Commentary on Article 366. Receiving a Bribe of the Criminal Code of the Republic of Kazakhstan

1. The receipt personally or through an intermediary by a person authorized to perform state functions, or a person equated to such a person, or a person holding a responsible public position, or an official, as well as an official of a foreign state or an international organization, of a bribe in the form of money, securities, other property, property rights or benefits of a proprietary nature for themselves or other persons, in exchange for actions (inaction) in favour of the bribe-giver or persons represented by them, if such actions (inaction) fall within the official powers of that person, or if, by virtue of their official position, that person may facilitate such actions (inaction), as well as for general patronage or connivance —

shall be punishable by a fine in the amount of twenty to fifty times the amount of the bribe, or imprisonment for a term of up to five years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

1-1. The same act committed by an employee of a law enforcement agency, or a person holding a responsible public position in a law enforcement agency, or a judge, —

shall be punishable by a fine in the amount of thirty to fifty times the amount of the bribe, or imprisonment for a term of up to six years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

2. The acts provided for in Parts One and 1-1 of this Article, committed on a significant scale, as well as the receipt of a bribe for illegal actions (inaction), —

shall be punishable by a fine in the amount of fifty to sixty times the amount of the bribe, or imprisonment for a term of three to seven years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

3. The acts provided for in Parts One, 1-1 or Two of this Article, if committed:

1) through extortion;

2) by a group of persons acting in prior collusion;

3) on a large scale;

4) repeatedly, —

shall be punishable by a fine in the amount of sixty to seventy times the amount of the bribe, or imprisonment for a term of seven to twelve years, 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, 1-1, Two or Three of this Article, if committed by a criminal group, as well as on an especially large scale, —

shall be punishable by a fine in the amount of seventy to eighty times the amount of the bribe, or imprisonment for a term of ten to fifteen years, with confiscation of property and lifelong deprivation of the right to hold certain positions or engage in certain activities.

Note. The receipt for the first time by a person specified in Part One of this Article of property, property rights or other proprietary benefits as a gift, in the absence of a prior agreement, for previously performed lawful actions (inaction), shall not constitute a crime by reason of insignificance and shall be subject to disciplinary or administrative proceedings, provided that the value of the gift did not exceed two monthly calculation indices.

The public danger of this crime is expressed in the fact that the receipt of a bribe violates the procedure, principles, organization and regulation of the public administration system established at the legislative level, tramples upon the foundations of interaction between public authorities and individuals and legal entities as defined by the laws of the Republic of Kazakhstan, and undermines the authority of state power.

The danger of this crime is also expressed in the cynicism of guilty officials who “sell” the powers granted to them in connection with their official positions. It deforms citizens’ legal consciousness by creating in them the perception that personal and collective interests can be satisfied through bribery of officials, obstructs competition and impedes economic development.

Receiving a bribe is the most dangerous manifestation of corruption, since it contributes to undermining the principles and foundations of public administration. In this regard, the legislator included the offence of receiving a bribe in the list of corruption-related crimes defined in subparagraph 29) of Article 3 of the Criminal Code.

Under the Law of the Republic of Kazakhstan “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 deriving, personally or through intermediaries, proprietary (non-proprietary) benefits and advantages for themselves or third parties, as well as bribery of such persons through the provision of benefits and advantages (subparagraph 6) of Article 1 of the Law).

The aforementioned Law recognizes as corruption-related offences unlawful culpable acts (actions or omissions) bearing signs of corruption for which administrative or criminal liability is established by law (subparagraph 11) of Article 1 of the Law).

The object of this crime is the interests of public service. The additional object should be recognized as the legitimate interests of citizens or organizations, and the legally protected interests of society or the state.

The subject matter of a bribe may include money, securities, material assets, services provided free of charge but subject to payment, as well as benefits granting the right to property (construction and repair works; provision of sanatorium or tourist vouchers, travel tickets; provision of loans or credits on preferential terms, etc.).

