An employee may be dismissed for committing a crime or an intentional criminal offense, by terminating a criminal case.
In accordance with subparagraph 15) of paragraph 1 of article 80 of the Law, an employee may be dismissed for the entry into force of a court conviction for committing a crime, termination of a criminal case on the basis of paragraphs 3), 4), 9), 10) and 12) the first part of Article 35 or Article 36 of the Criminal Procedure Code of the Republic Kazakhstan (old edition) in connection with the entry into force of a court conviction for committing a crime or intentional criminal misconduct, termination of a criminal case on the basis of paragraphs 3), 4), 9), 10) and 12) of the first part of Article 35 or Article 36 of the Criminal Procedure Code of the Republic of Kazakhstan (as amended by Law No. 136-VII).
L. held the position of investigator of the investigative department of the Department of Internal Affairs of the Karabalyk district of the Kostanay region.While on parental leave, L. violated the rules of the road, as a result of which moderate harm was caused to the victim's health.By a court verdict, she was found guilty of committing a criminal offense under Article 345, part 1 of the Criminal Code, with a fine.By order of the Police Department, L. was dismissed from the internal affairs bodies on the basis of subparagraph 15) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service".
The local courts, rejecting the claim, motivated their conclusions by the fact that the indictment against L. had entered into force. and the very fact that she committed a criminally punishable act is an obstacle to further work in the law enforcement service (the decision of the Kostanay City Court of October 13, 2021, the decision of the judicial board for Civil cases of the Kostanay Regional Court of December 09, 2021).In canceling judicial acts and satisfying L.'s demands, the Judicial Board for Civil Cases of the Supreme Court (3gp-205 dated June 15, 2022) proceeded from the following.
According to part 1 of Article 10 of the Criminal Code, criminal offenses are divided into crimes and criminal offenses, depending on the degree of public danger and punishability.
In parts 2 and 3 of this article, the concept of a crime and a criminal offense is given.
In particular, the disposition of parts 2, 3 of Article 10 of the Criminal Code provides that a crime is a culpably socially dangerous act (action or omission) prohibited by the Criminal Code under threat of punishment in the form of a fine, correctional labor, community service, restriction of liberty or imprisonment.
A criminal offense is an act committed guiltily (action or omission) that does not pose a great public danger, has caused minor harm or has created a threat of harm to a person, organization, society or the state, for which punishment is provided in the form of a fine, correctional labor, community service, arrest, expulsion from the Republic of Kazakhstan of a foreigner or stateless persons.
In accordance with article 10 of the Criminal Code, the criminal offense provided for in article 345, part 1 of the Criminal Code, refers to criminal offenses committed through negligence.On the same grounds, the Supreme Court overturned the decision of the Medeu District Court of Almaty dated October 29, 2021, and the decision of the Judicial Board for Civil Cases of the Almaty City Court dated February 24, 2022 in the case of T.'s lawsuit against the State Institution "Fire Extinguishing and Rescue Service of the Department of Emergency Situations of Almaty" on reinstatement.
The Kokshetau City Court took a different position when considering K.'s claim against the Department of the Specialized Security Service (decision of October 26, 2022). It was established that a decision was issued against the plaintiff to terminate the criminal case under Article 345 of Part 1 of the Criminal Code for reconciliation of the parties. In refusing to satisfy the plaintiff's demand to cancel the order, the court motivated the decision by saying that criminal offenses are a criminal offense, and this category is recognized in criminal legislation along with a crime. Therefore, according to the court, a criminal offense is, first of all, a crime.
The court's decision has not been appealed by the parties. However, it should be noted that the court did not see the difference between a crime and a criminal offense.The court also failed to take into account that, in accordance with subparagraph 6-1) of paragraph 2 of Article 6 of the Law "On Law Enforcement Service", a person cannot be accepted into law enforcement service who has been convicted of a criminal offense for three years before joining the service or who has been convicted of a criminal offense for three years before joining the service. released from criminal liability for committing a criminal offense on the basis of paragraphs 3), 4), 9), 10) and 12) of the first part of Article 35 or Article 36 of the CPC.
The content of this provision indicates that the legislator does not exclude the possibility that a person who has committed an act that does not pose a great public danger and has caused minor harm to a person may be in law enforcement service if more than three years have passed since the date of the conviction for such an act.
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