Confiscation Measures and Sanctions in Corruption Cases in Kazakhstan

2. Types of confiscation

Abstract

The chapter focuses on the legal framework for confiscation in Kazakhstan. It covers three types of available confiscation regimes applicable to corruption related assets, particularly, special confiscation, confiscation in pre-trial stage of investigation and civil confiscation, providing its assessment against relevant international standards.

Confiscation of property in criminal cases, including criminal cases on corruption offenses, is governed by the CC (2014[5]) and CPC (2014[6]). Additionally, civil confiscation, which does not require a criminal conviction, is regulated in the Law "On the Return of Illegally Acquired Assets to the State" (Republic of Kazakhstan, 2023[10]).

2.1 Special confiscation

The CC (2014[5]) in Para 1, part 3, article 40 provides that confiscation of property may be applied to a person found guilty of committing a criminal offense, in addition to the principal penalty.

According to Article 48 of the CC (2014[5]), confiscation of property is the compulsory seizure and acquisition by the state of property owned by the convicted person, obtained by criminal means or acquired with funds obtained by criminal means, or property that is tools or means of committing a criminal offense.

The following property (including money) can be confiscated:

• property received as a result of the commission of a criminal offense, and any proceeds from that property, except for property and proceeds therefrom to be returned to the lawful owner,

• property that results from partial or complete transformation or conversion of property obtained as a result of the commission of a criminal offense and the proceeds of that property,

• property used or intended for financing or other provision of extremist or terrorist activity or criminal group,

• property being an instrument or means of committing a criminal offense,

• property specified in Paras 1, 2, 3 and 4 above, transferred by the convicted person to the property of other persons (part 2 of Article 48 of the CC).

If confiscation of a certain item included in the above-mentioned property is impossible at the time of the court's decision due to the item’s consumption, sale or other reason, the court shall confiscate a sum of money that corresponds to the value of this item (part 3 of Article 48 of the CC). However, according to part 5 of Article 48 of the CC, the following two types of property are not subject to confiscation:

1) property necessary for the convicted person or persons dependent on him/her, according to the list provided for by the penal enforcement legislation,

2) funds and other property legalised in accordance with the Law of the Republic of Kazakhstan “On the Amnesty of Citizens of the Republic of Kazakhstan, Oralmans,1 and Persons Holding Residence Permits in the Republic of Kazakhstan, in Connection with the Legalisation of Their Property,” insofar as assets were acquired as a result of committing a criminal offense for which the same Law provides an exemption from criminal liability. The latter provisions do not apply to judicial acts that became final as of 1 September 2014, and do not extend to laundered property and funds that were not subject to legalisation under the law.

Numerous articles of the CC provide for confiscation as a mandatory or an optional additional punishment for a crime. In the latter case, legal provisions include the following wording: “with or without confiscation of property”. However, the law does not provide a guidance on the circumstances under which additional penalties should be applied. In such cases, the application of confiscation remains at the absolute discretion of the court.

Exceptions to the application of criminal confiscation

The current criminal legislation of Kazakhstan provides that in some cases, the court has discretion to not impose confiscation as an additional punishment at all, even if confiscation is mandatory under the relevant criminal offense.

Thus, in accordance with part 4 of article 55 of the CC (2014[5]), the court may impose punishment below the lowest limit under the relevant article of the CC, or the court may either impose a penalty that is more lenient than that provided for in the relevant article of the CC, or not impose an additional sanction that under the relevant law would usually be mandatory. Such court`s discretion is applicable if there are exceptional circumstances related to the goals and motives of the act, the role of the perpetrator, their behaviour during or after the commission of the criminal offense, or other circumstances that significantly reduce the degree of public danger of the wrongdoing. Additionally, it applies in cases where a participant in a criminal offense actively assists in disclosing the acts committed by their accomplices.

Both individual mitigating circumstances and an aggregate of such circumstances may be recognised as exceptional (Part 5 of Article 55 of the CC (2014[5])). This rule is not applicable to types of offenses (Part 8 of Article 55). Corruption offenses are not included in the list of non-applicability. Such legislative regulation effectively nullifies the mandatory application of confiscation of instruments (tools and means of commission), proceeds from crimes (including corruption), and any benefits derived from them, making the application of confiscation directly dependent on the discretion of the court in each specific case, based on part 4 of Article 55 of the CC.