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, “On the Practice of Considering Certain Corruption-Related Crimes”, the subject matter of a bribe may include money, securities, material assets, property rights, as well as the unlawful provision of services of a proprietary nature, including release from property obligations.

Money as the subject matter of a bribe means monetary instruments (currency) of both the Republic and other states. The main condition for classifying monetary instruments as the subject matter of a bribe is their circulation in the financial system of a particular country. Money that has been withdrawn from circulation, both coins and banknotes, may constitute the subject matter of a bribe only if it has numismatic value or if the material from which such coins are made has value (for example, gold, silver, etc.). In this case, monetary instruments withdrawn from circulation constitute the subject matter of a bribe as “other” property.

Under paragraph 1 of Article 129 of the Civil Code, securities should be understood as a set of certain records and other designations certifying property rights (bonds, shares, bank deposit certificates, etc.).

Other property means any items possessing material value (jewellery, furniture, automobiles, household and other equipment, clothing, food products, etc.).

Property rights as the subject matter of a bribe should be understood as 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 motor vehicle, etc.

Benefits of a proprietary nature as the subject matter of a bribe may include the provision to the recipient of a bribe of various services of a material nature, either free of charge or at clearly reduced prices (repair of an apartment or motor vehicle, organization of a tourist trip, etc.).

From the objective side, this crime is expressed in the receipt of a bribe personally or through an intermediary for actions (inaction) in favour of the bribe-giver or persons represented by them, provided that such actions (inaction) fall within the official powers of the perpetrator or that, by virtue of their official position, the perpetrator may facilitate such actions (inaction), as well as for general patronage or connivance. The methods of receiving a bribe may be extremely diverse: accepting the subject matter of the bribe, agreeing to formalize property rights, etc. In practice, the receipt of a bribe is often disguised as loan agreements, contracts for work, winnings in card games, and so on. However, it should be noted that receiving a bribe occurs only if the perpetrator receives the subject matter of the bribe in exchange for actions or omissions in favour of the bribe-giver or persons represented by them. At the same time, such actions (inaction) must fall within the scope of the perpetrator’s official powers, or the perpetrator must be able to facilitate such actions (inaction) by virtue of their official position or authority.

It is always necessary to establish for the performance or non-performance of which actions in the interests of the bribe-giver the person received the bribe. At the same time, it should be borne in mind that liability for this crime arises regardless of when the person received the bribe — before or after the performance of the action or omission — and regardless of whether the bribe had been agreed upon in advance or whether any actions in the interests of the bribe-giver had actually been performed.

The actions of the perpetrator should also be recognized as receiving a bribe in cases where the conditions for receiving the subject matter of the bribe are not specifically stipulated, but the participants in the crime understand that the bribe is being given for the purpose of satisfying the interests of the bribe-giver.

Personal receipt of a bribe means the acceptance by the guilty person directly of money, securities, other property, property rights or benefits of a proprietary nature. At the same time, personal receipt of a bribe should be recognized not only as receiving the bribe directly into the hands of the guilty person. Receipt of the subject matter of a bribe through gestures, facial expressions, eye movements, the use of a foreign language or sign language, and other methods shall also be recognized as personal receipt if the evidence collected in the criminal case directly indicates the mutual conditional relationship between the receipt of the bribe and the actions (inaction) performed or being performed, or actions (inaction) planned to be performed in the future in favour of the bribe-giver. This includes cases where the guilty person does not receive the bribe in their hands, but has it placed directly in a pocket, on a table, under a table, in a cupboard, in a car, and elsewhere.

Receipt of a bribe through an intermediary is characterized by the receipt of the subject matter of the bribe by a person who facilitates the bribe-giver and the bribe-recipient in reaching and implementing an agreement between them on the receipt and giving of a bribe, in other words, through a person whom the guilty individual instructed to perform these actions (inaction). At the same time, it is not necessary for the intermediary to know or realize that they are performing the functions of an intermediary in receiving a bribe for the guilty person. The guilty person may mislead the intermediary.

