Unofficial translation
The Republic of Kazakhstan ratified the United Nations Convention against Corruption (the Law of the Republic of Kazakhstan dated May 4, 2008 no.31-IV) and, based on the norms of the international law, expressed the intention to elaborate and apply effective legal measures aimed at prevention of corruption and fighting it.
The United Nations Convention against Corruption adopted on October 31, 2003 (New-York), reflects international approaches (standards) characterizing activities in the field of preventing and combating corruption. The norms contained in it are predetermined by the problems and threats posed by corruption, the negative impact of corruption on the functioning of all public and legal institutions and relations. They are aimed at ensuring the sustainable development of the state, its political, economic and social systems, national security interests.
The legal basis of anticorruption in the Republic of Kazakhstan constitute the Constitution of the Republic of Kazakhstan, the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the CC), the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Law of the Republic of Kazakhstan dated November 18, 2015 no.410-V ЗРК “On Combating Corruption” (hereinafter referred to as the Law “On Combating Corruption”), the Decree of the President of the Republic of Kazakhstan dated December 26, 2014 no.986 “On the anti-corruption strategy of the Republic of Kazakhstan for 2015-2025” and other regulatory legal acts providing for the main directions and specific measures for combating and fighting corruption.
For the purposes of a uniform and correct application in court practice of certain norms of the legislation of the Republic of Kazakhstan on corruption crimes, the plenary session of the Supreme Court of the Republic of Kazakhstan hereby decrees:
1. In determining which crimes are related to corruption, the courts are required to be governed by paragraph 29) of article 3 the CC.
2. The subjects of corruption crimes shall be persons specified in paragraphs 16), 19), 26), 27) and 28) of article 3 of the CC, and officials of a foreign state or an international organization.
The subjects of these crimes should also be considered those persons, who although had no powers for performance on behalf of a bribe giver of relevant actions, but by virtue of his official capacity could take measures for commission of these actions by other persons.
Other individuals, who were accomplices in the commission of corruption crimes, or in order to bribe the above persons illegally provided them with property benefits and advantages, or contributed to this, shall be responsible for corruption crimes.
3. The officials of a foreign state or an international organization, indicated in articles 366, 367 of the CC, shall be the persons, recognized by such international treaties of the Republic of Kazakhstan in combating corruption.
An official of a foreign state shall be recognized any appointed or elected a person holding any position in the legislative, executive, administrative or judicial body of a foreign state, and any person performing any public function for a foreign state, including a public agency, enterprise.
An official of an international organization shall be an international civil servant or any person authorized by such an organization to act on its behalf.
4. To define correctly whether the act relates to corruption crimes, and the perpetrators of these crimes are the subjects of these crimes, the bodies conducting the criminal process, shall be guided by legislative and other regulatory legal acts, including official regulations and instructions defining the scope and content of official powers, as well as the official status of a person charged with a criminal offence.
When defining the status of the corruption crime subject, namely: whether he is a person authorized to perform state functions, or an equated person, an official, or holding a responsible state position, it is necessary to proceed from the norms of the Penal Code specified in paragraph 2 of this regulatory resolution.
To establish whether a person has managerial, organizational-administrative or administrative-economic functions or the status of a representative of authority, one shall proceed from the contents of paragraphs 5), 9), 37) of Article 3 of the PC.
Issues regarding the use by the person held criminally liable, of his status, official powers and related opportunities in the commission of a crime shall also be clarified. By the actions of an official that are part of the official powers one shall understand such actions that he has the right and (or) is obliged to perform within the scope of his official competence.
The above data on the person who committed the crime must be indicated in the procedural documents of pre-trial proceedings and judicial acts when determining the qualifications of his actions.
Footnote. Paragraph 4 as amended by regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication).5. Upon obtaining property benefits and advantages it should be understood the acceptance by a person related to the subject of a crime, not only for himself, but also for other persons or organizations provided free of charge, payable for all kinds of services, or illegal use of benefits, construction, repair work, provision of sanatorium or travel packages, travel tickets, loans or soft loans etc..
