Commentary on Article 253. Commercial Bribery of the Criminal Code of the Republic of Kazakhstan
1. The unlawful transfer to a person performing managerial functions in a commercial or other organization of money, securities or other property, as well as the unlawful provision to such person of services of a property-related nature, for the use of their official position, as well as for general patronage or connivance in the course of service 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 labour in the same amount, or engagement in 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, or by a group of persons acting in prior conspiracy, or on a large scale, —
shall be punishable by a fine in the amount of 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 in the amount of 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, for the use of their official position, as well as for general patronage or connivance in the course of service 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 labour in the same amount, or engagement in 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 acting in prior conspiracy;
- are committed repeatedly;
- are associated with extortion;
- are committed on a large scale, —
shall be punishable by a fine in the amount of 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 in the amount of 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 they were subjected to extortion or if they 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 remuneration, 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 if 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 order 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 bribery is associated with extortion, the additional object shall be 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 provided when examining the crime stipulated by 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 certify property rights in compliance with the established form and mandatory details, the exercise or transfer of which is possible only upon their presentation (bonds, cheques, 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, in the present case, are provided free of charge to a person performing managerial functions in commercial and other organizations: renovation of apartments and houses, repair of cars, 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 constituent forms:
unlawful transfer of remuneration — the basic and qualified elements of the crime (Parts 1, 2 and 3);
unlawful receipt of remuneration — the basic and qualified elements of the crime (Parts 4, 5 and 6).
These two similar acts are covered by the general term “commercial bribery”.
The objective side of the elements of the crime provided for in Part 1 of the commented Article consists of:
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 person using their official position, as well as providing general patronage or connivance in the course of service, 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 (repair of a vehicle, 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 interests of the organization, or clearly do not correspond to the nature of the activities of the management body, or are directed against the legitimate interests of a 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 favour of the person making the bribe.
Patronage means protection or support provided to the person making the bribe.
Connivance should be understood as a tolerant attitude towards unlawful and impermissible actions.
General patronage or connivance in the course of service may be expressed through the performance of actions or refraining from performing 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 27 November 2015, “On the Practice of Consideration of Certain Corruption-Related Crimes”, states that general patronage in the course of service may manifest itself, in particular, in the unjustified appointment of a subordinate, including in violation of the established procedure, to a higher position, inclusion of such person in the list of persons nominated for incentive payments, awards, etc.
Connivance in the course of service includes the consent of an official of a supervisory body not to apply the liability measures within their powers when a violation committed by the bribe-giver is detected, etc.
Despite the fact that 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 whether the person performing managerial functions in a commercial or other organization receives the remuneration before or after performing actions (omissions) in the course of service in favour of the person transferring the subject of bribery, and also regardless of whether the specified actions (omissions) were predetermined by the bribery or by an agreement with the person performing managerial functions in a commercial or other organization to transfer the subject of bribery in exchange for performing them.
Bribery also takes place when the subject of bribery is transferred to the perpetrator's relatives or close persons, provided that this occurs with their consent or where they did not object to it and used their official powers in favour of the person providing the subject of bribery.
Bribery cannot be recognized as a gift, since the subject of bribery is always transferred in exchange for something (an action or omission in the interests of the giver, general patronage or connivance), whereas liability for a gift (a gift 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 consists of the unlawful provision of services of a property-related nature, the crime is considered completed from the moment the actions directly aimed at acquiring property benefits by the person performing managerial functions in a commercial or other organization begin to be carried out with their consent (for example, from the moment a promissory note acknowledging a debt is destroyed or returned, property or rights thereto are transferred to another person in settlement of the obligations of the recipient of the bribe, or repair work begins at a knowingly understated price). If the person refuses to accept the subject of commercial bribery, the actions of the person directly aimed at transferring it shall be classified 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 (Part 1 or 2).
The subject of the crime in the case of unlawful transfer of remuneration is a general subject — 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 assets 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 (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 acting in prior conspiracy; 3) commission on a large scale.
