Commentary on Article 311. Taking a Bribe under the Criminal Code of the Republic of Kazakhstan

1. The acceptance by a person authorized to perform state functions, or a person equated to such a person, personally or through an intermediary, of a bribe in the form of money, securities, other property, the right to property, or benefits of a property-related nature, in exchange for actions (inaction) in favor of the bribe-giver or persons represented by the latter, if such actions (inaction) fall within the official powers of the person authorized to perform state functions or the person equated to such a person, or if, by virtue of their official position, such person may facilitate such actions (inaction), as well as for general patronage or connivance in the service, -

shall be punishable by a fine in the amount of seven hundred to two thousand monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of seven months to one year, or by restriction of liberty for a term of up to five years, or by imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, with or without confiscation of property.

2. The same act committed by an official, as well as the acceptance of a bribe for illegal actions (inaction), -

shall be 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 a term of up to seven years, with or without confiscation of property.

3. The acts provided for in parts one or two of this Article, committed by a person holding a responsible public position, -

shall be punishable by imprisonment for a term of five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years, with or without confiscation of property.

4. The acts provided for in parts one, two or three of this Article, if committed:

a) through extortion;

b) by a group of persons acting by prior conspiracy or by an organized group;

c) on a large scale;

d) repeatedly, -

shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.

5. The acts provided for in parts one, two, three and four of this Article, if committed on an especially large scale, -

shall be punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.

Notes.

1. A large-scale bribe shall mean a sum of money, the value of securities, other property or benefits of a property-related nature exceeding five hundred monthly calculation indices.

2. The first-time receipt by a person authorized to perform state functions, or a person equated to such a person, of property, the right to property or another property-related benefit as a gift, in the absence of a prior arrangement, for previously performed lawful actions (inaction), provided that the value of the gift did not exceed two monthly calculation indices, shall not constitute a crime due to insignificance and shall be subject to disciplinary or administrative prosecution.

3. An especially large-scale bribe shall mean a sum of money, the value of securities, other property or benefits of a property-related nature exceeding two thousand monthly calculation indices.

4. For the purposes of this Article and Article 312 of this Code, officials shall include the officials specified in the notes to Article 307 of this Code, as well as officials of foreign states or international organizations.

The object of the crime is the normal functioning of the state apparatus, regulated by law, and the interests of public service and public administration associated with it. The lawful interests of citizens and organizations should be recognized as an additional object.

The subject matter of a bribe consists of money, securities, other property, the right to property or benefits of a property-related nature.

Money (currency) shall mean both monetary instruments of the Republic of Kazakhstan and foreign monetary instruments that are in circulation, that is, those that are in financial circulation at the time the crime is committed. Kazakhstani and foreign coins withdrawn from financial circulation, which are no longer in circulation as a means of payment but possess a certain numismatic value, are not money within the meaning of Article 311 of the Criminal Code of the Republic of Kazakhstan and may constitute a bribe in the form of “other property”, provided that their average market value cannot be regarded as negligible (for example, tiyn coins minted in 1993). This, in accordance with Note 2 to Article 311 of the Criminal Code, excludes the public danger of the act on the grounds of insignificance.

In accordance with Article 129 of the Civil Code of the Republic of Kazakhstan, a security is a document certifying property rights in compliance with the established form and mandatory details, the exercise of which is possible only upon its presentation.

The Civil Code of the Republic of Kazakhstan classifies the following as securities: bonds, bills of lading, shares, promissory notes, checks, deposit and savings certificates, and other documents that are classified as securities by legislative acts or in accordance with the procedure established by them (Article 130 of the Civil Code of the Republic of Kazakhstan).

Other property shall mean any material assets possessing exchange value, including currency valuables in the form of debt obligations, precious metals in any form and condition, natural precious stones in their raw and processed forms, jewelry pearls and other household items made from these stones, as well as scrap of such items.

The right to property, as the subject matter of accepting a bribe, shall mean granting a person the authority to possess, use or dispose of property. For example, issuing a power of attorney granting the right to drive a car, sell real estate, etc.

Benefits of a property-related nature, as the subject matter of accepting a bribe, may be expressed in the gratuitous provision to the bribe recipient of a wide variety of services of a material nature.

The acceptance of a bribe is an intentional crime committed for personal gain; therefore, there is no corpus delicti in cases where, for example, a person has fully paid for the service rendered to them. The provision of services to a person authorized to perform state functions, or a person equated to such a person, or an official, which do not result in the receipt of material benefits, in exchange for performing an action or refraining from performing an action, cannot be regarded as the subject matter of accepting a bribe (for example, writing a favorable reference or review, issuing an honorary certificate, and the like).

Thus, the subject matter of bribery may be any property (movable or immovable), rights and services, the receipt of which brings a property-related benefit to a person authorized to perform state functions, or a person equated to such a person, as well as to an official, since a paid service is provided to them free of charge or at a clearly reduced price.

The receipt of a preferential loan, the use of bank loans, rental at a reduced rate, and other similar benefits may serve as a bribe. Foreign currency received as a bribe must be indexed into the national currency for comparison with the qualifying element of accepting a bribe on a large scale.

In my opinion, substances and items withdrawn from civil circulation should be regarded as the subject matter of accepting a bribe for the following reasons: the withdrawal of items from civil circulation means excluding them from use and prohibiting civil-law transactions involving such items under threat of punishment and due to the absence of any declaration regarding their value, which, however, does not mean the absence of a state monopoly on their use.

Thus, the state may sell weapons, radioactive isotopes and the like (for example, one gram of osmium, which is extracted only in Kazakhstan among all CIS countries, is estimated by some sources to be worth up to 100,000 dollars). Consequently, these items possess a certain material value. Furthermore, the existence of a “black market” in any state does not exclude the possibility of obtaining benefits from the sale of items withdrawn from civil circulation.

The acceptance of a bribe is a crime committed for personal gain. By receiving an item withdrawn from circulation as a bribe, the offender expects to obtain a benefit from its sale or to use it for its intended purpose (firearms for hunting, narcotic drugs for consumption, and so on). Consequently, the elements of the crime of accepting a bribe will be present.

Thus, property withdrawn from free circulation (or subject to restrictions on circulation) may constitute the subject matter of accepting a bribe. In this case, the guilty persons shall be held liable not only for accepting a bribe but also for the illegal circulation of these items.

For example, the acceptance of a bribe in the form of firearms (except smooth-bore hunting firearms), ammunition, explosives or explosive devices must be classified not only as accepting a bribe under Article 311 of the Criminal Code of the Republic of Kazakhstan, but also under Article 251 of the Criminal Code of the Republic of Kazakhstan as the illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, ammunition, explosives and explosive devices. The acceptance of narcotic drugs or psychotropic substances as a bribe (Article 259 of the Criminal Code of the Republic of Kazakhstan), radioactive materials (Article 247 of the Criminal Code of the Republic of Kazakhstan), or rare plants or animals listed in the “Red Book” (Article 290 of the Criminal Code of the Republic of Kazakhstan) shall additionally be classified under the Articles providing for liability for the illegal circulation of the aforementioned items.

Appointment to a higher position and the provision of certain services in the course of official duties cannot be regarded as the subject matter of a bribe, since they are not associated with the receipt of benefits of a property-related nature and should be classified as abuse of official position (Article 307 of the Criminal Code of the Republic of Kazakhstan).

In accordance with Part 2 of the Note to Article 311 of the Criminal Code of the Republic of Kazakhstan, the first-time receipt by an official of property, the right to property or another property-related benefit as a gift, in the absence of a prior arrangement, for previously performed lawful actions (inaction), provided that the value of the gift did not exceed two monthly calculation indices (MCI), shall not constitute a crime due to insignificance and shall be subject to disciplinary prosecution.

It appears that, by doing so, the legislator has duplicated the provision enshrined in Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan, which states that an act or omission that formally contains the elements of an act provided for in the Special Part of this Code, but which, due to its insignificance, does not constitute a public danger, that is, has not caused harm or created a threat of causing harm to an individual, society or the state, shall not constitute a crime. In our opinion, the legislator thereby limits the possibility of not recognizing an act as a crime on the grounds of insignificance by establishing as a condition for such exemption an amount not exceeding two monthly calculation indices. In essence, this definition brings this provision into conflict with Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan, which does not provide for such a condition for not recognizing an act as a crime on the grounds of insignificance.