The subject matter of a bribe may be provided to relatives and close persons of an official with the official’s consent or if the official does not object to this and has used their official powers in favour of the bribe-giver. The actions of an intermediary in receiving or giving a bribe should be classified under Article 368 of the Criminal Code as mediation in bribery.

Actions falling within the official powers of an official should be understood as actions that the official has the right and (or) obligation to perform within the limits of their official competence (for example, reducing the statutory time limits for considering an application by the bribe-giver, expediting the adoption of an appropriate decision by an official). In other words, these are lawful actions of a person that do not go beyond the limits of their official competence and become criminal precisely because they are performed in exchange for a bribe.

In accordance with the disposition of the Article under consideration, an official may receive a bribe not only for personally performing certain actions falling within the scope of their official duties, but also for conduct by other officials that is beneficial to the bribe-recipient and which the latter may facilitate by virtue of their official position.

Such facilitation may consist of the use by the bribe-recipient of the authority and other opportunities associated with their position to exert any influence on other officials for the purpose of inducing them to perform the specified official actions (inaction), for example, through requests, persuasion, promises, coercion, etc.

At the same time, receipt by an official of remuneration for using exclusively personal relationships unrelated to their official position cannot be classified under Article 366 of the Criminal Code. In such cases, inducing an official to perform unlawful official actions (inaction) may, where grounds exist, entail criminal liability for other crimes (for example, incitement to abuse of official authority or excess of power or official authority).

Acceptance by an official of money, services of a proprietary nature, etc., for performing actions (inaction) that are related to the performance of their professional duties but do not concern the functions of a representative of authority, organizational and administrative functions, or administrative and economic functions, does not constitute the offence of receiving a bribe.

General patronage or connivance in favour of the bribe-giver should be understood as actions (inaction) by the perpetrator aimed at satisfying the needs of the bribe-giver or persons represented by them. Such needs may include both material and non-material benefits and advantages. For example, the unjustified promotion of a person who does not deserve it on the basis of their professional qualities, or the signing of fictitious certificates of completed works (services rendered, goods supplied) under public procurement contracts when, in fact, the work has not been completed in full or is of inadequate quality, etc.

According to paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Considering Certain Corruption-Related Crimes”, the receipt by a person of funds or other valuables from subordinates or other persons subject to their official powers for patronage or connivance in service, or for the favourable resolution of matters falling within their competence, including matters that may arise in the future, must be regarded as receiving a bribe.

General patronage in service may manifest itself, in particular, in the unjustified appointment of a subordinate to a higher position, including in violation of the established procedure, inclusion of such person in lists of persons nominated for incentive payments, awards, etc.

Connivance in service includes the consent of an official of a supervisory body not to apply measures of liability falling within their powers when a violation committed by the bribe-giver is identified, etc.

Actions (inaction) relating to general patronage or connivance in service may be performed by an official in favour of both subordinates and other persons subject to their supervisory, control or other functions as a representative of authority, as well as organizational and administrative functions.

When determining the amount of a bribe, the subject matter of the bribe must be assigned a monetary value taking into account current prices or tariffs and, where necessary, on the basis of an expert opinion. When determining significant, large and especially large amounts of a bribe, it is necessary to be guided by the explanations provided in subparagraphs 2), 3) and 38) of Article 3 of the Criminal Code. If a bribe in a significant, large or especially large amount is received in instalments, but these acts constitute episodes of a single continuing crime, the act must be classified as receiving a bribe in a significant, large or especially large amount.

Two types of bribery should be distinguished: a bribe as a form of inducement and a bribe as a form of gratitude. In the case of a bribe as inducement, the transfer of the subject matter of the bribe determines the conduct of the guilty person desired by the bribe-giver and constitutes a necessary condition for the performance by that person of certain actions (inaction). In this case, there is a prior agreement between the bribe-giver and the bribe-recipient concerning the transfer of the subject matter of the bribe (before or after the performance of the actions (inaction)).

