According to the deputy chairman of NCE Rustam Zhursunov, complex compositions of articles lead to impunity of officials

Speaking at a national forum of businessmen on combating corruption, the deputy chairman of the National Chamber of Entrepreneurs of Kazakhstan "Atameken" Rustam Zhursunov state about the presence of the huge imbalance between the number of detected violations of the law on the part of officials and the degree of responsibility of officials for the committed multiple offenses, and sometimes crimes.

According to him, for 10 months of 2016, NCE has received more than 5.5 thousand complaints from entrepreneurs. The procuratorial authorities in the course of inspection and analysis in the field of economics revealed almost 20 thousand violations. By acts of prosecutorial supervision and the letters of the prosecutor's office more than 3 thousand Illegal acts were canceled and changed. "These figures show only a fraction of the pressure, which is experiencing the Kazakhstani business. The officials who have committed violations of the rights of entrepreneurs, in fact bear no responsibility", - added Zhursunov.

Deputy Chairman of the Board of NCE cited the data of the the Committee on Legal Statistics and Special Records, under which only 2 persons were convicted  under Article 365 of the Criminal Code (Obstruction of legitimate business activities) for 2015 and the first 9 months of 2016. Zero cases under article 370 of the Criminal Code (failure to act in the service) within two years.

"In terms of the number of civil servants involved in the administrative responsibility, the picture is not better. Thus, only 4 administrative proceedings were initiated within the same period under Article 173 of the Administrative Code "Illegal interference of officials in business activities", under which only 2 resolutions on imposition of penalties were ruled out. According to article 175 of the Administrative Code "Violation of the order of inspection of private entrepreneurs" during the reporting period only 44 administrative cases were initiated, penalty was imposed on 27 officers. Only two administrative cases were initiated under Article 175-1 of the Administrative Code "Unreasonable conduct of other forms of control and supervision with a visit to the private entrepreneurs" in 2016 ", - he said.

In the matter of disciplinary action, according to Zhursunov, the situation is similar. Thus, according to statics, in 2015 on the appeals of individuals and legal entities from 17.5 thousand complaints against government agencies and officials to disciplinary charges were brought only 8 people. During the first 9 months of 2016 the number of such complaints has almost doubled (32 thousand complaints), only 3 persons were subject to disciplinary punishment.

"The above figures clearly demonstrate that the system of checks and balances does not work. Dishonorable state employees, who make mistakes, which often cause "lethal" business losses, in fact do not bear any responsibility", - he said.

The reasons for this sad statistic Deputy Chairman of the Management Board of the Chamber sees in "filters" in the articles of the Criminal Code, which negate all efforts to attract to liability. In particular, Articles 361 and 365 ("abuse of power", "obstruction of business") contain such wording "contrary to the interests of the service", "recovery of benefits or advantages". "There are no civil servants, who act against the interests of the service or the state. Moreover, those who recognize the fact of a selfish interest. To prove the converse is extremely problematic", - he said.

"In this regard, we consider it necessary to revise radically the content of the articles 361, 362, 365, 370, 371 of the Criminal Code, including the appropriateness of their inclusion in the chapter devoted to corruption offenses. It is advisable to distinguish between corruption component and unlawful actions of state employees, which cause harm to the subjects of entrepreneurship", - said the representative of NCE.

"Atameken" has big questions, to the current practice of administrative responsibility. The Administrative Code contains three articles providing for responsibility of officials of state bodies to entrepreneurs: article 173 "Illegal interference of officials in business," article 175 "Violation of the order of inspection of private entrepreneurs", article 175-1 "Unreasonable conduct of other forms of control and supervision with a visit to a private business".

"As for the last two articles on illegal checks, according to the Administrative Code, the protocol must be compiled by the authorized body for business, i.e. the Ministry of National Economy.

But the Ministry does not have its offices in the regions. This feature is not supported in terms of organization, and it does not work in practice. It is necessary to determine the state agency that will really work on such offenses. In our opinion, it is the prerogative of the anti-corruption agency and the prosecutor’s office", - said Zhursunov.

The rules on unlawful interference with business activities (Article 173), according to deputy chairman of the board of NCE, also have wording and conditions, turning off such responsibility.

"Disciplinary responsibility of civil servants is increasingly common. But in cases of appeal against illegal actions of officials by entrepreneurs, it is almost not applicable. The reason for this is the limited time for imposition of penalties: 1 month from the date of discovery and 6 months from the date of commission of the offense. The appeal to the higher authorities is 2-3 months, the appeal in the courts - from 8 months to 1 year. The term of disciplinary liability elapses by that time and there are no legal grounds to initiate cases", - he said.

Zhursunov believes that it is necessary to change this practice, to put into law additional conditions, letting to punish the perpetrators. According to him, it shall be possible to suspend deadline during judicial and other proceedings.

"Monitoring of complaints against public servants and the timely adoption of measures of responsibility should be regarded as an indicator of the effectiveness of state institutions, the Agency and the prosecutor's office", - said the deputy chairman of NCE.

In addition, Zhursunov raised the issue of anti-corruption mechanisms in the field of procurement. "The second major block I want to highlight is the issue of anti-corruption mechanisms in the field of procurement. It is well known that this area requires special attention of the state and the public", - he said.

The deputy chairman of NCE also focused attention of the audience on the issue of liability of state bodies. "The legislation provides a mechanism for the execution of obligations by government agencies under the decisions of the courts from the Government reserve. But it is so bureaucratized that it is simply impossible for a businessman to achieve the desired result. This is evidenced by the figures. 388.3 billion tenge was not reimbursed to business in 2016. When the state fails to comply with a court decision, it leads to an imbalance of interests in society, and, as a consequence, the growth of corruption. In this regard, we consider it necessary to develop a mechanism of compensation for businesses for the damage caused by the state bodies and officials, including the opportunity to consider the insurance of their civil liability", - he said.

Zhursunov stressed that in the system of procurement of quasi-public sector in Kazakhstan, there is no proper control and insufficient transparency. "According to prosecutors, in 2015 and the first quarter of this year 342 violations of procurement regulations were revealed, only in half of the cases the perpetrators were brought to disciplinary responsibility", - he said.

"Subsidiaries make their own decisions to prosecute. It is understandable that they are not interested in adoption of strict measures. This practice eliminates the work on the prevention of corruption. In this regard, it is necessary to strengthen legally the mechanisms of monitoring and accountability. We consider it is necessary to establish the centralized internal audit service in the holding. It must be subordinate to the Board of Directors of the holding company, have a vertical structure and have the authority to control purchases of the entire group of the holding", - he said.

Zhursunov also suggested, following the example of Singapore, to identify separately the following most exposed to corruption risk areas: budget planning, accounting, legal support, procurement, disposal of property. "Employees of these areas must be attributed to the circle of subjects of corruption offenses, create for them a special legal regime providing for additional commitments and responsibilities. They should be aware that their activities will be under constant supervision, they will be required to report their expenses, awards, personal interests and affiliation. If there is a slightest suspicion of their actions, they are required to submit proof of legitimacy, to explain their actions (usually “comply or explain”, i.e. to comply or to explain). For violation of these duties, they must be held accountable”, - he concluded.