The content of Part 2 of the Note to Article 311 of the Criminal Code suggests an ambiguous understanding of the legislator's position, which is expressed in the following:

- firstly, Part 2 of the Note to Article 311 of the Criminal Code of the Republic of Kazakhstan does not include money and securities in the list of items that may be presented as gifts and constitute grounds for not recognizing an act as a crime, although they are listed first in the disposition of Article 311 of the Criminal Code of the Republic of Kazakhstan. What legal assessment should be given to a person who receives money or securities worth less than two monthly calculation indices? According to the literal wording of the law, receiving money or securities as a gift, even if their value is below two MCI, should be classified as accepting a bribe, since they are not specified in Part 2 of the Note to Article 311 of the Criminal Code of the Republic of Kazakhstan;

- secondly, another condition for not recognizing an act as a crime is that the gift must be received for the first time. How should the act be classified if the guilty person receives a gift worth less than two MCI repeatedly? How should limitation periods be calculated when a gift is received more than once?

- thirdly, why did the legislator establish precisely two MCI, rather than three or four?

I consider it appropriate to exclude Part 2 of the Note to Article 311 of the Criminal Code. This position is also shared by the overwhelming majority of practitioners.

The objective side of accepting a bribe is expressed in the receipt by the subject, personally or through an intermediary, of a bribe in the form of money, securities, other property, the right to property or benefits of a property-related nature, in exchange for actions (inaction) in favor of the bribe-giver or persons represented by the latter, if such actions (inaction) fall within the official powers of the bribe recipient or if, by virtue of their official position, they may facilitate such actions (inaction), as well as for general patronage or connivance in the service.

The acceptance of a bribe should be understood as the actual possession of material assets handed over to a person authorized to perform state functions or a person equated to such a person, or an official, or the actual use of services provided.

The conduct of the subject of the crime who has received a bribe may be expressed both through active action and through inaction. In this case, the latter shall mean the failure of a person to perform actions that they were required to perform by virtue of their official duties, in accordance with the position held and the scope of their rights and powers, but from the performance of which they evaded.

A mandatory condition for bringing a person to criminal liability for accepting a bribe is the subject's awareness of receiving a property-related benefit, or failure to take the actions prescribed by law in the event of receiving a gift or another property-related benefit without the subject's knowledge.

The law does not specify the particular methods of accepting a bribe, which is entirely justified, since it is impossible to foresee all their diversity in advance.

Based on the legislative definition of accepting a bribe, we can identify four types of conduct by a person authorized to perform state functions, or a person equated to such a person, or an official, which constitute the elements of the crime of accepting a bribe and for which, or in connection with the possibility of carrying them out, such person receives a bribe:

1) an action (inaction) in favor of the bribe-giver or persons represented by the latter, which falls within the official powers of the person;

2) an action (inaction) in favor of the bribe-giver or persons represented by the latter, which does not fall within the official powers of the subject, but which the bribe recipient may facilitate, by virtue of their official position, on the part of another person authorized to perform state functions, or a person equated to such a person, or an official;

3) general patronage or connivance in the service by a person authorized to perform state functions or a person equated to such a person, in favor of the bribe-giver or persons represented by the latter;

4) illegal actions (inaction) of the subject of the crime in favor of the bribe-giver or persons represented by the latter (Part 2 of Article 311 of the Criminal Code of the Republic of Kazakhstan).

In our opinion, Paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 1995, as amended and supplemented, “On the Practice of Application by Courts of Legislation on Liability for Bribery” correctly states that liability for accepting a bribe arises regardless of the time when the bribe is received (before or after the action or inaction is performed), as well as regardless of whether the bribe was agreed upon in advance and whether any actions in the interests of the bribe-giver were performed.

Article 21 of the Law of the Republic of Kazakhstan dated July 23, 1999, as amended and supplemented, “On Civil Service” states that the salaries of administrative civil servants are paid from the funds of the republican and local budgets or from the funds of the National Bank. This means that a person authorized to perform state functions or a person equated to such a person (as well as an official) receives remuneration for their activities in the manner and amounts established by law, and also indicates the gratuitous nature of their public activities in relation to citizens.

If, however, a person authorized to perform state functions or a person equated to such a person, or an official, accepts remuneration not provided for by law, knowing that corresponding conduct is expected of them, then they encroach upon public relations in the sphere of public service and must bear liability for accepting a bribe.

Consequently, the elements of the crime of accepting a bribe shall be present regardless of whether the unlawful remuneration was conditional upon the performance or non-performance by the subject of the crime of any action (inaction) in the interests of the person giving the bribe.

In the second type of conduct of a person authorized to perform state functions, or a person equated to such a person, or an official, which constitutes the elements of the crime of accepting a bribe, reference is made to facilitating actions (inaction) in favor of the bribe-giver.

Paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 1995, as amended and supplemented, “On the Practice of Application by Courts of Legislation on Liability for Bribery” states: “The subjects of accepting a bribe should also include those officials who, although they did not possess the authority to perform the relevant actions in the interests of the bribe-giver, could, by virtue of their official position, take measures for a bribe to ensure that such actions were performed by other officials.”

According to the law, the actions (inaction) of the bribe recipient must fall within the official powers of the subject of the crime, or such person must be able to facilitate such actions (inaction) by virtue of their official position. It follows from this that, in order to recognize a person as a bribe recipient, it is not at all necessary for their actions to be limited to the scope of their official competence.

The law (Article 311 of the Criminal Code of the Republic of Kazakhstan) emphasizes that actions in favor of the bribe-giver may be performed if they “fall within the official powers of the person authorized to perform state functions or the person equated to such a person, or if, by virtue of their official position, such person may facilitate such actions (inaction).” This indicates the objective nature of such a possibility. Therefore, in our opinion, the use of solely friendly or family connections to achieve the desired result excludes the elements of the crime of accepting a bribe.

Therefore, when establishing the element of “facilitating such actions” in each specific situation, it is necessary to determine whether the official position of such person objectively enabled them to influence another person authorized to perform state functions or a person equated to such a person, with the aim of ensuring that the latter performs or refrains from performing certain actions. There are no elements of the crime of accepting a bribe if personal connections proved decisive, even if such connections arose in the course of official activities.

Thus, the application in theory and practice of the element of “facilitating actions (inaction) by virtue of official position” must be limited to the framework of the objective possibility of a person authorized to perform state functions or a person equated to such a person to influence another person authorized to perform state functions or a person equated to such a person. Such a possibility exists if:

a) both subjects work in the same organization, with one of them being in a subordinate position in relation to the other;

b) the aforementioned persons work in different organizations between which relations of dependency exist (administrative or economic dependency, relations of control or supervision).

The legislator has included general patronage or connivance in the service as independent elements of accepting a bribe.

General patronage in the service may include, in particular, actions related to undeserved rewards, unjustified promotion to a higher position ahead of schedule, and the performance of other actions not necessitated by any objective requirement.

Connivance in the service should include, for example, the failure by a person authorized to perform state functions, or a person equated to such a person, to take measures in response to shortcomings or violations in the official activities of the bribe-giver or persons represented by the latter, as well as failure to respond to their unlawful actions.

At the same time, it appears that when the law refers to the patronage and connivance of the subject in relation to the bribe-giver or persons represented by the latter, it means such conduct by the subject not only in relation to persons who are directly subordinate to them in the service. In this case, the bribe recipient may also be a person authorized to perform state functions, or a person equated to such a person (an official), who receives unlawful remuneration from persons who are not subordinate to them but who may fall within the scope of their authority. This circumstance determined the necessity, in the opinion of such persons, of bribing this subject of the crime.

For example, State Tax Inspector A. was convicted of accepting a bribe from private entrepreneur K. for general patronage in the service. As K. explained, he gave the bribe in order to use A.'s assistance to avoid liability in the future for possible violations of tax legislation.