Repeated commission in commercial bribery presupposes the commission of 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 for the performance of independent actions (omissions) in the interests of the giver also constitutes the feature of repeated commission. However, in this case, the specified actions must not fall under the features of a continuing crime, that is, several unlawful transfers of remuneration to the same person must not be covered by a single intent and purpose and constitute, as a whole, one commercial bribery offence. The simultaneous transfer of unlawful remuneration to several persons for the performance of different actions (omissions) in the interests of the giver also falls under the feature of “repeated commission”.
Commercial bribery by one person involving several individuals should be regarded as repeated if the manager performs (or fails to perform) separate actions in the interests of each of them.
A group of persons acting in prior conspiracy — with regard to the transfer of the subject of bribery, this may occur only when the transfer is carried out by two or more perpetrators. In this case, it does not matter whether the subject of bribery was transferred jointly or by only one of them, including through an intermediary, or whether the bribery was provided for one action in their common interests or for different actions in the interests of each of the persons providing the subject of bribery.
According to Subparagraph 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan, a large amount in commercial bribery means an amount of money or the value of securities, other property or benefits of a property-related nature exceeding five hundred monthly calculation indices.
Part 3 of Article 253 of the Criminal Code provides for particularly qualifying features of the unlawful transfer of remuneration. These include the commission of commercial bribery: 1) by a criminal group; 2) on an especially large scale.
When qualifying the actions of the perpetrators on the grounds of commercial bribery committed by a criminal group, Part 3 of Article 31 of the Criminal Code should be followed. The concept of a criminal group is provided in Subparagraph 24) of Article 3 of the Criminal Code.
According to Subparagraph 3) of Article 3 of the Criminal Code, an especially large amount in commercial bribery means an amount of money or the value of securities, other property or benefits of a property-related nature 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 the use of services of a property-related nature, in exchange for using their official position, as well as for general patronage or connivance in the course of service in the interests of the person making the bribe.
This type of commercial bribery consists of a number of 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 course of service in the interests of the person making the bribe.
It should be noted that the actions (omissions) that a person performing managerial functions must carry out in the interests of the person providing the subject of bribery may be either lawful or unlawful. Lawful actions should be understood as those that the person is entitled to perform in accordance with the official powers assigned to them, whereas unlawful actions are actions that do not arise from their official powers or actions containing elements of criminal or other offences.
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 post, 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 in full or in part.
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 course of service.
The law does not link the occurrence of criminal liability for this crime to the fact that the person receiving the remuneration has performed reciprocal actions. Thus, the performance of an action (omission) in the interests of the giver 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 bribery shall bear criminal liability under Part 3 of Article 24 and the relevant part of Article 253 of the Criminal Code for an attempted commission of the specified crime.
If the agreed transfer of valuables does not take place for reasons beyond the control of the persons who attempted to transfer or receive the subject of bribery, their actions must be classified as an attempt to give or receive unlawful remuneration.
If a person performing managerial functions in a commercial or other organization receives money, securities and other material assets allegedly for the purpose of performing an action (omission) that they cannot carry out due to the absence of the relevant official powers, the act should be classified, where there is intent to acquire the specified assets, as fraud under Article 190 of the Criminal Code.
In such cases, the owner of the valuables shall bear criminal liability for attempted commercial bribery if the transfer of the valuables was intended to secure the performance of the desired action (omission) by the specified person.
If a person receives money or other valuables from someone allegedly for the purpose of transferring them to a person performing managerial functions in a commercial or other organization as the subject of commercial bribery and, without intending to do so, appropriates them, the act should be classified as fraud. In such cases, the actions of the owner of the valuables are subject to classification 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 bribery and wishes to receive it. The motive for the crime does not affect the legal classification of the act.
The subject 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 perpetrator of this crime when commercial bribery takes the form of unlawful receipt of its subject matter. In such cases, the person is liable only as an organizer, instigator or accomplice to this 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 in prior conspiracy; 2) repeatedly; 3) in conjunction with extortion; 4) on a large scale.
For a group of persons acting in 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 side of the crime, to commit it jointly by each member of the group accepting unlawful remuneration in exchange for each of them performing actions (omissions) in the course of service in favour of the person transferring the unlawful remuneration.
