Information regarding the regulatory resolution of the Constitutional Court
(№35 of 16 November 2023)
The Constitutional Court considered the appeals of citizens on verification of the constitutionality of paragraph 20 of the normative decision of the Supreme Court of the Republic of Kazakhstan ‘On the practice of consideration of certain corruption offences’ (hereinafter – the SC ND).
According to this norm, if a person receives money or valuables from a bribe-giver ostensibly for transfer as a bribe, but embezzles them, his actions are qualified as fraud. If it induces the bribe-giver to give a bribe in order to take possession of valuables, its actions are additionally qualified as incitement, and the actions of the bribe-giver - as an attempt to give a bribe. It does not matter whether the specific person to whom the bribe was to be given was specified.
The subjects of the appeal were convicted for attempted fraud and incitement to bribery and believe that the contested provision of the Supreme Court's ND contradicts the Constitution, as it allows persons to be prosecuted for the same act under two offences.
The Constitutional Court considers that the approaches of the Supreme Court to the formation of a uniform judicial practice, as provided for in paragraph 20 of the SC ND, should be considered in close interrelation with other provisions of this SC ND and the requirements of the criminal law. The admissibility of qualifying one act under two articles of the Criminal Code, as indicated by the Supreme Court, is based on the provisions on the cumulative nature of criminal offences enshrined in the criminal law. The considered provision of the SC ND in general does not restrict the judge in considering a particular criminal case from taking into account the circumstances of the commission of the act. At the same time, the Constitutional Court refrains from establishing, examining and verifying issues within the competence of the courts.
The Constitutional Court found paragraph 20 of the SC ND to be in conformity with the Constitution and recommended to the Supreme Court to further clarify the judicial practice in dealing with such offences and to amend the SC ND.