First. In accordance with the instructions of the Head of State, including those voiced in his Address to the People of Kazakhstan dated September 1, 2020, 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 Combating Corruption" of December 19, 2020 (hereinafter referred to as the Law) provides for the following legislative changes on combating corruption.
A ban on the application of parole to convicted corrupt officials has been introduced.
In accordance with the amendments to Article 72 of the Criminal Code (hereinafter – the Criminal Code), conditional early release (hereinafter – UDO)
is not applied to persons convicted of a serious and particularly serious 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 agreement on cooperation, who are eligible for parole, they should not be confused with persons who enter into a plea agreement.
According to article 612 of the CPC, there are two types of procedural agreements:
1) in the form of a plea bargain – for crimes of small, medium gravity or serious crimes - if the suspect, the accused agrees with the suspicion, the charge;
2) in the form of an agreement on cooperation-in all categories of crimes in facilitating 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 provision that allows the use of parole in relation to persons convicted of committing a serious and particularly serious corruption crime, if all the conditions of the procedural agreement on cooperation are met, 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) on particularly serious elements of corruption crimes (according to the Criminal Code - this is part four of Article 366 of the Criminal Code (receiving a bribe in a particularly large amount), part four of Article 367 of the Criminal Code (giving a bribe in a particularly large amount), as well as three elements of military crimes under parts three and four of Article 450, part four of Article 452 of the Criminal Code).
The conditions for serving sentences for corrupt officials have been changed.
According to the previous 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 colony-settlements).
Such a privileged position for corrupt officials, in contrast to those convicted of ordinary crimes, who must 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 acts of bribery, which are receiving and giving bribes in significant amounts (from 50 to 3000 MCI) and large amounts (over 3000 to 10000 MCI), receiving bribes by a law enforcement officer or a judge, and repeatedly mediating 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 10,000 MCI) - to maximum-security penal institutions.
And in order to be transferred to a colony-settlement, now these persons, along with compensation for damage, good behavior, must serve part of the sentence imposed in medium or maximum security correctional institutions.
The penalties for corruption of law enforcement officers, judges, bribe-takers and intermediaries in bribery have been tightened.
The toughening of penalties for corruption of law enforcement officers and judges is 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»;
- "commission by a person holding a responsible public position in a law enforcement agency, or by a judge" with a more severe penalty.
Regarding article 361 of the Criminal Code ("Abuse of official authority»):
For example, under 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 allocated law enforcement officers in a separate part 2-1, in case of abuse of official powers, a police officer, an employee of the State Enterprise, 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 a responsible public position (which include members of Parliament, judges, political civil servants and administrative civil servants of the "A" corps), a penalty of up to 5 years ' imprisonment is provided.
In accordance with the amendments, the sanction against persons holding responsible state duties in the law enforcement agency (first managers, their deputies) and judges has been increased to 7 years.
Accordingly, the crime under 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 Search Activities", it makes it possible to carry out special operational search activities with the approval of the prosecutor (covert audio and (or) video monitoring of a person or place; covert control, interception and removal of information transmitted over electric (telecommunications) communication networks, etc.) (hereinafter – SORM) in relation to suspects, accused persons;
- in accordance with the introduced ban on parole of persons convicted of a serious and particularly serious corruption crime, deprives these persons of the possibility of release on parole.
Regarding Article 364 of the Criminal Code ("Illegal participation in business activities»):
According to the first part of Article 364 of the Criminal Code, the sanction for civil servants, officials, including law enforcement officers, was up to 1 year, now, having allocated law enforcement officers in a separate part 2-1, in case of illegal participation in business activities, a police officer, an employee of the State Enterprise, anti-corruption service or SIR faces a criminal penalty of up to 2 years in prison.
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 business activity»):
Article 365 of the Criminal Code increases the maximum penalty for law enforcement officers from 2 to 5 years.
The penalty for 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 a responsible state position 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 ("Receiving a bribe»):
One of the most significant legislative amendments to toughen the punishment is the amendments to Article 366 of the Criminal Code, which is the most "running" article.
Thus, according to the previous version of the article, the amount of the imposed 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).
The law adds a new part 1-1 to article 366 of the Criminal Code, 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.
In contrast to part one, according to which for all subjects of corruption, the maximum penalty in the form of imprisonment is up to 5 years (a moderate crime), the maximum penalty in the form of imprisonment in part 1-1 is up to 6 years.
Accordingly, now receiving a simple bribe by a law enforcement officer or a judge (less than 50 MCI) is considered a serious corruption crime, while the commission of this act by other categories of civil servants and persons equated to them is considered a medium-gravity crime.
In turn, the transfer of receiving 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 Search Activities", it makes it possible to conduct SORM in relation to suspects, accused persons;