any state body, and judges convicted under this article, will have consequences in the form of a ban on parole and serving a sentence immediately in a colony-settlement.
Regarding Article 366 of the Criminal Code ("Taking a bribe"):
One of the most significant legislative amendments to toughen penalties are amendments to Article 366 of the Criminal Code, which is the most "running" article.
Thus, according to the previously valid version of the article, the size of the assigned sanction did not depend on the position held. The gradation of sanctions depended only on the size of the bribe (a simple bribe, a bribe in a significant amount, a bribe in a large amount, a bribe in a particularly large amount).
By law, Article 366 of the Criminal Code has been supplemented with a new part 1-1, which provides for sanctions for receiving bribes by a law enforcement officer, a person holding a responsible public position in a law enforcement agency, or a judge.
Unlike part one, according to which for all subjects of corruption the maximum sanction in the form of imprisonment is up to 5 years (a crime of moderate severity), the maximum sanction in the form of imprisonment for part 1-1 is up to 6 years.
Accordingly, now the receipt by a law enforcement officer or a judge of a simple bribe (less than 50 MCI) is considered a serious corruption crime, whereas the commission of this act by other categories of civil servants and persons equated to them refers to crimes of moderate severity.
In turn, the transfer of a simple bribe to a serious category entails significant legal consequences for judges and law enforcement officers:
- in accordance with paragraph 4 of Article 12 of the Law "On Operational Investigative Activities" makes it possible to conduct SORM against suspects, accused;
- in accordance with the imposed ban on parole of persons convicted of a grave and especially grave corruption crime, deprives these persons of the possibility of release on parole;
- in accordance with the amendments to Article 46 of the Criminal Code ("Deprivation of liberty"), it cancels the possibility of serving a sentence immediately in minimum security institutions (colonies-settlements).
Accordingly, persons convicted under parts two, three and four of Article 366 of the Criminal Code will have the same consequences in the form of a ban on parole and serving a sentence immediately in a colony-settlement.
Regarding articles 369 and 370 of the Criminal Code:
In articles 369 (Forgery) and 370 (Inaction on duty) The maximum sanction against law enforcement officers has been increased from 2 to 3 years.
The sanction against persons holding a responsible state position in a law enforcement agency (first managers, their deputies) and judges has been increased from 5 to 7 years.
Accordingly, the crime provided for in Articles 369 and 370 of the Criminal Code, committed by political civil servants of law enforcement agencies and judges, passes into the category of serious, which in turn:
- in accordance with paragraph 4 of Article 12 of the Law "On Operational Investigative Activities" makes it possible to conduct SORM in relation to suspects, accused;
- in accordance with the imposed ban on parole of persons convicted of a grave and especially grave corruption crime, deprives these persons of the possibility of release on parole.
In addition, in pursuance of the instruction of the Head of State to toughen the responsibility of bribe-givers and intermediaries in bribery, it is envisaged to strengthen sanctions in articles 367 (Bribery) and 368 (Mediation in bribery).
Regarding Article 367 of the Criminal Code ("Giving a bribe"): The
maximum penalty under the first part of Article 367 of the Criminal Code has been increased from 3 to 5 years, under the second part of this article (giving a bribe in a significant amount) - from 5 to 7 years.
Thus, giving a bribe in a significant amount passes into the category of serious crimes, which in turn:
- in accordance with paragraph 4 of Article 12 of the Law "On Operational Investigative Activities" makes it possible to conduct SORM in relation to suspects, accused;
- in accordance with the imposed ban on parole of persons convicted of a grave and especially grave corruption crime, deprives bribe-takers of the possibility of release on parole;
- in accordance with the amendments to Article 46 of the Criminal Code ("Deprivation of liberty"), it cancels the possibility of serving a sentence immediately in minimum security institutions (colonies-settlements).
Accordingly, persons convicted under parts 3 and 4 of Article 367 of the Criminal Code will have the same consequences in the form of a ban on parole and serving a sentence immediately in a colony-settlement.
In addition, in all parts of Article 367 of the Criminal Code, the size of a multiple fine has been increased.
For reference:
Part one: it was "from 10 times to 20 times the amount of the bribe", it became "from 20 times to 30 times the amount of the bribe";
part two: it was "from 20 times to 30 times the amount of the bribe", it became "from 30 times to 40 times the amount of the bribe";
part three: it was "from 30 times to 40 times the amount of the bribe", it became "from 40 times to 50 times the amount of the bribe";
part four: it was "from 40 times to 50 times the amount of the bribe", it became "from 50 times to 60 times the amount of the bribe".
