Commentary on Article 417. Provocation of Commercial Bribery or Bribery under the Criminal Code of the Republic of Kazakhstan

1. Provocation of commercial bribery, that is, an attempt to transfer money, property benefits and advantages to a person performing managerial functions in commercial or other organizations without that person's consent, for the purpose of artificially creating evidence of the commission of a criminal offence or blackmailing that person, —

shall be punishable by a fine in an amount of up to six thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to six years, or imprisonment for the same term.

2. Provocation of bribery, that is, the same act committed against a person authorized to perform state functions, or a person equated to such a person, or an official, or a person holding a responsible public position, —

shall be punishable by imprisonment for a term of three to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.

The public danger of provocation of commercial bribery or bribery lies in the fact that such conduct undermines the authority of the state in the field of justice and the business reputation of victims, artificially creates grounds for initiating pre-trial proceedings, thereby diverting the resources and personnel of pre-trial investigation bodies from procedural activities in cases involving criminal offences that have actually been committed, and grossly violates the principles of justice.

The object of the crime is the normal functioning of the bodies of justice, as well as the procedure established by criminal procedure legislation for the collection, examination and assessment of evidence, and the rights and legitimate interests of individuals.

Only persons performing managerial functions in commercial and other organizations may be victims.

Pursuant to subparagraph 19) of Article 3 of the Criminal Code, a person performing managerial functions in a commercial or other organization is a person who, on a permanent, temporary or special-authority basis, performs organizational and administrative or administrative and economic duties in an organization that is not a state body, a local self-government body, or an organization in which the state's ownership interest exceeds fifty percent.

The element of permanence in this provision means that the performance of organizational and administrative or administrative and economic duties has been assigned to a person by an appropriate employer's act in connection with the performance of functional duties at a specific place of employment in a commercial organization (an appointment order, an order distributing duties, a shareholder's decision, minutes of a meeting of the board of directors, etc.).

Temporary performance of organizational and administrative or administrative and economic functions means that a person is assigned to perform such duties for a specified period of time due to various objective or subjective circumstances (the temporary absence of the regular employee, etc.).

The performance of the specified functions in a commercial or other organization under special authority must be established by a specific organizational act under which the guilty person performs organizational and administrative or administrative and economic duties.

Pursuant to paragraph 1 of Article 34 of the Civil Code, a commercial organization is a legal entity whose principal purpose of activity is to generate income. A commercial organization may be established only in the form of a state enterprise, business partnership, joint-stock company or production cooperative (paragraph 2 of Article 34 of the Civil Code).

Other organizations may include other non-profit organizations. Pursuant to Article 2 of the Law of the Republic of Kazakhstan dated January 16, 2001, “On Non-Profit Organizations,” a non-profit organization is a legal entity that does not have the generation of income as its principal purpose and does not distribute the net income received among its participants. In accordance with Article 4 of this Law, non-profit organizations may be established to achieve social, cultural, scientific, educational, charitable and managerial objectives; to protect the rights and legitimate interests of citizens and organizations; to resolve disputes and conflicts; to satisfy the spiritual and other needs of citizens; to protect public health and the environment; to develop physical culture and sports; to provide legal assistance; as well as for other purposes aimed at ensuring public benefits and the benefits of their members (participants).

An obligatory element is the subject matter of the crime, namely money, securities, other property or services of a property-related nature.

Money as the subject matter of this crime may be denominated both in the national currency of the Republic of Kazakhstan and in foreign currency.

Property benefits and advantages should be understood as the provision of services of a property-related nature, for example, the provision of paid services free of charge or for partial payment, the provision of vouchers for holidays or medical treatment, payment for travel, communication services, construction and repair work, etc. Actions and services of a non-property nature cannot constitute the subject matter of the crime in question.

The objective aspect is characterized by actions and is expressed in an attempt to transfer money, property benefits and advantages to a person performing managerial functions in commercial or other organizations.

Transfer means the handing over by the perpetrator of money, securities or other property to a person performing managerial functions.

The provision of services of a property-related nature should be understood as actions involving the provision of property-related benefits and advantages free of charge (repairing a motor vehicle, providing construction materials, paying a debt, etc.).

The unlawfulness of the transfer or receipt of property means that such actions are either prohibited by legislation or the organization's constituent documents, or, even if not prohibited, are capable of causing harm to the organization's interests, clearly do not correspond to the nature of the activities of its management body, or are directed against the administration of justice. They are aimed at artificially creating evidence that an innocent person has committed a crime or at blackmailing that person. Specifically, such actions may take the form of secretly leaving money or securities, for example, in the office of a person performing managerial functions in a commercial or other organization; transferring the same items to relatives of such persons allegedly with their consent; knowingly understating the cost of a service rendered without the victim's knowledge; sending a money transfer to that person by post, etc.

An obligatory element of the objective aspect of the crime is the absence of the recipient's prior consent to accept the subject matter of the bribe, while the subject of the crime merely creates the appearance of its acceptance.

By its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment the acts themselves are committed, that is, from the moment an attempt is made to transfer money, securities or other property to the specified persons, as well as from the moment the provision of services of a property-related nature begins. Such an attempt may be expressed, for example, in placing money or securities among documents, in a desk drawer, etc.; sending them by post to the address of the person being provoked; handing them over to that person's relatives allegedly with that person's consent, and so forth.

A mere verbal offer to accept the subject matter of commercial bribery should not be regarded as an attempt to transfer money or other material assets or to provide services of a property-related nature.

The subjective aspect of the crime in question is characterized exclusively by direct intent. The person is aware of the socially dangerous nature of the provocation of commercial bribery being committed, understands that the person performing managerial functions in a commercial or other organization is unaware of the aforementioned actions and has not consented to them, foresees and desires the commission of an attempt to transfer money, property benefits and advantages.