6. When considering cases of bribery, it is necessary to find out the circle of actions for the performance or non-fulfillment of which on behalf of a bribe giver a person has received a bribe. It should be borne in mind that liability for bribery occurs regardless of the time the person received the bribe - before or after the commission of actions or inaction, as well as regardless of whether the bribe was predetermined in advance or whether any actions were performed in the interests of the bribe giver.
The actions of the perpetrators should be recognized as giving or receiving a bribe, and in cases where the conditions for obtaining values, services, rights to property or benefits are not specifically stipulated, but the participants in the crime realize that the bribe is handed out in order to satisfy the interests of the bribe giver.
7. The receipt by a person from subordinates or other persons who are subject to his official authority of funds or other values for patronage or connivance in the service, for a favorable resolution of issues within his competence, including possible in the future, should be regarded as receiving a bribe.
General career protection may be manifested, in particular, in the unreasonable appointment of a subordinate, including in violation of the established procedure, to a higher position, in his inclusion in the lists of persons submitted for incentive payments, rewards, etc.
The employment-related connivance is the consent of the official of the supervisory authority not to apply the measures of responsibility included in his authority in case of detection of a violation committed by the bribe giver, etc.
8. The subject of a bribe may be money, securities, material assets, the right to property, as well as the illegal provision of property-related services, including exemption from property obligations.
9. Illegal actions (inaction) for the commission of which the person received a bribe (part two of article 366 of the CC), shall be understood the actions (inaction) committed by him using official powers, however in the absence of stipulated by the law grounds or conditions for their performance (falsification of evidence in a criminal case, the inclusion in the documents of information that is not true etc.).
10. To qualify the actions of the person prosecuted as receiving, giving a bribe or mediation in bribery in accordance with part three of article 366, part three of article 367 and part two of article 368 of the CC it is necessary to establish the presence of one or more qualifying signs of a crime provided for in the paragraphs of these articles and to impute them to all accomplices of the crime, if these circumstances were covered by their intent.
At the same time, when qualifying the actions of the accomplices of a crime, circumstances that relate to one and do not characterize the identity of other accomplices of the crime should not be taken into account.
11. Extortion means a demand by a person of a bribe under a threat of commission of actions, which may cause damage to legitimate interests of a bribe giver or persons he represents, or deliberate creation of such conditions under which he has to give a bribe in order to avoid harmful consequences for law enforcement interests.
According to paragraph 1) of part three of article 366 of the CC (receipt of a bribe through extortion), actions of the guilty person must be qualified regardless of whether he had the opportunity to carry out this threat, if the person who gave the bribe had reason to really be afraid of this threat. In addition, the receipt of a bribe should be qualified in the even when the extortion with the consent or at the direction of the subject of crime has been carried out by other person, who is not a bribe recipient.
12. A bribe should be considered received by a group of persons by previous concert, if two or more entities participated in the receipt of the bribe, having previously agreed on the joint commission of this crime. Moreover, the crime is considered completed from the moment of accepting the bribe or part of it by at least one of the subjects of receiving the bribe, regardless of whether the bribe giver recognized that several subjects of receiving the bribe are involved in the crime, and whether the person (s) had a real opportunity to use or dispose of the subject of the bribe.
Upon receipt of a bribe by a group of persons in a previous concert, its amount is determined by the total value of the values and services received by all partners, and when recovering illegally acquired property from the state, one should proceed from the amount of money or the amount of the property benefit received by each bribe recipient.
The actions of the instigators must be qualified as committing a crime by a group of persons by previous concert according to paragraph 2) of the third part of article 366 and paragraph 1) of the third article 367 of the CC, if they incite to receive or give a bribe to two or more persons, since the objective side of these crimes provides for liability for giving or receiving a bribe by a group of persons by previous concert.
13. A person, received a bribe without preliminary agreement with other person, and who subsequently transferred to the latter in the interests of the bribe giver a part of the received, shall be liable for the aggregate of crimes for receiving and giving a bribe.
