Comment to Article 193. Legalization of funds or other property acquired illegally by the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The commission of financial transactions and other transactions with monetary funds or other property acquired knowingly illegally, as well as the use of these funds or other property for entrepreneurial or other economic activities —
are punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months, or by arrest for up to six months, or by imprisonment for up to three years with a fine in the amount of up to one hundred monthly calculation indices or in the amount of wages or other the convicted person's income for a period of up to two months or without it.
2. The same acts committed:
a) a group of persons by prior agreement;
b) repeatedly;
c) by a person using his official position, —
are punishable by imprisonment for a term of up to five years with or without confiscation of property.
3. The acts provided for in the first or second parts of this Article, committed:
a) a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position;
b) an organized group;
c) a criminal community (criminal organization) or on a large scale,-
are punishable by imprisonment for a term of three to seven years with deprivation of the right to hold certain positions or engage in certain activities for up to three years, and in the cases provided for in paragraph
a), - up to seven years with or without confiscation of property.
Note.
1. In this article, the commission of a transaction or the use of funds or other property in an amount exceeding ten thousand monthly calculation indices is recognized as a large amount.
2. A person who voluntarily declares that money or property acquired illegally is about to be legalized or has been committed shall be released from criminal liability if his actions do not contain the elements of crimes provided for in parts two and three of this article or any other crime.
The public danger of a crime is expressed in the professionalism of circumvention of the criminal law and causing damage, that is, harm from acts of a criminal nature. It is difficult to determine the degree of public danger of the "main" and "secondary" crimes, because the "main" crime refers to the first illegal act, i.e. the acquisition of money or other property, and the "secondary" refers to the second illegal act, i.e. the legalization itself.
The harm caused to public relations that ensure legal economic activity is a violation of the principle of equality of economic entities, undermining the foundations of honest entrepreneurship based on the law, violating the function of money as a means of maintaining a balance between the measure of labor and the measure of consumption, creating uncontrolled monetary and other property funds that are potentially used in harm to society.
The legalization of money or other property obtained illegally is the so-called "money laundering". Legal business is often used only to cover up large-scale illegal transactions, illegal transfers of huge amounts of money abroad, and other forms of money laundering acquired illegally. Countering money laundering is one of the important conditions for combating organized crime. And although money is also legalized by individuals who are not members of criminal groups, it is organized crime that uses the most socially dangerous ways to make a profit: drug trafficking, weapons, extortion, counterfeiting, gambling and porn business. From an economic point of view, the task of "laundering" is to introduce illegal funds and capital into the legal economy.
On November 8, 1990, the member States of the Council of Europe adopted the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. According to this Convention, these States are required to take legislative measures to criminalize the following actions against money laundering:
a) the conversion or transfer of tangible assets, which the person involved knows that these tangible assets constitute the proceeds of a crime, in order to conceal the illegal origin of these tangible assets or to help any person involved in the commission of the main offense to avoid the legal consequences of these acts;
b) concealment or distortion of the nature of the origin, location, placement, movement or actual ownership of material assets or rights related to them, when the violator knows that these material assets represent income obtained by criminal means;
c) the acquisition, possession, or use of material assets, which the person who acquires, owns, or uses them knows at the time of their receipt that they are proceeds of crime.
In accordance with the aforementioned Convention, the term "proceeds" means any material benefit obtained as a result of the commission of a crime. The term "property" covers property of any kind, tangible or intangible, movable or immovable, as well as legal documents or papers attesting to the right to such property or a share in it.
The object includes financial and credit relations that ensure the legal turnover of property and monetary circulation.
The subject of the crime is money, which, based on the meaning of Articles 115 and 127 of the Civil Code of the Republic of Kazakhstan, includes the national currency (tenge) and foreign currency, as well as other property acquired knowingly illegally.
The concept of "property" It is contained in Article 115 of the Civil Code of the Republic of Kazakhstan. It includes not only things, money, securities, but also property rights.
Other property includes: securities, land plots, subsurface areas, isolated water bodies, inland air and sea vessels, space and other objects classified by civil law as immovable property; movable property (Part 3 of Article 117 of the Civil Code of the Republic of Kazakhstan); property rights (Article 474 of the Civil Code of the Republic of Kazakhstan); the right of the payer to purchase of permanent rent (Article 526 of the Civil Code of the Republic of Kazakhstan); the right to rent (Article 546 of the Civil Code of the Republic of Kazakhstan); the right to compensation for damage (Article 917 of the Civil Code of the Republic of Kazakhstan).
Items seized from civil circulation (weapons, drugs, etc.) are not the subject of the crime in question.
