Confiscation Measures and Sanctions in Corruption Cases in Kazakhstan

1. Recommendations

Abstract

The chapter summarises the key recommendations of this report, which focus on seven overarching areas, including confiscation frameworks, capacity building and specialisation, statistics, pre-trial confiscation, penalties, lifting immunities and statutes of limitations, and accessibility of court verdicts.

Confiscation framework

• Bring the legal framework for criminal confiscation into full compliance with international standards, in particular, UNCAC (2004[3]) a and best practices in the region by ensuring a transition from the existing hybrid model of confiscation as a sanction to that of confiscation of instruments (tools and means) of a crime, proceeds of criminal offenses and any benefit therefrom (as a criminal law measure other than a sanction).

• Before the implementation of the above recommended reform of the framework for criminal confiscation, as an interim measure, exclude all corruption offenses from the scope of application of Part 4 of Article 55 of the CC (2014[5]) by supplementing the list of relevant offenses in Part 8 of Article 55 of the CC.

• Ensure that the revised framework for confiscation of instruments, proceeds and benefits of criminal offenses applies to all corruption-related criminal offenses without exception (including corruption in the private sector).

• Make a clear distinction between the objects of the updated confiscation model and the concept of material evidence to eliminate overlaps and challenges with law enforcement in practice (ensuring that the confiscation of instruments, proceeds and benefits of corruption and other proceeds‑generating crimes that have material value are prioritised).

• Include in the law detailed provisions on the criminal confiscation of property belonging to informed third parties (both individuals and legal entities). These provisions should include clear criteria for applying such confiscation and appropriate safeguards to protect the rights of genuine third parties.

• Formalise the concept of "instruments, tools, and means of committing a crime" as a mandatory object for confiscation, while ensuring a clear distinction between their confiscation and the disposition of material evidence.

• Formalise the concept of “proceeds from crime”—including direct and derivative proceeds, as well as any subsequent profits and benefits derived from them—as mandatory objects for confiscation, provided there is a proven link to the specific crime through which they were obtained. Additionally, ensure their confiscation is distinguished from the disposition of material evidence.

• Ensure that, during the prosecution of corruption offenses, instruments (tools and means) used to commit such crimes, direct and derivative proceeds, any subsequent profits and other benefits derived from the commission of corruption offenses are systematically identified, seized, and confiscated in practice, specifically in their capacity as such.

• Ensure a consistent transition in practice from the currently prevailing concept of "damage" from corruption crimes to the conceptualisation of corrupt income or benefits as objects of confiscation in cases of corruption offenses that generate such income or benefits, such as bribery, abuse of power, and embezzlement.

• Provide in legislation for the confiscation of mixed proceeds from crimes as a separate object, aiming to facilitate the confiscation of property corresponding to the assessed value of the associated criminal proceeds, including any subsequent profits and benefits derived therefrom.

• Ensure that during the prosecution of corruption offenses, assets registered in the names of nominal (informed) third parties, including in high-level corruption cases, are systematically identified, seized, and confiscated, while the rights of genuine third parties are upheld in practice.

• Improve the legal framework for criminal non-conviction‑based confiscation (Chapter 71 of Section 15 of the Criminal Procedure Code (CPC) (2014[6])). This can be achieved by ensuring the autonomy of this process from the primary investigation. The relevant steps may include establishing a lighter burden of proof, limiting the elements to be proven, broadening the range of objects of confiscation (including instruments, direct and indirect proceeds from crimes, mixed proceeds, equivalents, etc.), ensuring effective confiscation of assets registered to informed third parties, and enhancing the right to protection for individuals whose property is considered for confiscation.

• Introduce the framework for extended criminal confiscation into the legislation of Kazakhstan based on the provisions of Directive (EU) 2024/1260 (2024[7]) regarding asset recovery and confiscation, as well as best practices from countries in the region.

• Establish an aggravated form of bribery (active and passive) in the CC (2014[5]) when this is committed by a person holding a responsible public position.

• Ensure that all serious and especially serious corruption offenses, particularly high-level corruption, are subject to custodial sentences of imprisonment that are non-optional, with durations sufficient to ensure their effectiveness, proportionality, and deterrent impact. Fines (multiples of the amount of the bribe or other form of corrupt benefit, or fines in a certain amount) may be an additional penalty (in addition to non-alternative sanctions of imprisonment) for serious and especially serious corruption offenses rather than an alternative to them. Fines could also be an additional penalty for other types of corruption offenses (of minor or medium) rather than the principal penalty for them.

• Exclude all corruption offenses from the scope of Part 2 and Part 3 of Article 56 of the CC (2014[5]) (imposing punishment for an incomplete crime). Exclude all bribery offenses from the scope of Part 2 and 3 of Article 56 of the CC or criminalise the offer and promise of a bribe, as well as the acceptance of an offer or promise of a bribe as a completed offense (for bribery in both the public and private sectors).

• Exclude corruption offenses from the scope of Part 1 of Article 55 of the CC (2014[5]) (imposition of a more lenient punishment than is provided for this criminal offense) and the scope of Part 4 of Article 55 of the CC, supplementing the exceptions in Part 8 of Article 55 of the CC with a reference to corruption offenses.

