NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 13, 2001 No. 18

About practice of consideration by courts of criminal cases about the crimes connected with corruption

The correct application by courts of the legislation on criminal liability of officials for making of the crimes connected with corruption provides decrease in level of corruption, strengthens trust of society to the state, its institutes, increases overall performance of the courts and law enforcement agencies which are directly participating in anti-corruption activities.

Having discussed practice of consideration of criminal cases about the crimes connected with corruption, the plenary session of the Supreme Court of the Republic of Kazakhstan notes that courts of the republic generally correctly permit cases of the specified category and the guilty person imposes just punishments.

At the same time, courts make serious mistakes in legal qualification of actions of persons who committed the crimes connected with corruption there is no single practice in determination of his subjects, not on all cases requirements of the law on strictly individual approach to purpose of type and the amount of punishment to guilty persons are observed.

Courts not always deeply and comprehensively establish the reasons and conditions promoting making of the crimes connected with corruption do not issue private decrees in necessary cases.

For the purpose of elimination of the available shortcomings and further enhancement of judicial activities for cases of the specified category, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. Draw the attention of courts that the crimes connected with corruption do essential harm to the rights and interests of citizens, the organizations protected by the law, societies and the states therefore timely and correct consideration of these categories of cases is one of the most important conditions of real ensuring their legal security.

2. Corruption crimes the crimes provided in Item 5 of notes to article 307 of the Criminal Code of Kazakhstan (further - UK), are recognized cases of obtaining by persons who made them of the property benefits and benefits.

3. Person specified in Items 1-4 of notes to article 307 UK can be the subject of corruption crimes.

Courts should consider that also physical persons, for the purpose of bribery of persons stated above illegally the property benefits and benefits providing to them treat number of subjects of the crimes connected with corruption.

4. In case of determination of the subject of corruption crime whether he is the person authorized on accomplishment of the state functions, or equated to it by the official, or holding responsible state position it is necessary to proceed from the regulations established in Items 1-4 of notes to article 307 UK, article 3 of the Law of the Republic of Kazakhstan of July 2, 1998 "About fight against corruption".

5. Criminal prosecution authorities need to establish these, confirmatory functions and powers, and also the status of person according to which the solution of question of reference of act to the crimes connected with corruption is possible and to specify about it in procedural documents in case of the formulation of accusation.

Resolving question of guilt of persons, to courts follows with sufficient completeness to find out the questions concerning their office powers, use by them of the status and the related opportunities in the mercenary purposes.

6. In case of establishment about availability at person of organizational and administrative or administrative functions it is necessary to proceed from the provisions established in the note to article 3 of the Law of the Republic of Kazakhstan "About fight against corruption".

7. It is necessary to understand acceptance by person belonging to the subject of crime as receipt of the property benefits and benefits, the various services rendered gratuitously, subject to payment, or illegal use of the privileges granting the privilege to property, production of construction, repair work, provision sanatorium or tours, tickets, provision on favorable terms of loans or the credits, etc.

8. Courts should consider what according to Notes 2 to article 311 UK, is not crime owing to insignificance and is pursued in disciplinary or administrative procedure obtaining for the first time by the person authorized on accomplishment of the state functions or equated to it, property, the right to property or other property benefit as gift in the absence of the preliminary arrangement for earlier made lawful acts (failure to act) if the cost of gift did not exceed two monthly settlement indicators.

9. Excluded

10. Excluded

11. It is necessary to carry cases of making of these crimes by persons by racketing to especially dangerous manifestation of the crimes connected with corruption, in group of persons, and also for satisfaction of illegal interests of organized criminal groups, criminal societies for the purpose of obtaining from them material and other benefits and benefits.

12. Excluded

13. Courts need to carry out strictly provisions of the law on the differentiated approach to assignment of punishment to persons found guilty of the crimes connected with corruption.

14. In case of assignment of punishment guilty courts need to discuss in each case question of application of punishment in the form of prohibition to be engaged in certain activities or to hold certain positions.

Courts should mean that punishment in the form of deprivation of the right to hold certain position or to be engaged in certain activities (part 1 of article 41 UK) can be appointed not only that which borrows (held) such positions in public service or in local government bodies, but also and to other convicts who are found guilty of crime execution, connected with corruption, though did not hold such positions.

15. When punishment in the form of deprivation of the right to hold certain position or to be engaged in certain activities is specified in the sanction of article of the Criminal code as the punishment which is subject to obligatory application along with other types of punishment, its non-use can take place only in the presence of conditions, stipulated in Article 55 UK, with obligatory specifying in sentence of motives of the made decision.

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