The objective side of the crime provided for in Article 193 of the Criminal Code of the Republic of Kazakhstan consists of the following actions, each of which forms part of this crime:
the commission of financial transactions and other transactions with funds acquired knowingly illegally;
making financial transactions and other transactions with property acquired knowingly illegally; using funds acquired knowingly illegally to carry out entrepreneurial or other economic activities;
the use of property acquired knowingly illegally for carrying out entrepreneurial or other economic activities.
The legalization of funds or other property acquired illegally should be understood as any form of release into circulation of genuine money or other actually existing property obtained knowingly illegally, with the official granting them the status of property legally in circulation.
One of the most successful attempts to define the concept of "money laundering" was made by the UN Vienna Convention of December 19, 1988. "Laundering" refers to various types of manipulation of money and property obtained as a result of offenses. Dirty money and illegal income are thereby identified with legally acquired property. Dirty money is obtained from drug trafficking, kidnapping, and tax evasion by enterprises in the metallurgical industry and the oil business. In order to "launder" money or other property obtained by criminal means, it is necessary to have certain professional skills, accounting skills, knowledge of tax legislation, etc. Often legal businesses, one-day firms, are used to cover up illegal activities, through which they "launder" capital. From an economic point of view, the task of "laundering" money or other property obtained illegally is to professionally introduce illegal capital into the legal economy.
In accordance with the Law of the Republic of Kazakhstan "On Banks and Banking Activities" dated August 31, 1995 (as amended and supplemented) The commission of financial transactions with monetary funds is understood as the commission of any operations related to the movement of money specified in art. 30: accepting deposits, cash, transfer, loan, trust, safe deposit, exchange and similar operations.
Financial transactions are defined as operations of a bank and organizations engaged in certain types of banking operations, such as opening and maintaining bank accounts using illegally acquired funds that act as a tool for making payments for work, services, goods, and the purchase of securities with them.
Transactions, in accordance with Article 147 of the Civil Code of the Republic of Kazakhstan, are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
Making transactions with property involves the conclusion of any civil law contracts: purchase and sale, exchange, donation, inheritance, etc.
When making other transactions, through the use of funds or other property, actions aimed at making such transactions in civil circulation are allowed: barter, purchase and sale, donation, lease, etc.
The use of monetary funds or other property for carrying out entrepreneurial or other economic activities is expressed in the use of these funds as initial, current capital in the process of engaging in entrepreneurial or other economic activities.
The acts provided for in Article 193 of the Criminal Code should be considered completed not only upon completion of transactions with funds to solve a specific economic task, but also upon any transfer of these funds, including during the transaction, if the purpose of the transfer is to launder illegally acquired property.
The Supreme Court of the Republic of Kazakhstan, in the above-mentioned Regulatory Resolution dated June 18, 2004, in paragraph 10, notes that the basis for criminal liability under Article 193 of the Criminal Code is the fact of the legalization of funds or other property obtained only from prohibited activities (smuggling, illegal trade in weapons, narcotic drugs, embezzlement, tax evasion, etc.). If the fact of money laundering or other property obtained knowingly illegally is established, the guilty person must be criminally liable for a combination of crimes: 193 of the Criminal Code and the corresponding provision of the criminal law providing for liability for the illegal acquisition of these funds or property.
The subject of a crime can be any sane individual who has reached the age of 16. The responsibility is borne by the persons in whose actual possession are funds or other property acquired illegally. Persons who intentionally assist in legalization, for example, notaries, employees of the Center for Registration of Immovable (movable) Property, employees of a pawnshop, are accomplices or members of a criminal group (depending on the form of complicity). The subjects of the crime should also include those persons who directly use illegally acquired property, make transactions with it, and carry out financial transactions, that is, in whose actual possession these funds are.
On the subjective side, the crime under analysis is characterized by guilt in the form of direct intent, that is, the perpetrator is aware that he is "laundering", legalizing these illegally acquired funds, anticipates that as a result of financial transactions or other transactions, property or money acquired knowingly illegally will be legalized, and desires such legalization. It is unacceptable to exempt from criminal liability persons whose main purpose is to obtain illegally obtained profits. The term "knowingly" means that the perpetrator is aware of the fact that the property he is acquiring or selling was obtained by criminal means. Indifference to the origin of the funds they use, the illegality of which they are aware of, is a manifestation of indirect intent. The purpose of this crime may be not only to conceal the source of illegally obtained money or other property and legalize it, but also to generate new income from this activity. Motives and goals do not matter for the qualification of this crime.
The qualifying features in the crime in question are the following:
a) the commission of this crime by a group of persons by prior agreement;
b) repeatedly;
c) by a person using his official position.
When making a financial transaction or other transaction under clause "a" of Part 2 of Article 193 of the Criminal Code of the Republic of Kazakhstan, the actions of the perpetrators should be qualified, in which two or more persons take part, who agreed in advance (that is, before the start) to commit it together, who were aware of the illegality of acquiring funds or other property in such an operation (transaction)..