A bribe as gratitude occurs when the subject matter of the bribe is transferred for an action or omission already performed by an official (lawful or unlawful) in the absence of a prior agreement. At the same time, it is necessary to distinguish a bribe as gratitude from what is known as an ordinary gift.

Thus, according to Article 509 of the Civil Code, gifting is not permitted, except for ordinary gifts whose value does not exceed ten monthly calculation indices established by legislative acts, in the following cases:

on behalf of minors and citizens declared legally incapacitated, by their legal representatives;

to employees of medical, educational, social protection and other similar institutions by citizens receiving treatment, care or education in such institutions, and by the spouses and relatives of such citizens;

to civil servants, as well as members of their families, in connection with the official position of civil servants or in connection with the performance of their official duties.

Consequently, it can be concluded that the provision of Article 509 of the Civil Code is not applicable to criminal law. The aforementioned Article of the Civil Code refers to the prohibition of gifting, which excludes the transfer of a thing or right in return, or a reciprocal obligation on the part of the person accepting the gift. Therefore, where a person’s actions contain the elements of the offence of receiving a bribe (whether a bribe as inducement or a bribe as remuneration), criminal liability arises regardless of the amount of remuneration received, subject to the requirement contained in the Note to Article 366 of the Criminal Code.

The crime should be considered completed from the moment the official accepts at least part of the valuables offered. If money is transferred to the official’s account as a bribe, the receipt of the bribe should be considered completed from the moment the money is credited to the relevant account.

According to paragraph 16 of the aforementioned Regulatory Resolution of the Supreme Court, receiving a bribe is considered a completed crime from the moment the person accepts the subject matter of the bribe, regardless of whether the bribe was received in full or in part and whether the person performed or failed to perform the action (inaction) for which the bribe was given.

Acceptance of a bribe means both its physical receipt into one’s possession and its transfer by other means under the agreed conditions (by transferring it to an account, giving it to a relative, placing it in a designated location, etc.). At the same time, it does not matter whether the bribe-recipient actually obtained the opportunity to use or dispose of the transferred valuables at their own discretion.

Receipt of a bribe under the control of criminal prosecution authorities within the framework of an operational-search measure or covert investigative action is also classified as a completed crime.

In cases where the money received by a person as a bribe turns out to be counterfeit or consists entirely or partially of imitation banknotes, the person’s actions should be classified as an attempt to receive the entire agreed amount of the bribe.

If the transfer of a bribe did not take place due to circumstances beyond the control of the persons whose actions were directly aimed at transferring or receiving it, that is, where the objective side of giving or receiving a bribe had already begun, the act should be classified as an attempt to give or receive a bribe. Other preparatory actions by the bribe-giver or bribe-recipient that do not constitute the direct commencement of the objective side of giving or receiving a bribe cannot be recognized as an attempt to give or receive a bribe. In accordance with Part 1 of Article 24 of the Criminal Code, such actions are subject to classification as preparation for giving or receiving a bribe in cases where these actions were interrupted and the serious or especially serious crime was not completed due to circumstances beyond the control of the bribe-giver or bribe-recipient.

Receipt of a bribe should be classified as a completed crime where, in accordance with a prior agreement, the bribe-giver places valuables in a designated location to which the bribe-recipient has access, or access to which is provided by the bribe-giver or another person after the valuables have been placed there.

If the bribe was not received due to circumstances beyond the control of the bribe-recipient, their actions should be classified as an attempt to receive the agreed bribe. A bribe-recipient who voluntarily refuses to accept an offered bribe shall not be held liable, while the actions of the bribe-giver should be classified as an attempt to give a bribe and the actions of the intermediary as an attempt at mediation in bribery.

If the subject matter of the bribe consisted of the unlawful provision of services of a proprietary nature, the crime is considered completed from the moment the commencement of actions directly aimed at acquiring proprietary benefits takes place (from the moment a debt acknowledgment is destroyed or returned, property or rights thereto are transferred to another person in satisfaction of the obligations of the bribe-recipient, a credit agreement is concluded at a knowingly reduced interest rate for its use, repair work begins at a knowingly reduced price, etc.).

