Commentary on Article 253. Commercial Bribery of the Criminal Code of the Republic of Kazakhstan
1. The unlawful transfer of money, securities or other property to a person performing managerial functions in a commercial or other organization, as well as the unlawful provision of services of a property-related nature to such a person, in exchange for the use of their official position, as well as for general patronage or connivance in the performance of their duties in the interests of the person making the bribe, —
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or 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.
2. The same acts committed repeatedly, by a group of persons acting pursuant to a prior conspiracy, or on a large scale, —
shall be punishable by a fine ranging from thirty to forty times the amount of money transferred or the value of the property transferred, or imprisonment for a term of seven to twelve years, with confiscation of property.
3. The acts provided for in parts one or two of this Article, if committed by a criminal group or on an especially large scale, —
shall be punishable by a fine ranging from forty to fifty times the amount of money transferred or the value of the property transferred, or imprisonment for a term of ten to fifteen years, with confiscation of property.
4. The unlawful receipt by a person performing managerial functions in a commercial or other organization of money, securities or other property, as well as the use of services of a property-related nature, in exchange for the use of their official position, as well as for general patronage or connivance in the performance of their duties in the interests of the person making the bribe, —
shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or 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 deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years.
5. The acts provided for in part four of this Article, if they:
- are committed by a group of persons pursuant to a prior conspiracy;
- are committed repeatedly;
- are accompanied by extortion;
- are committed on a large scale, —
shall be punishable by a fine ranging from sixty to seventy times the amount of money transferred or the value of the property transferred, or imprisonment for a term of seven to twelve years, with confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
6. The acts provided for in parts four or five of this Article, if committed by a criminal group or on an especially large scale, —
shall be punishable by a fine ranging from seventy to eighty times the amount of money transferred or the value of the property transferred, or imprisonment for a term of ten to fifteen years, with confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.
Notes.
A person who has committed the acts provided for in parts one or two of this Article shall be exempt from criminal liability if that person was subjected to extortion or voluntarily reported the commercial bribery to a law enforcement or special state body.
The transfer or receipt of property, the provision of services of a property-related nature, or the use of such services as a gift or reward, in the absence of a prior agreement, for previously performed lawful actions, shall not constitute a crime by virtue of insignificance and shall be subject to disciplinary or administrative proceedings, provided that the value of the property or services does not exceed two monthly calculation indices.
The public danger of the unlawful transfer and receipt of remuneration by a person performing managerial functions in commercial and other organizations lies in undermining confidence in the system of economic activity based on fair competition.
The object of commercial bribery is the normal operation of commercial and other organizations that are not state bodies or local self-government bodies.
Where the unlawful receipt of the subject of commercial bribery is accompanied by extortion, the additional object is the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state.
The concept of commercial and other organizations is set out in the commentary on the crime provided for in Article 250 of the Criminal Code, “Abuse of Authority”.
The subject matter of the crime may include money, securities, other property, as well as services of a property-related nature.
Money includes not only the national currency but also foreign currency, as well as payment documents denominated in foreign currency.
Securities include any documents that, in accordance with the prescribed form and mandatory details, certify property rights, the exercise or transfer of which is possible only upon their presentation (bonds, checks, bills of exchange, shares, etc.).
Property includes items having material value. This includes both movable and immovable property.
Services of a property-related nature are services that, under certain circumstances, are subject to payment but are provided free of charge in the particular case to a person performing managerial functions in commercial and other organizations. Such services include apartment, house or car repairs; construction of summer houses and cottages; rental of premises; opening accounts in Kazakhstani and foreign banks; cashing out funds; and other actions that give rise to property rights or create material benefits.
From the objective side, commercial bribery provides for two independent elements of a crime as its forms:
unlawful transfer of remuneration — the basic and aggravated elements (parts 1, 2 and 3);
unlawful receipt of remuneration — the basic and aggravated elements (parts 4, 5 and 6).
These two similar acts are covered by the general term “commercial bribery”.
The objective elements of the crime provided for in part 1 of the commented Article are constituted by:
the transfer of money, securities or other property to a person performing managerial functions in a commercial or other organization;
the provision of services of a property-related nature to a person performing managerial functions in a commercial or other organization;
the unlawfulness of the specified actions;
the commission of the specified actions in exchange for the use by that person of their official position, as well as for general patronage or connivance in the performance of their duties in the interests of the person making the bribe.
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 benefits free of charge (car repairs, provision of construction materials, payment of 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, or clearly do not correspond to the nature of the activities of its management body, or are directed against the legitimate interests of the commercial or other organization.