All corruption offenses in the public sector (as provided by UNCAC (United Nations, 2004[3])) are subject to mandatory confiscation as an additional punishment.

These offenses are misappropriation or embezzlement of entrusted property committed by a public official (Parts 2-4 of Article 189 of the CC), abuse of official powers (Article 361 of the CC), taking a bribe (Article 366 of the CC), giving a bribe (Article 367 of the CC), mediation in bribery (Article 368 of the CC), as well as legalisation (laundering) of money and/or other property obtained by criminal means (Article 218 of the CC).

By contrast, criminal offenses for corruption in the private sector, for example, commercial bribery (Part 1, Article 253 of the CC (2014[5])) do not always provide for confiscation as an additional penalty. For some offenses, confiscation is optional at the discretion of the court (for example, abuse of authority (Articles 250 and 251 of the CC). Thus, the current criminal legislation essentially allows that in the case of a number of corruption offenses committed in the private sector, confiscation under Article 48 of the CC (instruments, means of commission and proceeds of such crimes) may not be imposed, being at the discretion of the court, or is not available at all (Part 1, Article 253 of the CC).

Article 118 of CPC (2014[6]) specifically addresses the recognition of certain items and property as material evidence, along with the rules for handling material evidence during the termination of criminal proceedings or in sentencing decisions. Some types of material evidence essentially duplicate the subject of confiscation as a punishment under Article 48 of the CC (2014[5]). According to part 1 of Article 118 of CPC, the following shall be recognised as material evidence:

• objects, if there is reason to believe that they served as an instrument or other means of committing a criminal offense (Para. 1),

• items that were the objects of socially dangerous encroachment (Para. 3),

• money, valuables and other property obtained as a result of committing a criminal offense (Para. 4),

In accordance with Part 3 of Article 118 of CPC (2014[6]), the decision on further disposition with material evidence must be taken when deciding on the termination of a criminal case or passing a sentence, according to the following rules:

• Instruments and means of committing a criminal offense belonging to the perpetrator shall be subject to confiscation on the basis of Article 48 of the CC (2014[5]).

• Instruments and means of committing a criminal offense, lawfully belonging to a person who did not know or should not have known of the unlawful purpose of using his property, shall be returned to that person.

• In other cases, the instruments and means of committing a criminal offense shall be transferred to appropriate institutions, to certain persons or destroyed.

• Things prohibited for circulation or restricted in circulation shall be transferred to appropriate institutions or destroyed.

• Money and other property obtained by criminal means or acquired with funds obtained by criminal means, with the exception of property and proceeds therefrom, are subject to return to the lawful owner, shall by court decision be subject to conversion to the revenue of the state; the remaining things shall be given to the lawful owners and, if the latter are not identified, shall become the property of the state. The remaining items shall be handed over to their lawful owners and, if the latter are not identified, shall become the property of the State. In the event of a dispute as to the ownership of these things, the dispute shall be resolved by civil proceedings.

Article 118 of CPC (2014[6]) mirrors the provisions of Article 48 of the CC (2014[5]), as both address the confiscation of money and other assets acquired through criminal means, as well as the instruments and means used to commit a criminal offense. However, there are notable differences in their regulations. For instance, according to Para 5 of Part 2 of Article 48 of the CC, instruments and means of committing a crime that are transferred by the convicted person to the ownership of others are subject to confiscation. In contrast, Para 1-1 of Part 3 of Article 118 of CPC stipulates that instruments and means of committing a crime that are legally owned by someone who did not know, or should not have known, about the unlawful purposes of the property are to be returned to that person.

Additionally, both norms do not clarify the actions required for property used as instruments or means of committing a crime that belongs to a person who knew, or should have known, about its unlawful use. There are also differences in how the proceeds of crime and the conditions for their confiscation (as stated in Article 48 of the CC (2014[5])) or transfer to the state (as outlined in Article 118 of CPC) are described in Part 2 of Article 48 of the CC and Part 3 of Article 118 of CPC.

