3.1 General restrictions and duties

Legal status of various categories of officials is stipulated by the laws/regulations that govern activities of the respective bodies/persons. In particular, the legal status of GOs is set forth in the Law on State Service as well as in the Law on Combating Corruption, which cover their responsibilities, rights, limitations and liability.

One of the anticorruption responsibilities of a GO (as well as of the persons who are candidates for a public office or for an office associated with the performance of public or equivalent functions) and their spouses is annual submission of an income statement including income received outside Kazakhstan, covering this person’s movable property, bank deposits, securities and other belongings that are subject to taxation. This requirement, however, does not cover legal relations associated with the acquisition into ownership of dwellings and construction materials for construction of dwellings in the Republic of Kazakhstan.¹

3.1.1 Corruption-related Infringements

The following acts of the persons listed in clauses 2.2.1-2.2.2 of section 2 of this Overview are regarded as infringements creating conditions for corruption (selectively)²:

1. Unlawful interference with the activities of other governmental agencies or organizations;
2. Use of one’s official powers in resolving issues associated with the satisfaction of material interests of the above persons or their close relatives or in-laws;
3. Granting unlawful benefit to individuals or legal entities when preparing and making decisions;
4. Rendering to anyone any assistance not provided for by the legislation in carrying out entrepreneurial activities or other activities associated with the derivation of income;
5. Expressly hindering individuals or legal entities in the exercise of their rights or lawful interests;
6. Delegation of powers to perform State regulation of entrepreneurial activities to individuals or legal entities carrying out such activities, as well as powers to control such activities;
7. Transfer of State control and supervision functions to organizations, which do not have the status of a governmental agency.

It should also be noted that, as a general prohibition, Corruption Infringers (except for maslikhat deputies who do not carry out their activities on a permanent or full-time basis and persons listed in clauses 2.2.2(b) and 2.2.2(d) of sub-section 2.2 of section 2 of this Overview) are not allowed to:

• Engage in other paid activities, except for pedagogical, scientific or other creative activities;
• Engage in entrepreneurial activities, independently participate in management of a commercial organization, unless the management or participation is included in his official duties in accordance with the legislation; assist in the satisfaction of material interests of organizations or individuals by way of using of one’s official powers for personal gain.

3.1.2 Corruption offences associated with unlawful obtainment of benefits and advantages

The following acts of the persons listed in clauses 2.2.1-2.2.2 of section 2 of this Overview are regarded as corruption offences associated with unlawful material gain:

1. Acceptance of any undue compensation for performing one’s duty (money, services or other) from organizations or individuals, unless otherwise provided for by the legislation.

Money that appears on an account of a person authorized to perform State functions without this person’s knowledge must be transferred, within two weeks after it is discovered, to the national budget with submission of explanations to the relevant tax authority about the circumstances of receipt of such money.

2. Acceptance of gifts or services in connection with the performance of one’s duty from individuals, or from persons subordinate to them.

Gifts received without the person’s knowledge must be surrendered free-of-charge within seven days to the special State fund. Such person under the same circumstances must be paid by him/her by way of transfer of money to the national budget.

3. Acceptance of invitations to tourist, treatment-and-rehabilitation or other trips, inside the country or abroad, at the expense of individuals or legal entities, local or foreign, except for the trips as follows:

• at invitation from spouses or relatives, at their expense;
• at invitation of other individuals (with consent of a higher authority), if relations with such individuals do not conflict/compromise official activities of the invitees;
• done in accordance with the international treaties of the Republic of Kazakhstan or upon mutual agreement between the governmental agencies of the Republic of Kazakhstan and the governmental agencies of foreign states, at the expense of the relevant governmental agencies and/or international organizations;
• done upon consent of a higher officer or body for participation in scientific, sports, creative, professional or humanitarian events at the expense of organizations, including travel done within the framework of chartered activities of such organizations.

4. Use of benefits not provided for by the legislation in obtaining credits, loans, acquiring securities, immovable or other property.

Family members of a GO who is already convicted for corruption have no right to accept gifts or services, invitations to tourist, treatment-and-rehabilitation or other trips at the expense of individuals or legal entities, foreign or local, with which the said GO is connected by virtue of his official service. Any individual is expected to surrender within seven days the gifts received by his/her family members to the special State fund and compensate the cost of services unlawfully used by his family members by way of transferring relevant amount to the national budget.

3.2 Gifts and other benefits

3.2.1 Applied Prohibitions

Pursuant to the Law on Combating Corruption, acceptance of any compensation in the form of money, gifts, services or in other form for the performance or in connection with the performance of their duty by the persons listed in clauses 2.2.1-2.2.2 of section 2 of this Overview is regarded as corruption offences.³ It should also be noted that the previously existing norm of the said Law, which allowed for acceptance of “symbolic signs of attention and symbolic souvenirs in accordance with the generally accepted norms of politeness and hospitality or in the conduct of protocol and other official events,” was deleted in 2007 by the Law No.308-III of the Republic of Kazakhstan, On Introduction of Amendments into Certain Legislative Acts of the Republic of Kazakhstan on the Issues of Improvement of Fight Against Corruption, dated 21 July 2007, i.e., this norm was deleted in order to strengthen and improve the fight against corruption.

Although the Kazakh legislation stipulates prohibition of gifts, it does not contain the definitions of "gifts" or "business gifts." We can assume that the definition of "gift" may mean any material valuables.

anticorruption regulations use a term "unlawful benefits and advantages " (Rus. – «противоправные блага и преимущества»), which may include money, gifts, services, traveling at the cost of the third parties or benefits and advantages in any other forms, including use of benefits not provided for by the legislation in obtaining credits, loans, acquiring securities, real estate or other property⁴.

While the basic criterion of a corrupt= act is receiving or granting of an unlawful benefit in connection with the exercise of one’s official duty, the Law on Combating Corruption does not associate the use of benefits not provided for by the legislation in obtaining credits, loans, acquiring sec urities, immovable or other property with the exercise of one’s official powers.

3.2.2 Conflicting laws in Kazakh legislation

Article 509 of the Civil Code of the Republic of Kazakhstan contains a general rule according to which the following types of gifts are prohibited, except for ordinary gifts the value of which does not exceed the amount equal to ten monthly calculation indexes that are set annually by law for purposes of calculating of taxes, State levies, duties, fees, etc.

1. gifts on behalf of minors or legally disabled individuals made by their legal representatives;
2. gifts to employees of health, educational or social care institutions and other similar institutions by individuals staying at such institutions for treatment, care or education, or by spouses or relatives of such individuals;
3. gifts to GOs in connection with their official status or the performance of their official duties.

Taking into account that The Law on Combating Corruption directly prohibits the receipt of gifts in connection with the exercise of official powers and related duties, we deem that the above allowance (Article 509 of Civil Code) for a gift of a limited value is a conflict within Kazakhstan legislation.

In accordance with the Law No.213-I of the Republic of Kazakhstan, On Normative Legal Acts, dated 24 March 1998, codes have larger legal force than laws, i.e., in case of controversy between the norms of codes and norms of laws, the norms of codes must apply⁵. However, this conflict (between the allowance for gifts of limited value and complete prohibition of gifts) has not until now been tested by the Kazakhstan law enforcement practice and, in particular, by court practice. In this regard, we have contacted top-ranked officials in charge of development of legislative acts in the sphere of state service who acknowledge the existence of the specified controversies in legislation and tend to believe that in case of disputable situations connected with gifts to governmental officials, the Law on Combating Corruption is to be applied. Due to this, we deem that it would be expedient for anyone to refrain from giving gifts until the legislation is appropriately amended.

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