Heads of state bodies, enterprises, institutions and organizations who propose to persons subordinate to them in service that they obtain the desired actions or omissions by giving a bribe to a person specified in subparagraphs 16), 19), 26), 27) and 28) of Article 3 of the Criminal Code, an official of a foreign state and (or) an international organization, shall be held liable as instigators of bribery, and if the proposal to give a bribe was intended to obtain benefits and advantages personally for themselves, they shall be held liable as bribe-givers.

An employee who, in the interests of another person, agreed to arrange for the performance of agreed actions in exchange for a bribe and transferred the bribe shall be held liable as an accomplice in giving a bribe. If the said person merely transfers the bribe while knowing the nature of the assignment, their actions shall be classified as mediation in bribery.

If a person receives money or other valuables from a bribe-giver allegedly for the purpose of transferring them to another person as a bribe and, without intending to do so, appropriates them, the act committed by that person should be classified as fraud. Where, for the purpose of taking possession of the valuables, that person induces the bribe-giver to give a bribe, their actions must additionally be classified as incitement to give a bribe, while the actions of the bribe-giver in such cases are subject to classification as an attempt to give a bribe. At the same time, it does not matter whether the specific person to whom the bribe was intended to be transferred was identified.

If the bribe-giver intended to give, and the official intended to receive, a bribe in a significant, large or especially large amount, but the illegal remuneration actually accepted by the official did not reach the specified amount, the act shall be classified as completed giving or receiving of a bribe in the significant, large or especially large amount concerned, respectively. For example, where a bribe in a large amount was intended to be transferred in several instalments and the bribe-recipient was detained after receiving the first instalment, which did not itself constitute such an amount, the act must be classified under subparagraph 3) of Part 3 of Article 366 of the Criminal Code.

At the same time, it should be borne in mind that provocative and inciting actions by criminal prosecution authorities, consisting of the transfer of a bribe under circumstances indicating that, without the intervention of the criminal prosecution authorities, the person would not have developed the intent to receive a bribe and the crime would not have been committed, exclude the criminality of the act of the person against whom such activities were directed.

According to paragraph 25 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Considering Certain Corruption-Related Crimes”, liability for provocation of a bribe under Part 2 of Article 417 of the Criminal Code arises only in cases where an attempt to transfer the subject matter of a bribe was made for the purpose of artificially creating evidence of the commission of a crime or blackmail, and where the person specified in Part 1 of Article 366 of the Criminal Code had, to the knowledge of the perpetrator, not committed any actions indicating their consent to accept the bribe.

Provocation of a bribe is considered a completed crime from the moment an attempt is made to transfer property or provide services of a proprietary nature without the knowledge of the person specified in Part 1 of Article 366 of the Criminal Code, or contrary to that person's refusal to accept the subject matter of the bribe.

Liability for receiving a bribe does not exclude the simultaneous prosecution of a person for actions that, although related to bribery, constitute independent crimes (abuse of official authority, complicity in the misappropriation of another person’s property, etc.). In such cases, the act must be classified according to the cumulative totality of crimes.

If a person specified in Part 1 of Article 361 of the Criminal Code used their official powers contrary to the interests of the service for the purpose of deriving benefits and advantages for themselves, other persons or organizations, and their actions (inaction) 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, the act cannot be classified as receiving a bribe (obtaining housing out of turn, obtaining a preferential loan, etc.). Such actions must be classified as abuse of official authority.

The mercenary motive for abuse of official authority may be expressed not only in obtaining benefits and advantages of a material or proprietary nature, but also in other personal interests, such as promotion, the desire to please management, etc.