Analysis of compliance with international standards

Existing regime of criminal confiscation of instruments of corruption, proceeds of crime and any benefit from them does not fully comply with international standards and have potential for improvement by learning from the best practices across the ACN region.

The existing confiscation model in the Kazakhstan has been repeatedly criticised in the reports of international organisations. Thus, the Fourth monitoring round report on Kazakhstan under the IAP, notes that although it is not explicitly stated in the General Part of CC (2014[5]), based on the provisions of the Special Part, confiscation will be applied in cases specified in the relevant articles of the Special Part of the CC. Mandatory confiscation is provided for many, but not all corruption offenses. The Round 3 Report also questioned the validity of establishing confiscation as a criminal sanction. In particular, the international standard is mandatory confiscation of criminally acquired property, as well as of property that is an instrument or means of committing a criminal offense. Along with the lack of full coverage of all corpus delicti of corruption offenses, the inclusion of confiscation of criminally obtained property, as well as instruments and means of committing crimes in the system of punishment, gives the courts unreasonably broad discretionary powers [according to the provisions of Article 55 of the CC, which allow courts not to impose confiscation as an additional punishment]. Under such circumstances, confiscation of instruments and means of crime, as well as criminal proceeds provided for by the CC cannot be considered as unconditional in a broad sense. Group of States Against Corruption (GRECO) Joint First and Second Rounds Evaluation Report on Kazakhstan (GRECO, 2022[11]) states that confiscation of property is explicitly provided for in the CC as a sanction for certain corruption-related offenses. However, the application of confiscation for these offenses is not mandatory but is a discretion of the court.

Given the above, it is advisable to reform Kazakhstan's criminal confiscation system in order to shift from the existing hybrid system of confiscation as a sanction (additional punishment) to confiscation of instruments of and proceeds from criminal offenses and any benefit therefrom (as a measure of criminal‑legal enforcement, a measure of criminal law nature or a similar legal concept of criminal law other than a sanction). As a priority interim measure, all corruption offenses should be excluded from the scope of Part 4 of Article 55 of the CC (2014[5]), which provides for the discretionary right of the court not to apply the existing confiscation measure as an additional punishment for the crime.

It is also recommended that legislation should ensure that confiscation of instruments and proceeds of crime and any benefit derived therefrom should be extended to all corruption criminal offenses in their international legal sense without exception (including criminal offenses for corruption in the private sector).

Additionally, a clear distinction should be made between the objects of such an updated confiscation model and material evidence in order to eliminate duplication of these concepts and challenges with their enforcement in practice. Furthermore, if the property in the case was an instrumentality or proceeds of crime or any benefit from it that has material value, it should be subject to seizure and confiscation as such, while all other items (not captured by instruments, proceeds and benefits of crime that have material value) may fall under the legal framework for material evidence on a residual principle (other property, items, documents that may serve as means for the detection of a crime, establishment of the factual circumstances of the case, identification of offenders, refutation of their guilt, or mitigation of their liability).

2.2 Confiscation during the pre-trial investigation

Non-conviction-based confiscation is an important tool in the fight against corruption, organised crime, and other serious offenses. In its various forms, it provides authorities with advanced means to ensure that offenders and their accomplices do not benefit from criminal activities, even in cases where obtaining a conviction is not possible. This tool allows authorities to confiscate assets for which there are reasonable suspicions of a connection to criminal activity, without waiting for a criminal conviction. This is particularly useful in cases where the offender is unavailable (has fled, died, etc.). Furthermore, by potentially increasing the risks associated with asset confiscation, non-conviction-based confiscation serves as a deterrent to criminal behaviour, complicating individuals' engagement in illegal activities with the awareness that their assets may be subject to confiscation even in the absence of a conviction.

There are three main models of this type of confiscation used by countries:

• The classical model covers situations where the defendant in a criminal process has been established, but the criminal proceedings cannot be concluded with a conviction due to reasons such as death, absconding, evasion of justice in another country, amnesty, expiration of the statute of limitations for criminal liability, etc.