Regarding article 368 ("Mediation in bribery"): The
maximum penalty under the first part of Article 368 of the Criminal Code has been increased from 2 to 3 years, under the second part of this article (Mediation committed repeatedly or by a criminal group or a person using his official position), the current sanction has been retained - up to 6 years.
In addition, in both parts of article 368, the size of the multiple fine has been increased.
For reference:
part one: it was "from 5 times to 10 times the amount of the bribe", it became "from 10 times to 20 times the amount of the bribe";
part two: it was "from 10 times to 20 times the amount of the bribe", it became "from 20 times to 30 times the amount of the bribe".
Thus, the act under the second part of Article 368 of the Criminal Code is still a serious corruption crime.
At the same time, persons convicted under part 2 of Article 368 of the Criminal Code will have consequences in the form of a ban on parole and serving a sentence immediately in a colony-settlement.
Persons who are subject to the restriction in question, within 6 months from the date of appointment to the position, and acting civil servants, members of Parliament and judges (hereinafter referred to as civil servants) are obliged to close existing accounts in foreign banks located outside the Republic of Kazakhstan within 6 months from the date of entry into force of the Law (from 31.12.2020).
At the same time, the Law defines cases when civil servants have the right to have accounts in foreign banks, namely: when they are sent to work in foreign institutions, representative offices and international organizations from the Republic of Kazakhstan, or are studying abroad, or are interning abroad, or are on a business trip abroad, or are undergoing treatment abroad, or are abroad as a legal representative of a minor child or as a guardian or trustee of an adult for the period of work or study or treatment of a civil servant or a corresponding person abroad, when the account or cash and other valuables in foreign banks have been inherited.
Within 6 months from the date of termination of the relevant circumstances (for example, from the date of return from a business trip abroad, from study, etc.) or acceptance of inheritance, a civil servant is obliged to close an account in a foreign bank and (or) stop storing cash and valuables in a foreign bank.
If a civil servant cannot close an account due to an arrest imposed by the competent authorities of a foreign state, or due to circumstances such as natural disasters, military actions, a state of emergency, the account must be closed within 6 months from the date of termination of the arrest or termination of other circumstances.
At the same time, if a civil servant does not want to close an account with a foreign bank and intends to leave the civil service, then he has the right to apply for dismissal at his own request within the prescribed period for closing the account.
This norm is aimed at preventing the dismissal of a civil servant for negative reasons, since according to the current procedure, non-compliance with any anti-corruption restriction entails dismissal from the civil service for negative reasons.
Second. By the Law of the Republic of Kazakhstan dated December 30, 2020 "On Amendments and Additions to Some Legislative Acts of the Republic of Kazakhstan on the Implementation of Certain
The provisions of the Address of the Head of State to the People of Kazakhstan dated September 1, 2020 "Kazakhstan in a new reality: time for action" in subparagraph 2) of paragraph 2 of Article 26 of the Labor Code stipulates that it is not allowed to employ a person who has committed a corruption crime in quasi-public sector entities.
Prior to the introduction of this amendment, a person who committed a corruption crime was prohibited from being accepted only for a position related to the performance of managerial functions in quasi-public sector entities.
Thus, at present, a person who has previously committed a corruption crime cannot be accepted for any position in any quasi-public sector organization.
In addition, article 52 of the Labor Code has been supplemented with paragraph 1-1, according to which, if an employee of the quasi-public sector commits a corruption crime, the employment contract with him is subject to termination.
At the same time, according to paragraph 12 of Article 53 of the Labor Code, termination of an employment contract on the grounds provided for in subparagraph 2) paragraph 1-1 of Article 52 of the Labor Code, is made on the basis of:
1) a court conviction that has entered into legal force for committing a corruption crime;
2) a court decision that has entered into legal force or a decision of the criminal prosecution body approved by the prosecutor on the termination of a criminal case on the basis of paragraphs 3), 4), 9), 10) and 12) part one of Article 35 or article 36 of the Criminal Procedure Code of the Republic of Kazakhstan.
Thus, the basis for termination of employment relations with an employee of the quasi-public sector who has committed a corruption crime is not only a court verdict, but also the termination of a criminal case on non-rehabilitating grounds.