The actions of a person related to receiving a bribe in collusion with a person who is not the subject of receiving a bribe cannot be regarded as receiving a bribe by a group of persons under a prior concert.
14. Repeated receipt, giving a bribe or mediation in bribery involves the commission of the same crime at least two or more times, if the statute of limitations for criminal prosecution has not expired.
Receipt of a bribe from several persons, if in the interests of each bribe giver a separate action is carried out, should be qualified as repeated bribe receiving.
Giving or receiving a bribe in several receptions for actions (inaction), ensuring the desired outcome for the bribe giver, as well as giving a bribe to a group of subjects receiving a bribe who committed an offense by prior concert among themselves, or mediation under the indicated circumstances cannot be considered as committed repeatedly. Such actions should be considered as a continuous crime.
Mediation in giving a bribe to one subject receiving a bribe from several bribe givers or mediation in receiving a bribe by several subjects receiving a bribe from one bribe giver should be considered as repeated if, in the interests of each of the bribe givers, the bribe giver performs (does not) separate actions or each subject receiving bribes in the interests of the giver the bribe acts in a certain way and the intermediary is aware of these circumstances.
15. When determining the amount of a bribe, the subject of the bribe must receive a monetary value taking into account current prices or tariffs, if necessary, based on an expert’s opinion. When determining a bribe of significant, large and especially large amount, one should be guided by the explanations provided in paragraphs 2), 3) and 38) of article 3 of the CC. If a bribe in a significant, large or especially large amount was received in parts, but these actions are episodes of one ongoing crime, the offense should be qualified as receiving a bribe in a significant, large and especially large amount.
16. A bribe shall be deemed received from the moment a person accepts the subject of a bribe, regardless of whether the bribe has been received in full or in part, whether or not the person has performed the action (inaction) in pursuance of which the bribe was given. Acceptance of a bribe shall be understood to mean both personal physical receipt of it into possession, and transfer in another way on agreed terms (by transferring to an account, transferring it to a relative, laying it in a certain place, etc.). In this case, it does not matter whether the bribe-taker received a real opportunity to use or dispose of the valuables transferred to him at his own discretion.
Taking a bribe under the control of the criminal prosecution authorities as part of an operational-search activity or an undercover investigative action shall also be qualified as a completed crime.
In cases when the money received by a person in the form of a bribe turned out to be counterfeit or fully or partially imitated banknotes, his actions shall be qualified as an attempt to receive the stipulated amount of the bribe.
If a person voluntarily rejects the proposed bribe, in accordance with Article 26 of the Penal Code, he shall not be subject to criminal liability, and the actions of the bribe giver shall be qualified as an attempt to bribe.
If the transfer of a bribe did not take place due to circumstances beyond the control of persons whose actions were directly aimed at transferring or receiving it, that is, when the objective side of giving or receiving a bribe was started, then the action shall be qualified as an attempt to give or receive a bribe. Other preparatory actions of a bribe giver or a bribe taker that do not form the immediate commencement of the objective side of giving or receiving a bribe may not be considered an attempt to give or receive a bribe. Such actions in accordance with the first part of Article 24 of the Penal Code shall be qualified as preparation for giving or taking a bribe in cases where these actions were suppressed, and the crime (grave or especially grave) was not consummated due to circumstances beyond the bribe giver’s or the bribe taker’s control.
Footnote. Paragraph 16 - as amended by regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication).17. Heads of state bodies, enterprises, institutions or organizations who suggested that their subordinates in the service achieve the desired actions or inaction by giving a bribe to the person specified in paragraphs 16), 19), 26), 27) and 28) of article 3 of the CC, an official of a foreign state or international organization, shall be responsible as instigators to give a bribe, and if the offer to give a bribe was aimed at obtaining advantages and benefits for yourself, then - as bribe givers.
An employee who has agreed in the interests of another person to carry out a specified action for a bribe and has transferred a bribe must be held responsible as an accomplice in giving a bribe. If the named person only transfers the bribe, knowing the nature of the order, his actions shall be subject to qualification as mediation in bribery.