The use of official position means the exercise or exceeding of one's powers contrary to the interests of the service and in favor of the person making the bribe.
Patronage means protection or support provided to the person making the bribe.
Connivance should be understood as a lenient attitude toward unlawful or impermissible actions.
General patronage or connivance in the performance of official duties may be expressed through actions or refraining from actions that fall within the managerial functions of the perpetrator, in the interests of the person making the bribe.
Paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, “On the Practice of Consideration of Certain Corruption Crimes”, states that general patronage in the performance of official duties may be manifested, in particular, in the unjustified appointment of a subordinate, including in violation of the established procedure, to a higher position, in including that person in the list of individuals nominated for incentive payments, awards, etc.
Connivance in the performance of official duties includes the consent of an official of a supervisory body not to apply the measures of liability within their powers when a violation committed by the bribe-giver is identified, etc.
Although the Supreme Court of the Republic of Kazakhstan provides explanations of these concepts in relation to bribery, in terms of their substance they are also applicable to Article 253 of the Criminal Code.
Liability for commercial bribery arises regardless of when the person performing managerial functions in a commercial or other organization receives the remuneration — before or after performing (or failing to perform) official actions in favor of the person transferring the subject of the bribe — and regardless of whether such actions (inaction) were previously conditioned by the bribe or by an agreement with the person performing managerial functions in a commercial or other organization to transfer the subject of the bribe in exchange for their performance.
Commercial bribery also exists where the subject of the bribe is transferred to the perpetrator's relatives or close associates, provided that the transfer is made with the perpetrator's consent, or where the perpetrator did not object to it and used their official powers in favor of the person providing the subject of the bribe.
A bribe cannot be recognized as a gift, since the subject of commercial bribery is always transferred in exchange for something (an action or omission in the interests of the person giving it, general patronage or connivance), whereas liability for a gift (a donation agreement) is provided for in Article 509 of the Civil Code of the Republic of Kazakhstan.
The crime is considered completed from the moment the person transfers at least part of the remuneration or provides at least part of the services of a property-related nature; therefore, the occurrence of socially dangerous consequences is not required.
If the subject of commercial bribery is the unlawful provision of services of a property-related nature, the crime is considered completed from the beginning of the performance, with the consent of the person performing managerial functions in a commercial or other organization, of actions directly aimed at acquiring property benefits for that person (for example, from the moment a debt acknowledgment is destroyed or returned, property or the right thereto is transferred to another person in satisfaction of the obligations of the bribe recipient, or repair work begins at a knowingly understated price).
If a person refuses to accept the subject of commercial bribery, the actions of the person directly aimed at transferring it are subject to qualification as an attempt to commit the crime provided for in part 3 of Article 24 and the relevant part of Article 253 of the Criminal Code (parts 1 or 2).
The subject of the crime in the case of unlawful transfer of remuneration is general — a sane person who has reached the age of 16 at the time of committing the crime.
From the subjective side, the crime under consideration is committed only with direct intent and a special purpose. The person is aware that they are unlawfully transferring material valuables or providing property-related services to a person performing managerial functions in these organizations and pursues the purpose of inducing that person to perform certain actions (or omissions) in their interests in connection with the official position held by that person.
Part 2 of Article 253 of the Criminal Code includes the following qualifying features: 1) repeated commission; 2) commission by a group of persons pursuant to a prior conspiracy; 3) commission on a large scale.
Repeated commission in the context of commercial bribery means committing the same crime at least twice, provided that the limitation periods for bringing criminal charges have not expired.
In addition, the transfer of remuneration at different times to the same person in exchange for the performance of independent actions (or omissions) in the interests of the person making the transfer also constitutes repeated commission. However, in this case, such actions must not fall within the elements of a continuing crime, that is, the commission of several unlawful transfers of remuneration to the same person, which are covered by a single intent and purpose and collectively constitute one act of commercial bribery.
The simultaneous transfer of unlawful remuneration to several persons in exchange for the performance of different actions (or omissions) in the interests of the person making the transfer also falls under the feature of “repeated commission”.
Commercial bribery of one individual by several persons should be regarded as repeated where the manager performs (or fails to perform) separate actions in the interests of each of them.
A group of persons acting pursuant to a prior conspiracy, in relation to the transfer of the subject of commercial bribery, can exist only where the transfer is carried out by two or more perpetrators. In this case, it does not matter whether the subject of the bribe was transferred jointly or by only one of them, including through an intermediary, or whether the bribe was transferred for one action in the common interests of the persons involved or for different actions in the interests of each person providing the subject of the bribe.
