Bringing to disciplinary responsibility
Article 44 of the Law of the Republic of Kazakhstan "On the Civil Service of the Republic of Kazakhstan" provides for increased responsibility for disciplinary offenses that discredit the civil service, in the form of penalties such as a warning about incomplete official compliance or demotion, as well as the dismissal of Sh. I filed a lawsuit with the State Institution "Akim's Office of the Eskeldinsky district of the Almaty region" to declare illegal and cancel the order dated November 9, 2020 No. 139 railway station on bringing to disciplinary responsibility in the form of a warning about incomplete official compliance for committing a disciplinary offense provided for in subparagraph 4) paragraph 1 of Article 50 of the Law of the Republic of Kazakhstan "On the Civil Service of the Republic of Kazakhstan" (hereinafter – the Law). By the decision of the Eskeldinsky District Court of the Almaty region dated December 15, 2020, the claims of Sh. satisfied. By the decision of the Judicial Board for Civil Cases of the Almaty Regional Court dated February 23, 2021, the court's decision remained unchanged.
Bringing to disciplinary responsibility
The Judicial Board for Civil Cases of the Supreme Court upheld the decision of the Court of Appeal on the following grounds. In the case, it was established that by the order of the akim of the Eskeldinsky district of the Almaty region dated April 7, 2017, Sh. He was appointed to the post of akim of Syrymbet rural district of Eskeldinsky district of Almaty region. On December 20, 2019, the State Institution "Office of the Akim of Syrymbetsky rural District of Eskeldinsky district" and LLP "V" signed a public procurement contract for the provision of document archiving services. Payment for services rendered in the amount of 180,000 tenge was provided at the expense of budgetary funds allocated for 2019, the deadline for the performance of services is thirty calendar days from the date of signing the contract. On the basis of the letter of guarantee from LLP "V" Sh. On December 26, 2019, an act of completed works was signed, on the basis of which payment in the amount of 180,000 tenge was transferred to the account of LLP "V", although the work had not yet been completed. This fact was revealed by the prosecutor's office of the Eskeldinsky district in July 2020 during an analysis of compliance by local executive bodies with the Law of the Republic of Kazakhstan "On Public Procurement". A submission has been sent to the Agency of the Republic of Kazakhstan for Civil Service Affairs of the Almaty region.
According to the results of the review of the submission, by the decision of the Ethics Council of the Agency of the Republic of Kazakhstan for Civil Service Affairs of the Almaty region, the Akim of the Eskeldinsky district was recommended to impose on Sh. penalty for committing a disciplinary offense provided for in subparagraph 4) paragraph 1 of Article 50 of the Law (giving undue preference to individuals and (or) legal entities in the preparation and adoption of decisions). By order of the akim of the Eskeldinsky district dated November 9, 2020, Sh. he was brought to disciplinary responsibility in the form of a warning about incomplete official compliance. Sh. motivated his demands in the present case by the fact that disciplinary punishment should correspond to the severity of the offense committed, any act can be attributed to the concept of "giving undue preference", however, if preference is given to someone, then there must be a person who is denied a solution to a similar issue. When imposing the penalty, it was not taken into account that LLP "V" had previously provided document archiving services properly and there were no doubts about the fulfillment of its obligations. The allocated funds had to be disbursed in 2019. At the time of the audit, all work under the contract had been completed. Satisfying the plaintiff's claims, the court of first instance proceeded from the fact that the contract was not executed on time by LLP "B" due to the pandemic. In addition, the court accepted the recognition of the claim by the defendant. The Court of Appeal, recognizing these judgments as correct, also noted that LLP "V" fulfilled its contractual obligations in full, without causing any negative consequences. The Judicial Board believes that the local courts, not only recognizing the defendant's claim, should have assessed the plaintiff's arguments about the nature of the misconduct he committed and determined whether there was a disciplinary offense in his actions, such as giving undue preference to individuals and (or) legal entities in preparing and making decisions. By virtue of article 44 of the Law, a disciplinary offense of a civil servant is an unlawful, culpable failure or improper performance by a civil servant of the duties assigned to him, abuse of official authority, violation of official discipline and ethics, as well as non-compliance with the restrictions established by the laws of the Republic of Kazakhstan related to public service. At the same time, a separate provision of the Law, article 50, contains a list of disciplinary offenses that discredit the civil service.
Bringing to disciplinary responsibility
These include misconduct such as unlawful interference in the activities of other government agencies and organizations; using one's official powers in resolving issues related to the satisfaction of one's material interests or close relatives and relatives; giving undue preference to individuals and (or) legal entities in preparing and making decisions, and others. Article 44 of the Law provides for increased responsibility for disciplinary offenses that discredit the civil service, in the form of penalties such as a warning about incomplete official compliance or demotion from a public position, as well as dismissal. In addition, the existence of such a penalty may be an obstacle to entering public service in the future. From the systematic interpretation of the above-mentioned norms, it follows that discrediting the authorities should be understood as the commission by an official of actions that clearly undermine the dignity and authority of the authorities in the eyes of citizens. Misconduct that discredits the civil service should include such misconduct that a civil servant commits knowingly, pursuing selfish or other personal interests. The Law, in particular article 50, does not provide a clear explanation of what actions should be regarded as giving undue preference to individuals and (or) legal entities when preparing and making decisions. However, the very word "preference" means recognizing someone's advantage over others. In other words, as the plaintiff correctly pointed out in the statement of claim, if someone is given preference, then there must be a person who is denied a solution to a similar issue.
Moreover, such an action as giving preference should be unlawful and committed by a civil servant during the preparation and adoption of a decision. In this case, the provision of Sh. undue preference of LLP "B" could have occurred when choosing a supplier. However, it follows from the case file that the public procurement contract was concluded using a single source method. The offense committed by the plaintiff is the premature signing of the act of completed works, whereas in accordance with paragraph 6 of Article 97 of the Budget Code of the Republic of Kazakhstan, the state institution ensures the reliability of confirmation of the delivery of goods, completed works and (or) services provided in accordance with concluded civil law transactions. However, this misconduct is not related to the unlawful preference of LLP "B" over anyone, but is caused by the need to use the budget funds allocated at the end of November 2019 by the end of the year. Thus, an incorrect definition of the type of disciplinary misconduct led to an incorrect definition of the type of disciplinary liability.
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