18. It is necessary to delimit mediation in bribery from complicity in giving or receiving bribes in the form of assistance.
In accordance with the first part of Article 368 of the Penal Code, a mediator shall be understood to be a person who assisted the bribe taker and the bribe giver in reaching an agreement between them on receiving and giving a bribe or the implementation of this agreement. For this purpose, the mediator, as a rule, comes into contact with both the bribe giver and the bribe taker, informs them of the intentions and readiness of each to commit a crime and the conditions for its commission.
At the same time, assistance in reaching an agreement on a bribe can take the form of conducting appropriate negotiations between the bribe taker and the bribe giver, arranging their meetings, participating in the discussion of the terms of an agreement on giving and receiving a bribe. Contributing to the fulfillment of the bribe agreement is characterized by the commission of actions aimed to fulfill by the bribe giver and the bribe taker of the agreement on the direct transfer of the bribe to its destination.
An accessory, like any other accomplice, takes the side of one of the subjects of bribery. In accordance with part five of Article 28 of the Penal Code, an accessory shall be understood to mean a person who, with his advice, instructions, providing information, creating conditions for the transfer and receipt of a bribe or removing obstacles to this, facilitated the commission of a crime, as well as a person who promised in advance to hide the perpetrators, instruments or other means of committing a criminal offense, traces of this act, thereby ensuring the achievement of the goals pursued by the bribe-giver or bribe-taker.
The organizer, instigator or accessory that performed the actions referred to in the third, fourth or fifth part of Article 28 of the Penal Code, and concurrently carried out mediation functions, shall be held liable for complicity in giving or receiving a bribe. When qualifying the actions of an accomplice, it is necessary to take into account the direction of his intent, to find out in whose interests, on whose side and on whose initiative - the bribe-giver or the bribe-taker - he acted. Depending on the established, the actions of the organizer, instigator or accessory, shall be qualified under the relevant parts of Articles 366 or 367 of the Penal Code with reference to Article 28 of the Penal Code. Additional qualification in this case under Article 368 of the Penal Code, which provides for liability for mediation in bribery, is not required.
Footnote. Paragraph 18 - as amended by regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication).19. Mediation in bribery committed by a person using his official position, including and by the subject of bribery, involves the use by these persons of the rights and powers granted to them by their position.
20. If a person receives from a bribe giver money or other valuables purportedly for the transfer to a person as a bribe and, without an intention to do so, converts them, his offense must be qualified as fraudulent conversion. When, in order to seize property, this person persuades the bribe giver to give a bribe, then his actions should be additionally qualified as incitement to give a bribe, and the actions of the bribe giver in such cases are subject to qualification as attempt to give a bribe. Therewith it does not matter if a certain person, to whom it was supposed to transfer a bribe, has been indicated.
Acquisition of valuables by fraud shall be deemed completed from the moment when a person has a real opportunity to use or dispose of the valuables transferred to him at his own discretion.
Receipt of money or other valuables by a person by fraud under the control of criminal prosecution authorities as part of an operational-search activity or an undercover investigative action with the use of funds allocated by the state budget for these purposes, or other funds that do not belong to the victim, shall be regarded as attempted fraud.
Footnote. Paragraph 20 - as amended by regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication).21. If the person, indicated in part one of article 361 of the CC, used the official powers in violations of service for the purposes of obtaining benefits and advantages for himself, other persons or organizations, by his actions (inaction) inflicted harm to somebody, and this caused infliction of harm to right and legitimate interests of citizens or organizations or interests of society or state protected by the law, the committed cannot be qualified as receipt of a bribe (extraordinary receipt of housing, receipt of a concessional loan, etc.). Such actions must be qualified as the abuse of power.
The mercenary motive of abuse of power may be expressed in obtaining benefits and advantages not only of a material or property nature, but also in another personal interest in the form of promotion, desire to please management, etc.