Under subparagraph 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan, a large amount in the context of commercial bribery means an amount of money, the value of securities or other property, or a property benefit exceeding five hundred monthly calculation indices.
Part 3 of Article 253 of the Criminal Code provides for especially qualifying features of the transfer of unlawful remuneration. These include the commission of commercial bribery: 1) by a criminal group; 2) on an especially large scale.
When qualifying the actions of perpetrators on the grounds of commercial bribery committed by a criminal group, one should be guided by part 3 of Article 31 of the Criminal Code. The concept of a criminal group is set out in subparagraph 24) of Article 3 of the Criminal Code.
Under subparagraph 3) of Article 3 of the Criminal Code, an especially large amount in the context of commercial bribery means an amount of money, the value of securities or other property, or a property benefit exceeding two thousand monthly calculation indices.
Part 4 of Article 253 of the Criminal Code establishes liability for the unlawful receipt by a person performing managerial functions in a commercial or other organization of money, securities or other property, as well as for the use of services of a property-related nature, in exchange for the use of their official position, as well as for general patronage or connivance in the performance of their duties in the interests of the person making the bribe.
This form of commercial bribery consists of several alternative actions: 1) unlawful receipt of money, securities or other property; 2) unlawful use of services of a property-related nature in exchange for the use of one's official position; 3) general patronage or connivance in the performance of official duties in the interests of the person making the bribe.
It should be noted that the actions (or omissions) that a person performing managerial functions is required to undertake in the interests of the person providing the subject of the bribe may be either lawful or unlawful. Lawful actions should be considered those that the person is authorized to perform in accordance with their assigned official powers, while unlawful actions are unauthorized actions that do not arise from their official powers, or actions containing elements of criminal or other offenses.
Unlawful receipt of money, securities and other property means their acceptance by the perpetrator, regardless of the time or method of receipt (directly, through third parties, by mail, etc.).
Unlawful use of services of a property-related nature means the use by the perpetrator of the property benefits or advantages provided to them, regardless of whether they used them fully or partially.
Unlawful receipt of remuneration is considered completed from the moment the person performing managerial functions accepts at least part of the money, securities or other property, or at least partially accepts services of a property-related nature, or begins to provide general patronage or connivance in the performance of official duties.
The law does not make the establishment of criminal liability for this crime dependent on the fact that the person who received the remuneration actually performs the corresponding actions in return. Accordingly, the performance of an action (or omission) in the interests of the person making the transfer does not affect the moment when the crime is considered completed.
If a person performing managerial functions in a commercial or other organization refuses to accept the subject of commercial bribery, the person transferring the subject of the bribe must bear criminal liability under part 3 of Article 24 and the relevant part of Article 253 of the Criminal Code for attempted commission of the specified crime.
If the agreed transfer of valuables does not take place for reasons beyond the control of the persons attempting to transfer or receive the subject of the bribe, their actions must be qualified as an attempt to receive or give unlawful remuneration.
If a person performing managerial functions in a commercial or other organization receives money, securities or other material valuables allegedly for performing an action (or omission) that they are unable to carry out due to the absence of the relevant official powers, the act, provided that there was intent to acquire the specified valuables, should be qualified as fraud under Article 190 of the Criminal Code.
In such cases, the owner of the valuables bears criminal liability for attempted commercial bribery if the transfer of the valuables was intended to induce the person to perform the desired action (or omission).
If a person receives money or other valuables from someone allegedly on behalf of a person performing managerial functions in a commercial or other organization, as the subject of commercial bribery, but, without intending to transfer them, appropriates them, the act should be qualified as fraud.
In such cases, the actions of the owner of the valuables are subject to qualification as an attempt to commit commercial bribery. In this regard, it does not matter whether the specific person performing managerial functions in a commercial or other organization to whom the unlawful remuneration was intended to be transferred was identified by name.
From the subjective side, this crime is characterized by direct intent. The perpetrator is aware that they are unlawfully receiving the subject of commercial bribery and wishes to receive it. The motive for the crime does not affect the legal qualification of the act.
The subject of the crime is analogous to the subject of the crime provided for in Article 250 of the Criminal Code. The concept and characteristics of such a person are set out in the commentary to Article 250 of the Criminal Code.
A person who does not perform managerial functions in a commercial or other organization cannot be held criminally liable as the principal perpetrator of this crime when unlawful receipt of its subject matter is involved. In such cases, that person may only be held liable as an organizer, instigator or accomplice to the crime.
