Commentary on Article 313. Mediation in Bribery of the Criminal Code of the Republic of Kazakhstan

1. Mediation in bribery, that is, facilitating the achievement or implementation of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe – shall be punishable by a fine in the amount of five hundred to one thousand monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of five to seven months, or by corrective labor for a term of up to one year, or by restriction of liberty for a term of up to two years, or by arrest for a term of up to four months, or by deprivation of liberty for a term of up to two years.

2. The same act, committed repeatedly or by an organized group, or by a person using his or her official position – 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 six years, or by deprivation of liberty for the same term.

Mediation in bribery, in accordance with Part 1 of Article 313 of the Criminal Code of the Republic of Kazakhstan, is the facilitation of the achievement or implementation of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe.

The object and subject matter of the crime under consideration fully coincide with the object and subject matter of the receipt of a bribe (Article 311 of the Criminal Code of the Republic of Kazakhstan).

The objective side of mediation in bribery is expressed in two forms:

a) facilitating the achievement of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe;

b) facilitating the implementation of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe.

Mediation in bribery may be expressed in both forms, as well as in either one of them.

Facilitating the achievement of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe is expressed in conducting relevant negotiations between the aforementioned parties; organizing a meeting between the bribe-taker and the bribe-giver; participating in the discussion of the terms of the agreement on giving and receiving a bribe, etc.

Facilitating the implementation of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe is, as a rule, expressed in the direct transfer of the subject matter of the bribe from the bribe-giver to the bribe-taker.

The aforementioned forms of mediation in bribery differ from each other in terms of the moment at which the crime is completed. The first form of mediation must be considered completed from the moment an agreement between the bribe-giver and the bribe-taker concerning the receipt and giving of a bribe is reached with the assistance of the intermediary. In this regard, it is irrelevant whether the giving or receipt of the bribe subsequently took place or not.

As for the second form of mediation in bribery, it must be considered a completed crime only if the agreement on the receipt and giving of the bribe has been implemented, that is, from the moment the bribe is received and given.

Mediation in bribery should be distinguished from complicity in the receipt or giving of a bribe. An intermediary, based on the meaning of this word, “enters into contact” with both the bribe-giver and the bribe-taker; the intermediary acts, as it were, as a connecting link in the process of reaching an agreement on the receipt and giving of a bribe or in the implementation of such an agreement. An accomplice in the receipt or giving of a bribe, however, as a rule, acts on the side of the bribe-taker or the bribe-giver, respectively.

An official or other person who organized the giving or receipt of a bribe, incited another person to do so, or acted as an accessory to the giving or receipt of a bribe, while simultaneously performing intermediary functions, shall be held liable for complicity in the giving or receipt of a bribe. In this regard, the issue of qualifying the actions of the accomplice must be resolved taking into account the direction of his or her intent, based on whose interests, on whose side, and at whose initiative—whether that of the bribe-giver or the bribe-taker—the person acts. In such cases, additional qualification under the article providing for liability for mediation in bribery is not required.

The subjective side of mediation in bribery is characterized by guilt in the form of direct intent: the guilty person is aware that he or she is facilitating the achievement or implementation of an agreement between the bribe-taker and the bribe-giver concerning the receipt and giving of a bribe, and desires to do so.

The subject of the crime under consideration may be any person who has reached the age of 16.

Part 2 of the article under consideration provides for qualified forms of mediation in bribery: its commission repeatedly, by an organized group, or by a person using his or her official position.

The concepts of repeated commission and commission of a crime by an organized group are set out in the description of the receipt of a bribe (Article 311 of the Criminal Code of the Republic of Kazakhstan).

Mediation in bribery committed by a person using his or her official position presupposes the use by the person, in the course of mediation in bribery, of the rights and powers granted to that person by virtue of his or her official duties. Mediation in bribery cannot be recognized as having been committed through the use of official position if it is not connected with the official activities of the guilty person or if such a person does not perform managerial functions in one organization or another.

Certain difficulties in legal qualification in practice are caused by cases of so-called fictitious mediation (when a person receives money or other valuables from the bribe-giver, allegedly for the purpose of transferring them to an official as a bribe, but, having no intention of doing so, appropriates them).

The Plenum of the Supreme Court of the Republic of Kazakhstan, in the aforementioned Resolution of December 22, 1995 (as amended and supplemented), proposes that such actions be classified as fraud.

In our opinion, such a position of the Supreme Court of the Republic of Kazakhstan is debatable. We believe that, in terms of their social and legal nature, fraud and fictitious mediation in bribery differ substantially. In the case of fictitious mediation, the person does not take possession of another person's property through deception or abuse of trust, but instead induces another citizen to give a bribe or provides assistance to that person in giving a bribe. The fact that the subject matter of the bribe is appropriated by the fictitious intermediary does not change the social nature of the actions of the deceived bribe-giver. Consequently, the actions of the fictitious intermediary should be classified as incitement or aiding and abetting in the giving of a bribe, while the actions of the person who handed over the subject matter of the bribe to the fictitious intermediary should be classified as an attempt to give a bribe.

The crime provided for in Part 1 of Article 313 is classified as a minor crime.

The crime provided for in Part 2 of Article 313 is classified as a serious crime.

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

Date of amendment of the act: 02.08.2007

Date of adoption of the act: 02.08.2007

Place of adoption: NONE

Body that adopted the act: 180000000000

Region of application: 100000000000

Registration number of the regulatory legal act assigned by the rule-making body: 167

Status of the act: new

Sphere of legal relations: 028000000000

Form of the act: COMMENTARY

Legal force: 1900

Language of the act: Russian 

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