22. Bribery differs from corrupt payment on the subject of the crime, therefore, the illegal receipt of money or other valuables by a person performing managerial functions in a commercial or other organization cannot be held responsible for bribery. Such actions must be qualified in accordance with article 253 of the CC.
23. Responsibility for giving and receiving a bribe does not exclude the simultaneous criminalization of actions, although related to bribery, but constituting independent crimes (abuse of powers, complicity in the theft of another's property, etc.). In such cases, the offense must be qualified on the totality of crimes.
The transfer by the intermediary of knowingly stolen property of others should be qualified according to the totality of crimes - as mediation in bribery and complicity in theft, if the intermediary knew in advance that the subject of the bribe would be stolen by the bribe giver.
24. In assessing evidence, the courts should bear in mind that, if necessary, criminal prosecution authorities should re-investigate in the same case in order to identify other persons involved in giving, receiving a bribe or mediating in bribery, they must issue a reasoned decision indicating these specific actions.
In the absence of such a resolution, the repeatedly repeated operational-search measures of the criminal prosecution authorities on the basis of article 77 of the Constitution of the Republic of Kazakhstan should be deemed illegal.
Provocative-inflammatory actions of criminal prosecution bodies, consisting in transferring a bribe to the person indicated in part one of article 366 of the CC, when a consent was obtained as a result of his inclination to receive the subject of a bribe under circumstances indicating that without the intervention of the criminal prosecution authorities he would not have the intent to receive a bribe and the crime would not have been committed, the criminal act of the person against whom this activity is excluded was carried out.
25. Responsibility for provocation of a bribe in accordance with part two of article 417 of the CC occurs only in cases where an attempt to transfer the subject of a bribe was carried out in order to artificially generate evidence of a crime or blackmail and the person specified in part one of article 366 of the CC, knowingly for the guilty person did not perform actions testifying to his consent to accept the bribe.
The provocation of a bribe shall be considered a complete crime from the moment of an attempt to transfer property or to provide property services without the knowledge of the person specified in the first part of article 366 of the CC, or despite his refusal to accept the subject of the bribe.
26. Taking into account that bribery cases may involve the use of technical means in the collection of evidence (audio, video recording, processing of bribe items with special dyes, etc.), the courts should carefully verify compliance by the pre-trial investigation authorities with the norms of the CPC for the detection, fixing and seizure of evidence and decide on their admissibility.
27. The body carrying out the criminal process, in accordance with the notes of articles 366, 367 of the CC should take into account the following:
The receipt or giving for the first time by a person specified in the first paragraphs of articles 366, 367 of the CC, of property, property rights or other property benefits as a gift, in the absence of prior agreement for previously committed legal actions (inaction)shall not be a crime by virtue of insignificance and shall be punishable by disciplinary or administrative proceedings if the value of the gift does not exceed two monthly calculation indices;
the person who gave the bribe shall be exempted from criminal liability if there has been extortion of a bribe by the person indicated in the first part of article 366 of the CC or this person voluntarily informed the law enforcement or special state body about the bribe.
A report (written or oral) about the crime must be recognized as voluntary, regardless of the motive that guided the applicant. At the same time, a report made in connection with the fact that a bribe has become known to a law enforcement or special state body cannot be recognized as voluntary.
27-1. If a person instigated to give a bribe, has voluntarily, including being cheated, transfers money or other valuables as a bribe, then he shall be recognized a bribe giver and bear criminal liability. Such a person shall be exempt from criminal liability on the basis of paragraph 2 of the note to article 367 of the Penal Code, if he voluntarily informed the law enforcement or special state body about giving a bribe. The case in this event shall be terminated pursuant to paragraph 12) of the first part of Article 35 of the CPC. In criminal proceedings, such a person acts as a witness.
If prior to the transfer of a bribe, a person has voluntarily reported the fact of extortion of a bribe or incitement to giving a bribe, then the criminal prosecution against such a person who has given a bribe under the control of a law enforcement body shall be terminated in accordance with paragraph 2) of part one of Article 35 of the CPC, as the act in question did not constitute a criminal offence. In criminal proceedings, this person acts as an injured party.