When a bribe is received for general patronage or connivance, the bribe-giver does not stipulate any specific actions by the person authorized to perform state functions or the person equated to such a person, but the participants in the crime understand that the transfer of the bribe is aimed at satisfying the interests of the bribe-giver or persons represented by the latter. Ultimately, this is expressed (or may, with a certain degree of probability, be expressed) in certain actions (inaction) of the subject of the crime.

This type of bribery is characteristic of systematic transfers of bribes by employees subordinate to or under the control of a person authorized to perform state functions or a person equated to such a person, since such person constantly resolves matters affecting their interests.

The danger of this type of bribery is evidenced by cases in which organized criminal groups systematically provide financial support to corrupt persons in state bodies and government structures, expecting favorable results from their “investments” when necessary.

The receipt by an official from persons subordinate to or under their control of funds or other valuables for patronage or connivance in the service, or for the favorable resolution of matters falling within their competence, must be regarded as accepting a bribe.

The actions of the guilty persons must also be recognized as giving and accepting a bribe in cases where the conditions for receiving valuables, services or benefits are not specifically stipulated, but the participants in the crime understand that the bribe is being handed over for the purpose of satisfying the interests of the bribe-giver.

It is important to note that in cases of patronage or connivance, no specific actions may have been performed after the remuneration was transferred. This is irrelevant for the classification of accepting a bribe. The only important circumstance is that the person authorized to perform state functions or the person equated to such a person possessed actual powers to perform actions (inaction) in favor of the bribe-giver and was aware of the purpose of the unlawful remuneration transferred to them.

Thus, the acceptance of a bribe for patronage or connivance in the service shall take place under the following conditions:

1) the bribe recipient must retain the ability to perform or refrain from performing actions (inaction) in favor of the bribe-giver;

2) this ability must arise from relations of control or subordination between these persons;

3) both persons must understand the meaning of the remuneration being transferred (the remuneration is transferred as a bribe in exchange for the corresponding conduct of the person authorized to perform state functions or the person equated to such a person). 

English translation

The translation below preserves the original text, including its paragraph structure, legal terminology, examples, statutory references, article numbers, court decisions and the author's opinions. No sections or substantive content have been intentionally shortened or omitted.

A study of investigative and judicial practice has shown that the actions of a person authorized to perform state functions, or a person equated thereto, or an official, aimed at initiating the giving of a bribe are often overlooked.

For example, the perpetrator, through threats or persuasion, induces a person interested in the adoption of a particular decision to give him a bribe. Under such circumstances, the acts of a person authorized to perform state functions, or a person equated thereto, must be classified not only as receiving a bribe under the relevant part of Article 311 of the Criminal Code of the Republic of Kazakhstan, but also, in conjunction with the other offence, as incitement to give a bribe, that is, under Part 4 of Article 28 and Article 312 of the Criminal Code of the Republic of Kazakhstan.

The crime is considered completed from the moment a person authorized to perform state functions, or a person equated thereto, accepts the bribe, regardless of whether that person has performed any actions (or omissions) in favour of the bribe-giver or not, and regardless of whether that person intended to perform such actions (or omissions) at all.

From the subjective standpoint, receiving a bribe is committed only intentionally and with a mercenary purpose. Indirect intent and negligence are entirely excluded in the case of receiving a bribe. At the moment of receiving the remuneration, a person authorized to perform state functions, or a person equated thereto, or an official, is aware that it is unlawful in nature and that performing actions (or omissions) in the interests of the bribe-giver is possible only through the use of their official position.

If the bribe was not received in full or in part due to objective circumstances, the act should be classified as an attempt to receive the agreed amount of the bribe under Article 311 of the Criminal Code of the Republic of Kazakhstan, with reference to Part 3 of Article 24 of the Criminal Code of the Republic of Kazakhstan.

An offer or demand by a person authorized to perform state functions, or a person equated thereto, to give a bribe, as well as negotiations concerning the timing, amount and procedure for paying the remuneration, constitute preliminary criminal activity of the perpetrator in accordance with Article 24 of the Criminal Code of the Republic of Kazakhstan.

Criminal liability arises only for preparation for a serious or especially serious crime (Part 2 of Article 24 of the Criminal Code of the Republic of Kazakhstan). Consequently, liability for preparation to receive a bribe is possible only under Parts 2, 3 and 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan.

Based on the definition of preparation for a crime set out in Part 1 of Article 24 of the Criminal Code of the Republic of Kazakhstan, preparation to receive a bribe may, in particular, include an offer by a person authorized to perform state functions, or a person equated thereto, to give that person a bribe; the search for persons to perform intermediary functions; negotiations with the bribe-giver; actions aimed at creating a group for the purpose of receiving bribes; and so on.

Given the wide variety of benefits of a proprietary nature, it is impossible to specify the exact moment of acceptance of a bribe by a person authorized to perform state functions, or a person equated thereto, in every particular case.

The moment of transfer is easy to determine when a bribe is handed over from hand to hand in the form of money or other movable property. It is much more difficult to determine the moment when the crime is completed if the subject of the bribe consists of some kind of property-related benefit. In cases where a bribe is provided in the form of a service or a property-related benefit, the crime may be considered completed from the moment that service is used. Law enforcement authorities must necessarily establish not only the fact that the service or property-related benefit was provided, but also that it was accepted by the perpetrator.

Criminal law theory and practice recognize that receiving a bribe is legally completed from the moment at least part of the bribe is accepted, if the remuneration was transferred in instalments.

On the other hand, does the acceptance of a bribe by an intermediary — a representative of a person authorized to perform state functions, or a person equated thereto — constitute a completed crime?

Despite the fact that the intermediary merely transfers the remuneration to a person authorized to perform state functions, or a person equated thereto, or an official, the possibility that the intermediary may appropriate the remuneration or that the bribe-taker may refuse to accept the bribe cannot be disregarded. Therefore, acceptance of the subject of the bribe by an intermediary (a representative of the bribe-giver) for its subsequent transfer to a person authorized to perform state functions, or a person equated thereto, does not constitute a completed offence of receiving a bribe.

In practice, it is always very difficult to prove the connection between the receipt of funds by an intermediary and their receipt by a person authorized to perform state functions, or a person equated thereto, or an official.

Should the commission of actions (or omissions) by a person authorized to perform state functions, or a person equated thereto, or an official, in the interests of the bribe-giver be considered a completed crime or a crime at all if the remuneration is received by a family member of the person authorized to perform state functions, or a person equated thereto, or by any other person whose financial situation depends on the bribe recipient?

The law does not expressly specify the legal consequences of acceptance of remuneration by this group of persons, since the disposition of Part 1 of Article 311 of the Criminal Code of the Republic of Kazakhstan refers to the personal receipt of remuneration by a person authorized to perform state functions, or a person equated thereto. However, in my opinion, acceptance, with the knowledge of a person authorized to perform state functions, or a person equated thereto, or an official, of unlawful remuneration for their corresponding conduct by members of the perpetrator's family or other persons close to them, whose material well-being depends on that person, constitutes a completed act of bribery.

Indeed, a person authorized to perform state functions, or a person equated thereto, an official and members of their family own and dispose of the same property, that is, they maintain a joint household. Therefore, their acceptance of a property-related benefit ultimately means that the perpetrator has the possibility of disposing of the subject of the bribe directly. This is a disguised form of receiving a bribe.

It is much more difficult to establish the fact of receiving a bribe when it is received by persons whose financial situation depends on a person authorized to perform state functions, or a person equated thereto, or an official. In my opinion, such persons should be understood to include dependants, minor children living separately, elderly parents or other close relatives, that is, persons for whom care is determined by civil law relations.

An essential condition for this form of receiving a bribe is the consent of the perpetrator to the above-mentioned persons accepting the subject of the bribe in exchange for the perpetrator's corresponding conduct.

Thus, receiving a bribe, regardless of its form, is the acceptance by a person authorized to perform state functions, or a person equated thereto, or an official, through a private procedure not provided for by law, of remuneration that constitutes personal compensation from persons interested in that person's actions.

