Commentary on Article 33. Bringing a Person to Criminal Liability upon an Application by a Commercial or Other Organization of the Criminal Procedure Code of the Republic of Kazakhstan

1. If an act provided for in Chapter 9 of the Criminal Code of the Republic of Kazakhstan has caused harm exclusively to the interests of a commercial or other organization that is not a state-owned enterprise and has not caused harm to the interests of other organizations, as well as the interests of citizens, society or the state, criminal prosecution shall be carried out upon an application by the head, founder (participant) of that organization or an authorized body, or with their consent.

2. The head, founder (participant) of the organization or the authorized body shall have the right to withdraw the application for bringing a person to criminal liability at any stage of the criminal proceedings. Withdrawal of the application shall entail termination of the proceedings on the grounds provided for in subparagraph 5) of part one of Article 35 of this Code.

Chapter 9 of the Criminal Code, entitled “Criminal Offenses Against the Interests of Service in Commercial and Other Organizations,” establishes criminal liability for the following criminal offenses in this area: abuse of authority (Article 250); abuse of authority by private notaries, appraisers, private bailiffs, mediators and auditors working as part of an audit organization (Article 251); exceeding authority by employees of private security services (Article 252); commercial bribery (Article 253); negligent attitude toward duties (Article 254). The concept of a commercial or other organization as a legal entity is established by the provisions of Chapter 2, Paragraph 2, of the General Part of the Civil Code (enacted by Resolution of the Supreme Council of the Republic of Kazakhstan dated December 27, 1994).

A legal entity may be an organization that pursues the generation of income as the main purpose of its activities (a commercial organization), or an organization that does not have the generation of income as such a purpose and does not distribute the net income received among its participants (a non-profit organization). A legal entity that is a commercial organization may be established only in the form of a state-owned enterprise, business partnership, joint-stock company or production cooperative. A legal entity that is a non-profit organization may be established in the form of an institution, public association, joint-stock company, consumer cooperative, foundation, religious association or another form provided for by legislative acts. A non-profit organization may engage in entrepreneurial activities only insofar as such activities are consistent with its statutory objectives. A legal entity that is a non-profit organization and is maintained exclusively at the expense of the state budget may be established solely in the form of a state institution. Legal entities may establish associations. A legal entity operates on the basis of the Civil Code, the law governing each type of legal entity, other legislative acts and its constituent documents (Article 34 of the Civil Code).

For the purposes of Part 1 of Article 33 of the CPC, state-owned enterprises include: 1) enterprises based on the right of economic management; 2) enterprises based on the right of operational management (state-owned enterprises of the treasury type). The property of a state-owned enterprise is indivisible and may not be distributed among contributions (shares, equity interests), including among the employees of the enterprise. The corporate name of state-owned enterprises must contain an indication of the owner of their property. A state-owned enterprise is established, liquidated and reorganized by decision of an authorized state body. The governing body of a state-owned enterprise is its head, who is appointed by and accountable to the authorized state body. The legal status of a state-owned enterprise is determined by the Civil Code and other legislative acts (Article 102 of the Civil Code).

An important condition for the application of Part 1 of Article 33 of the CPC is the existence of harm caused exclusively to the interests of a commercial or other organization that is not a state-owned enterprise. That is, where harm is caused to the interests of other organizations, as well as to the interests of citizens, society or the state, pre-trial investigations shall be conducted by criminal prosecution authorities in accordance with the law on the jurisdiction of criminal cases (Articles 32 and 187 of the CPC): under Article 250 of the Criminal Code, the preliminary investigation shall be conducted by internal affairs bodies or the economic investigation service that commenced the pre-trial investigation; under Article 251 of the Criminal Code, the preliminary investigation shall be conducted by internal affairs bodies; under Article 252 of the Criminal Code: Part 1 — inquiry, Part 2 — preliminary investigation by internal affairs bodies; under Article 253 of the Criminal Code, the preliminary investigation shall be conducted by investigators of the economic investigation service; under Article 254 of the Criminal Code, the preliminary investigation shall be conducted by investigators of internal affairs bodies.

According to the law, an application for bringing a person to criminal liability for committing a criminal offense provided for in Chapter 9 of the Criminal Code may be submitted not by any persons within these organizations, but only by the head, founder (participant) of the organization or an authorized body, or, with their written consent, by an official of the organization authorized by them. Consequently, only these persons, or persons acting with their consent, may withdraw an application for bringing a person to criminal liability at any stage of the criminal proceedings. Withdrawal of an application for bringing a person to criminal liability by the head of a commercial or other organization or by an authorized body constitutes an independent ground for termination of the proceedings (subparagraph 5) of part 1 of Article 35 of the CPC).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan. By Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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