• The property-targeted (in rem) model focuses on the assets rather than the individual, aiming at restitution or prevention of criminal activity without requiring the conviction of an individual for the predicate offense. Such proceedings are generally civil in nature, and there is no need to demonstrate a connection between the targeted assets and a specific criminal act. However, in most national legal systems of this kind, the state must still demonstrate at least an indirect link of such assets to criminal activity in a broad sense, for example, in connection with involvement in organised crime or a relation to a person engaged in such criminal activity.

• The non-conviction-based model does not require any connection (direct or indirect) to a specific predicate crime or criminal activity in a broad sense. It only requires demonstrating a difference (usually substantial) between an individual’s assets and their lawful income (unjustified wealth).

Chapter 71 of Section 15 of CPC outlines the procedure for confiscating property obtained through criminal means in pre-trial stage.

In accordance with the provisions of Article 667 of CPC (2014[6]), in cases, where a suspect or accused person (in ongoing criminal proceedings) is declared internationally wanted, or where criminal prosecution against them is terminated based on Paras 3, 4 and 11 of Part 1 of Article 35 of CPC (due to an amnesty act, due to the expiry of the statute of limitations, due to death of a defendant), the official, conducting the pre-trial investigation, upon obtaining information about property acquired unlawfully, shall initiate (separate) confiscation proceedings.

The person conducting the pre-trial investigation shall issue a decision to allocate materials for the confiscation proceedings. This decision will include copies of the materials from the criminal case related to the offense that serves as the basis for the confiscation, as well as the supporting evidence specified in part three of Article 113 of CPC (2014[6]) (essentially, all files necessary for consideration of the guilt or innocence of the defendant in the criminal case).

In proceedings on confiscation without a conviction, in addition to the circumstances provided for in Paras 1 and 3 of Article 113 of CPC2 (2014[6]), the following must be proven:

• ownership of the property by a suspect, an accused or a third person,

• a link between the property and the offense that is the basis for the application of confiscation,

• circumstances under which property was acquired by a third party or that give rise to the belief that the property was acquired as a result of an infringement.

In the event that circumstances are established indicating that the suspect or accused is concealing property by transferring it to other persons, the individual conducting the pre-trial investigation shall apply to the prosecutor with a request to file a petition with the court in the interests of the state or the victims in the criminal case, seeking the annulment of transactions (such as sales, gifts, leases, fiduciary management, and others) in accordance with civil proceedings (Parts 2 and 3 of Article 668 of CPC).

Upon recognizing that sufficient evidence has been gathered in non-conviction-based confiscation proceedings that the assets were obtained illegally, the person conducting the pre-trial investigation drafts a relevant opinion, which, together with the files, is forwarded to the prosecutor. The prosecutor, having considered the opinion, shall file a petition for confiscation with the court having jurisdiction over the criminal case on the offense investigated by the criminal prosecution body. If there are no grounds for filing a petition with the court, the prosecutor shall return the opinion and materials to the person conducting the pre-trial investigation with an instruction to collect additional evidence or to terminate the confiscation proceedings. The procedure is carried out by the prosecutor within 10 days (Paras 4-8 of Article 668 of CPC (2014[6]).

The petition on application of non-conviction-based confiscation is decided by a judge sitting alone. If examination of additional materials is necessary, a judge has the right to request the files of a criminal case. The prosecutor who filed the petition participates in the court hearing. At the request of the defence attorney of the suspect or accused, if it is present at the hearing, other individuals may be summoned to give testimony. Following the consideration of the petition for confiscation, the court issues a ruling, resolving the following questions:

• Is the property of the suspect or accused linked to the crime that serves as the basis for confiscation under Article 48 of the CC (2014[5])?

• Was the property of a third party acquired in a manner provided for by Article 48 of the CC?

• Is confiscation applicable, and to what portion of the property should it be applied?

• What should be done with the frozen or seized property that is not subject to confiscation?

• What are the costs incurred in the confiscation proceedings, and to whom are they allocated (Articles 669 and 670 of CPC (2014[6]))?

As a result of a pre-trial confiscation proceedings, the court shall render one of the following rulings:

• granting the application and confiscating the property, or

• denying the application for confiscation.