When a crime is committed, a person's mental attitude towards the act committed is always present. This attitude is manifested in the person's awareness, or lack of awareness, of the actual nature and social significance of the act being committed; in anticipating the socially dangerous consequences of their actions; in their particular attitude towards those consequences; and in the objectives they set for themselves.

The offence of receiving a bribe does not contain any indication of the form of guilt in its statutory definition. Nevertheless, it can be stated with certainty that this crime can be committed only with direct intent.

Objectively, receiving a bribe cannot be separated from giving a bribe and considered in isolation from it. The perpetrator's intent must also encompass awareness of the fact that the person handing over the remuneration perceives this act specifically as the giving of a bribe. Otherwise, the subjective element of the crime will be absent.

For the subjective element to exist, the bribe-giver must intend, in exchange for the bribe, to induce a person authorized to perform state functions, or a person equated thereto, or an official, to act (or refrain from acting) in the bribe-giver's interests, and must desire the consequences of such action (or omission). The person authorized to perform state functions, or a person equated thereto, who accepts the property-related benefit must be aware that the benefit is being transferred to them as a bribe in exchange for their favourable conduct and must desire this. In doing so, it is necessary to establish that the perpetrator has the will to accept the bribe.

A mercenary purpose — the extraction of unlawful benefits of a property-related nature — is recognized as an essential feature of the subjective element of receiving a bribe. A mercenary motive also corresponds to this purpose, namely, the desire to obtain such a benefit. Together, motive and purpose form the basis on which guilt arises as a particular intellectual and volitional activity of the perpetrator, connected with the commission of the crime and occurring at the time it is committed.

The mercenary motive and purpose of this crime are not directly specified in the text of the criminal law, but follow from the very nature of receiving a bribe (the mercenary abuse of official powers) and the material nature of the subject of bribery.

In law enforcement practice, certain difficulties arise when establishing the subjective element of receiving a bribe. For example, how should acts be classified when a person authorized to perform state functions, or a person equated thereto, or an official, receives unlawful remuneration for their official conduct but initially intends to spend the funds received on the needs of the organization they manage or to use them for charitable purposes, and so forth?

On the one hand, criminal law literature states that the bribe recipient has only direct intent, while a mercenary motive is not provided for by law, unlike, for example, in other corruption-related and other offences against the interests of public service and public administration (Article 307 of the Criminal Code of the Republic of Kazakhstan, “Abuse of Official Powers”; Article 314 of the Criminal Code of the Republic of Kazakhstan, “Official Forgery”; Article 315 of the Criminal Code of the Republic of Kazakhstan, “Failure to Act in the Service”).

Furthermore, even in the absence of a mercenary motive, acceptance of remuneration by a person authorized to perform state functions, or a person equated thereto, or an official, for actions (or omissions) in the interests of the person providing the remuneration constitutes a corruption offence.

Nor should the bribe-giver be forgotten, since their actions fully constitute the offence of giving a bribe and cause damage to the interests of public service.

In our opinion, despite the absence in the law of a direct reference to a mercenary purpose and motive, the conclusion that they are present under Article 311 of the Criminal Code of the Republic of Kazakhstan is обусловлено the very nature of receiving a bribe and the material nature of its subject.

If a person authorized to perform state functions, or a person equated thereto, or an official, while receiving unlawful remuneration for their favourable conduct, initially intends to spend the funds received on the needs of the organization where they work or to use them for charitable purposes, then, where the necessary elements are present, such actions should be classified as abuse of official powers under Article 307 of the Criminal Code of the Republic of Kazakhstan, rather than as receiving a bribe.

In addition to a mercenary motive, the subjective element of receiving a bribe requires that the perpetrator, by using their powers and official position, be capable of acting in the interests of the bribe-giver and be aware of the purpose of the remuneration transferred to them and of their own capabilities.

As indicated by the Plenum of the Supreme Court of the Republic of Kazakhstan in paragraph 16 of its Resolution of 22 December 1995 (as amended and supplemented), “On the Practice of Applying Legislation on Liability for Bribery”, if a person, for the purpose of obtaining a bribe, receives money or other valuables from a bribe-giver allegedly for transfer to a person authorized to perform state functions, or a person equated thereto, as a bribe, and appropriates them, liability arises not for receiving a bribe but for fraud (Article 177 of the Criminal Code of the Republic of Kazakhstan), and, if the elements of incitement are present, also for incitement to give a bribe under Part 4 of Article 28 and Part 1 of Article 312 of the Criminal Code of the Republic of Kazakhstan.

In our opinion, cases in which a person impersonates a person authorized to perform state functions, or a person equated thereto, without actually being such a person, and appropriates valuables received as a bribe should also be classified as fraud.

The intent to deceive and take possession of the victim's property makes it possible to conclude that cases in which a person authorized to perform state functions, or a person equated thereto, appropriates material valuables transferred to them under the guise of a state tariff, tax, and so forth, should be classified as fraud committed through the use of official position (subparagraph “c” of Part 2 of Article 177 of the Criminal Code of the Republic of Kazakhstan).

The subject of receiving a bribe under Part 1 of Article 311 of the Criminal Code is a person authorized to perform state functions, or a person equated thereto; under Part 2 of that provision, it is an official; and under Part 3 of the aforementioned Article, it is a person holding a responsible public position.

In accordance with paragraph 4 of the note to Article 311 of the Criminal Code of the Republic of Kazakhstan, for the purposes of this Article and Article 312, officials include the officials specified in the notes to Article 307 of the Criminal Code of the Republic of Kazakhstan, as well as officials of foreign states or international organizations.

Receiving a bribe for unlawful actions (Part 2 of Article 311 of the Criminal Code of the Republic of Kazakhstan) should be understood as the commission by a person authorized to perform state functions, or a person equated thereto, in exchange for a bribe and in the interests of the bribe-giver, of any offence (civil, administrative, labour-related, and so forth).

In other words, an unlawful action (or omission) by a person is conduct associated with a breach of their official duties.

In criminal law theory, there is an opinion according to which unlawful actions should be understood as criminal actions, that is, actions punishable under criminal law, committed by the bribe recipient.

It is impossible to agree with this position, since it overlooks the possibility that, in exchange for a bribe, a person authorized to perform state functions, or a person equated thereto, may violate not only criminal laws but also other laws and subordinate regulatory acts (for example, in the fields of customs, tax and administrative legislation, and others).

If the perpetrator commits an act in the interests of the bribe-giver that constitutes a criminal offence, they must be held liable for the aggregate of offences — for receiving a bribe (Part 2 of Article 311 of the Criminal Code of the Republic of Kazakhstan) and under the Article of the Criminal Code of the Republic of Kazakhstan providing for liability for the crime committed in the interests of the bribe-giver.

Paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of 22 December 1995 (as amended and supplemented), “On the Practice of Applying Legislation on Liability for Bribery by Courts”, states: “Liability for giving and receiving a bribe does not preclude criminal liability for actions which, although connected with bribery, constitute an independent crime (abuse of official position, complicity in the misappropriation of another person's property, and other acts).”

A study of judicial practice has shown that courts do not classify the element of receiving a bribe for unlawful actions uniformly.

Courts often believe that the actions of a person authorized to perform state functions, or a person equated thereto, are unlawful only if they go beyond the scope of that person's official powers.

In my opinion, receiving a bribe for actions that fall within a person's official powers but are performed contrary to the interests of the service should also be recognized as unlawful.

The use of official powers contrary to the interests of the service means actions performed by a person authorized to perform state functions, or a person equated thereto, within the limits of their competence but whose substance is knowingly inconsistent with the goals and objectives for which the relevant body operates.

Indeed, in cases where a person authorized to perform state functions, or a person equated thereto, acting within the limits of their competence after a tender has been held, concludes a works contract not with the organization that won the tender and meets the applicable requirements, but with the organization in whose interests that person received a bribe, this clearly constitutes receiving a bribe for unlawful actions.

In the example provided, the person authorized to perform state functions, or a person equated thereto, or an official, does not exceed the limits of their official powers (the selection of an organization falls within their competence). However, the substance of their actions is unlawful, since the interests of the state are violated.

