Commentary on Article 361. Abuse of Official Powers under the Criminal Code of the Republic of Kazakhstan
1. The use by a person authorized to perform state functions, or a person equated to such a person, or an official, of his or her official powers contrary to the interests of the service for the purpose of obtaining benefits and advantages for himself or herself or other persons or organizations, or causing harm to other persons or organizations, if this has resulted in substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, —
shall be punishable by a fine in the amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or involvement in community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
2. Excluded by Law of the Republic of Kazakhstan dated 12 July 2018 No. 180-VI.
2-1. The same act committed by an employee of a law enforcement agency, —
shall be punishable by a fine in the amount of up to four thousand monthly calculation indices, or corrective labor in the same amount, or involvement in community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
3. The act provided for in part one of this Article, committed by a person holding a responsible public position, —
shall be punishable by a fine in the amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or involvement in community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
4. The acts provided for in parts one, 2-1 or three of this Article:
1) committed in the interests of a criminal group;
2) committed in the performance of official duties established by the Law of the Republic of Kazakhstan “On Amnesty for Citizens of the Republic of Kazakhstan, Oralman and Persons Holding a Residence Permit in the Republic of Kazakhstan in Connection with Their Legalization of Property”, using information obtained in the course of property legalization;
3) resulting in grave consequences;
4) committed by a person holding a responsible public position in a law enforcement agency, or by a judge, —
shall be punishable by restriction of liberty for a period of up to seven years or imprisonment for the same period, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.
The social danger of this crime lies in its encroachment upon the normal functioning, regulated by law, of the system of public administration bodies, local self-government bodies, the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan, law enforcement and special state bodies, state institutions and organizations, which violates the rights and legitimate interests of citizens and organizations, undermines the authority of the government in society and citizens' confidence in their protection by law and the state.
The object of abuse of official powers is the activities of state bodies and organizations and local self-government bodies carried out in accordance with the law. An additional object is the constitutional rights of individuals and citizens, as well as the legally protected economic and other interests of citizens, organizations and the state.
In accordance with subparagraph 29) of Article 3 of the Criminal Code, the elements of abuse of official powers constitute a corruption-related criminal offence.
The Republic of Kazakhstan ratified the United Nations Convention against Corruption (Law of the Republic of Kazakhstan dated 4 May 2008 No. 31-5) and, relying on the norms of international law, expressed its intention to develop and apply effective legal measures aimed at preventing and combating corruption.
The UN Convention against Corruption, adopted on 31 October 2003 (New York), reflects international approaches (standards) characterizing activities in the field of preventing and combating corruption. The provisions contained in the Convention are predetermined by the problems and threats generated by corruption and the negative impact of corruption on the functioning of all social and legal institutions and relations. They are aimed at ensuring the sustainable development of the state and its political, economic and social systems, as well as national security interests.
The legal framework for combating corruption in the Republic of Kazakhstan consists of the Constitution of the Republic of Kazakhstan, the Criminal Code of the Republic of Kazakhstan, the Criminal Procedure Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan dated 18 November 2015 “On Combating Corruption”, the Decree of the President of the Republic of Kazakhstan dated 26 December 2014 “On the Anti-Corruption Strategy of the Republic of Kazakhstan for 2015–2025”, and other regulatory legal acts providing for the main areas and specific measures to counteract and combat corruption.
According to subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan dated 18 November 2015 “On Combating Corruption”, corruption means the unlawful use by persons holding responsible public positions, persons authorized to perform state functions, persons equated to persons authorized to perform state functions, and officials of their official (service) powers and related opportunities for the purpose of obtaining or acquiring, personally or through intermediaries, property-related or non-property benefits and advantages for themselves or third parties, as well as the bribery of such persons through the provision of benefits and advantages.
Combating corruption means the activities of entities combating corruption, within the limits of their powers, aimed at preventing corruption, including fostering an anti-corruption culture in society, identifying and eliminating the causes and conditions contributing to the commission of corruption offences, as well as identifying, suppressing, detecting and investigating corruption offences and eliminating their consequences (subparagraph 9) of Article 1 of the aforementioned Law).
The purpose of the Anti-Corruption Strategy of the Republic of Kazakhstan for 2015–2025 is to increase the effectiveness of the state's anti-corruption policy, involve the entire society in the anti-corruption movement by creating an atmosphere of “zero” tolerance towards any manifestations of corruption, and reduce the level of corruption in Kazakhstan.
The target indicators applied in the Strategy are:
the quality of public services; public trust in institutions of state power; the level of legal culture of the population; increasing the country's authority in the international community and improving the relevant international rankings, including Kazakhstan's ranking in the Corruption Perceptions Index of “Transparency International”.
The objectives of the Strategy are:
combating corruption in the civil service; introducing the institution of public oversight; combating corruption in the quasi-public and private sectors; preventing corruption in the courts and law enforcement agencies; developing an anti-corruption culture; developing international cooperation on combating corruption.
Today, it can be stated with confidence that corruption is a direct threat to the national security of the Republic of Kazakhstan.
In order to intensify efforts to combat corruption, the authorized anti-corruption body conducts external analyses in the following areas:
identification of corruption risks in regulatory legal acts affecting the activities of state bodies and organizations and entities of the quasi-public sector;
identification of corruption risks in the organizational and managerial activities of state bodies and organizations and entities of the quasi-public sector (paragraph 2 of Article 8 of the Law of the Republic of Kazakhstan “On Combating Corruption”).
