Commentary on Article 247. Receipt of Illegal Remuneration of the Criminal Code of the Republic of Kazakhstan

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

shall be punishable by a fine in the amount of up to eighty monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days.

2. The same act committed repeatedly —

shall be punishable by a fine in the amount of up to one hundred and twenty monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to thirty days.

3. Acts provided for in Parts One or Two of this Article, involving the receipt of remuneration in a large amount or associated with extortion, —

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 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 or without confiscation of property, and 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 by a person specified in Part One of this Article of material remuneration, benefits or services of a property-related nature as a gift, in the absence of a prior agreement, for work previously performed or services previously provided that fall within the scope of that person's duties, shall not constitute a criminal offense due to its insignificance and shall be subject to disciplinary proceedings, provided that the value of the gift did not exceed five monthly calculation indices.

The public danger of the criminal offense (Parts One and Two constitute criminal misdemeanors, while Part Three constitutes a crime) lies in the fact that it corrupts public consciousness not only in terms of relations between citizens and state authorities, local self-government bodies and non-state organizations, but also from within, at the everyday level, as if “legalizing” in the eyes of the population unlawful levies imposed by various categories of persons, including employees of state bodies, educational and medical institutions, enterprises, local government bodies, and others.

The object of the offense is the normal functioning of the system of state and non-state organizations.

From the objective side, the criminal misdemeanor is characterized by the unlawful receipt of material remuneration, benefits or services of a property-related nature by an employee of a state body or state organization who is not a person authorized to perform state functions or a person equated to such a person, as well as by an employee of a non-state organization who does not perform managerial functions, for performing work or providing services falling within the scope of that employee's duties.

Illegal remuneration should be understood as material benefits or advantages of a property-related nature received by a specific category of subjects of criminal liability in an amount that does not correspond to the work performed (services provided), or in violation of the established procedure or prohibition on receiving such benefits. These include, for example, the receipt of vouchers to sanatoriums, resort and recreational areas, tickets to entertainment competitions and other events, etc.

When deciding the issue of bringing the perpetrator to criminal liability, the time at which such remuneration was received, whether before or after the necessary work was performed or services were provided, is irrelevant.

The work performed or services provided for which remuneration was received must fall within the scope of the recipient's official duties, which may be determined by charters, instructions, regulations and employment contracts. In this regard, it is irrelevant whether the employee performed their duties on a permanent basis, temporarily or under special authorization.

By its legal construction, the criminal misdemeanor is a formal offense. The act shall be deemed completed from the moment material remuneration, benefits or services of a property-related nature are received.

From the subjective side, the criminal misdemeanor is committed with direct intent. The person is aware that they are unlawfully receiving material remuneration, benefits or services of a property-related nature for performing work or providing services falling within the scope of their duties, foresees the possibility or inevitability of the occurrence of consequences and desires their occurrence.

The subject of the criminal misdemeanor is a sane natural person who has attained the age of sixteen.

According to Paragraph 33 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020, “On Certain Issues of Application by Courts of Legislation in Cases Involving Criminal Offenses in the Sphere of Economic Activity,” the subject of the criminal offense provided for in Article 247 of the Criminal Code is an employee of a state body or state organization who is not a person authorized to perform state functions or a person equated to such a person, as well as an employee of a non-state organization who does not perform managerial functions. In this regard, it is irrelevant whether the employee performed their duties on a permanent basis, temporarily or under special authorization, during working hours or at any other time. In each case, courts must establish whether the performance of the work or provision of the service for which the illegal remuneration was received fell within the scope of that person's duties.

The criminal offense established by the Article under consideration differs from the crimes provided for in Parts 4–6 of Article 253 and Article 366 of the Criminal Code primarily in terms of the subject.

The aggravated form of the criminal misdemeanor under consideration is its commission repeatedly (Part 2 of Article 247). Repeated receipt of illegal remuneration presupposes the commission of the same criminal offense at least two or more times, provided that the limitation periods for bringing the person to criminal liability have not expired.

The receipt of illegal remuneration from several persons, where a separate action is performed in the interests of each person providing the remuneration, should be classified as repeated receipt of illegal remuneration.

The receipt of illegal remuneration in several installments for actions (inaction) that ensure the achievement of the result desired by the person providing the remuneration cannot be regarded as repeated commission of the offense. Such actions should be considered a continuing criminal offense.

The particularly aggravated form (Part 3 of Article 247 of the Criminal Code of the Republic of Kazakhstan) is recognized as the commission of acts provided for in Parts One or Two of Article 247 of the Criminal Code of the Republic of Kazakhstan that involve the receipt of remuneration in a large amount or are associated with extortion. A large amount in relation to the offense under consideration, pursuant to Subparagraph 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan, means the amount of money received by a person or the value of services provided to that person exceeding three hundred monthly calculation indices.

Extortion means a person's demand for illegal remuneration under the threat of committing actions that may cause damage to the lawful interests of the person providing the remuneration, or the deliberate creation of conditions under which that person is compelled to provide illegal remuneration in order to prevent harmful consequences for legally protected interests. The elements of extortion are present regardless of whether the person had the ability to carry out the stated threat, provided that the person who transferred the illegal remuneration had grounds to genuinely fear that the threat would be carried out.

According to Paragraph 35 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, income obtained as a result of committing a criminal offense in the sphere of economic activity is subject to recovery from the guilty person and conversion into state revenue as the result of unjust enrichment acquired through criminal means.

In cases involving the receipt of illegal remuneration (Article 247 of the Criminal Code), money and other property received by the guilty person as remuneration shall be returned to their owner where the latter mistakenly believed that they had paid for work or services that did not fall within the scope of the convicted person's duties.

Money and other valuables recognized as material evidence shall be returned to their owner if, prior to transferring them, the owner reported to the relevant authorities that illegal remuneration had been extorted from them.

According to the Note to Article 247 of the Criminal Code, the receipt by a person specified in Part One of this Article of material remuneration, benefits or services of a property-related nature as a gift, in the absence of a prior agreement, for work previously performed or services previously provided that fall within the scope of that person's duties, shall not constitute a criminal offense due to its insignificance and shall be subject to disciplinary proceedings, provided that the value of the gift did not exceed five monthly calculation indices.

The acts provided for in Parts One and Two of Article 247 of the Criminal Code are classified as criminal misdemeanors.

The act provided for in Part Three of Article 247 of the Criminal Code is classified as a crime of minor gravity.

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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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