Law of 3 January 2023 No. 188-VII “On Amendments and Additions to Certain Legal Acts of the Republic of Kazakhstan on the Fight against Corruption and Safety of Persons Subject to State Protection” (Қазақстан Республикасының кейбір заңнамалық актілеріне сыбайлас жемқорлыққа қарсы іс-қимыл және мемлекеттік қорғауға жататын адамдардың қауіпсіздігін қамтамасыз ету мәселелері бойынша өзгерістер мен толықтырулар енгізу туралы) contains, in particular, the following provisions:
1. Introduction of liability for unjust enrichment.
Since 2021 Kazakhstan has been gradually introducing universal declaration of income and property covering also the civil servants and the individuals equated to them (hereinafter, the servants). The mechanism was originally a tax control measure rather than an anti-corruption instrument. In particular, under Law of 18 November 2015 No. 410-V ZRK “On Combating Corruption”, the content and procedure for filing declarations are defined by the national Tax Code, and if discrepancies between the official income and expenses of servants and their spouses are detected under the tax legislation, the income tax amounting to 10% of the difference between the expenses and the income can be recovered from the servants.
The Law also introduces additional liability measures for unjust enrichment of the servants:
- fiscal: in the event that the expenses exceed the income by over 1,000 monthly calculation indices (MCI, which amount to 3,180,000 KZT or roughly 6,900 USD) an administrative fine of 90% of the net difference is imposed;
- carrier: if the expenses exceed the amount of the sources of their coverage minus 1,000 MCI by more than the annual income of the servant, a dismissal for negative reasons and a prohibition to hold civil service positions and positions in the entities of the quasi-public sector related to the fulfillment of functions equated to public ones for the period of three years are foreseen.
The function to control the correspondence between the income and expenses of the servants rests with the State revenue bodies that inform the competent anti-corruption body about any detected discrepancies. Before liability measures are imposed, servants are entitled to provide evidence proving the legal origin of the means covering their expenses.
Subsequently, when individuals are admitted to the civil service or employed by an entity of the quasi-public sector, the information on their dismissal for negative reasons for unjust enrichment and commission of other corruption offences can be requested in electronic form by potential employers from the public agency responsible for collecting state legal statistics and special records or obtained through the e-government portal (previously, the obligation to provide information on the commission of corruption offences was placed on the citizens (servants)).
2. Standards of conduct.
Furthermore, the Law imposes specific anti-corruption restrictions, prohibitions and obligations on the servants and the individuals equated to them.
For instance, the servants are prohibited from holding positions in the governing bodies (supervisory boards, executive bodies) of the same entities of the quasi-public sector if they are spouses, close relatives and/or in-laws. In this context, close relatives are parents, children, including adopted ones, adopters, full-blood and half-siblings, grandparents, grandchildren, while in-laws include full-blood and half-siblings, parents and children of the spouses.
At the same time, the individuals equated to the servants in the entities of the quasi-public sector (except for the state enterprises) are entitled to hold paid positions in the governing bodies, supervisory boards and executive bodies of the subsidiaries and dependent organisations of the entities and other legal entities affiliated with them.
3. Protection of whistleblowers.
Additionally, the legal act clarifies some legal provisions regarding the protection of persons reporting crimes, including corruption, in particular:
- the protection measures now cover also the persons contributing to the prevention and detection of crimes;
- the grounds for granting protection may include: 1) the disclosure of information on the fact of commission of a corruption offence; 2) the provision of information on the location of a person sought for a corruption offence; 3) other assistance that has (subsequently had) importance for detecting, preventing, solving and investigating a corruption offence;
- the protection measures include: 1) protection from the violation of rights and legitimate interests in labour relations within three years since the information on an offence was disclosed or any other assistance in countering corruption was provided, including the prohibition of disciplinary liability, dismissal (removal from office), transfer to another position without consent of the disciplinary commission or other collegial body convened to establish the objectivity of relevant actions; 2) maintenance of confidentiality of the data regarding the disclosure of information on a crime provided that a non-disclosure agreement is in place.
A number of provisions of the Law, including the introduction of liability for unjust enrichment, enter into force on 1 January 2027.