The first.... In accordance with the instructions of the head of state, voiced in the address to the people of Kazakhstan dated September 1, 2020, within the framework of the law of the Republic of Kazakhstan dated December 19, 2020 "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 combating corruption" (hereinafter referred to as the law), the following legislative changes are provided for on anti-corruption issues.
Convicted corrupt officials were prohibited from applying parole.
Parole in accordance with the amendments to Article 72 of the Criminal Code (hereinafter referred to as the Criminal Code) (hereinafter referred to as the Criminal Code)
it does not apply to persons convicted of serious and particularly serious corruption crimes.
Exceptions-only two cases:
- Commission of such crimes by socially vulnerable citizens (pregnant women; women with young children; men raising young children alone; women aged 58 and older; men aged 63 and older; disabled people of the first and second groups);
- committing such crimes by convicted persons who have fulfilled all the conditions of the procedural cooperation agreement.
In the absence of compensation for damage and penalties in places of deprivation of Liberty, these categories of citizens may be released on parole after actual service
- at least half of the term of punishment imposed for a serious corruption crime;
- at least two-thirds of the term of punishment imposed for a particularly serious corruption crime.
It should be noted that the above-mentioned socially vulnerable categories of citizens can apply for the DP, having previously served at least one third of the term of punishment for a serious corruption crime and at least half of the term of punishment for a particularly serious corruption crime.
That is, responsibility for corruption, even for socially vulnerable segments of the population, has been strengthened by law.
As for persons who have fulfilled all the conditions of the procedural agreement on Cooperation, who have the right to do so, they should not be confused with those who have entered into a plea agreement.
According to Article 612 of the code of Criminal Procedure, there are two types of procedural agreements:
1) if the suspect, the accused agrees with the suspect, the charge – in the form of a transaction on recognition of guilt for minor, medium-gravity crimes or serious crimes;
2) in the form of a cooperation agreement – for all categories of crimes when contributing to the detection and investigation of crimes committed by a criminal group, particularly serious crimes committed by other persons, as well as extremist and terrorist crimes.
The law provides for a norm that allows the use of the criminal code in respect of persons convicted of committing a serious and particularly serious corruption crime, provided that all the conditions of a procedural agreement on cooperation, i.e. the second type of procedural agreement, which can only be concluded If there are two grounds, are met:
1)in the presence of a qualification mark – Commission of a crime in a criminal group (NSC) ;
2) on the particularly serious composition of corruption crimes (according to the Criminal Code – this is the fourth part of Article 366 of the criminal code (taking a bribe in a particularly large amount), the fourth part of Article 367 of the criminal code (giving a bribe in a particularly large amount), as well as the third and fourth parts of Article 450 of the criminal code, the three components of war crimes under the fourth part of Article 452).
The conditions for serving sentences for corrupt officials have been changed.
According to the previously valid version of Article 46 of the criminal code ("deprivation of Liberty"), persons convicted of corruption, regardless of the severity of the crime, may be immediately sent by the court to the institution of the UIs of minimal security (so-called settlements-colonies) for serving a sentence.
Such a privileged situation for corrupt officials, in contrast to those convicted of common crimes, in which it was necessary to spend at least two years in closed-type correctional institutions to serve a sentence in a colony-settlement, caused some criticism and formed a stable public opinion about the unacceptable easy attitude of the state to corruption.
Now convicts convicted of serious bribery will be sent to the highest safe UIs institutions to serve the sentence for receiving and issuing bribes in significant (from 50 to 3000 MCI) and large (from 3000 to 10,000 MCI), receiving a bribe by a law enforcement officer or judge, multiple mediation in bribery, and persons who received or gave bribes in particularly large amounts (over 10,000 MCI) – to the highest safe UIs institutions.
And in order to move to a settlement colony, these persons, in addition to compensation for damage, must now serve part of the sentence imposed for exemplary behavior in medium or maximum security correctional institutions.
Penalties for corruption of law enforcement officers, judges, bribe takers and intermediaries for receiving bribes have been tightened.