By Resolution of the Government of the Republic of Kazakhstan dated 4 December 2017, the Rules for Conducting External Analysis of Corruption Risks were approved (in accordance with paragraph 2 of Article 8 of the Law of the Republic of Kazakhstan “On Combating Corruption”). These Rules determine the procedure for conducting external analysis of corruption risks in the activities of state bodies and organizations and entities of the quasi-public sector, with the exception of special state bodies.
Furthermore, in accordance with Article 24 of the Law of the Republic of Kazakhstan “On Combating Corruption”, by Resolution of the Government of the Republic of Kazakhstan dated 30 December 2015, the Rules for Encouraging Persons Who Report a Corruption Offence or Otherwise Assist in Combating Corruption were approved. These Rules determine the procedure for encouraging persons who report a corruption offence or otherwise assist in combating corruption.
For corruption offences in which the amount of the bribe or damage caused, or the value of benefits provided or services rendered, does not exceed one thousand monthly calculation indices, or where no damage has been caused, a one-time monetary reward shall be established in the following amounts: 1) for administrative cases involving corruption offences — 30 MCI; 2) for criminal cases involving corruption offences of minor severity — 40 MCI; 3) of medium severity — 50 MCI; 4) serious corruption crimes — 70 MCI; 5) particularly serious corruption crimes — 100 MCI.
For corruption offences in which the amount of the bribe or damage caused, or the value of benefits provided or services rendered, exceeds one thousand MCI, the one-time monetary reward shall amount to ten percent of the amount of the bribe or damage caused, or the value of benefits provided or services rendered, but shall not exceed four thousand MCI.
The objective elements of the offence of abuse of official powers are characterized by the following features:
the use by a person authorized to perform state functions, or a person equated to such a person, or an official, or an employee of a law enforcement agency, of his or her official powers contrary to the interests of the service;
causing substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state;
the existence of a causal relationship between the act of a person authorized to perform state functions, or a person equated to such a person, or an official, and the resulting socially dangerous consequences.
In the context of the application of this Article of the Criminal Code, the concepts of “service powers” and “official powers” have the same meaning and are identical in nature.
In accordance with the Law of the Republic of Kazakhstan dated 23 November 2015 “On the Civil Service of the Republic of Kazakhstan”, official powers are the rights and duties provided for by a specific public position, corresponding to the goals and objectives facing the state bodies in which civil servants perform their activities (subparagraph 9) of Article 1 of the Law).
The civil service of the Republic of Kazakhstan is the activity of civil servants in state bodies involving the performance of official powers and aimed at implementing the tasks and functions of state authority (subparagraph 6) of Article 1 of the Law). Depending on the specifics of the activities of a state body, alongside the administrative civil service, special and specialized types of civil service, military service, law enforcement service and service in special state bodies are distinguished.
The use of official powers means such actions by a person authorized to perform state functions, or a person equated to such a person, or an official, which arise from his or her official powers and are connected with the exercise of the rights and duties vested in that person by virtue of the position held. According to subparagraph 9) of Article 1 of the above-mentioned Law, official powers are the rights and duties provided for by a specific public position, corresponding to the goals and objectives facing the state bodies in which civil servants perform their activities. The scope of official and service powers is determined by appointment acts, regulations, charters, instructions, functional duties and other regulatory acts that establish the rights and duties of a person holding the relevant position. This may include the issuance of state loans, licenses, conducting public procurement, the use of state property, and other matters.
The use of official powers contrary to the interests of the service should be understood as the commission of acts which, although directly connected with the exercise by the persons specified in part 1 of the commented Article of their rights and duties, were not necessitated by official requirements and objectively contradicted both the general tasks and requirements imposed on the state apparatus and the apparatus of local self-government bodies, as well as the goals and objectives for the achievement of which the person authorized to perform state functions, or a person equated to such a person, or an official was vested with the relevant official powers. In particular, the actions of the aforementioned persons who, for the purpose of obtaining benefits and advantages for themselves or other persons or organizations, perform actions falling within the scope of their official powers in the absence of mandatory conditions or grounds for performing them (for example, issuing a driver's license to persons who have not passed the mandatory examination; hiring persons who do not actually perform their employment duties) should be classified as abuse of official powers.
Liability under Article 361 of the Criminal Code also arises for the intentional failure of the subjects specified in part 1 of Article 361 of the Criminal Code to perform their duties, where such omission was committed for the purpose of obtaining benefits and advantages, objectively contradicted the goals and objectives for the achievement of which these persons were vested with the relevant official powers, and resulted in substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state. In addition, favoritism, that is, the unlawful provision of assistance in employment, promotion, rewarding a subordinate, as well as other forms of official patronage, committed for the purpose of obtaining benefits and advantages, should also be regarded as the use of one's official powers contrary to the interests of the service.
However, in cases where the actions of a person authorized to perform state functions, or a person equated to such a person, or an official, or an employee of a law enforcement agency, connected with a violation of his or her official powers, were committed to eliminate a danger directly threatening an individual or the legally protected interests of society or the state, and that danger could not have been eliminated by other means, such acts cannot be considered under Article 361 of the Criminal Code, provided that the limits of extreme necessity were not exceeded (Article 34 of the Criminal Code).
Acts of the subjects specified in part 1 of the commented Article, involving the use of official powers and resulting in harm to interests protected by criminal law, shall not constitute a criminally punishable act under Article 361 of the Criminal Code if they were committed in execution of an order or instruction binding upon them (Article 38 of the Criminal Code).