From the subjective side, the crime is committed with direct intent. The perpetrator realizes that they are receiving illegal remuneration for performing certain actions (inaction) in favour of the bribe-giver or persons represented by them, for facilitating the performance of such actions (inaction) by other persons, or for general patronage or connivance in service, and desires to receive such remuneration.

The subjects of receiving a bribe may include: a person authorized to perform state functions; a person equated to a person authorized to perform state functions; a person holding a responsible public position; an official; an employee of a law enforcement agency; a person holding a responsible public position in a law enforcement agency; a judge (these subjects are examined in the commentary to Article 361 of the Criminal Code); an official of a foreign state; an official of an international organization.

Officials of a foreign state or an international organization referred to in Articles 366 and 367 of the Criminal Code include persons recognized as such under international treaties of the Republic of Kazakhstan in the field of combating corruption.

An official of a foreign state means any appointed or elected person holding any position in the legislative, executive, administrative or judicial body of a foreign state, and any person performing any public function for a foreign state, including for a public agency or enterprise.

An official of an international organization means a civil servant or any person authorized by such an organization to act on its behalf (paragraph 3 of the aforementioned Regulatory Resolution of the Supreme Court).

Along with the persons specified in subparagraphs 16), 19), 26), 27) and 28) of Article 3 of the Criminal Code and officials of foreign states or international organizations, persons who, although they did not possess the authority to perform the relevant actions in the interests of the bribe-giver, were able, by virtue of their official position, to take measures to ensure that such actions were performed by other persons, should also be recognized as subjects of corruption-related crimes.

Other individuals who participated as accomplices in the commission of corruption-related crimes or who unlawfully provided property benefits and advantages to the persons specified above for the purpose of bribing them, or facilitated such provision, shall be held liable for corruption-related crimes.

According to Part 1-1 of the Article under consideration, criminal liability arises for the same act provided for in Part 1 of Article 366 of the Criminal Code when committed by an employee of a law enforcement agency, a person holding a responsible public position in a law enforcement agency, or a judge (see the commentary to Part 2-1 and subparagraph 4) of Part 4 of Article 361 of the Criminal Code).

Part 2 of Article 366 of the Criminal Code establishes criminal liability for the acts provided for in Parts 1 and 1-1 of the Article under consideration when committed on a significant scale, and for receiving a bribe for illegal actions (inaction).

In accordance with subparagraph 2) of Article 3 of the Criminal Code, a significant amount in the case of receiving a bribe is recognized as a sum of money, the value of securities, other property or benefits of a proprietary nature ranging from fifty to three thousand monthly calculation indices.

Receiving a bribe for the performance of illegal actions (inaction) should be understood as the acceptance by the perpetrator of the subject matter of a bribe in exchange for performing actions (inaction) that directly or indirectly contradict the norms of the current legislation of the Republic of Kazakhstan, that is, in exchange for committing an offence (civil-law, administrative or criminal), for example, a bribe for carrying out an obviously unlawful detention or bringing a person to criminal liability, etc.

“Illegal actions (inaction) for which a person received a bribe (Part 2 of Article 366) should be understood,” states paragraph 9 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, “as actions (inaction) performed by that person using their official powers, but in the absence of the grounds or conditions provided for by law for their performance (falsification of evidence in a criminal case, entering information that does not correspond to reality into documents, etc.).”

In the meaning of Part 2 of the Article under consideration, illegal actions should also include cases where the resolution of an issue falls within the prerogative of another person; where an official acts independently, although the action could only have been performed collectively or in agreement with another official or body; where the actions consist of failure to perform official duties; and where no one is entitled to perform such actions under any circumstances.

Receipt by an official of a bribe for using their official position to facilitate the commission by another official of illegal actions (inaction) in the course of their service must be classified under Part 2 of Article 366 of the Criminal Code.

A mere statement by a person of their intention to receive a bribe cannot be classified as an attempt to receive a bribe if no specific actions have been taken to implement that intention.