A copy of such a ruling is served on the prosecutor and other participants in the proceedings or mailed to those participants who did not participate in the proceedings. A copy of the ruling is also delivered to the person from whom the property is confiscated. After the ruling enters into legal force, the court that issued the ruling sends the writ of execution, a copy of the inventory of property and a copy of the ruling to the relevant justice authority for execution in accordance with the procedure established for the execution of confiscation sentences. A confiscation ruling may be appealed by the defence or reviewed at the request of the prosecutor in the manner prescribed by the law (Articles 671 and 672 of CPC (2014[6])).

The institution of non-conviction-based confiscation, provided for in Chapter 71 of CPC, has previously received generally favourable assessments in reports of international organisations, with some reservations. Thus, the Report of the 4th Round of Monitoring of Anti-Corruption Reforms in Kazakhstan (OECD, 2017[8]) noted that the provisions on non-conviction-based confiscation are progressive and in line with international best practices and standards, e.g., the Directive 2014/42/EU on the freezing and confiscation of instruments and proceeds of crime in the European Union (2014[4]). At the same time, safeguards to protect the rightful interests of the person, whose property is confiscated prior to conviction, should be enhanced. In particular, it should be stipulated that the defence counsel of a defendant must be summoned to the court hearing (at the same time, the non-appearance of these persons, if they have been duly notified, should not prevent the court proceedings and consideration of the confiscation application). Additionally, the GRECO (2022[11]) recognises the procedure under Chapter 71 of CPC (2014[6]) as a non‑conviction‑based criminal confiscation.

2.3 Confiscation in civil proceedings

On 12 July 2023, Kazakhstan adopted the Law “On the Return of Illegally Acquired Assets to the State” (2023[10]). According to the Law, assets are considered illegally acquired if they are to be returned to the state due to their classification by a court as assets of unexplained origin, based on the grounds provided in this Law. In turn, assets of unexplained origin are defined in the Law as assets belonging to an individual and/or their affiliated persons, for which the correlation between their value and the amount of lawful income or other legal sources of funding for the acquisition of such assets has not been proven to the court in the manner established by the legislation of Kazakhstan.

The provisions of the Law apply to individuals (subjects) for whom the following information is available:

• the subject under the Law is or was a person holding a responsible state position, a position that implies the performance of managerial functions in a state legal entity or a quasi-state sector entity, and/or has (or had) administrative or authoritative resources (connections, influence) in relation to individuals holding (or who held) responsible state positions, and/or to individuals performing (or who performed) managerial functions in a state legal entity or a quasi-state sector entity,

• the (same) subject under the Law has acquired (whether directly or through affiliated persons, including legal entities) assets, including derivative assets, as a result of utilizing administrative or authoritative resources (also connections, influence), or the same information regarding individuals and legal entities affiliated with the subject under the Law.

A key role in the implementation of the confiscation model it provides is attributed to the Commission and the Authorised body for the return of assets. The Commission is a permanent body composed of members of Parliament, public figures, Government members, heads of state bodies and other individuals (the composition of the commission is approved by the Government, and it is headed by the Prime Minister). The commission establishes a Register of subjects whose assets may be subject to confiscation and provides mandatory recommendations to the authorised body for the return of assets (referred to in the Article 1 of the Law as the "working body of the Commission"). The Asset Recovery department of the Prosecutor's Office exercises the functions of the Authorised body. By Presidential Decree dated 5 October 2023, the Committee for the Recovery of Assets of the General Prosecutor's Office was established as the authorised body for the return of illegally acquired assets. The Chairman of the Committee was appointed by Presidential Decree, dated 21 October 2023.

Once the assets of unexplained origin have been identified, the person concerned may be included in the above-mentioned special Register by decision of the Commission. After that, the assets may be voluntarily returned by the person to the state, or they may be forcibly returned to the state in civil proceedings. When the authorised asset recovery authority has reasonable suspicion about the legality of the sources of acquisition (origin) of the assets of an individual included in the Register, after reviewing the materials by the commission, the prosecutor, based on consideration of all necessary circumstances the recommendations of the commission, may decide to file a lawsuit with the court to return such assets to the state as assets of unexplained origin (Part 1 of Article 27 (2023[10])).