If the persons specified in part 1 of Article 361 of the Criminal Code commit a crime provided for by the said Article in execution of an order or instruction that they know to be unlawful, they shall bear criminal liability on general grounds. In this case, the actions of the superior official issuing such an order or instruction should, where grounds exist, be regarded as incitement to commit a crime or organization of that crime and qualified under the relevant Article of the Special Part of the Criminal Code, with reference to parts 3 or 4 of Article 28 of the Criminal Code.
An official who issues an order or instruction that is knowingly unlawful to a subordinate who does not realize that the order or instruction is unlawful and executes it shall be held liable as the perpetrator of the crime.
Unlike the misappropriation of another person's property through the use of one's official position, abuse of official powers for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, is constituted by such acts of an official that are either not connected with the seizure of another person's property (for example, obtaining a property benefit from the use of property for purposes other than its intended purpose), or are connected with the temporary and/or compensated seizure of property.
If the use by the subjects specified in part 1 of Article 361 of the Criminal Code of their official powers has resulted in the misappropriation of another person's property, where the property has actually been taken, the act is fully covered by subparagraph 2) of part 3 of Article 189 of the Criminal Code or subparagraph 2) of part 3 of Article 190 of the Criminal Code and does not require additional qualification under Article 361 of the Criminal Code.
In cases where a person authorized to perform state functions, or a person equated to such a person, or an official, using his or her official powers, commits other unlawful acts connected with abuse of official powers for the purpose of obtaining benefits and advantages alongside the misappropriation of another person's property, the acts committed by such persons shall be qualified cumulatively under Articles 189, 190 and 361 of the Criminal Code.
In accordance with the provisions of Article 13 of the Criminal Code, the issue relating to the legal assessment of the actions of an official who has committed official forgery shall be resolved. In cases where such a person, in connection with the performance of his or her official duties, enters knowingly false information into official documents or makes corrections that distort their actual content, the act shall be qualified under Article 369 of the Criminal Code. If, alongside committing acts entailing criminal liability under Article 361 of the Criminal Code, the person also commits official forgery, the act shall be qualified cumulatively with Article 369 of the Criminal Code.
Abuse of official powers may be committed both through active conduct and through omission.
By its legal construction, the elements of this crime are material and, consequently, the crime is considered completed from the moment the consequences specified in the disposition of Article 361 of the Criminal Code occur, namely, the causing of substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state. These consequences may be expressed in direct material damage, lost profits, physical and moral harm, undermining the authority of state power, infringement of human rights and freedoms, violation of law and order, etc.
In accordance with subparagraph 14) of Article 3 of the Criminal Code, substantial harm means the following consequences: violation of the constitutional rights and freedoms of individuals and citizens, the rights and legitimate interests of organizations, and the legally protected interests of society and the state; causing significant damage; the emergence of a difficult life situation for the victim; disruption of the normal functioning of organizations or state bodies; disruption of important military activities or a temporary decrease in the level of combat readiness and combat capability of military units and subdivisions; untimely detection or repulsion of an attack by armed groups or individual armed persons, ground, air or naval military equipment; permitting the unlawful crossing of the State Border of the Republic of Kazakhstan by persons and vehicles without hindrance; movement of contraband goods; connivance in actions causing damage to border installations and technical border protection equipment; and other consequences indicating the substantial nature of the harm caused.
When deciding whether the harm caused is substantial, it is necessary to take into account the degree of negative impact of the unlawful act on the normal functioning of a state body or organization, the nature and amount of material damage incurred by them, the number of affected citizens, the severity of the moral, physical or property damage caused to them, and so forth.
Causing substantial harm to the rights and legitimate interests of citizens or organizations as a result of abuse of official powers should be understood as the violation of the rights and freedoms of individuals and legal entities guaranteed by the generally recognized principles and norms of international law and the Constitution of the Republic of Kazakhstan (for example, the right to respect for personal honor and dignity, the private and family life of citizens, the inviolability of the home and the confidentiality of correspondence, telephone conversations, postal, telegraphic and other communications, as well as the right to judicial protection and access to justice, including the right to an effective legal remedy, state protection and compensation for damage caused by a crime, etc.).
Violation of the legitimate interests of citizens or organizations as a result of abuse of official powers should be understood as the creation of obstacles to the satisfaction by citizens or organizations of their needs, provided that such needs do not contradict legal norms or public morality (for example, the creation by an official of obstacles restricting the opportunity to choose, at one's own discretion and in cases provided for by law, an organization for cooperation).
If the harm caused is not substantial, the actions of the guilty person should be regarded as a disciplinary offence.
From the subjective perspective, abuse of official powers can only be committed intentionally. The perpetrator realizes that he or she is performing or failing to perform an action contrary to the interests of the service, foresees that such conduct will result in a substantial violation of the rights and legitimate interests of citizens or organizations, or of the legally protected interests of society or the state, and desires the occurrence of one or more of the specified consequences.
If the subject is mistaken in believing that the actions are being performed for the benefit of the service, or does not foresee the possibility of causing substantial harm to the rights and legitimate interests of citizens and organizations, or to the legally protected interests of society or the state, or, while foreseeing the consequences, recklessly relies on their prevention, the elements of the crime are absent.