However, a promise or proposal to transfer or accept illegal remuneration for performing official actions (inaction) must be regarded as the intentional creation of conditions for the commission of the relevant corruption-related crimes where the statement made by a person about their intention to give or receive a bribe was intended to be communicated to other persons for the purpose of giving valuables to them or receiving valuables from them, as well as where an agreement was reached between the persons concerned.

If, in such circumstances, the persons were unable to perform other actions aimed at implementing the promise or proposal due to circumstances beyond their control, the act should be classified as preparation for giving a bribe (under Part 1 of Article 24 and the relevant part of Article 368 of the Criminal Code) or preparation for receiving a bribe (under Part 1 of Article 24 and the relevant part of Article 366 of the Criminal Code).

Part 3 of Article 366 of the Criminal Code provides for the following qualifying circumstances of receiving a bribe when committed:

through extortion;

by a group of persons acting in prior collusion (Part 2 of Article 31 of the Criminal Code);

on a large scale (subparagraph 38) of Article 3 of the Criminal Code);

repeatedly (Part 1 of Article 12 of the Criminal Code).

Extortion of a bribe means a demand by a person for a bribe under the threat of committing actions that may cause damage to the legitimate interests of the bribe-giver or persons represented by them, or the intentional placing of the latter in such circumstances that they are compelled to give a bribe in order to prevent harmful consequences for their legally protected interests.

The actions of the perpetrator must be classified as receiving a bribe through extortion regardless of whether they had the ability to carry out the stated threat, provided that the person who transferred the bribe had grounds to genuinely fear that the threat would be carried out (for example, an investigator, knowing that a criminal case is subject to termination due to the absence of the elements of a crime in the act, threatens the accused with sending the case to the prosecutor with an indictment, and, after receiving a bribe, terminates the case on the grounds provided for by law). Receipt of a bribe should be classified in the same way where extortion was carried out, with the consent or on the instructions of the subject of the crime, by another person who is not the recipient of the bribe. The actions of the latter, where grounds exist, should be assessed as mediation in bribery under the relevant parts of Article 368 of the Criminal Code.

If, during the extortion of a bribe, an official commits actions (inaction) that cause substantial harm to the rights and legitimate interests of citizens or organizations or to the legally protected interests of society and the state, the act, where grounds exist, must additionally be classified under Articles 361 or 362 of the Criminal Code.

A bribe shall be considered received by a group of persons acting in prior collusion if two or more subjects of receiving a bribe participated in it and had previously agreed to commit the crime jointly. At the same time, the crime is considered completed from the moment the bribe is accepted by at least one of the subjects of receiving a bribe, regardless of whether the bribe-giver was aware that several subjects of receiving a bribe were participating.

For the actions of the said persons to be classified as committed by a group of persons acting in prior collusion, the amount received by each member of the group is irrelevant.

When a bribe is received by a group of persons acting in prior collusion, its amount is determined by the total value of the valuables and services received by all accomplices, while recovery for the benefit of the state of property unlawfully acquired must be based on the amount of money or the amount of proprietary benefit received by each bribe-recipient.

The actions of instigators should be classified as the commission of a crime by a group of persons acting in prior collusion under subparagraph 2) of Part 3 of Article 366 and subparagraph 1) of Part 3 of Article 367 of the Criminal Code if they instigate two or more persons to receive or give a bribe, since the objective side of these crimes provides for liability for giving or receiving a bribe by a group of persons acting in prior collusion.

A person who received a bribe without prior agreement with another person and subsequently transferred part of the amount received to that other person in the interests of the bribe-giver shall be liable for the cumulative offences of receiving and giving a bribe.

Actions by a person involving the receipt of a bribe in collusion with a person who is not a subject of receiving a bribe cannot be regarded as receiving a bribe by a group of persons acting in prior collusion. The actions of such persons who do not possess the characteristics of the special subject provided for in Article 366 of the Criminal Code shall, where grounds exist, be classified as mediation in bribery under Article 368 of the Criminal Code.