• Exclude corruption offenses from the scope of Article 72 of the CC (2014[5]) (parole from serving a sentence) or further limit the scope of its application to exceptional cases that are clearly formulated.

• Exclude corruption offenses from the scope of Article 73 of the CC (2014[5]) (substitution of the unexecuted part of the sentence with a more lenient type of punishment or a reduction of the sentence).

• Introduce the liability of legal entities for corruption offenses in legislation based on international standards and best practices in the region, establishing effective, proportionate and dissuasive criminal sanctions for such legal entities, including financial sanctions.

• Implement measures to ensure that property seizure and confiscation are systematically and consistently applied in practice in cases of corruption offenses involving illicit income.

Capacity building and specialisation

• Make it a priority for investigators and prosecutors to fully pursue the confiscation of proceeds of corruption (or their equivalents), particularly in cases of high-level corruption.

• Consider introducing a specialisation for investigators and prosecutors focused exclusively on financial investigations, asset detection and recovery in corruption cases, particularly of high-level corruption.

• Enhance the capacity of investigators, prosecutors, and judges specialising in the prosecution and judicial review of corruption cases, ensuring that the confiscation of property (the value of which corresponds to the value of direct and indirect proceeds from corruption offenses), is systematically applied in practice.

Statistics

• Improve keeping the statistics on criminal confiscations by including detailed data that distinguishes between types of criminal confiscations and objects of confiscation measures, including confiscation from third parties (natural and legal persons). This should include differentiating between the types and levels of officials subject to confiscation measures, as well as the types of corrupt benefits obtained and confiscated. Additionally, include data on the amounts or value of assets subject to court confiscation orders and the total funds received by the budget as a result of these confiscations.

• Ensure that detailed statistics on criminal confiscation in corruption cases, including high-level corruption, are published periodically (at least annually) to guarantee transparency and accessibility for the public.

• Ensure that official statistics clearly identify the number of persons whose criminal cases were terminated on the basis of Para 4 of Part 1 of Article 35 of CPC (due to the expiration of the statute of limitations for bringing to criminal responsibility), and the number of those who belonged to the category of public officials.

• Ensure that judicial statistics on corruption offenses include data on the types of penalties imposed by courts on different categories of officials (i.e., a breakdown by level and type of official on whom certain penalties are imposed).

Criminal non-conviction‑based confiscation

• Ensure the autonomy of criminal non-conviction‑based confiscation proceedings (Chapter 71 of Section 15 of CPC (2014[6])) so that they do not depend directly and automatically on the progress and outcomes of the primary criminal proceedings. The termination of the case against the individual or their acquittal in the primary proceedings should not entail the automatic cancellation of confiscation within the criminal non-conviction‑based confiscation.

• Ensure that the legal framework for criminal non-conviction-based confiscation covers a broad range of objects, including instruments (tools and means) of the crime, proceeds from crimes, profits or other benefits derived from them, commingled proceeds, and value-based confiscation.

• Apply the criminal non-conviction-based confiscation framework effectively to assets registered in the names of informed third parties, without the necessity of resorting to legal remedies such as the annulment of transactions in civil proceedings.

Penalties

• Ensure, through effective, proportionate and dissuasive criminal sanctions, that high-level corruption offenses (in terms of the level of the public official's position and/or the size of the corrupt benefit) are always categorised as serious or particularly serious offenses, including corruption in the private sector (under the criteria of the size of the corrupt benefit).

Lifting Immunities and statutes of limitations

• Consider amending legislation to permit review of decisions to terminate criminal cases due to refusal to lift immunity when relevant circumstances change, such as the loss of immunity entitlement or changes in the body authorised to lift immunity. Additionally, allow for submitting a repeated application to lift immunity based on new arguments or evidence. Lastly, include provisions to suspend the statute of limitations during these review processes to ensure timely prosecution.

• Consider re-including corruption offenses in the list of crimes specified in Part 6 of Article 71 of the CC (2014[5]), to which the statute of limitations on criminal liability does not apply. Additionally, consider adding the offense of legalization (laundering) of proceeds from corruption. Alternatively, consider expanding the grounds for suspending the statute of limitations in criminal cases by establishing that suspension applies at any stage of the proceedings prior to the entry into legal force of the judgment. This could include periods from the initiation of criminal proceedings, the suspicion or accusation of a suspect, or the referral of the case to court for indictment, among others.

• Ensure implementation of the recommendations of the Report of the Fourth Round of Monitoring under the IAP (OECD, 2017[8]) and address the shortcomings noted in the Baseline Report of the Fifth Round of Monitoring of Anti-Corruption Reforms in Kazakhstan under the IAP (OECD, 2024[9]) regarding immunities, in particular, ensure that general immunities are replaced by functional immunities, substantially reduce the number of public officials with immunities and procedural limitations on immunities.

• Ensure that official statistics include data on the number of applications to lift immunity from public officials and the outcomes of their consideration. Additionally, record the number of criminal case terminations under Para 10 of Part 1 of Article 35 of CPC, with a breakdown by level and type of officials, and make this information publicly accessible.

Accessibility of judicial rulings

• Enhance the public segment of the court verdicts database to enable searches for verdicts and other court decisions in criminal cases based on various criteria. These criteria may include crime categories, articles of the CC (2014[5]), keywords, the date of the ruling, and other relevant parameters.