In addition to guilt, an obligatory feature of the subjective element of the crime is the purpose of the crime: obtaining benefits or advantages for oneself or other persons or organizations, or causing harm to other persons or organizations.
In practice, this may manifest itself in the desire of the guilty persons to obtain a benefit of a property nature that is not connected with the unlawful gratuitous conversion of property to their own benefit or to the benefit of other persons (for example, unlawfully obtaining benefits, a loan, exemption from certain property-related expenses, return of property, repayment of a debt, payment for services, payment of taxes, etc.). In addition, the elements of the crime under consideration are present if the guilty person seeks to obtain a non-property benefit, guided by motives such as careerism, nepotism, the desire to embellish the actual situation, obtain a reciprocal service, secure support in resolving an issue, conceal one's incompetence, etc.
According to paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 27 November 2015 “On the Practice of Consideration of Certain Corruption Crimes”:
“Obtaining property benefits and advantages should be understood as the acceptance by a person belonging to the subject of a crime, not only for himself or herself but also for other persons or organizations, of various services provided free of charge or services subject to payment, or the unlawful use of benefits, performance of construction or repair works, provision of sanatorium or tourist vouchers, travel tickets, loans or credits on preferential terms, etc.”
“If a person specified in part one of Article 361 of the Criminal Code has used official powers contrary to the interests of the service for the purpose of obtaining benefits and advantages for himself or herself, other persons or organizations, and by his or her actions (omissions) has caused harm to someone, resulting in substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, the act cannot be qualified as receiving a bribe (obtaining housing out of turn, obtaining a preferential loan, etc.). Such actions must be qualified as abuse of official powers.
The mercenary motive behind abuse of official powers may be expressed in obtaining benefits and advantages not only of a material or property-related nature, but also in other personal interests, such as promotion, the desire to please management, etc.” — as stated in paragraph 21 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan.
The subject of the crime may only be a person authorized to perform state functions, or a person equated to such a person, or an official, or an employee of a law enforcement agency.
In accordance with subparagraph 27) of Article 3 of the Criminal Code, a person authorized to perform state functions is a civil servant in accordance with the legislation of the Republic of Kazakhstan on civil service, or a maslikhat deputy. In accordance with the Law of the Republic of Kazakhstan dated 23 November 2015 “On the Civil Service of the Republic of Kazakhstan”, a civil servant is a citizen of the Republic of Kazakhstan who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, holds a public position in a state body paid for from the republican or local budgets or from the funds of the National Bank of the Republic of Kazakhstan and exercises official powers for the purpose of implementing the tasks and functions of the state.
According to subparagraph 11) of Article 1 of the Law of the Republic of Kazakhstan dated 23 January 2001 “On Local Public Administration and Self-Government in the Republic of Kazakhstan”, a local representative body (maslikhat) is an elected body elected by the population of a region, a city of republican significance and the capital, or a district (a city of regional significance), which expresses the will of the population and, in accordance with the legislation of the Republic of Kazakhstan, determines the measures necessary for its implementation and monitors their execution.
A maslikhat deputy expresses the will of the population of the relevant administrative-territorial units, taking into account nationwide interests (paragraph 1 of Article 20 of the aforementioned Law).
The powers of a maslikhat deputy commence from the moment of his or her registration as a maslikhat deputy by the relevant territorial election commission and terminate from the moment the powers of the maslikhat terminate (paragraph 2 of Article 20 of the Law).
Maslikhat deputies who perform their activities on a permanent or full-time basis, with remuneration paid from the state budget, are not entitled to engage in entrepreneurial activities, independently participate in the management of a business entity, or engage in other paid activities, except for teaching, scientific or other creative activities (paragraph 6 of Article 20 of the Law).
The concept of persons equated to persons authorized to perform state functions is provided in subparagraph 28) of Article 3 of the Criminal Code of the Republic of Kazakhstan.
In accordance with the Law of the Republic of Kazakhstan “On Local Public Administration and Self-Government in the Republic of Kazakhstan”, local self-government means activities carried out directly by the population, as well as through maslikhats and other local self-government bodies, aimed at independently resolving issues of local significance under their own responsibility, in accordance with the procedure determined by this Law and other regulatory legal acts (subparagraph 9) of Article 1 of the Law). In accordance with the Law “On Local Public Administration and Self-Government in the Republic of Kazakhstan”, local self-government bodies are bodies entrusted, pursuant to this Law, with the functions of resolving issues of local significance (subparagraph 10) of Article 1 of the Law).
The Law of the Republic of Kazakhstan dated 18 September 2015 “On Combating Corruption” provides definitions of persons authorized to perform state functions and persons equated to them.
Thus, according to subparagraph 3) of Article 1 of the aforementioned Law, a person authorized to perform state functions is a civil servant in accordance with the laws of the Republic of Kazakhstan on civil service, a maslikhat deputy, as well as a person temporarily performing the duties provided for by a public position until his or her appointment to the civil service.
