Kazakhstan: Global Investigations Guide

There are a number of related regulations, such as the Criminal Code dated July 3 2014, the Criminal Procedure Code dated July 3 2014, the Code on Administrative Offenses dated July 5 2014, Anti-Corruption Law dated November 18 2015 and Anti-money laundering and terrorism financing Law dated August 28 2009.

1. Employee representative bodies, such as a works council
   No, there is no legal obligation to inform employee representative bodies about an internal investigation related to corruption before it is commenced, unless such an obligation is included in the relevant collective or other agreement concluded between the employer and employee representative body.
2. Data protection officer or data privacy authority
   Data privacy authority does not exist in the structure of state authorities in Kazakhstan. Due to this, there is no legal obligation to inform a data protection officer or a data protection authority about the initiation of an internal investigation related to corruption.
3. Other local authorities
   In case of investigation related to an accident which caused injury or death of an employee which occurred at work, the employer is obliged to immediately inform close relatives of the injured person about the accident and report to the certain state authorities and organizations (for example, local labor inspection, law enforcement body, and some others).
4. What are the consequences of non-compliance?
   If a person determines that a crime of corruption was committed, it must inform the state authorities. If a person does not report it, he/she runs the risk of being held criminally liable for concealment of the crime.
   
   If a person becomes aware that a crime of corruption was committed and he/she does not inform criminal authorities, he/she may be prosecuted for concealment of a criminal offense. As a result, a person may be sanctioned with imprisonment for a term of up to six years.

Kazakh legislation does not stipulate an obligation of employees to support the investigation. The company cannot impose disciplinary measures if an employee refuses to cooperate. To be able to hold the employee liable for a failure to cooperate during the investigation, it may be recommended to include such an obligation of employees in the employment agreements concluded with them or to include it in the relevant mandatory internal policies of the company.

If an action or inaction of a person has attributes of a criminal or administrative offense, any person who may be related to such an offense is obliged to support the investigation conducted by the state authorities in order prescribed by the relevant regulations depending on the nature of the offense.

Under the Labor Code of the Republic of Kazakhstan a disciplinary penalty shall be imposed on an employee immediately upon discovery of the offense by representatives of the employer, but not later than one month from the date of its discovery¹. Disciplinary penalty may not be applied later than six months from the date of committing a disciplinary offense, or no later than one year from the date of committing a disciplinary offense in case a disciplinary offense was discovered in the result of an audit of the employer's financial and economic activities.

The consideration of a disciplinary offense shall not be carried out and the statute of limitations shall be extended for a period of²:

1. Temporary disability of an employee.
2. Release of an employee from work for the period of performing state or public duties.
3. The employee's being on vacation or inter-communal vacation.
4. The employee's being on a business trip.
5. Criminal or administrative offense proceedings, as well as before the entry into legal force of a judicial act that may affect imposition of a disciplinary sanction on an employee.
6. Training, retraining, advanced training courses, and internships.
7. The employee's appeal in court against the employer's acts of committing a disciplinary offense.
8. Conducting an investigation of an accident at work in relation to persons who have violated the requirements for safety and labor protection.

However, if there are criminal elements in a disciplinary offense, the deadlines/limitations established by labor law may not be applicable.

^{1 Article 66 of the Labor Code dated November 23, 2015}

^{2 Ibid.}

1. Conducting interviews?
2. Reviewing emails?
3. Collecting (electronic) documents and/or other information?
4. Analyzing accounting and/or other mere business databases?

No, Kazakh legislation does not provide for regulations stipulating specific obligations for conducting interviews unless such interviews are conducted within criminal or administrative investigation.

Before reviewing emails, collecting (electronic) documents, and/or other information or analyzing accounting and/or other mere business databases an entity or a person shall take into account obligations and restrictions provided for by the Law of the Republic of Kazakhstan No. 94-V of May 21 2013, "On personal data and its protection» and Law of the Republic of Kazakhstan No. 349-I of 15 March 1999 "On state secrets". For instance, under the Law "On personal data and its protection", collection and processing of personal data shall be carried out only upon consent of the person to whom personal data is attributed (exceptions apply). The consent for the collection and processing of personal data is provided in writing, in the form of an electronic document, through the personal data security service, or in any other way using elements of protective actions.