For an act to be classified under the criterion of receiving a bribe on a large scale, the amount of money, the value of securities, other property or benefits of a proprietary nature must exceed three thousand and amount to up to ten thousand monthly calculation indices (subparagraph 38) of Article 3 of the Criminal Code).

Repeated receipt of a bribe presupposes the commission of the same crime at least twice, provided that the limitation periods for criminal prosecution have not expired. At the same time, simultaneous receipt of a bribe from several persons, where a separate action is performed in the interests of each bribe-giver, should also be classified as repeated receipt of a bribe.

It should be noted that receiving a bribe in several instalments for performing or failing to perform actions that ensure the achievement of the result desired by the bribe-giver cannot be regarded as a crime committed repeatedly.

Repeated crimes should be distinguished from continuing receipt or giving of a bribe. Systematic receipt of bribes from the same bribe-giver for general patronage or connivance in service should be classified as a single continuing crime if the said actions were united by a single intent.

Repeated commission of a crime is also absent in cases where a bribe is received from several persons but in exchange for performing a single action (inaction) in the common interests of those persons.

Simultaneous receipt, including through an intermediary, of bribes from several persons cannot be classified as a single continuing crime if the official performs a specific action (inaction) in the interests of each of them. As noted earlier, the act committed under such circumstances constitutes repeated commission of crimes.

The performance by an official, in exchange for a bribe, of actions (inaction) that constitute an independent criminal offence is not covered by the objective side of the crime provided for in Article 366 of the Criminal Code. In such cases, the actions of the bribe-recipient should be classified as receiving a bribe for illegal official actions and under the relevant Article providing for liability for abuse of official authority, excess of power or official authority, official forgery, falsification of evidence, etc.

If, in exchange for the performance by an official of certain actions (inaction), property is transferred, property rights are granted or services of a proprietary nature are provided not personally to that official or their relatives and close persons, but knowingly to other persons, including legal entities, and the official, their relatives and close persons derive no proprietary benefit from this, the act cannot be classified as receiving a bribe (acceptance of sponsorship assistance to ensure the activities of an institution in exchange for the performance of official actions in favour of the persons providing such assistance).

Part 4 of Article 366 of the Criminal Code establishes criminal liability for receiving a bribe committed by a criminal group, as well as for receiving a bribe on an especially large scale.

The concept and characteristics of a criminal group are defined in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.

In addition to one or more officials, a criminal group may include persons who do not possess the characteristics of a special subject of receiving a bribe. If the receipt of a bribe is recognized as having been committed by a criminal group, the actions of all its members who participate in the preparation and commission of a single crime, regardless of whether they performed the functions of a perpetrator, organizer, instigator or accomplice, shall be classified under Part 4 of Article 366 of the Criminal Code on the basis of this qualifying circumstance, without reference to Article 28 of the Criminal Code.

The crime is recognized as completed from the moment the illegal remuneration is accepted by any member of the criminal group.

A bribe received on an especially large scale means a sum of money, the value of securities, other property or benefits of a proprietary nature exceeding ten thousand monthly calculation indices (subparagraph 3) of Article 3 of the Criminal Code).

In accordance with the Note to Article 366 of the Criminal Code, the receipt for the first time by a person specified in Part 1 of Article 366 of the Criminal Code of property, property rights or other proprietary benefits as a gift, in the absence of a prior agreement, for previously performed lawful actions (inaction), shall not constitute a crime by reason of insignificance and shall be subject to disciplinary or administrative proceedings, provided that the value of the gift does not exceed two monthly calculation indices. It follows that receiving a bribe in an amount even lower than two monthly calculation indices, but in exchange for performing illegal actions (inaction), constitutes the offence of receiving a bribe.

The act provided for in Part 1 of Article 366 of the Criminal Code belongs to the category of crimes of medium gravity.

The acts provided for in Parts 1-1, 2 and 3 of Article 366 of the Criminal Code belong to the category of serious crimes.

The act provided for in Part 4 of Article 366 of the Criminal Code belongs to the category of especially serious crimes.

**Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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