A specific feature of the subjective aspect is the special purpose — artificially creating evidence or blackmail.

Artificial creation of evidence means the deliberate formation of factual data for use as incriminating evidence of the commission of crimes.

Blackmail means intimidating the victim with exposure for receiving a bribe in order to obtain the desired result.

The motives for the crime may vary: revenge, envy, greed, the desire to get rid of a demanding and honest manager, etc. They do not affect the legal classification of the crime but may be taken into account when imposing a sentence.

The subject of the crime is a physically capable and sane individual who has reached the age of 16.

Part 2 of Article 417 of the Criminal Code provides for liability for provocation of bribery committed against a person authorized to perform state functions, or a person equated to such a person, or an official, or a person holding a responsible public position.

The public danger of provocation of bribery lies in the fact that such actions undermine the authority of the state in the field of justice and damage the business reputation of the victim by creating the possibility of bringing an innocent public servant to criminal liability.

The object of the crime is public relations governing the normal functioning of the justice system, the interests of public service, and the rights and legitimate interests of citizens.

The victims of this crime may be a person authorized to perform state functions; a person equated to a person authorized to perform state functions; an official; or a person holding a responsible public position.

The definitions of a person authorized to perform state functions; a person equated to a person authorized to perform state functions; an official; and a person holding a responsible public position are provided in subparagraphs 27), 28), 26) and 16) of Article 3 of the Criminal Code, respectively.

The subject matter of the crime in question may be money, securities, other property or services of a property-related nature.

The objective aspect is expressed in an act consisting of an attempt to transfer money, securities or other property, or to provide services of a property-related nature, without the consent of a person authorized to perform state functions, or a person equated to such a person, or an official, or a person holding a responsible public position.

An obligatory element of the corpus delicti is the absence of the recipient's consent to accept the subject matter of the bribe. The absence of consent means that the person authorized to perform state functions, or the person equated to such a person, or the official, or the person holding a responsible public position, has not expressed in any form an intention to receive a bribe. This element distinguishes the act in question from giving a bribe (Article 367 of the Criminal Code), since the latter is committed with the mutual consent of the bribe-giver and the bribe-taker.

Paragraph 3 of clause 24 of 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,” emphasizes that provocative and instigating actions by criminal prosecution authorities, consisting of transferring a bribe to a person specified in Part 1 of Article 366 of the Criminal Code, where consent was obtained as a result of inducing that person to receive the subject matter of the bribe under circumstances indicating that, without the intervention of the criminal prosecution authorities, that person's intent to receive a bribe would not have arisen and the crime would not have been committed, exclude the criminality of the conduct of the person against whom such activities were carried out.

Pursuant to clause 25 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, 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 the 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 consent to accept the bribe.

Provocation of a bribe shall be considered a completed crime from the moment an attempt is made to transfer property or provide services of a property-related 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.

Provocation of commercial bribery or bribery should be distinguished from giving a bribe and commercial bribery: when transferring the subject matter of a bribe or commercial bribery to a particular person, the perpetrator does not expect that person to perform any actions or refrain from performing certain actions in the perpetrator's favor. The perpetrator commits the acts specified in Article 417 of the Criminal Code for the purpose of artificially creating evidence that the person has received a bribe or committed commercial bribery, or for the purpose of blackmailing the victim.

The crime under consideration also differs from falsification of evidence provided for in Article 416 of the Criminal Code in terms of the subject of the crime. The corpus delicti of falsification of evidence requires the presence of special-subject characteristics: a person participating in a civil case or their representative (Part 1 of Article 416); an official authorized to draw up records of administrative offences (Part 2 of Article 416); an employee of a body carrying out operational-search activities, intelligence activities or covert investigative actions (Part 3 of Article 416); as well as a person conducting pre-trial investigations in a criminal case, a prosecutor, a specialist participating in procedural actions, or defence counsel in a criminal case (Part 4 of Article 416). As noted above, the subject of the crime under Article 417 of the Criminal Code may be any sane person who has reached the age of 16, including an operational officer of law enforcement and special agencies, an inquiry officer or an investigator.

The crime under consideration differs from incitement to receive a bribe in that, in the case of incitement, a person persuades another person to receive a bribe. When committing this crime, the person does not merely make an offer to receive a bribe but takes actual steps to ensure that the victim accepts the offer and receives the subject matter of the bribe, that is, attempts to transfer the subject matter of a bribe or commercial bribery for the purpose of artificially creating incriminating evidence or blackmail.

Furthermore, the corpus delicti provided for in Article 417 of the Criminal Code also covers an attempt to transfer the subject matter of commercial bribery to a person performing managerial functions in commercial or other organizations.

The subjective aspect of the crime is characterized by direct intent and a specific purpose — artificially creating evidence of a crime or blackmail.

The person is aware that they are transferring money, securities or other property, or providing services of a property-related nature, to a person authorized to perform state functions, or a person equated to such a person, or an official, or a person holding a responsible public position, without that person's consent; foresees the possibility or inevitability of socially dangerous consequences and desires the occurrence of such consequences.

Artificial creation of evidence means the deliberate formation of factual data for use as incriminating evidence of the commission of crimes.

Blackmail means creating a situation advantageous to oneself that makes it possible to threaten the victim with exposure for receiving a bribe in order to obtain the desired result.

The subject of this crime may be a sane individual who has reached the age of 16.

The act provided for in Part 1 of Article 417 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in Part 2 of Article 417 of the Criminal Code is classified as a serious crime.

Commentary to the Criminal Code of the Republic of Kazakhstan (2021), 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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