There are no specific procedures that need to be considered in cases where a whistle-blower report sets off an internal investigation. The Criminal Code of the Republic of Kazakhstan provides a mechanism for the protection of persons taking part in criminal proceedings, the respective measures include:

1. Application of security measures by authorized state bodies in order to protect the life and health of protected persons, as well as ensuring the safety of their property.
2. Application of legal protection measures, including criminal liability for infringement of their life, health, and property.
3. Social protection measures that provide for the right to material compensation in the event of their death, bodily injury or other harm to their health, destruction or damage to their property.

A person who reports a corruption offense or otherwise assists in combating corruption is protected by the state and shall be rewarded by the state. For persons who have reported the fact of a corruption offense or otherwise assist in combating corruption shall be entitled to a one-time monetary remuneration. Depending on the amount of the reported bribe, the remuneration may total up to 10% of the bribe but not more than 4,000 MCI (about US$27,000).

1. Receive written instructions?
2. Be informed that he/she must not make statements that would mean any kind of self-incrimination?
3. Be informed that the lawyer attending the interview is the lawyer for the company and not the lawyer for the interviewee (so-called Upjohn warning)?
4. Be informed that they have the right to have their lawyer attend?
5. Be informed that they have the right to have a representative from the works council (or other employee representative body) attend?
6. Be informed that data may be transferred across borders (in particular to the United States of America)?
7. Sign a data privacy waiver?
8. Be informed that the information gathered might be passed on to third parties, including local or foreign authorities?
9. Be informed that written notes will be taken?

Kazakh legislation does not regulate the procedure of conducting employee interviews. In this regard the answer to the most of the above listed questions is "no", unless the procedure of conducting employee interviews is regulated by the company's internal policies, or if the interview is related to the criminal or administrative offense.

As for the personal data issues, the interviewer shall comply with the requirements and restrictions related to transferring personal data of the interviewee abroad. For instance, cross-border transfer of personal data to the territory of foreign states may be carried out only if these states ensure the protection of personal data. Under Data Privacy Law any personal data may be obtained only upon consent of a person to collect and process his/her personal data in writing or in the form of an electronic document.

Document hold notices are neither regulated nor required. However, a criminal court can order the preservation of certain information or documents as a precautionary measure during a criminal trial.

Companies have an option to include these provisions in their internal policies or to include them in employment agreements concluded with employees.

According to the Law on the Advocacy, an attorney must not reveal a client's secret. Professional secrecy cannot be disclosed without the client's consent.

This confidentiality is more commonly referred to as professional secrecy or attorney–client privilege, and is defined as the attorney's obligation to maintain the confidentiality of information disclosed by a client in the context of the attorney–client relationship and the right of the client to consider any advice to him as confidential. The attorney is prohibited from disclosing the information, and the client is entitled to request that the information provided be kept confidential. The attorney must in general refuse to disclose the information when requested to do so by a court, a public authority, or any other third party. It also applies to the correspondence and advice of the attorney to the client; this information is also protected by professional secrecy and benefits from the attorney–client privilege. The attorney is responsible for the consequences of disclosing such secrecy¹. Moreover, Kazakh legislation prohibits the interrogation of an attorney as a witness re the circumstances that became known to him/her while performing professional duties.

^{1 Article 9 of the Law on the Advocacy and Legal Assistance dated July 5, 2018}

The privilege applies only to advocates and does not apply to lawyers who are not advocates, whether they are inside or outside counsel.

1. To insurance companies (D&O insurance, etc.) to avoid losing insurance coverage.
2. To business partners (e.g., banks and creditors).
3. To shareholders.
4. To authorities.

There is no legal requirement to provide prior notice of an investigation to insurance companies, business partners, shareholders and any authorities, unless such an obligation is included in the relevant contracts concluded with the relevant insurance companies and/or business partners.

No, they are no other immediate measures.

If an internal investigation reveals facts of corruption, the employer, represented by the head executive officer, must immediately report this fact to the anti-corruption agency. Failure to provide information on the facts of corruption entails criminal liability in the form of a restriction of freedom for up to six years.

Kazakh legislation is silent with respect to cases where prosecutor authorities become aware of an internal investigation in the commercial company.