A person equated to a person authorized to perform state functions is a person elected to local self-government bodies; a citizen registered, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, as a candidate for President of the Republic of Kazakhstan, a candidate for deputy of the Parliament of the Republic of Kazakhstan or maslikhats, a candidate for akim of a city of district significance, a settlement, a village or a rural district, as well as a candidate for membership in an elected local self-government body; an employee permanently or temporarily working in a local self-government body, whose remuneration is paid from the state budget of the Republic of Kazakhstan; a person performing managerial functions in a state organization or an entity of the quasi-public sector, as well as a person authorized to make decisions on the organization and conduct of procurement, including public procurement, or responsible for the selection and implementation of projects financed from the state budget and the National Fund of the Republic of Kazakhstan, holding a position not lower than the head of an independent structural subdivision in the specified organizations; employees of the National Bank of the Republic of Kazakhstan and its departments; employees of an authorized organization in the field of civil aviation acting in accordance with the legislation of the Republic of Kazakhstan on the use of the airspace of the Republic of Kazakhstan and aviation activities; and employees of the authorized body for the regulation, control and supervision of the financial market and financial organizations (subparagraph 4) of Article 1 of the aforementioned Law).
A citizen registered as a candidate for President of the Republic of Kazakhstan is a citizen of the Republic of Kazakhstan registered by the Central Election Commission of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan in accordance with Article 59 of the Constitutional Law of the Republic of Kazakhstan dated 28 September 1995 “On Elections in the Republic of Kazakhstan”. The Central Election Commission of the Republic of Kazakhstan issues the relevant certificate to candidates for President of the Republic of Kazakhstan.
A citizen registered as a candidate for deputy of the Senate of the Parliament of the Republic of Kazakhstan is a citizen of the Republic of Kazakhstan registered by a regional or city (of a city of republican significance and the capital of the Republic) election commission, in accordance with Article 73 of the Constitutional Law of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan”, as a candidate for deputy of the Senate of the Parliament of the Republic of Kazakhstan. The regional or city (of a city of republican significance and the capital of the Republic) election commission issues the relevant certificate to candidates for deputy of the Senate of the Parliament of the Republic of Kazakhstan.
A citizen registered as a candidate for deputy of the Mazhilis of the Parliament of the Republic of Kazakhstan is a citizen of the Republic of Kazakhstan included in a party list of a political party registered by the Central Election Commission of the Republic of Kazakhstan, or a citizen of the Republic of Kazakhstan nominated by the Council of the Assembly of the People of Kazakhstan and registered by the Central Election Commission of the Republic of Kazakhstan, in accordance with Article 89 of the Constitutional Law of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan”, as a candidate for deputy of the Mazhilis of the Parliament of the Republic of Kazakhstan. The Central Election Commission of the Republic of Kazakhstan issues the relevant certificate to candidates for deputy of the Mazhilis of the Parliament of the Republic of Kazakhstan.
According to paragraph 1 of Article 103 of the Constitutional Law of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan”, the right to nominate candidates for maslikhat deputies elected through party lists belongs to political parties.
Registration of party lists submitted by political parties is carried out by the relevant territorial election commissions (paragraph 1 of Article 104 of the Law).
The concept of an employee permanently or temporarily working in a local self-government body is regulated by the Law “On Local Public Administration and Self-Government in the Republic of Kazakhstan”. The aforementioned Law was supplemented by Chapter 3-1 “Participation of Citizens in Local Self-Government”.
The form of activity, main tasks, powers of the territorial local self-government council and its head, the procedure for their election, the status of decisions adopted, and other organizational matters concerning the activities of the territorial local self-government council are determined by a regulation developed by the akimat of a city of republican significance, the capital, or a city of regional significance and approved by the maslikhat of the city of republican significance, the capital, or the city of regional significance on the basis of a standard regulation.
The standard regulation on territorial local self-government councils is approved by the authorized body responsible for the development of local self-government (paragraph 2 of Article 39-7 of the Law).
Territorial local self-government councils are established on the basis of a decision of the maslikhat of a city of republican significance, the capital, or a city of regional significance by the relevant akimat within the boundaries of the electoral district for the election of deputies of the city maslikhat, with membership proposed by the akim of the city (paragraph 1 of Article 39-7 of the Law).
A person performing managerial functions in a state organization or an entity of the quasi-public sector. In accordance with the Law of the Republic of Kazakhstan dated 30 March 1995 “On the National Bank of the Republic of Kazakhstan”, employees of the National Bank of Kazakhstan and its departments are persons who are not classified as civil servants but exercise official powers in the National Bank of Kazakhstan and its departments aimed at implementing the tasks and functions of the state. Official powers mean the rights and duties provided for by a specific public position of employees of the National Bank of Kazakhstan and its departments, corresponding to the goals and objectives facing the National Bank of Kazakhstan (Article 20-1 of the Law).
In accordance with subparagraph 26) of Article 3 of the Criminal Code, an official is a person who permanently, temporarily or under special authority performs the functions of a representative of authority or performs organizational and administrative or administrative and economic functions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan.
A similar definition of the concept of an official is provided in subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated 18 November 2015 “On Combating Corruption”. The Law of the Republic of Kazakhstan dated 28 November 2015 “On the Civil Service of the Republic of Kazakhstan” defines an official as a person who permanently, temporarily or under special authority performs the functions of a representative of authority or performs organizational and administrative or administrative and economic functions in state bodies.
A representative of authority is a person in the civil service who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, is vested with administrative powers in relation to persons who are not subordinate to him or her in terms of service, including an employee of a law enforcement or special state body, a military police body, or a serviceman participating in the maintenance of public order (subparagraph 9) of Article 3 of the Criminal Code).
Organizational and administrative functions are the right granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan to issue orders and instructions binding upon subordinate employees, as well as to apply incentives and disciplinary penalties to subordinates (subparagraph 37) of Article 3 of the Criminal Code). See also subparagraph 14) of Article 1 of the Law “On Combating Corruption”.
