of November 27, 2015 No. 8
About practice of consideration of some corruption crimes
The Republic of Kazakhstan ratified the Convention of the United Nations against corruption (The law of the Republic of Kazakhstan of May 4, 2008 No. 31-IV) and, based on rules of international law, expressed intention to develop and apply the effective legal measures directed to the prevention of corruption and fight against it.
The international approaches (standards) characterizing activities in the field of the prevention of corruption and fight against it are reflected in the Convention of the United Nations against the corruption accepted on October 31, 2003 (New York). The regulations containing in it are predetermined by the problems and threats generated by corruption, negative impact of corruption on functioning of all public and legal institutions and the relations. They are aimed at providing sustainable development of the state, its political, economic and social systems, interests of homeland security.
The legal basis of anti-corruption in the Republic of Kazakhstan the Constitution of the Republic of Kazakhstan, the Criminal Code of Kazakhstan (further - UK) constitute, the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), the Law of the Republic of Kazakhstan of November 18, 2015 No. 410-V ZRK "About Anti-corruption" (further - the Law "About Anti-corruption"), the Presidential decree of the Republic of Kazakhstan of December 26, 2014 No. 986 "About the anti-corruption strategy of the Republic of Kazakhstan for 2015-2025" and other regulatory legal acts providing the main directions and specific measures of counteraction and fight against corruption.
For the purpose of uniform and correct application in court practice of some regulations of the legislation of the Republic of Kazakhstan on corruption crimes the plenary session of the Supreme Court of the Republic of Kazakhstan
1. In case of determination what crimes belong to corruption, courts need to be guided by Item 29) of article 3 UK.
As subjects of these crimes it is necessary to recognize also those persons who, though had no powers for accomplishment for the benefit of the briber of the corresponding actions, but owing to the official capacity could take measures to making of these actions by other persons.
Other physical persons who were accomplices in making of corruption crimes or for the purpose of bribery of persons stated above illegally provided them the property benefits and benefits, or promoted it, bear responsibility for corruption crimes.
3. Persons recognized by those international treaties of the Republic of Kazakhstan in the field of anti-corruption treat the foreign officials or the international organization specified in Articles 366, 367 UK.
The foreign official any designated or elected person holding any position in legislative, executive, administrative or judicial authority of foreign state and any person performing any public function for foreign state, including for public department, the company is recognized.
The official of the international organization the international civil servant or any person authorized by such organization is recognized to be effective from her name.
4. For the correct solution of question whether act belongs to corruption crimes, and the made his faces to the subjects of these crimes, bodies conducting criminal procedure it is necessary to be guided by legislative and other regulatory legal acts, including the official capacities and instructions determining circle and content of office powers, and also the official status of person brought to trial.
In case of determination of the status of the subject of corruption crime, namely: whether he is the person authorized on accomplishment of the state functions, or equated to it by person, the official, or holding responsible state position it is necessary to proceed from regulations of UK specified in Item 2 presents of the normative resolution.
For establishment of availability at person of managerial, organizational and administrative or administrative functions or the status of the public agent it is necessary to proceed from contents of Items 5), 9), 37) of article 3 UK and the note of article 11 of the Law "About Anti-corruption".
It is also necessary to find out the questions concerning use by person brought to trial, its status, office powers and the related opportunities in case of crime execution. It is necessary to understand such actions which it has the right and (or) shall make within the office competence as the actions of the official which are included into office power.
The above-stated data on person who committed crime need to be specified in procedural documents of pre-judicial production and court resolutions in case of determination of qualification of its actions.
5. It is necessary to understand acceptance by person belonging to the subject of crime as receipt of the property benefits and benefits not only for himself, but also for other persons or the organizations rendered gratuitously, which are subject to payment of various services or illegal use of privileges, implementation of construction, repair work, provision sanatorium or tours, tickets, loans or the credits on favorable terms, etc.
6. By hearing of cases about bribery it is necessary to find out circle of actions, for accomplishment or failure to carry out of which for the benefit of the briber person gets bribe. At the same time it must be kept in mind that responsibility for bribery comes irrespective of time of receipt of bribe by person - to or after making of actions or failure to act and also irrespective of whether the bribe was in advance caused, whether any operations for the benefit of the briber are performed.
Actions of guilty persons shall be recognized giving or taking of a bribe and when conditions of receipt of values, services, the rights to property or privileges specially do not make a reservation, but participants of crime at the same time realize that the bribe is handed for the purpose of satisfaction of interests of the briber.
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