In such cases, the crime is considered completed from the moment unlawful remuneration is accepted in the course of commercial bribery by at least one of the persons belonging to the group. In this case, it does not matter what amount was received by each member of the group, nor whether the person transferring the subject of bribery 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 proposes to an employee subordinate to them in the course of service, for the purpose of achieving a desired action (omission) in the interests of their organization, to transfer money, securities or other property to a person performing managerial functions in a commercial or other organization, shall be held liable under Parts 1 or 2 of Article 253 of the Criminal Code as the perpetrator of the crime, while the employee who carries out the instruction shall be held liable as an accomplice to commercial bribery.
For the concepts of “repeated commission” and “large amount”, see 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 the threat of causing harm to the rights and legitimate interests of the person to whom the demand is addressed, or the deliberate placing of a person in a situation 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-Related Crimes” provides the concept of “extortion” in relation to Article 366 of the Criminal Code. This definition may also be applied to the Article under consideration. Paragraph 11 of the Regulatory Resolution states:
“Extortion means a demand by a person for a bribe under the threat of committing actions that may cause damage to the legitimate interests of the bribe-giver or persons represented by them, or the deliberate creation of 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 classified accordingly 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. The receipt of a bribe must also be classified in the same manner where 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 associated with extortion is considered completed from the moment the demand to transfer unlawful remuneration is made.
This position is consistent with Paragraph 1, third paragraph, of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 23 June 2006, “On Judicial Practice in Cases of Extortion”, which states:
“Extortion is considered completed from the moment property demands 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 receiving unlawful remuneration in commercial bribery when committed by a criminal group or on an especially large scale.
The features of a criminal group and an especially large amount in 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 they were subjected to extortion or if they 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 6 January 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 13 February 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, this 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 remuneration, 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 if 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 of commission of the crime.
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 principal distinction must be made on the basis of 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, the subject is a person authorized to perform state functions or a person equated to such a person, an employee of law enforcement bodies, a person holding a responsible public office, a person holding a responsible public office in a law enforcement body, a judge or an official.
The distinction is also made according to the object of the 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 27 November 2015, “On the Practice of Consideration of Certain Corruption-Related Crimes”, notes that bribery differs from commercial bribery according to 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 entail liability for bribery. Such acts must be classified 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 medium-gravity crimes.
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 particularly serious crimes.
In conclusion of the commentary to Article 253 of the Criminal Code, I would like to note the following.
Firstly, for the unlawful transfer to a person performing managerial functions in a commercial or other organization of money, securities or other property, as well as the unlawful provision of services of a property-related nature to such person for the use of their official position, as well as for general patronage or connivance in the course of service in the interests of the person making the bribe, imprisonment for a term of up to five years is provided (Part 1 of Article 253 of the Criminal Code). The same term of imprisonment of up to five years is provided for giving 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 office, or an official, as well as an official of a foreign state or an international organization, despite the fact that Article 367 of the Criminal Code relates to corruption-related crimes.
Secondly, the legislator classifies as large and especially large amounts under Parts 2 and 3 of Article 253 of the Criminal Code, in accordance with Subparagraphs 38) and 3) of Article 3 of the Criminal Code, amounts of money or the value of securities, other property or benefits of a property-related nature exceeding five hundred and two thousand monthly calculation indices, respectively, whereas large and especially large amounts for giving a bribe (Parts 3 and 4 of Article 367 of the Criminal Code), in accordance with the above-mentioned subparagraphs of Article 3 of the Criminal Code, are amounts exceeding three thousand and up to ten thousand, and 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 qualified forms of Article 253 of the Criminal Code (Parts 2 and 3) than for giving a bribe under Parts 3 and 4 of Article 367 of the Criminal Code, although Article 367 of the Criminal Code relates to corruption-related crimes.
The terms of imprisonment also coincide in cases involving 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 for the use of their official position, as well as for general patronage or connivance in the course of service in the interests of the person making the bribe (Part 4 of Article 253 of the Criminal Code), and receiving a bribe (Part 1 of Article 355 of the Criminal Code). The terms of imprisonment also coincide in cases involving the qualifying and particularly 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, although Article 366 of the Criminal Code relates to corruption-related 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 policy aimed at strengthening liability for corruption-related crimes. There is no logic in it. In my opinion, the legislator is obliged to reconsider its illogical approaches.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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