Organizational and administrative functions include the powers of persons to make decisions having legal significance and giving rise to certain legal consequences (for example, the issuance of a temporary incapacity certificate by a medical professional, the administration of examinations and the assignment of grades by a member of a state examination (certification) commission).
Administrative and economic functions mean the right granted in accordance with the procedure established by the legislation of the Republic of Kazakhstan to manage and dispose of property recorded on the balance sheet of an organization (subparagraph 5) of Article 3 of the Criminal Code).
The performance of the functions of an official under special authority means that a person performs the functions of a representative of authority or carries out organizational and administrative or administrative and economic functions assigned to him or her by law, another regulatory act, an order or instruction of a superior official, or a competent body or official (for example, the functions of a juror). The functions of an official under special authority may be performed for a certain period or on a one-time basis and may also be combined with the person's main employment.
When temporarily performing the functions of an official or performing them under special authority, a person may be recognized as an official only during the period in which the functions assigned to him or her are being performed.
If a person appointed to a position in violation of the requirements or restrictions established by law or other regulatory legal acts for a candidate for that position (for example, in the absence of a diploma of higher professional education, the required work experience, or where the person has a criminal record, etc.) uses official powers contrary to the interests of the service for the purpose of obtaining benefits and advantages, resulting in substantial harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state, such actions should be qualified as abuse of official powers.
In the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan, officials who permanently, temporarily or under special authority perform organizational and administrative and/or administrative and economic functions may be superiors by virtue of their service position and/or military rank.
Employees of state bodies and local self-government bodies who perform purely professional or technical duties that do not constitute organizational and administrative or administrative and economic functions are not officials (for example, secretaries, employees of the legal department, clerical office, etc.). However, certain categories of employees may be recognized as officials if, in addition to their professional or technical duties, they are duly entrusted with the performance of organizational and administrative or administrative and economic functions.
Thus, a doctor who receives and treats citizens and performs operations carries out purely professional duties that do not fall within the category of official duties. Consequently, if in this case the doctor does not possess organizational and administrative or administrative and economic functions, he or she does not fall under the characteristics of an official. If the doctor is also vested with powers to manage medical personnel (for example, a chief physician), he or she possesses powers extending beyond professional functions, and these powers may be classified as administrative and economic or organizational and administrative.
A teacher conducting classes in any form at a state educational institution performs professional activities. However, if such a teacher is vested with the right to administer examinations or supervise the defence of a graduation project, the teacher is an official, since a student's failure to pass an examination entails certain legal consequences: the student is not admitted to the next examination session, is not transferred to the next year of study and may be expelled.
Do the examples provided above not indicate the expediency of supplementing the concept of an official with one more characteristic — the characteristic of the existence of legally significant consequences of the actions of such a person?
Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Consideration of Certain Corruption Crimes” states:
“For the correct resolution of the issue of whether an act constitutes a corruption crime and whether the persons who committed it are subjects of such crimes, the bodies conducting criminal proceedings must be guided by legislative and other regulatory legal acts, including job descriptions and instructions determining the scope and content of official powers, as well as the official status of the person being held criminally liable.
In order to establish whether a person possesses managerial, organizational and administrative or administrative and economic functions, or the status of a representative of authority, it is necessary to proceed from the content of subparagraphs 5), 9) and 37) of Article 3 of the Criminal Code.
It is also necessary to clarify issues relating to the use by the person being held criminally liable of his or her status, official powers and the opportunities associated with them when committing the crime. Actions of an official falling within the scope of official powers should be understood as actions that the official has the right and/or obligation to perform within the limits of his or her official competence.
The above-mentioned information concerning the person who committed the crime must be indicated in the procedural documents of pre-trial proceedings and judicial acts when determining the legal qualification of his or her actions.”
By the Law of the Republic of Kazakhstan dated 19 December 2020 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Strengthening the Protection of Citizens' Rights in Criminal Proceedings and Combating Corruption”, Article 361 was supplemented with part 2-1 containing the following wording: “The same act committed by an employee of a law enforcement agency”. In addition, part 4 of Article 361 of the Criminal Code was supplemented with subparagraph 4) containing the following wording: “committed by a person holding a responsible public position in a law enforcement agency, or by a judge”. Similar features were introduced into Articles 364, 365, 366, 369 and 370 of the Criminal Code.
According to subparagraph 7) of Article 1 of the Law of the Republic of Kazakhstan dated 6 January 2011 “On Law Enforcement Service”, a law enforcement agency is a state body that ensures compliance with and protection of human and civil rights and freedoms, the legitimate interests of individuals and legal entities, and the state; implements state policy on combating crime and other offences within its competence; and is vested with special powers to ensure legality and maintain public order, identify, prevent, suppress and investigate offences, and execute judicial decisions in criminal cases.
Law enforcement service is a special type of civil service in positions within law enforcement agencies, as well as service in the cases provided for by Article 44 of the aforementioned Law (subparagraph 6) of Article 1 of the Law).
An employee of a law enforcement agency is a citizen of the Republic of Kazakhstan from among the employees of law enforcement agencies who has been assigned a special rank or class rank, or a qualification class has been established for him or her (subparagraph 9) of Article 1 of the Law). Employees are representatives of state authority and are under the protection of the state (paragraph 1 of Article 14 of the Law).
