Commentary on Article 224. Receipt of Illegal Remuneration of the Criminal Code of the Republic of Kazakhstan

1. The unlawful receipt by an employee of a state body or state organization who is not a person authorized to perform state functions or a person equated thereto, as well as by an employee of a non-state organization who does not perform managerial functions, of material remuneration, benefits or services of a property-related nature for performing work or providing services falling within the scope of his or her duties, where such act is accompanied by extortion, —

shall be punishable by deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or by a fine in an amount of up to one hundred monthly calculation indices or in the amount of the salary or other income of the convicted person for a period of up to one month, or by community service for a period of up to one hundred and twenty hours, or by corrective labor for a period of up to one year, or by arrest for a period of up to three months.

2. The same act, committed repeatedly or involving the receipt of remuneration in a large amount, —

shall be punishable by deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years, or by corrective labor for a period of one to two years, or by arrest for a period of three to six months, or by imprisonment for a period of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

Note. The receipt of illegal remuneration shall be deemed to have been committed in a large amount if the amount received by the person or the value of the services provided to him or her exceeds three hundred monthly calculation indices.

The public danger of the crime lies in the fact that, as a result of its commission, the procedure for providing services to the population established by law is violated and significant harm is caused to the victims.

The object of the crime is public relations concerning the lawful activities of state and non-state organizations.

The subject matter of the crime is defined by the legislator as material remuneration, benefits or services of a property-related nature. Material remuneration may include not only money and valuables, but also household goods, everyday items and food products. Benefits or services of a property-related nature should include services subject to mandatory payment.

The objective side of the crime is expressed in active actions, namely, in the unlawful receipt by an employee of a state body or state organization who is not a person authorized to perform state functions or a person equated thereto, as well as by an employee of a non-state organization who does not perform managerial functions, of material remuneration, benefits or services of a property-related nature for performing work or providing services falling within the scope of his or her duties, where such act is accompanied by extortion. In order to establish the objective side, it is necessary to determine whether the work performed or the services provided, in connection with which remuneration was demanded, fell within the scope of the official duties of the perpetrator.

Illegal remuneration should be understood as the receipt by a person of remuneration in excess of the payment for the work performed, in the form of money, goods, alcoholic beverages, etc., as well as benefits or services of a property-related nature (for example, receiving concert tickets, vouchers to a sanatorium, purchasing goods at preferential prices, etc.). For the purpose of determining liability under this Article, the time at which the remuneration was received—before or after the performance of the work or provision of the services desired by the victim—is irrelevant.

Extortion of illegal remuneration should be understood as the deliberate placing of a citizen in circumstances under which he or she is compelled to pay such remuneration in order to prevent adverse consequences for his or her legitimate interests. In particular, this may involve an employee in the public service sector taking actions that impede the performance of work or the provision of services in accordance with the established procedure and within the prescribed time limits, or an unjustified refusal to perform the official duties assigned to him or her, etc.

The demand for remuneration (extortion) may be expressed not only openly, but also in a disguised form, for example, when the perpetrator artificially creates or uses certain obstacles as a pretext for obtaining remuneration, directly refuses or deliberately delays the performance of work or the provision of services, that is, places a citizen in a situation in which he or she is compelled to provide remuneration.

The receipt of illegal remuneration at the initiative of the customer, in the absence of extortion, does not constitute a crime under Article 224 of the Criminal Code of the Republic of Kazakhstan. The crime under consideration shall be deemed completed from the moment material remuneration, benefits or services of a property-related nature are received. At the same time, extortion is a mandatory condition for criminal liability to arise.

The subject of the crime is a special subject: an employee of a state body or state organization who is not a person authorized to perform state functions or a person equated thereto, as well as an employee of a non-state organization who does not perform managerial functions.

In paragraph 16 of the aforementioned Regulatory Resolution of 18 June 2004, the Supreme Court of the Republic of Kazakhstan notes that employees in the public service sector who have received illegal remuneration for performing work or providing services falling within the scope of their official duties are subject to criminal liability under Article 224 of the Criminal Code of the Republic of Kazakhstan. In this regard, it is irrelevant whether the employee performed his or her duties on a permanent, temporary or special-authority basis, during working hours or at another time. In such cases, it is necessary to determine whether the performance of the work or the provision of the service for which remuneration was received fell within the scope of those duties.

The subjective side of the crime is characterized by guilt in the form of direct intent, that is, the person is aware that he or she is receiving illegal remuneration through extortion, foresees the possibility and inevitability of these consequences and desires their occurrence.

The qualifying features of the crime under consideration are:

• repeated commission;
• a large amount of illegal remuneration.

The feature of “repeated commission” is identical to the feature examined in the analysis of the crime provided for under Article 193 of the Criminal Code of the Republic of Kazakhstan.

In accordance with the Note to Article 224 of the Criminal Code of the Republic of Kazakhstan, the receipt of illegal remuneration shall be deemed to have been committed in a large amount if the amount received by the person or the value of the services provided to him or her exceeds 300 monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time the crime was committed.

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

Date of amendment of the act: 02.08.2007

Date of adoption of the act: 02.08.2007

Place of adoption: NONE

Body that adopted the act: 180000000000

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

Status of the act: new

Sphere of legal relations: 028000000000

Form of the act: COMMENTARY

Legal force: 1900

Language of the act: Russian

Preserve the Russian source structure more exactlyKeep all terminology consistently literal

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