The qualifying features provided for in part 5 of Article 253 of the Criminal Code include the receipt of unlawful remuneration: 1) by a group of persons acting pursuant to a prior conspiracy; 2) repeatedly; 3) accompanied by extortion; 4) on a large scale.
For a group of persons acting pursuant to a prior conspiracy to exist, at least two persons performing managerial functions in a commercial or other organization must have agreed in advance, before the commencement of the objective elements of the crime, to commit it jointly by each member of the group accepting unlawful remuneration for performing (or failing to perform) actions in the course of their duties in favor of the person transferring the unlawful remuneration.
In such cases, the crime should be considered completed from the moment unlawful remuneration in the context of commercial bribery is accepted by at least one of the persons belonging to the group. It does not matter what amount was received by each member of the group, or whether the person transferring the subject of the bribe was aware that several persons performing managerial functions in a commercial or other organization were involved in receiving it.
A person performing managerial functions in a commercial or other organization who instructs an employee subordinate to them in the course of service to transfer money, securities or other property to a person performing managerial functions in a commercial or other organization in order to achieve the desired action (or omission) in the interests of their organization shall be held liable under parts 1 or 2 of Article 253 of the Criminal Code as the principal perpetrator of the crime, while the employee who carries out the instruction shall be held liable as an accomplice to commercial bribery.
The concepts of “repeated commission” and “large amount” are discussed in the commentary to part 2 of Article 253 of the Criminal Code.
Extortion as a method of obtaining valuables or services means either a direct demand for unlawful remuneration under threat of causing harm to the rights and legitimate interests of the person to whom the demand is addressed, or the intentional placing of that person in a position in which they are compelled to pay unlawful remuneration in order to avoid harm to their rights and legitimate interests.
Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, “On the Practice of Consideration of Certain Corruption Crimes”, provides a definition of “extortion” in relation to Article 366 of the Criminal Code. This definition may also be applied to the commented Article. Paragraph 11 of the Regulatory Resolution states:
“Extortion means a demand by a person for a bribe under threat of taking actions that may cause damage to the legitimate interests of the bribe-giver or the persons represented by them, or the deliberate creation of such conditions under which the person is compelled to give a bribe in order to prevent harmful consequences for legally protected interests.
Under subparagraph 1) of part three of Article 366 of the Criminal Code (receiving a bribe through extortion), the actions of the perpetrator must be qualified 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. Receiving a bribe must also be qualified in the same manner where the extortion, with the consent or on the instructions of the subject of the crime, was carried out by another person who was not the recipient of the bribe.”
Commercial bribery accompanied by extortion is considered completed from the moment the demand to transfer unlawful remuneration is made.
This position is consistent with paragraph 3 of part 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006, “On Judicial Practice in Cases of Extortion”, which states:
“Extortion is considered completed from the moment property claims accompanied by corresponding threats are presented to the victim, regardless of whether the perpetrator achieved the desired objective, received the demanded property or rights to property, or induced the victim to perform actions of a property-related nature.”
Part 6 of Article 253 of the Criminal Code establishes liability for the receipt of unlawful remuneration in commercial bribery committed by a criminal group or on an especially large scale.
The features of a criminal group and an especially large amount in the context of commercial bribery are set out in the commentary to part 3 of Article 253 of the Criminal Code.
The note to Article 253 of the Criminal Code specifies the conditions for exempting a guilty person from criminal liability for committing commercial bribery.
According to paragraph 1 of the note to Article 253 of the Criminal Code, a person who has committed the acts provided for in parts 1 or 2 of the commented Article shall be exempt from criminal liability if that person was subjected to extortion or voluntarily reported the commercial bribery to a law enforcement or special state body.
According to Article 3 of the Law of the Republic of Kazakhstan dated January 6, 2011, “On Law Enforcement Service”, law enforcement bodies include the prosecutor's offices, internal affairs bodies, the state fire service, the anti-corruption service and the economic investigation service.
In accordance with Article 3 of the Law of the Republic of Kazakhstan dated February 13, 2012, “On Special State Bodies of the Republic of Kazakhstan”, special state bodies include the national security bodies, the authorized body in the field of foreign intelligence, and the State Security Service of the Republic of Kazakhstan.
Thus, reporting commercial bribery to other state bodies or officials does not constitute grounds for exemption from criminal liability for commercial bribery. However, it may be recognized as a mitigating circumstance.
Paragraph 2 of the note to Article 253 of the Criminal Code establishes that the transfer or receipt of property, the provision of services of a property-related nature, or the use of such services as a gift or reward, in the absence of a prior agreement, for previously performed lawful actions, shall not constitute a crime by virtue of insignificance and shall be subject to disciplinary or administrative proceedings, provided that the value of the property or services does not exceed two monthly calculation indices.