According to Article 3 of the aforementioned Law, law enforcement agencies include the prosecution authorities, internal affairs bodies, the state fire service, the anti-corruption service and the economic investigation service, which carry out their activities in accordance with the legislative acts of the Republic of Kazakhstan. The activities of the prosecution authorities are carried out in accordance with the Law of the Republic of Kazakhstan dated 30 June 2017 “On the Prosecutor's Office”; the internal affairs bodies, in accordance with the Law of the Republic of Kazakhstan dated 23 April 2014 “On Internal Affairs Bodies of the Republic of Kazakhstan”; the state fire service, in accordance with the Regulations on the Committee for Fire Service of the Ministry of Emergency Situations of the Republic of Kazakhstan (Appendix 2 to Order No. 16 of the Minister of Emergency Situations of the Republic of Kazakhstan dated 30 October 2020); the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption (Anti-Corruption Service), in accordance with the Regulations on the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption (Anti-Corruption Service), approved by Decree of the President of the Republic of Kazakhstan dated 22 July 2019; and the Agency for Financial Monitoring, in accordance with the Regulations on the Agency of the Republic of Kazakhstan for Financial Monitoring, approved by Decree of the President of the Republic of Kazakhstan dated 20 February 2021, as well as the Constitution and laws of the Republic of Kazakhstan, acts of the President and the Government, and other regulatory legal acts.
Persons holding responsible public positions in law enforcement agencies should be understood to include heads at the republican level and their deputies, chairpersons and deputy chairpersons of committees, heads of regions and cities of republican significance and their deputies, etc.
According to the Constitutional Law of the Republic of Kazakhstan dated 25 December 2000 “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, a judge is an official of the state vested, in accordance with the procedure established by the Constitution of the Republic of Kazakhstan and this Constitutional Law, with the authority to administer justice, performs his or her duties on a permanent basis and is the bearer of judicial power (paragraph 2 of paragraph 1 of Article 23 of the Constitutional Law).
Paragraph 42) of Article 7 of the Criminal Procedure Code provides the following definition: a judge is the bearer of judicial power; a professional judge appointed or elected to this position in accordance with the procedure established by law (the presiding judge of a court, the presiding judge of a judicial panel, or a judge of the relevant court).
Part 3 of Article 361 of the Criminal Code provides for stricter criminal liability where abuse of official powers is committed by a person holding a responsible public position. In accordance with subparagraph 16) of Article 3 of the Criminal Code, a person holding a responsible public position means a person holding a position established by the Constitution of the Republic of Kazakhstan, constitutional and other laws of the Republic of Kazakhstan for the direct performance of state functions and the powers of state bodies, including a member of Parliament, a judge, as well as a person holding, in accordance with the legislation of the Republic of Kazakhstan on civil service, a political public position or an administrative public position of Corps “A”.
A similar definition of persons holding responsible public positions is provided in subparagraph 1-1) of Article 1 of the Law of the Republic of Kazakhstan “On Combating Corruption”. Such persons include, in particular: the President of the Republic of Kazakhstan, the Prime Minister of the Republic of Kazakhstan and his or her deputies, the Chairpersons of the Mazhilis and the Senate of the Republic of Kazakhstan and their deputies, ministers and their deputies, the Chairperson of the Constitutional Council of the Republic of Kazakhstan, the Prosecutor General of the Republic of Kazakhstan and his or her deputies, a member of Parliament, as well as a person holding, in accordance with the legislation of the Republic of Kazakhstan on civil service, a political public position or an administrative public position of Corps “A”.
In accordance with the Law of the Republic of Kazakhstan dated 23 November 2015 “On the Civil Service of the Republic of Kazakhstan” (subparagraph 16) of Article 1 of the Law), a political civil servant is a civil servant whose appointment (election), dismissal and activities are political in nature and who is responsible for implementing political goals and objectives.
According to the Register of Positions of Political and Administrative Civil Servants, approved by Decree of the President of the Republic of Kazakhstan dated 29 December 2015, political public positions include:
Prime Minister of the Republic of Kazakhstan, his or her First Deputy and deputies;
State Secretary of the Republic of Kazakhstan;
Head of the Presidential Administration of the Republic of Kazakhstan, Head of the Office of the First President of the Republic of Kazakhstan — Elbasy, First Deputy and deputies of the Head of the Presidential Administration of the Republic of Kazakhstan, deputies of the Head of the Office of the First President of the Republic of Kazakhstan — Elbasy;
Chairperson and members of the Constitutional Council of the Republic of Kazakhstan;
Chairperson, Deputy Chairperson, Secretary and members of the Central Election Commission of the Republic of Kazakhstan;
Assistant to the President — Secretary of the Security Council of the Republic of Kazakhstan, his or her First Deputy and deputies;
Chairperson of the Supreme Judicial Council of the Republic of Kazakhstan;
Chairperson and members of the Accounts Committee for Control over the Execution of the Republican Budget;
Head of the Presidential Office of the Republic of Kazakhstan and his or her deputies;
Assistants to the President of the Republic of Kazakhstan;
Assistants to the First President of the Republic of Kazakhstan — Elbasy;
Advisers to the President of the Republic of Kazakhstan;
Advisers to the First President of the Republic of Kazakhstan — Elbasy;
Heads of state bodies directly subordinate and accountable to the President of the Republic of Kazakhstan, their first deputies and deputies;
Ministers of the Republic of Kazakhstan, their first deputies and deputies;
Akim of regions, cities of republican significance and the capital, their first deputies and deputies;
Ambassadors Extraordinary and Plenipotentiary of the Republic of Kazakhstan;
Permanent Representative of the Republic of Kazakhstan to an international organization;
Plenipotentiary Representative of the Republic of Kazakhstan to an international organization;
Head of the Office of the Prime Minister of the Republic of Kazakhstan and his or her deputies;
Commissioner for Human Rights;
Heads of departments and heads of other structural subdivisions of the Presidential Administration of the Republic of Kazakhstan, the Office of the First President of the Republic of Kazakhstan — Elbasy, and the Office of the Security Council of the Republic of Kazakhstan, their first deputies and deputies;
Special Representatives of the President of the Republic of Kazakhstan;
Director of the Archive of the President of the Republic of Kazakhstan and his or her deputies;
Director of the Library of the First President of the Republic of Kazakhstan — Elbasy and deputy directors;
Director of the republican state institution “Қоғамдық келісім”;
Director of the republican state institution “Central Communications Service” under the President of the Republic of Kazakhstan;
Head of the Bureau of National Statistics of the Agency for Strategic Planning and Reforms of the Republic of Kazakhstan;
Heads of the offices of the Senate and the Mazhilis of the Parliament of the Republic of Kazakhstan and their deputies;
State inspectors of the structural subdivision of the Presidential Administration of the Republic of Kazakhstan;
Akims of cities that are administrative centers of regions, cities of regional significance, districts of regions and districts within cities;
Heads of departments of the Administrative Department of the President of the Republic of Kazakhstan and their deputies.