In the event that only one of the participants in the financial transaction (or other transaction) in question is aware of the illegal nature of the acquisition of funds or other property in such a transaction, liability must arise under Part 1 of Article 193 of the Criminal Code of the Republic of Kazakhstan. Based on the definition of a preliminary conspiracy of a group of persons contained in Part 2 of Article 31 of the Criminal Code of the Republic of Kazakhstan, such a conspiracy must necessarily occur before the relevant transaction is completed or before another transaction is concluded.
Collusion that has arisen between participants in financial transactions or other transactions in the process of their commission should be qualified under Part 1 of Article 193 of the Criminal Code of the Republic of Kazakhstan.
A conspiracy that has arisen between participants in a financial transaction or other transaction, one of which is the acquirer of property until the latter illegally acquires the subject of this transaction (transaction), provided that such acquisition is the result of a crime (theft, fraud, embezzlement of entrusted property), simultaneously serves as a sign of complicity in such a crime. Such actions should be qualified not only under Part 2 of Article 193 of the Criminal Code, but also as complicity in a crime, as a result of which the relevant property was acquired.
Repeated legalization of funds or other property acquired illegally will be recognized in cases where one person commits at least two financial transactions (including one financial transaction and one transaction). In accordance with Part 3 of art . 11 of the Criminal Code, the crime in question cannot be recognized as having been committed repeatedly if a person has been released from criminal liability for a previously committed crime in accordance with the established procedure, or the criminal record for a crime previously committed by a person has been expunged or withdrawn, or the statute of limitations for bringing such a crime to criminal responsibility has expired.
The third qualifying feature is expressed in the commission of this crime by a person using his official position. A person who uses his official position to commit any of the acts provided for in Part 1 of Article 193 of the Criminal Code should include the persons specified in the note to Article 307 of the Criminal Code "Abuse of official authority" and persons performing managerial functions in a commercial or other organization specified in the note to art. 228 of the Criminal Code is "Abuse of authority", which, in addition to the general signs of the subject of the crime, are endowed with official authority in relation to a financial transaction or other transaction (paragraph "b" of Part 2 of Article 193 of the Criminal Code of the Republic of Kazakhstan). The presented official powers facilitate the legalization process for these persons. Part 3 of this article provides for liability for the acts specified in parts one or two, but committed:
a) a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position;
b) an organized group;
c) by a criminal community (criminal organization) or on a large scale." According to the notes to art. 307 of the Criminal Code of the Republic of Kazakhstan:
1. Persons authorized to perform state functions include officials, members of Parliament and maslikhats, judges and all civil servants in accordance with the legislation of the Republic of Kazakhstan on civil service.
2. Persons authorized to perform state functions are equal to:
persons elected to local government bodies;
citizens registered in accordance with the procedure established by law as candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan and maslikhats, as well as members of elected local government bodies;
employees who permanently or temporarily work in local government bodies, whose wages are paid from the state budget of the Republic of Kazakhstan;
persons who perform managerial functions in government organizations and organizations in which the state's share in the authorized capital is at least 35%.
Thus, in paragraph "a" of Part 3 of Article 193 of the Criminal Code of the Republic of Kazakhstan, the legislator provided for two categories of a special entity.:
1) a person authorized to perform state functions and 2) a person equated to him.
A crime is considered to have been committed by an organized group if it was committed by a stable group of persons who had previously united to commit one or more crimes. The peculiarity of this form of complicity is that the relationship between the members of such a group should be stable. The second mandatory feature of this form of complicity is the goal of uniting members of this stable group to commit one or more crimes. Stability should be understood as being in a group not of random people, but of those who intend to commit one or more crimes together with others. The members of this group trust each of them, the composition of the group is stable, there is a leader to whom the members of the group report.
A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a cohesive organized group (organization) created to commit grave or especially grave crimes, or by an association of several organized groups created for the same purposes. The cohesion of a group means not only the stability of its composition, the presence of a leader to whom all other accomplices report, but also a long-term relationship between the accomplices, mutual support for each other, interchangeability, mutual assistance. Cohesion means a high degree of organization, compliance with all the rules of conduct established in a criminal organization.
The concept of large size is given in a note to Article 193 of the Criminal Code of the Republic of Kazakhstan, which recognizes the commission of a transaction or the use of funds or other property in an amount exceeding ten thousand monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
According to paragraph 2 of the note to Article 193 of the Criminal Code, a person who voluntarily declares that money or property acquired illegally is being prepared or committed is exempt from criminal liability if his actions do not contain elements of crimes provided for in parts two and three of this article, or another crime.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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