Commentary on Article 368. Mediation in Bribery under the Criminal Code of the Republic of Kazakhstan

1. Mediation in bribery, that is, facilitating the achievement or implementation of an agreement between a bribe-giver and a bribe-taker concerning the giving and receiving of a bribe, –

shall be punishable by a fine in the amount of tenfold to twentyfold the amount of the bribe, or by imprisonment for a term of up to three years, with or without confiscation of property, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

2. The same act, committed repeatedly, by a criminal group, or by a person using his or her official position, –

shall be punishable by a fine in the amount of twentyfold to thirtyfold the amount of the bribe, or by 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.

The public danger of the crime under consideration lies in the fact that it creates conditions for the giving and receiving of bribes as the most dangerous forms of manifestation of corruption.

The object of the crime is the interests of public service and public administration.

The subject matter of the crime under consideration is analogous to the subject matter of the crime of receiving a bribe (see the commentary to Article 366 of the Criminal Code).

The objective element of mediation in bribery is expressed in the commission of the following acts:

facilitating the achievement of an agreement between the bribe-taker and the bribe-giver concerning the giving and receiving of a bribe;

implementing such an agreement.

Mediation in bribery may be expressed in both forms or in only one of them.

Facilitating the achievement of an agreement between the bribe-taker and the bribe-giver concerning the giving and receiving of a bribe is expressed in conducting relevant negotiations between the aforementioned persons; arranging a meeting between the bribe-taker and the bribe-giver; participating in the discussion of the terms of the agreement concerning the giving and receiving of a bribe, and other actions.

Facilitation, as a rule, is expressed in the direct transfer of the subject matter of the bribe from the bribe-giver to the bribe-taker.

The difference between the specified forms of mediation in bribery lies in the moment at which the crime is completed. The first form of mediation shall be considered completed from the moment an agreement between the bribe-giver and the bribe-taker concerning the giving and receiving of a bribe is reached with the assistance of the intermediary. In this case, it is irrelevant whether the giving and receiving of the bribe subsequently took place or not. As for the second form of mediation in bribery, it shall be considered a completed crime only if the agreement concerning the receipt and giving of the bribe has been implemented, that is, from the moment the bribe is received or given.

Other forms of criminal assistance shall be regarded as complicity in giving or receiving a bribe.

The crime shall be considered completed at the moment the bribe is received and given. The bribe may be transferred by the intermediary or directly by the bribe-giver. In the latter case, criminal liability of the intermediary requires that the agreement between the bribe-taker and the bribe-giver was reached through the intermediary, that is, the bribe-giver merely transfers the bribe to the bribe-taker, being aware of the nature of the arrangement reached by the intermediary.

It is necessary to distinguish mediation in bribery from complicity in giving or receiving a bribe in the form of aiding and abetting.

Under Part 1 of Article 368 of the Criminal Code, an intermediary shall be recognized as a person who facilitated the achievement of an agreement between the bribe-taker and the bribe-giver concerning the giving and receiving of a bribe or the implementation of such an agreement. For this purpose, the intermediary, as a rule, establishes contact with both the bribe-giver and the bribe-taker, informs them of each other's intentions and willingness to commit the crime, as well as the conditions under which it is to be committed.

At the same time, facilitating the achievement of an agreement concerning a bribe may be expressed in conducting relevant negotiations between the bribe-taker and the bribe-giver, arranging meetings between them, and participating in the discussion of the terms of the agreement concerning the giving and receiving of a bribe. Facilitating the implementation of an agreement concerning a bribe is characterized by the performance of actions aimed at ensuring that the bribe-giver and the bribe-taker fulfil their agreement on the direct transfer of the subject matter of the bribe to its intended recipient.

An aider, on the other hand, like any other accomplice, acts on behalf of one of the parties to the bribery. In accordance with Part 5 of Article 28 of the Criminal Code, an aider is a person who, through advice, instructions, provision of information, creation of conditions for the transfer and receipt of a bribe, or removal of obstacles thereto, facilitates the commission of a crime, as well as a person who has previously promised to conceal the perpetrators, the instruments or other means of committing a criminal offence, or the traces of such an act, thereby ensuring the achievement of the objectives pursued by the bribe-giver or the bribe-taker.

An organizer, instigator or aider who has performed the actions specified, respectively, in Parts 3, 4 or 5 of Article 28 of the Criminal Code and has simultaneously performed intermediary functions shall be held liable for complicity in giving or receiving a bribe. When qualifying the actions of an accomplice, it is necessary to take into account the direction of his or her intent and establish in whose interests, on whose side, and at whose initiative – that of the bribe-giver or the bribe-taker – the person acted. Depending on the circumstances established, the actions of the organizer, instigator or aider shall be qualified under the relevant parts of Articles 366 or 367 of the Criminal Code, with reference to Article 28 of the Criminal Code. In this case, additional qualification under Article 368 of the Criminal Code, which provides for liability for mediation in bribery, is not required.