Within criminal investigation the procedural actions such as an inspection, visit, excavation, and/or personal search shall be carried out only based on a sanction of the judge (exceptions apply). Such actions are initiated by judicial orders that require due process, and must indicate the scope of the search, premises to be inspected etc.

Search and seizure are performed by a person conducting a pre-trial investigation, based on a reasoned decision. A decision to conduct a search, as well as to seize documents must be authorized by the investigating judge. The search is carried out with the participation of witnesses, and, in necessary cases, with the participation of a specialist and an interpreter.

The excavation is performed with the mandatory use of scientific and technical means of progress, if necessary, a specialist and translator can be involved.

When conducting a search, locked rooms and storage facilities may be forcibly opened if the owner refuses to open them voluntarily. The person conducting a search is obliged to take measures to ensure that the circumstances of the private life of the person occupying the premises or other persons identified during the search and seizure are not disclosed.

If evidence was obtained in violation of the procedural order prescribed by the legislation, such evidence loses its legal force and may not be accepted by the court.

Under the Criminal Code of the Republic of Kazakhstan, self-confession of guilt, sincere repentance and active cooperation for disclosure of a criminal offense are considered as circumstances mitigating criminal liability of a person.

When it comes to criminal offenses related to corruption, a company and its employees shall cooperate with the state bodies and Anti-corruption Agency on issues of prevention of corruption. Cooperation with anti-corruption authorities consists in reporting the fact of committing a corruption offense, providing information about the location of a person who committed a corruption offense and other assistance with detection, suppression, disclosure and investigation of a corruption offense.

In case of a criminal offense, including corruption crimes, there is a practice of concluding a procedural agreement in Kazakhstan⁴:

1. In the form of a plea deal, or
2. In the form of a cooperation agreement.

Abovementioned options are not available under administrative law.

^{1 Article 612 of the Criminal Procedure Code dated July 4, 2014}

As a general rule, commercial companies, their directors and officers shall not be liable for the misconduct of employees of the companies. However, Kazakh legislation stipulates cases when a company or its director may be held liable for the actions of the company's employees. For instance, according to the Civil Code, a company shall compensate damage caused to third parties by the company's employee during performance of his/her labor duties. Also, under the Criminal Code, if an employee commits a crime by the order of the company's director, the director may be held liable together with the employee as an accomplice.

Criminal penalties may include fines, community service, public work, confiscation of property, restrictions on liberty, imprisonment, and others. Administrative sanctions can be in the form of monetary fines, confiscation of property, restriction of freedom, and others. As mentioned previously, criminal liability does not apply to companies.

Due to the fact that this aspect is not explicitly regulated by Kazakh laws, currently no legislative act provides for such possibility.

The Supreme Court of the Republic of Kazakhstan in its recent Normative resolution on practice of considering certain corruption crimes emphasized that it is important to distinguish mediation in bribery from giving and receiving a bribe, taking into account that the intermediary is a person who helps the bribe-taker and the bribe-giver in reaching or implementing an agreement between them on receiving and giving a bribe. At the same time, to be found guilty of mediation in bribery, it does not matter whether the intermediary received remuneration from the bribe-giver or the bribe-taker.

The actions of the intermediary should be considered a completed crime from the moment of facilitating an agreement between the bribe-giver and the bribe-taker on giving and receiving a bribe or implementing such an agreement, i.e., from the moment the bribe-taker accepts at least part of the stipulated amount of the bribe.

A person who organized, instigated, or otherwise facilitated the giving or receiving of a bribe, and at the same time performed intermediary functions, is liable for complicity in giving or receiving a bribe. The question on qualification of actions of the accomplice should be decided taking into account the focus of its intent, assuming, for whose benefit, on whose side and under whose initiative he/she acted (i.e., the bribe-giver or the bribe-taker).

If the person receives from the bribe-giver money or other values ostensibly to transfer to the other person as a bribe and in fact not intending to do it and takes it to itself, such actions should be qualified as fraud. When in order to receive the funds a person induces the bribe-giver to commit the bribe, such actions must additionally be qualified as instigation to bribery, and the actions of the bribe-giver in such cases are subject to qualification as an attempt at bribery. It does not matter whether the specific person to whom the bribe was intended was indicated.