To summarize the above, it should be noted that unlawful actions by a person authorized to perform state functions, or a person equated thereto, should be understood as wrongful actions that go beyond the scope of their official powers, or actions that fall within their official powers but are performed contrary to the interests of the service, as well as actions containing elements of a crime or other offence.

In practice, there are frequent cases in which a person authorized to perform state functions, or a person equated thereto, taking advantage of citizens' lack of knowledge of internal departmental instructions, demands a bribe for concealing an allegedly discovered violation (tax, customs, or other).

These cases cause difficulties for law enforcement practitioners in classifying the acts and receive different criminal law assessments in courts.

Due to established practice, investigative authorities unambiguously assess such facts as extortion of a bribe.

There are different approaches to these issues in the courts: some classify such actions as fraud committed through the use of official position under subparagraph “c” of Part 2 of Article 177 of the Criminal Code of the Republic of Kazakhstan; others classify them as receiving a bribe under Part 1 of Article 311 of the Criminal Code of the Republic of Kazakhstan or as receiving a bribe through extortion under subparagraph “a” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan.

Thus, the court of the city of Taraz classified the actions of tax committee inspector B. as extortion of a bribe under subparagraph “a” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan under the following circumstances.

B., who worked as a tax inspector in the section for working with individuals of the tax committee of the city of Taraz, whose duties included conducting inspections of taxpayers on the basis of instructions issued by the heads of tax service bodies, conducted an inspection of the activities of the “Arman” café without the appropriate instruction for the purpose of obtaining a bribe. During the inspection, violations of tax legislation were discovered.

Being a person authorized to perform state functions, B. drew up a corresponding report on the violation of tax legislation and offered the café manager, C., to pay him 6,000 tenge in exchange for destroying the report he had drawn up.

At the same time, B. understood that he was acting unlawfully, since a tax inspector without an instruction to conduct an inspection had no right to independently inspect the activities of business entities. In other words, the report he had drawn up had no legal force and was used for the purpose of obtaining a bribe from C.

B. was sentenced to seven years' imprisonment for receiving a bribe through extortion under subparagraph “a” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan.

In my opinion, B.'s actions were incorrectly classified as extortion of a bribe, since, according to the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of 22 December 1995, “On the Practice of Applying Legislation on Liability for Bribery by Courts”, extortion means a demand by a person authorized to perform state functions, or a person equated thereto, or an official, for a bribe under the threat of performing actions that may harm the lawful interests of the bribe-giver, or the deliberate placement of the latter in circumstances in which they are compelled to give a bribe in order to prevent harmful consequences for their legally protected interests.

In this case, the bribe was transferred in exchange for destroying the inspection report, and the bribe-giver was aware that the bribe was being transferred to conceal a violation, that is, in exchange for unlawful actions.

The fact that B. conducted an unlawful inspection and thereby placed C. in circumstances in which she was compelled to give a bribe cannot be regarded as extortion of a bribe, since the legally protected interests of the bribe-giver were not violated.

The fact of a violation of tax legislation existed, and C. was interested in concealing it.

Under such circumstances, B.'s actions should have been classified as an attempt to receive a bribe for unlawful actions under Part 3 of Article 24 and Part 2 of Article 311 of the Criminal Code of the Republic of Kazakhstan.

Part 3 of Article 311 of the Criminal Code of the Republic of Kazakhstan provides for a particularly qualifying element of receiving a bribe by a person holding a responsible public position.

Paragraph 4 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan defines persons holding responsible public positions as persons occupying positions established by the Constitution of the Republic of Kazakhstan, constitutional laws and other laws of the Republic of Kazakhstan for the direct performance of state functions and the powers of state bodies, as well as persons holding political positions in the civil service in accordance with the Law of the Republic of Kazakhstan of 23 July 1999, “On Civil Service”.

Part 4 of Article 311 of the Criminal Code provides for particularly aggravated forms of receiving a bribe:

a) through extortion;

b) by a group of persons acting in prior conspiracy or by an organized group;

c) on a large scale;

d) repeatedly.

The most widespread of the above-mentioned circumstances is receiving a bribe through extortion (subparagraph “a” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan).

In paragraph 11 of its Regulatory Resolution of 13 December 2001, “On the Practice of Consideration by Courts of Criminal Cases Concerning Crimes Related to Corruption”, the Supreme Court of the Republic of Kazakhstan classified cases in which officials commit such crimes through extortion for the purpose of obtaining material and other benefits and advantages as particularly dangerous manifestations of corruption-related crimes.

An error in establishing whether the element of extortion of a bribe is present or absent entails serious legal consequences affecting not only the liability of the bribe recipient but also that of the bribe-giver, since, pursuant to Note 1 to Article 312 of the Criminal Code of the Republic of Kazakhstan, a person who has given a bribe as a result of extortion that has taken place must be released from criminal liability for this offence.

If the particularly qualifying element of extortion of a bribe is incorrectly attributed to a person authorized to perform state functions, or a person equated thereto, who has received a bribe, this will result not only in an unlawful increase in that person's liability but also in the unlawful release of the bribe-giver from criminal liability.

Conversely, an erroneous failure to attribute the element of extortion of a bribe will result in mitigation of the bribe recipient's liability and the unlawful prosecution of the person who gave the bribe.

Extortion of a bribe is understood as a demand by a person authorized to perform state functions, or a person equated thereto, for a bribe under the threat of performing actions that may harm the lawful interests of the bribe-giver, or the deliberate placement of the latter in circumstances in which they are compelled to give a bribe in order to prevent harmful consequences for their legally protected interests.

It follows from this definition that extortion of a bribe can be committed in two ways.

First, a person authorized to perform state functions, or a person equated thereto, openly demands a bribe, threatening otherwise to perform certain actions that will violate the lawful interests of the person, or to refrain from performing a lawful action in which that person is interested.

Second, a person authorized to perform state functions, or a person equated thereto, places the bribe-giver in circumstances in which they are compelled to give a bribe.

Deliberately placing a bribe-giver in circumstances in which they are compelled to give a bribe is understood as refraining from performing lawful actions in the interests of the future bribe-giver. In doing so, the bribe recipient deliberately delays their performance for the purpose of extorting a bribe (deliberately delaying the payment of wages, refusing to transfer an employee to another job on fabricated grounds, and so forth).

In criminal law literature, a dispute is taking place among legal scholars regarding which interests must be violated in order for an act to be classified as receiving a bribe through extortion.

A demand for a bribe significantly increases the danger of receiving a bribe and provides a reasonable basis for releasing the person who gave the bribe from criminal liability only when the latter is compelled to do so in order to protect their lawful interests and secure the exercise of their rights.

Such a situation does not arise when the bribe-giver is threatened with the performance of lawful actions, that is, actions that an official is obliged to perform (or refrain from performing) in the relevant circumstances.

On the basis of the foregoing, the clarification given on this issue by the Plenum of the Supreme Court of the Republic of Kazakhstan in its Resolution of 22 December 1995 should be recognized as correct.

This position is dominant in criminal law scholarship and judicial practice.

Extortion of a bribe is recognized as a circumstance releasing the bribe-giver from criminal liability (Note 2 to Article 312 of the Criminal Code of the Republic of Kazakhstan), since the latter is compelled to give a bribe at the demand of the bribe recipient, who otherwise threatens to violate their lawful rights.

If, however, the bribe-giver is interested in the unlawful action by the bribe recipient and desires the consequences of that action (seeks to circumvent the law and satisfy their interests through unlawful means), extortion is absent.

According to paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of 22 December 1995, “On the Practice of Applying Legislation on Liability for Bribery by Courts”, a bribe should be considered to have been received by a group of persons acting in prior conspiracy if two or more persons authorized to perform state functions, or persons equated thereto, participated in the crime after having agreed in advance to commit it jointly.

It is irrelevant whether the conspiracy between the persons authorized to perform state functions, or persons equated thereto, took place before or after the bribe-giver approached them.