Additionally, it appears that the Law establishes an excessively high threshold for its application. The issue of including a subject and/or its affiliates in the Register shall be submitted to the commission for consideration only if the authorised asset recovery body has reasonable doubts about the legality of the sources of acquisition of assets. This applies when the aggregate amount of those assets is equal to or exceeds thirteen million times the monthly calculation index, which is approximately EUR 100 million (Part 1 of Article 14 (2023[10])).

The specified threshold for the application of the non-conviction-based confiscation concept appears unjustified and significantly restricts the scope of such confiscation to only the wealthiest individuals. Under the rule of law, it should apply to an indeterminate number of persons who fall within clearly defined and justified criteria of legitimate purpose and public interest. Considering this, it is proposed to significantly lower the threshold for the application of such confiscation, depending on the model chosen (in the case of Model 2 - approximately USD 100 000; in the case of Model 3 - approximately USD 30 000).

In its previous analysis of this confiscation model, the OECD noted (2024[9]) that the introduction of the concept of assets of unexplained origin and their confiscation by shifting the burden of proof to the individual controlling such assets would be welcomed. However, a number of provisions of the Law raise concerns. These relate to decisions to include subjects and their affiliates in the special Register of Subjects and their Affiliates, which are made by a Commission headed by the Prime Minister and comprising members of the Government and other political civil servants. According to the Law, this essentially political body is authorised to review information on assets and other information confirming the legality of the sources of acquisition (origin) of declared assets and to form the Register “taking into account socio-economic risks and other factors”. Entry in the Register is a prerequisite for applying to the court for the purpose of compulsory seizure of the relevant assets to the state in civil proceedings. The involvement of such a body in the asset confiscation process contradicts the standards of protection of property rights and creates significant corruption risks.

In addition, previous assessment of the Law (OECD, 2024[9]) identified the following areas for improvement which remained unaddressed:

• The vague definition of assets that may be subject to confiscation (assets owned by an individual who possesses or possessed in the past administrative authoritative resources (connections or influence) in relation to public officials.

• The presence of the concept of “indicators of anomalies in the conditions of entrepreneurial activity.”

• The possibility of actual "withdrawal" of a criminal case from the investigation by the investigative authorities through the inclusion of the individual under investigation and their assets (which may be regarded as proceeds from criminal activity) in the Register, followed by subsequent negotiations for the voluntary return of such assets without the requisite procedural guarantees and judicial oversight.

• Unlimited discretion in concluding an agreement on voluntary return of assets, including in determining the list of assets to be returned and the terms of return (for example, "the number of jobs created and the efficiency of the use of the asset" as well as "and other factors characterizing the efficiency and conditions of use of the asset" are considered).

• The unjustifiability of granting de facto immunity from criminal prosecution in cases of voluntary return of negotiated assets based on agreements. According to Article 23 of the Law (2023[10]), in the event of a voluntary return of assets based on agreements and the release of individuals from criminal liability, the information provided by them to the Committee cannot be utilised by the Committee or other authorised state bodies for any purposes, including but not limited to: filing lawsuits and applications in courts; investigating new criminal cases registered after the date of the conclusion of said agreements; investigating criminal cases registered prior to the date of these agreements concerning actions unrelated to the assets that are the subject of the agreements; initiating new proceedings for administrative offenses.

• The questionable role of the declaration of asset disclosure, which is submitted voluntarily.

Considering that confiscation based on the Law of the Republic of Kazakhstan “On the Return of Illegally Acquired Assets to the State” (2023[10]) is not criminal confiscation in its essence, as well as the fact that the practice of its application is not public (court decisions on these categories of cases in the Kazakhstan are withheld from the public, which makes it impossible to study, generalise and prepare recommendations based on the practice of application of this instrument), this study further focuses exclusively on the practice of application of criminal types of confiscation.

Recommendations

• Bring the legal framework for criminal confiscation into full compliance with international standards, in particular, UNCAC (2004[3]) and best practices in the ACN 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).

• Ensure that 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).

• 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.

Notes

← 1.  A term used in Kazakhstan to refer to ethnic Kazakhs who have returned to their historical homeland from abroad.

← 2.  The event and the elements of the criminal offense (time, place, method, and other circumstances of its commission), and the culpability of the individual for committing the offense, the form of their culpability, the motives and any legal or factual errors.