Commentary on Article 312 of the Criminal Code of the Republic of Kazakhstan.
Giving a Bribe
1. Giving a bribe personally or through an intermediary to a person authorized to perform state functions or a person equated to such a person –shall be punishable by a fine in the amount of seven hundred to two thousand 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 correctional labor for a term of up to two years, or restriction of liberty for a term of up to three years, or arrest for a term of three to six months, or imprisonment for a term of up to three years.
2. Giving a bribe to an official, as well as giving a bribe for the commission of knowingly unlawful acts (omissions) –shall be punishable by a fine in the amount of one thousand to three thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of seven months to one year, or restriction of liberty for a term of up to five years, or imprisonment for the same term.
3. Giving a bribe to a person holding a responsible public office –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 paragraphs one, two or three of this Article, if committed:a) by a group of persons by prior conspiracy or by an organized group;b) on a large scale;c) repeatedly, –shall be punishable by imprisonment for a term of seven to twelve years, with or without confiscation of property.
5. The acts provided for in paragraphs one, two, three or 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.The legislator defines this crime as giving a bribe personally or through an intermediary to a person authorized to perform state functions or a person equated to such a person.The object of the crime under consideration is the normal functioning of the state apparatus, regulated by law, and the interests of public service and public administration associated therewith. The lawful interests of citizens and organizations should be recognized as an additional object.The object and subject matter of giving a bribe fully coincide with the corresponding elements of the corpus delicti of receiving a bribe (Article 311 of the Criminal Code of the Republic of Kazakhstan).
The foregoing also applies to the issue of distinguishing giving a bribe as a criminally punishable act from a disciplinary offence. According to Note 1 to Article 312 of the Criminal Code, the transfer, for the first time, to a person authorized to perform state functions or a person equated to such a person, of a gift in an amount or with a value not exceeding two monthly calculation indices, for lawful acts (omissions) previously performed by that person, shall not entail criminal liability, provided that the acts (omissions) performed by the official were not conditioned by a prior agreement.From the objective aspect, the act consists of giving a bribe to a person authorized to perform state functions or a person equated to such a person, personally or through an intermediary.
Giving a bribe is considered a completed crime from the moment at least part of the bribe is transferred. In cases where the bribe was transferred to an intermediary or sent to the financial account of the special subject of the crime, but was not accepted by such person due to circumstances beyond that person's control, the actions of the perpetrator should be classified as an attempt to give a bribe under Part 3 of Article 24 of the Criminal Code and Part 1 of Article 311 of the Criminal Code.
The actions of persons giving a bribe in order to obtain certain advantages for state, public or private organizations must be classified as giving a bribe and, where grounds exist, in conjunction with other crimes (embezzlement, abuse of official powers).Heads of state, public or private enterprises, institutions or private organizations who have proposed that persons subordinate to them in service achieve a desired act or omission by giving a bribe to a person authorized to perform state functions or a person equated to such a person, as well as to an official, shall be liable as organizers (Part 3 of Article 28 of the Criminal Code) or instigators (Part 4 of Article 28 of the Criminal Code) of giving a bribe.
An employee who has agreed to the performance of stipulated acts in exchange for a bribe and has handed over the bribe must be held liable for giving a bribe (Part 1 of Article 312 of the Criminal Code of the Republic of Kazakhstan).From the subjective aspect, giving a bribe is characterized by direct intent and the presence of the purpose of inducing the recipient of the bribe to perform, in favor of the bribe-giver or persons represented by the bribe-giver, the acts (omissions) specified in Part 1 of Article 311 of the Criminal Code of the Republic of Kazakhstan. The subject must be aware that he or she is giving a bribe to a person authorized to perform state functions or a person equated to such a person for the performance of acts (omissions) in his or her own favor or in favor of persons represented by him or her, or for general patronage or connivance in the service.
As the Plenum of the Supreme Court of the Republic of Kazakhstan noted in the above-mentioned resolution, “the actions of the perpetrators must be recognized as giving and receiving a bribe even in cases where the conditions for receiving valuables, services or benefits are not specifically stipulated, but the participants in the crime are aware that the bribe is being handed over for the purpose of satisfying the interests of the bribe-giver” (paragraph 3 of the resolution).At the same time, the bribe-giver must be aware that the acts (omissions) conditioned by the bribe fall within the official powers of the subject, or that the person authorized to perform state functions or a person equated to such a person, or an official, may facilitate such acts (omissions) by virtue of his or her official position.The transfer of valuables for another purpose (for example, when a civil servant presents a valuable gift to his or her superior, thereby hoping to gain the superior's favor) does not constitute the corpus delicti of giving a bribe.The subject of giving a bribe may be any person who has reached the age of 16.
The characteristics of the elements provided for in Part 2 of Article 312 of the Criminal Code of the Republic of Kazakhstan (giving a bribe to an official, as well as giving a bribe for the commission of knowingly unlawful acts (omissions)), Part 3 of Article 312 of the Criminal Code of the Republic of Kazakhstan (giving a bribe to a person holding a responsible public office) and Part 4 of Article 312 of the Criminal Code of the Republic of Kazakhstan (giving a bribe committed by a group of persons, a group of persons by prior conspiracy, on a large scale and repeatedly) are analogous to the characteristics of receiving a bribe under aggravating circumstances (see Parts 2, 3 and 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan).
Part 5 of Article 312 of the Criminal Code of the Republic of Kazakhstan establishes criminal liability for giving a bribe on an especially large scale (see the commentary to Article 311 of the Criminal Code of the Republic of Kazakhstan).The crimes provided for in Parts 1 and 2 of Article 312 are classified as crimes of medium gravity.The crimes provided for in Parts 3 and 4 of Article 312 of the Criminal Code of the Republic of Kazakhstan are classified as serious crimes.
The crimes provided for in Part 5 of Article 312 of the Criminal Code of the Republic of Kazakhstan are classified as especially serious crimes.Commentary to the Criminal Code of the Republic of Kazakhstan dated 2007 by I.Sh. Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan.Date of amendment of the legal act: 02.08.2007
Date of adoption of the legal act: 02.08.2007Place of adoption: NONEBody that adopted the legal act: 180000000000Territorial scope of application: 100000000000Registration number of the normative legal act assigned by the rule-making body: 167Status of the legal act: newArea of legal relations: 028000000000Form of the legal act: COMMENTARYLegal force: 1900Language of the legal act: Russian.
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