In this case, the crime is considered completed from the moment the bribe is accepted by at least one of the persons authorized to perform state functions, or persons equated thereto, regardless of whether the bribe-giver was aware that several persons authorized to perform state functions, or persons equated thereto, were involved in receiving the bribe.

A person who organized the giving or receiving of a bribe, incited another person to do so, or acted as an accomplice in giving or receiving a bribe, while simultaneously performing intermediary functions, shall be liable for complicity in giving or receiving a bribe.

In this case, the issue of classifying the actions of the accomplice must be resolved with due regard to the direction of their intent, based on whose interests the crime was committed: those of the bribe recipient or those of the bribe-giver.

In such cases, additional classification under Article 313 of the Criminal Code of the Republic of Kazakhstan, which provides for liability for mediation in bribery, is not required.

The actions of a person authorized to perform state functions, or a person equated thereto, connected with receiving a bribe in conspiracy with a person who is not authorized to perform state functions and is not equated thereto cannot be regarded as receiving a bribe by a group of persons acting in prior conspiracy.

The actions of the latter persons are classified as complicity in the form of organizers, instigators or accessories in receiving a bribe under Article 28 and Article 311 of the Criminal Code of the Republic of Kazakhstan.

If a person, acting in conspiracy with the bribe recipient, impersonates a person authorized to perform state functions, or a person equated thereto, and receives a bribe for themselves and the bribe recipient, their actions should be classified as complicity in receiving a bribe, with reference to the relevant part of Article 28 of the Criminal Code of the Republic of Kazakhstan. The actions of the person authorized to perform state functions, or the person equated thereto, should be classified under Article 311 of the Criminal Code of the Republic of Kazakhstan, taking into account the aggravating circumstances.

A conspiracy is considered prior if it took place before the bribe was received.

This qualifying element will not exist where a person authorized to perform state functions, or a person equated thereto, receives a bribe without prior conspiracy and subsequently transfers part of the amount received to another person authorized to perform state functions, or a person equated thereto.

In this case, the person authorized to perform state functions, or the person equated thereto, shall be liable for the aggregate of offences — giving and receiving a bribe under Articles 312 and 311 of the Criminal Code of the Republic of Kazakhstan, while the other person authorized to perform state functions, or the person equated thereto, who is guilty of receiving a bribe, shall be liable under Article 311 of the Criminal Code of the Republic of Kazakhstan.

If a person authorized to perform state functions, or a person equated thereto, receives a bribe and subsequently, without prior agreement, transfers part of the bribe to another person authorized to perform state functions, or a person equated thereto, at the request of the bribe-giver, that person shall be liable for receiving a bribe and mediation in giving a bribe.

When a bribe is received by a group of persons acting in prior conspiracy or by an organized group, its amount is determined by the total value of the valuables and services received and is attributed to all participants who were aware of it, regardless of the amount received by each of them.

In a similar manner, the qualifying element of receiving a bribe through extortion is attributed to all participants in the criminal group.

Receiving a bribe is recognized as having been committed by an organized group if it was committed by a stable group of persons who had united in advance to commit one or more crimes.

One of the main characteristics distinguishing an organized group from an ordinary group of criminals is its stability and prior unification for the purpose of committing one or more crimes.

Such a group may consist of two persons authorized to perform state functions, or persons equated thereto, who have united in advance to receive bribes. However, the group has a leader (organizer) who coordinates the actions of its participants, selects accomplices, distributes roles among them, plans the commission of crimes and ensures measures to conceal the criminal activity.

As a particularly qualifying element, receiving a bribe on a large scale is provided for in subparagraph “c” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan. Therefore, the value of the subject of the bribe must always be assigned a monetary valuation, since the amount of the bribe received has qualifying significance.

Any bribe in the form of material valuables, any property, services, securities or property-related benefits must be assessed in monetary terms on the basis of the applicable prices or service tariffs in effect at the time the crime was committed.

If no tariffs or prices exist for the subject of the bribe, its value is generally determined on the basis of an expert valuation.

If the subject of the bribe has no value whatsoever, the offence of receiving a bribe is absent.

According to Part 1 of the Note to Article 311 of the Criminal Code of the Republic of Kazakhstan, the receipt of money, securities, other property or property-related benefits exceeding five hundred monthly calculation indices is recognized as receiving a bribe on a large scale.

To determine the amount of the bribe, the subjects of the bribe must be assigned a monetary valuation based on the applicable prices or service tariffs.

If unlawful remuneration on a large scale is received in instalments, these actions constitute episodes of a single continuing crime, and the act committed must be classified as receiving a bribe on a large scale.

A bribe received in instalments on a large scale should be distinguished from repeated receipt of bribes.

Criminal activity by persons authorized to perform state functions, or persons equated thereto, is often systematic in nature. In such cases, bribes are received from different persons for performing different actions, or from one person for performing separate actions, or from several persons for performing an independent action in relation to each of them.

In such cases, the amounts of the bribes cannot be added together into a single sum.

When a person authorized to perform state functions, or a person equated thereto, receives bribes from several bribe-givers for performing a single action, the total amount received should be taken into account.

In practical activities, situations arise in which the perpetrator, having the intent to receive a bribe on a large scale, manages, for reasons beyond their control, to receive only part of the bribe, which does not exceed 500 monthly calculation indices.

In this case, the perpetrator's intent to commit a crime with a particularly qualifying circumstance has not been fully realized, which provides grounds for classifying the act as an attempt to receive a bribe on a large scale (Part 3 of Article 24 and subparagraph “c” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan).

Repeated receipt of a bribe, giving a bribe or mediation in bribery implies the commission of the same crime at least twice, provided that the limitation period for bringing the person to criminal liability has not expired.

The simultaneous receipt of bribes from several persons, where a separate action is performed in the interests of each bribe-giver, should be classified as repeated receipt of bribes.

The element of “repetition” in receiving a bribe exists when a person authorized to perform state functions, or a person equated thereto, receives a bribe:

1) while having a criminal record for receiving a bribe;

2) from several bribe-givers for performing a separate action in the interests of each of them;

3) from several bribe-givers who acted without prior conspiracy at different times, in exchange for performing one common action;

4) from one bribe-giver at different times for performing separate actions in that person's interests;

5) from several bribe-givers simultaneously, where separate actions are performed in the interests of each of them.

As a rule, difficulties arise in distinguishing repetition from a continuing crime, where the crime consists of a series of identical criminal acts covered by a single intent and purpose and which, taken together, constitute one socially dangerous act (Part 4 of Article 11 of the Criminal Code of the Republic of Kazakhstan).

The essence of continuing receipt of a bribe is that the bribe recipient achieves their objective not immediately and not through a single action, but through the gradual performance of identical actions covered by a common intent.

A typical example of a continuing crime is the receipt of a bribe by a person authorized to perform state functions, or a person equated thereto, in several instalments for performing one action (or omission) in the interests of the bribe-giver.

In my opinion, the systematic receipt of material valuables or property-related benefits provided by a bribe-giver to a person authorized to perform state functions, or a person equated thereto, in exchange for general patronage or tolerance in the service, where no separate specific actions (or omissions) by the perpetrator are stipulated each time the remuneration is transferred, should be considered a single continuing crime.

This conclusion follows, in particular, from the content of paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of 22 December 1995, “On the Practice of Applying Legislation on Liability for Bribery by Courts”, which states that the systematic receipt of valuables or the use of property-related services, united by a single intent, in exchange for general patronage by a person authorized to perform state functions, or a person equated thereto, as well as an official, or tolerance in the service, is subject to classification as a single crime under Part 1 of Article 311 of the Criminal Code of the Republic of Kazakhstan.

When distinguishing repetition from a continuing crime, it is important that the bribe recipient be aware that the bribe is being transferred to them by several persons in exchange for performing a separate action in the interests of each of them through the use of their official position.

Otherwise, the element of “repetition” will be absent.

Giving or receiving a bribe in several instalments for performing or failing to perform actions that ensure the achievement of a result desired by the bribe-giver, as well as giving a bribe to a group of persons authorized to perform state functions, or persons equated thereto, and officials who committed the crime in prior conspiracy, or mediation under the above-mentioned circumstances, cannot be regarded as crimes committed repeatedly.