All decisions of the criminal prosecution body taken on the case must be formalized by a resolution and attached to the case file.
Footnote. The regulatory resolution supplemented with paragraph 27-1 in accordance with regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication).27-2. A person who first committed a corruption offence without being in a criminal group, given that he turned himself in, contributed to the disclosure, investigation of a criminal offense, made amends for the damage caused by a criminal offense, as well as data about his personality, can be exempted from criminal liability in connection with active repentance on the basis of part one of Article 65 of the Penal Code. Decision on it shall be taken by the court alone.
Footnote. The regulatory resolution supplemented with paragraph 27-2 in accordance with regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication28. Courts should strictly comply with the provisions of the law on a differentiated approach to sentencing persons found guilty of crimes related to corruption. In this case, the courts should proceed from the nature and degree of public danger of the deed, not allowing the appointment of both excessively lenient and excessively harsh criminal penalties, taking into account the clarifications of the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 no.4 “On certain issues of imposition of criminal punishment".
For committing corruption offences, an additional penalty of deprivation of the right to hold a certain position or engage in certain activities shall be imposed for life, regardless of whether the person was engaged in a certain activity or held a certain position at the time of the crime in the organizations indicated in the list of part two of Article 50 of the Penal Code.
Footnote. Paragraph 28 - as amended by regulatory resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 (shall be enforced from the date of the first official publication).29. Withdrawn money and other valuables that are the subject of a bribe and recognized as physical evidence are subject to forfeiture to the State.
The subject of the bribe, submitted at the request of the body carrying out the criminal proceedings, by another person, shall be subject to return by affiliation.
If the subject of a bribe is not found, then its value as illegally acquired property shall be collected by the court to the state revenue or transferred to another person by ownership.
Property obtained as a result of committing corruption offenses and (or) the cost of illegally obtained services shall be subject to forfeiture to the State. The court considering the criminal case shall take the relevant decision and shall set it out in the operative part of the sentence.
Other requirements for the forfeiture to the State of illegally obtained property and (or) recovering the cost of illegally obtained services as a result of corruption offenses, the decision on which is not adopted in the verdict, shall be examined in civil proceedings in suits of the prosecutor, state revenue bodies or other state bodies and officials authorized by the laws of the Republic of Kazakhstan.
30. Civil claims filed in criminal proceedings must be resolved in accordance with the requirements of chapter 20 of the CPC. It should be borne in mind that the harm caused by a crime related to corruption can be not only property, but also moral.
31. To draw the attention of the courts to the importance of preventive work to eliminate the facts of corruption. In this regard, the reasons and conditions established during the consideration of the case, which contributed to the commission of crimes related to corruption, which adversely affect the state of legality in the Republic of Kazakhstan, should not be left without proper response.
When establishing such grounds the courts in accordance with article 405 of the CPC should make private decisions aimed at eliminating conditions conducive to corruption.
32. To recognize as invalid:
1) the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated December 22, 1995 no.9 “On the practice of application by the courts of the laws on responsibility for bribery”;
2) the decree of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 20, 1999 no.20 “On amendments and additions to the decree of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 1995 no.9 “On the practice of application by the courts of the laws on responsibility for bribery”;
3) the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 no.18 “On the practice of consideration of criminal cases on corruption-related crimes by the courts”;
4) the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 no.6 “On amendments and additions to the decree of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 1995 no.9 “On the practice of application by the courts of the laws on responsibility for bribery”;
5) the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 no.17 “On amendments and additions to the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 no.18 “On the practice of consideration of criminal cases on corruption-related crimes by the courts”.
33. According to article 4 of the Constitution of the Republic of Kazakhstan this regulatory decree included into the composition of the current law, shall be compulsory and shall be enforced from the date of official publication.
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Chairman of the Supreme Court of the Republic of Kazakhstan |
К. MAMI |
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Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of Plenary Session |
К. SHAUKHAROV |