In this regard, the necessary conditions for exemption from criminal liability are:
the absence of a prior agreement for previously performed lawful actions;
the value of the property or services of a property-related nature must not exceed two monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time the crime was committed.
Commercial bribery should be distinguished from related elements of crimes provided for in Articles 366 and 367 of the Criminal Code (receiving and giving bribes). The main distinction must be made based on the subject of the crime.
Under Article 253 of the Criminal Code, the subject of the crime is a person performing managerial functions in a commercial or other organization, whereas under Articles 366 and 367 of the Criminal Code, it is a person authorized to perform state functions or a person equated to such a person, employees of law enforcement bodies, a person holding a responsible public position, a person holding a responsible public position in a law enforcement body, a judge or an official.
The distinction is also made based on the object of the criminal infringement. The object of the crime provided for in Article 253 of the Criminal Code is the normal operation of commercial and other organizations, whereas the object of the crimes provided for in Articles 366 and 367 of the Criminal Code is the normal operation of the public service and state administration bodies.
Paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, “On the Practice of Consideration of Certain Corruption Crimes”, notes that bribery differs from commercial bribery by the subject of the crime. Therefore, the unlawful receipt of money or other valuables by a person performing managerial functions in a commercial or other organization cannot give rise to liability for bribery. Such acts must be qualified under Article 253 of the Criminal Code.
The acts provided for in parts 1 and 4 of Article 253 of the Criminal Code are classified as crimes of medium gravity.
The acts provided for in parts 2 and 5 of Article 253 of the Criminal Code are classified as serious crimes.
The acts provided for in parts 3 and 6 of Article 253 of the Criminal Code are classified as especially serious crimes.
In conclusion to the commentary on Article 253 of the Criminal Code, I would like to note the following.
First, the unlawful transfer of money, securities or other property to a person performing managerial functions in a commercial or other organization, as well as the unlawful provision of services of a property-related nature to such a person in exchange for the use of their official position, as well as for general patronage or connivance in the performance of their duties in the interests of the person making the bribe, is punishable by imprisonment for a term of up to five years (part 1 of Article 253 of the Criminal Code). The giving of a bribe (part 1 of Article 367 of the Criminal Code) to 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, is likewise punishable by imprisonment for a term of up to five years, despite the fact that Article 367 of the Criminal Code relates to corruption crimes.
Second, with regard to the large and especially large amounts provided for in parts 2 and 3 of Article 253 of the Criminal Code, the legislator, pursuant to subparagraphs 38) and 3) of Article 3 of the Criminal Code, classifies as such an amount of money, the value of securities or other property, or a property benefit exceeding five hundred and two thousand monthly calculation indices, respectively. Meanwhile, for giving a bribe (parts 3 and 4 of Article 367 of the Criminal Code), pursuant to the above-mentioned subparagraphs of Article 3 of the Criminal Code, the legislator classifies as large and especially large amounts those exceeding three thousand and up to ten thousand, and those exceeding ten thousand monthly calculation indices, respectively.
However, the terms of imprisonment are the same in both cases. It follows that the legislator has established stricter conditions for bringing a person to criminal liability for the aggravated forms of the offenses under Article 253 of the Criminal Code (parts 2 and 3) than for giving a bribe (parts 3 and 4 of Article 367 of the Criminal Code), even though Article 367 of the Criminal Code relates to corruption crimes.
The terms of imprisonment are also the same for the unlawful receipt by a person performing managerial functions in a commercial or other organization of money, securities or other property, as well as for the use of services of a property-related nature in exchange for the use of their official position, as well as for general patronage or connivance in the performance of their duties in the interests of the person making the bribe (part 4 of Article 253 of the Criminal Code), and for receiving a bribe (part 1 of Article 355 of the Criminal Code).
The terms of imprisonment also coincide in respect of the qualifying and especially qualifying features provided for in parts 5 and 6 of Article 253 of the Criminal Code and parts 3 and 4 of Article 366 of the Criminal Code, even though Article 366 of the Criminal Code relates to corruption crimes.
Moreover, stricter conditions for bringing a person to criminal liability have been established under parts 5 and 6 of Article 253 of the Criminal Code than under parts 3 and 4 of Article 366 of the Criminal Code, that is, as in the case of parts 2 and 3 of Article 253 of the Criminal Code.
Such an approach by the legislator is inconsistent with the state's policy aimed at strengthening liability for corruption crimes. It makes no sense. In my opinion, the legislator is obliged to reconsider these illogical approaches.
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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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