Simultaneous mediation in the transfer of a bribe from several bribe-givers to one person authorized to perform state functions, or a person equated thereto, or mediation in the receipt of a bribe by several persons from one bribe-giver is regarded as repeated conduct if the bribe recipient performs (or fails to perform) separate actions in the interests of each bribe-giver, or if each person authorized to perform state functions, or a person equated thereto, acts in a particular manner in the interests of the bribe-giver, and the intermediary is aware of these circumstances.

 When qualifying the receipt of a bribe on the basis of the criterion of “repeated commission,” it is necessary to take into account that if a person's actions fall under different parts of Article 311 of the Criminal Code of the Republic of Kazakhstan, the act shall be classified as repeated receipt of a bribe, with all qualifying elements being imputed. Thus, if, in one episode, a person authorized to perform state functions or a person equated to such a person received a bribe for performing unlawful actions, and in another episode received a bribe on a large scale, the act shall be classified under Part 2 of Article 311 of the Criminal Code of the Republic of Kazakhstan and, cumulatively, under subparagraphs “c” and “d” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan.

If there were two episodes of receiving a bribe, one of which constituted a completed crime and the other an attempt to commit such a crime, the act should likewise be classified as repeated receipt of a bribe (subparagraph “d” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan), provided that there are no elements of a single continuing crime.

Under the current legislation, repeated receipt of a bribe is established when a person has previously committed a similar crime. Receipt of a bribe, where it was preceded by giving a bribe or mediation in bribery, does not constitute the element of repetition.

Part 5 of Article 311 of the Criminal Code provides for the commission of this crime on an especially large scale. The concept of an especially large scale is defined in paragraph 3 of the note to Article 311 of the Criminal Code, according to which an especially large bribe is an amount of money, the value of securities, other property or benefits of a proprietary nature exceeding two thousand monthly calculation indices.

One of the most complex issues is the distinction between related (borderline) elements of crimes. A significant number of errors committed by preliminary investigation authorities and courts in the application of criminal law provisions are attributable to the incorrect classification of crimes. These difficulties are explained by the fact that a particular crime always has a number of common features with other crimes. For example, receiving a bribe (Article 311 of the Criminal Code of the Republic of Kazakhstan), abuse of official powers (Article 307 of the Criminal Code of the Republic of Kazakhstan), commercial bribery (Part 3 of Article 231 of the Criminal Code of the Republic of Kazakhstan), receipt of unlawful remuneration (Article 224 of the Criminal Code of the Republic of Kazakhstan), and fraud committed through the use of official position (subparagraph “c” of Part 2 of Article 177 of the Criminal Code of the Republic of Kazakhstan) have certain similar features. If these features are assessed incorrectly, the authority applying criminal law may erroneously establish the existence of the elements of receiving a bribe, whereas, in reality, a different crime has been committed.

Receiving a bribe and abuse of official powers have a number of common features. For example, in cases of abuse of official powers, a person may use their official position for the purpose of obtaining benefits and advantages for themselves or other persons or organizations. In other words, in certain cases, this crime is associated with the subject obtaining material benefits through the use of their official position.

The general rule governing the competition of criminal law provisions must form the basis for the correct classification of crimes. It is generally recognized in criminal law science that receiving a bribe is a special, self-interested form of abuse of official powers, meaning that the perpetrator's intent in receiving a bribe is directed towards obtaining a proprietary benefit in exchange for conduct in the interests of the bribe-giver. Abuse of official powers is characterized by a wide range of benefits obtained by a person through the use of their official powers.

From a practical perspective, distinguishing the receipt of a bribe from abuse of official powers presents certain difficulties, since the elements of these crimes substantially overlap. Both crimes are characterized by an encroachment upon the same protected legal interest, commission with direct intent only, as well as the same subject of the crime — a person authorized to perform state functions or a person equated to such a person, or an official.

However, there are certain differences in the elements of these crimes:

a) in receiving a bribe, the mercenary purpose is a mandatory element, whereas in abuse of official powers the purpose is to obtain benefits and advantages for oneself or other persons or organizations;

b) abuse of official powers is considered completed at the moment when a substantial violation of the rights and legitimate interests of citizens or organizations, or of the interests of society or the state protected by law, occurs, whereas receiving a bribe is considered completed from the moment at which at least part of the agreed amount is received;

c) in abuse of official powers, the use of official powers is possible only within the scope of one's competence (within the framework of one's rights and duties), whereas a bribe may also be received for performing unlawful actions (inaction).

The main differences between these crimes lie in the fact that, in cases of abuse of official powers, the law refers to an action (inaction) by a person authorized to perform state functions or a person equated to such a person, or an official, which arises from that person's powers and is connected with the exercise of the rights and duties vested in them by virtue of their position.

In the case of receiving a bribe, such an action constitutes only one of the possible forms of conduct of the person, alongside facilitating such actions (inaction) in the interests of the bribe-giver in exchange for a corresponding benefit of a proprietary nature by virtue of the person's official position (use of official position in the broad sense).

As regards general patronage or connivance in the service, the person's conduct is classified as receiving a bribe if it results from the acceptance of a benefit of a proprietary nature. If, however, the subject provides another person with patronage or connivance in the service by using their official powers for some other personal interest (without receiving a proprietary benefit), the act shall be classified as abuse of official powers.

A characteristic feature of self-interested abuse of official powers, distinguishing it from receiving a bribe, is the absence of an “opposing” party in whose interests the official actions (or inaction) are performed. In cases of abuse of official powers, the “opposing” party acts either as an accomplice seeking to obtain an unlawful benefit or as a victim receiving a proprietary benefit contrary to the interests of the service.

The determination of the nature of the benefit received by a person in exchange for the use of official powers is also of considerable importance in distinguishing the receipt of a bribe from abuse of official powers. In particular, the receipt by a person authorized to perform state functions or a person equated to such a person, or an official, of a non-material benefit for an action (inaction) connected with the use of official powers excludes liability for receiving a bribe. Where there is a substantial violation of legally protected interests, such conduct may be classified as abuse of official powers. Thus, a broader range of benefits obtained by a person through the use of official powers is characteristic of abuse of official powers.

The content of the perpetrator's intent is of substantial importance in distinguishing the receipt of a bribe from abuse of official powers. If the perpetrator is aware that material assets are being transferred to them unlawfully and in exchange for certain conduct in favour of the bribe-giver, and that the bribe-giver understands that the unlawful remuneration is being transferred for an action (inaction) by the person authorized to perform state functions or a person equated to such a person, or an official, in the bribe-giver's favour, then the elements of receiving a bribe are present. If the person lacks such awareness, their actions shall be classified as abuse of official powers.

Distinguishing the receipt of a bribe from commercial bribery (Article 231 of the Criminal Code of the Republic of Kazakhstan).

Commercial bribery (Article 231 of the Criminal Code of the Republic of Kazakhstan) describes two related crimes: the unlawful transfer of money, securities or other property to a person performing managerial functions in a commercial or other organization, as well as the unlawful provision of services of a proprietary nature to such a person, in exchange for the use of their official position in the interests of the person making the bribe (Part 1 of Article 231 of the Criminal Code of the Republic of Kazakhstan), and the unlawful receipt of the aforementioned valuables by that person (Part 3 of Article 231 of the Criminal Code of the Republic of Kazakhstan).

The fundamental distinction between the elements of the crimes under consideration lies in the specific characteristics of their subjects, which also determines the difference in the protected legal interests infringed upon. The subject of commercial bribery is a person performing managerial functions in a commercial or other organization, whereas the subject under Article 311 of the Criminal Code is a person authorized to perform state functions.

The direct protected legal interest in receiving a bribe consists of social relations that constitute the substance of the normal functioning of the state apparatus and local self-government apparatus in their individual structural divisions (a state body, a local self-government body, the Armed Forces and military formations of the Republic of Kazakhstan).

The direct protected legal interest in commercial bribery is the normal functioning of an individual commercial or other organization that is not a state body or a local self-government body.