Part 4 of the commented Article establishes liability for the acts provided for in parts 1, 2-1 or 3 of the commented Article:
committed in the interests of a criminal group;
committed in the performance of official duties established by the Law of the Republic of Kazakhstan “On Amnesty for Citizens of the Republic of Kazakhstan, Oralman and Persons Holding a Residence Permit in the Republic of Kazakhstan in Connection with Their Legalization of Property”, using information obtained in the course of property legalization;
resulting in grave consequences;
committed by a person holding a responsible public position in a law enforcement agency, or by a judge.
The concept of a criminal group is provided in subparagraph 24) of Article 3 and part 3 of Article 31 of the Criminal Code.
According to subparagraph 2) of Article 1 of the Law of the Republic of Kazakhstan dated 30 June 2014 “On Amnesty for Citizens of the Republic of Kazakhstan, Oralman and Persons Holding a Residence Permit in the Republic of Kazakhstan in Connection with Their Legalization of Property”, legalization of property means a procedure whereby the state recognizes rights to property withdrawn from lawful economic circulation for the purpose of concealing income and/or not registered in accordance with the legislation of the Republic of Kazakhstan or registered in the name of an improper person.
A commission for the legalization of property is a commission established under local executive bodies in accordance with the procedure determined by the Government of the Republic of Kazakhstan and consisting of representatives of state bodies and organizations, authorized to make decisions on the legalization or refusal to legalize property (other than money) located within the territory of the Republic of Kazakhstan (subparagraph 3) of Article 1 of the Law).
This Law sets out the specific features of property legalization; property not subject to legalization; the time limits for property legalization; guarantees provided by the Law, etc.
Information contained in documents submitted for the purpose of property legalization is recognized as tax, banking and other legally protected confidential information in accordance with the legislation of the Republic of Kazakhstan. The regime for storing such information and documents and access to them is ensured exclusively by state bodies and organizations carrying out property legalization. State bodies and organizations not involved in property legalization are not entitled to access such information and documents. Such information and documents may be requested only at the request of the legalization subject itself or in cases established by the laws of the Republic of Kazakhstan (paragraph 5 of Article 5 of the Law).
To ensure the confidentiality guarantees provided for by the aforementioned Law concerning the information contained in the special declaration, the authorized body carries out centralized storage of special declarations and documents and/or information attached to the special declaration (paragraph 6 of Article 5 of the Law).
Officials and employees of state bodies and organizations, including members of the commission, who have received and/or become aware of information, as well as data related to the property legalization procedure, are not entitled to disseminate such information and data either during their employment in the specified bodies and organizations or after their dismissal, except in cases established by the laws of the Republic of Kazakhstan.
Loss of information obtained within the framework of the legalization procedure or disclosure of such information entails liability provided for by the laws of the Republic of Kazakhstan (paragraph 7 of Article 5 of the Law).
Consequently, if the aforementioned subjects of abuse of official powers commit an act using information obtained in the course of property legalization, they shall be held criminally liable under subparagraph 2) of part 4 of Article 361 of the Criminal Code.
For the purposes of this provision (subparagraph 3) of part 4), grave consequences should be understood as disorganization of the work of the relevant state body or local self-government body, causing large or especially large damage, major accidents and prolonged suspension of transport or the production process, other disruption of the activities of organizations, causing death through negligence, suicide of the victim, etc.
Subparagraph 4) of part 4 of the commented Article establishes criminal liability for an act committed by a person holding a responsible public position in a law enforcement agency (see the commentary to part 2-1 of Article 361 of the Criminal Code).
The act provided for in part 1 of Article 361 of the Criminal Code belongs to the category of criminal offences of minor severity.
The acts provided for in parts 2-1 and 3 of Article 361 of the Criminal Code belong to the category of criminal offences of medium severity.
The act provided for in part 4 of Article 361 of the Criminal Code belongs to the category of serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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