The acceptance of the subject matter of a bribe by the person who is the subject of this crime for its subsequent transfer to an official does not yet constitute a completed offence of mediation in bribery. If a person who has not managed to transfer the bribe to the official is detained, the act shall be qualified as an attempted mediation in bribery (Part 3 of Article 24 and the relevant part of Article 368 of the Criminal Code).

At the same time, in my opinion, if, under an agreement between the bribe-taker and the intermediary, the money and other valuables received from the bribe-giver remain with the intermediary, the crime shall be considered completed from the moment the intermediary receives the valuables. In such cases, mediation in the form of direct transfer of a bribe shall be qualified as a completed crime provided that at least part of the bribe has actually been transferred to the person for whom it was intended.

When distinguishing mediation in bribery in the form of direct transfer of a bribe on behalf of the bribe-giver from the giving of a bribe to an official for actions (inaction) in the interests of an individual or legal entity represented by the bribe-giver, it should be established that the intermediary transfers the bribe acting on behalf of and at the expense of the property of the bribe-giver. Unlike the intermediary, the bribe-giver who transfers a bribe for official actions (inaction) in the interests of the person represented by him or her uses as a bribe property belonging to him or her or unlawfully acquired by him or her.

Mediation in bribery should be distinguished from so-called sham mediation, in which a person receives material valuables from someone under the pretext of transferring them to the recipient of the bribe as a bribe and, without intending to do so, appropriates them for himself or herself. Paragraph 20 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Consideration of Certain Corruption Crimes” correctly emphasizes that 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 shall be qualified as fraud. Where, for the purpose of taking possession of the valuables, such a person induces the bribe-giver to give a bribe, his or her actions must additionally be qualified as instigating the giving of a bribe, while the actions of the bribe-giver in such cases shall be qualified as attempted giving of a bribe. In this regard, it is irrelevant whether the specific person to whom the bribe was intended to be transferred was identified.

The acquisition of valuables through fraud shall be considered completed from the moment the person has a real opportunity to use or dispose of the valuables transferred at his or her own discretion.

The receipt by a person of funds or other valuables through fraud under the control of criminal prosecution authorities within the framework of an operational-search measure or covert investigative action, using funds allocated from the state budget for these purposes or other funds not belonging to the victim, shall be regarded as attempted fraud.

The transfer by an intermediary of property belonging to another person that is knowingly stolen shall be qualified cumulatively as mediation in bribery and complicity in theft, provided that the intermediary knew in advance that the subject matter of the bribe would be stolen by the bribe-giver.

An official or other person who organized the giving or receiving of a bribe and simultaneously performed intermediary functions shall be held liable for complicity in giving or receiving a bribe. In this regard, the issue of qualifying the actions of the accomplice must be resolved taking into account the direction of his or her intent, based on whose interests, on whose side, and at whose initiative the person acted. In such cases, additional qualification under the article providing for liability for mediation in bribery is not required.

The subjective element of mediation in bribery is characterized by direct intent. The person realizes that he or she is engaging in mediation in bribery, foresees that his or her actions violate the law, and desires this outcome. The motive for this crime is the pursuit of benefits and advantages arising from the ability to persuade, friendly relations, official position, and similar circumstances. The motive does not affect the legal qualification of the crime.

The subject of mediation in bribery may be any person who has reached the age of 16.

Part 2 of Article 368 of the Criminal Code provides for the qualifying circumstances of mediation in bribery: repeated commission; commission by a criminal group; commission by a person using his or her official position.

The element of repeated commission presupposes the commission of mediation in bribery at least two or more times, provided that the limitation period for criminal prosecution has not expired in respect of any of these offences.

Simultaneous mediation in the giving of a bribe to one official by several bribe-givers, or mediation in the receipt of a bribe by several officials from one bribe-giver, shall be regarded as repeated commission if, in the interests of each bribe-giver, the bribe-taker performs (or fails to perform) separate actions, or each official acts in a specific manner in the interests of the bribe-giver, and the intermediary is aware of these circumstances.

It should be noted that mediation in bribery carried out in several stages for the performance or non-performance of actions ensuring the achievement of the result desired by the bribe-giver, as well as the giving of a bribe to a group of bribe-taking persons who committed the crime pursuant to a prior conspiracy between themselves, or mediation under the aforementioned circumstances, cannot be regarded as a crime committed repeatedly. Such actions should be considered a continuing crime.

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.

Mediation in bribery shall be recognized as committed through the use of one's official position if it is обусловлено by the intermediary's performance of his or her official duties or by the opportunities associated with such position.

The act provided for in Part 1 of Article 368 of the Criminal Code is classified as a minor crime.

The act provided for in Part 2 of Article 368 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, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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 the 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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