Despite the obvious similarity between the objective elements of commercial bribery and receiving a bribe, there are also certain differences. Article 231 of the Criminal Code of the Republic of Kazakhstan concerns only bribery, that is, the subject of the bribe is transferred (or a promise is made to transfer it) before the relevant official actions are performed. A bribe, however, may be transferred not only before the performance of certain official actions (a bribe as an inducement), but also after such actions have been performed, without any prior agreement (a bribe as remuneration).

Part 3 of Article 231 of the Criminal Code of the Republic of Kazakhstan refers to the receipt of a bribe for performing actions (inaction) only in exchange for a specific act by a person performing managerial functions. Article 311 of the Criminal Code of the Republic of Kazakhstan also provides for the possibility of receiving a bribe for facilitating actions (inaction) in the interests of the bribe-giver or for general patronage or connivance in the service, which expands the scope of application of this provision.

The provision on commercial bribery does not contain any reference to the receipt of benefits of a proprietary nature through an intermediary.

The next distinction is related to the interpretation of the subject receiving the object of remuneration. The subject of receiving a bribe may be a person authorized to perform state functions or a person equated to such a person, as well as an official or a person holding a responsible public position, the definition of which is provided in Notes 1–4 to Article 307 of the Criminal Code of the Republic of Kazakhstan.

The subject of commercial bribery is a person performing managerial functions in a commercial or other organization, that is, a person who permanently, temporarily or under special authority performs organizational and administrative or administrative and economic duties in a commercial or other organization that does not belong to a state body or a local self-government body.

A comparison of the legislative definitions of the subjects makes it possible to identify the place where the organizational and administrative or administrative and economic functions are performed by the subjects of commercial bribery and receiving a bribe as a distinguishing feature.

For the subjects of receiving a bribe, such places are state bodies, local self-government bodies, the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan, whereas for the subjects of commercial bribery, they are commercial and other organizations.

The distinction between receiving a bribe and receiving unlawful remuneration (Article 224 of the Criminal Code of the Republic of Kazakhstan) is based on similar grounds.

The protected legal interest in receiving unlawful remuneration is the normal operation of state and non-state organizations as regulated by law.

In order to establish the objective elements of receiving unlawful remuneration, it is necessary to determine whether the performance of the work or provision of the services for which remuneration is demanded fell within the scope of the perpetrator's official duties, since the objective elements of this act are expressed in active actions aimed at obtaining unlawful remuneration through extortion. The demand for remuneration, as in the case of receiving a bribe, may be expressed openly or in a disguised form. The essential difference is that, in receiving a bribe, extortion is provided for as a particularly qualifying element (subparagraph “c” of Part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan), whereas in receiving unlawful remuneration, extortion is a mandatory, constituent element of the crime (Part 1 of Article 224 of the Criminal Code of the Republic of Kazakhstan).

The subject of receiving unlawful remuneration is an employee of a state organization who is neither a person authorized to perform state functions nor a person equated to such a person, nor an official. This feature serves as the main criterion for distinguishing this act from the elements of receiving a bribe and commercial bribery.

Issues concerning the classification of the receipt of proprietary benefits by a person authorized to perform state functions or a person equated to such a person, as well as by an official, where there are elements of fraud committed through the use of official position (subparagraph “c” of Part 2 of Article 177 of the Criminal Code of the Republic of Kazakhstan), are also resolved ambiguously in law enforcement practice and criminal law theory.

The difficulty in classification is caused by the similarity of the objective elements of receiving a bribe and fraud (in both cases, the person receives proprietary benefits). The main distinction lies in the protected legal interest and the subjective elements of the crimes under consideration.

Unlike receiving a bribe, the protected legal interest of which is the normal functioning of the state apparatus as regulated by law and the interests of public service and public administration associated with it, the protected legal interest in fraud (Article 177 of the Criminal Code of the Republic of Kazakhstan) is property.

The objective elements of fraud are characterized by the acquisition of another person's property through deception or abuse of trust. The distinctive feature of this crime is that the owner voluntarily transfers the property to the perpetrator, who, by deceiving the owner or abusing their trust, converts the transferred property to their own benefit.

In cases of fraud, the subject may be any sane person who has reached the age of 16. The subject of receiving a bribe may only be a person authorized to perform state functions or a person equated to such a person, or an official. In cases where a person is not such an individual but, for the purpose of obtaining unlawful remuneration, presents themselves as one of the above-mentioned persons, their actions should be classified as fraud and, where there are elements of incitement, additionally as incitement to give a bribe.

The subjective elements of fraud are characterized by direct intent aimed at misappropriating another person's property: the subject is aware that they are unlawfully acquiring another person's property through deception or abuse of trust. A common mandatory element of the subjective side of both fraud and receiving a bribe is the mercenary purpose.

For the subjective elements of receiving a bribe to be present, it is necessary that the person, by using their powers and official position, is capable of acting in the interests of the bribe-giver and understands the purpose of the remuneration transferred to them, as well as their own capabilities. Therefore, if a subject, for the purpose of obtaining unlawful remuneration, presents themselves, for example, as a person authorized to perform state functions or a person equated to such a person, or as an official, without actually being such a person, or if such a person accepts remuneration while promising the bribe-giver to perform an action (inaction) in their interests (or in the interests of persons represented by them), while understanding that they are actually unable to fulfil the promise, criminal liability arises not for receiving a bribe but for fraud under Part 1 of Article 177 of the Criminal Code of the Republic of Kazakhstan (or under subparagraph “c” of Part 2 of Article 177 of the Criminal Code of the Republic of Kazakhstan, if the person uses their official position), and, where there are elements of incitement, additionally for incitement to give a bribe under Part 4 of Article 28 and Part 1 of Article 312 of the Criminal Code of the Republic of Kazakhstan.

Furthermore, for bribery to exist, the bribe-giver must be aware of the fact that they are providing proprietary benefits to the subject in exchange for the corresponding conduct. In practice, there are cases where a person authorized to perform state functions or a person equated to such a person, or an official, misleads an interested person and receives money for their official actions under the guise of a state tariff, tax, and so on. Such actions should also be regarded as fraud.

When considering the issues of distinguishing the elements of receiving a bribe and fraud, it is necessary to address the classification of cases of “sham mediation.” Sham mediation refers to cases where a person promises to provide intermediary services, receives money or other valuables from the bribe-giver allegedly for transfer to an official as a bribe, but in fact appropriates them.

In this regard, the initiative may originate:

1) From the “sham intermediary,” who misleads the bribe-giver regarding the existence of necessary connections with a person authorized to perform state functions or a person equated to such a person, or an official, and persuades the bribe-giver to hand over material valuables to them allegedly for transfer to that person as a bribe;

2) From the bribe-giver, who is interested in certain conduct on the part of the subject and persuades the “sham intermediary” to transfer material valuables in the form of a bribe.

In both cases, the actions of the bribe-giver constitute an attempt to give a bribe. The grounds for this are that the bribe-giver does not merely express an intention to give a bribe to a person authorized to perform state functions or a person equated to such a person, or an official, but also performs a specific action directly aimed at committing the crime, which is not completed for reasons beyond their control.

If a person receives money or other valuables from the bribe-giver allegedly for transfer to an official as a bribe, but has no intention of doing so and appropriates them, the act must be classified as fraud. Where, for the purpose of taking possession of the valuables, this person induces the bribe-giver to give a bribe, their actions, in addition to fraud, must also be classified as incitement to give a bribe. In this regard, it does not matter whether the specific official to whom the bribe was intended to be transferred was identified.

The crime provided for in Part 1 of Article 311 is classified as a crime of medium gravity.

The crimes provided for in Parts 2, 3 and 4 of Article 311 are classified as serious crimes.

Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan by BORKHASHVILI I.Sh., Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.

Date of amendment of the legal act: 02.08.2007

Date of adoption of the legal act: 02.08.2007

Place of adoption: NONE

Body that adopted the legal act: 180000000000

Registration number of the normative legal act assigned by the law-making body: 167

Status of the legal act: new

Scope of legal relations: 028000000000

Form of the legal act: COMMENTARY

Legal force: 1900

Language of the legal act: Russian

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