Tightening of penalties for corruption of law enforcement officers and judges was carried out by introducing the following qualification features in articles 361, 364, 365, 366, 369 and 370 of the Criminal Code
- "committing corruption offenses by a law enforcement officer";
- "imposition of a heavy penalty by a person or judge holding a responsible public position in a law enforcement agency".
In respect of Article 361 of the Criminal Code ("abuse of official powers"):
For example, according to the first part of Article 361 of the Criminal Code, the sanction for civil servants, officials, including law enforcement officers is up to 2 years, now law enforcement officers are divided into 2-1 parts, and in case of abuse of official powers, a police officer, a GP, an employee of the Anti-Corruption service or an ETP is subject to a criminal penalty in the form of imprisonment for up to 4 years.
"In accordance with the third part of Article 361 of the criminal code, for abuse of official powers of persons holding responsible public positions (they include Deputies of Parliament, judges, political civil servants and administrative civil servants of corps" "a""), a sanction in the form of imprisonment for up to 5 years is provided."
According to the amendments, the sanctions against persons holding responsible public positions in law enforcement agencies (first managers, their deputies) and judges were 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, falls into the category of serious crimes, which in turn:
- in accordance with paragraph 4 of Article 12 of the law" on operational search activities", it makes it possible to carry out special operational search activities (covert audio and (or) video surveillance of a person or place; covert control, interception and receipt of information transmitted over electrical (telecommunications) communication networks, etc.) with the permission of the prosecutor in relation to suspects and accused persons (hereinafter referred to AS ADR) ;
-deprives persons convicted of serious and particularly serious corruption crimes of the opportunity to release these persons under the criminal code in accordance with the ban imposed on the criminal code.
In respect of Article 364 of the Criminal Code ("illegal participation in business activities"):
According to the first part of Article 364 of the Criminal Code, for civil servants, officials, including law enforcement officers, the sanction was up to 1 year, now law enforcement officers are divided into 2-1 separate parts, and in case of illegal participation in business activities, a police officer, a police officer, an employee of the Anti-Corruption service or a police officer is subject to a criminal penalty in the form of imprisonment for up to 2 years.
Sanctions against persons holding responsible public positions in law enforcement agencies (first managers, their deputies) and judges have been increased from 4 to 5 years.
In respect of Article 365 of the Criminal Code ("obstruction of legitimate business activities"):
Article 365 of the Criminal Code increases the maximum sanctions against law enforcement officers from 2 to 5 years.
The sanctions against persons holding responsible public positions in law enforcement agencies (first managers, their deputies) and judges have been increased from 7 to 8 years.
At the same time, persons holding responsible public positions in any state body and judges convicted under this article have consequences in the form of a ban on immediate serving and serving a sentence in a settlement colony.
Regarding Article 366 of the Criminal Code ("receiving a bribe"):
One of the most important legislative amendments to tighten penalties is the amendments to Article 366 of the Criminal Code, which is the most "moving" article.
For example, the amount of sanctions imposed under the previously valid version of the article did not depend on the position held. The gradation of sanctions depended only on the size of bribes(ordinary bribes, bribes of a significant size, bribes of a large size, bribes of a particularly large size).
By law, Article 366 of the Criminal Code was supplemented by part 1-1, which provides for sanctions for receiving a bribe by an employee of a law enforcement agency, a person holding a responsible public position in a law enforcement agency, or a judge.
The maximum sanction in the form of imprisonment for all subjects of corruption is up to 5 years (a crime of moderate severity), compared to the first part, the maximum sanction in the form of imprisonment for 1-1 parts is up to 6 years.
Accordingly, now the receipt of a simple bribe (less than 50 MCI) by a law enforcement officer or judge is considered a serious corruption crime, and the commission of this act by civil servants and other categories of persons equated to them refers to crimes of moderate severity.
In turn, the transfer of a simple bribe to a serious category entails serious legal consequences for judges and law enforcement officers:
-in accordance with paragraph 4 of Article 12 of the law" on operational search activities", it allows conducting an investigation against suspects and accused persons;