Consideration of disputes on the reinstatement of persons who were previously convicted of committing a crime (including corruption and if they have a cancelled criminal record), as well as those brought to administrative responsibility for a corruption offense.

The specifics of the legal regulation of the work of certain categories of employees are established by the norms of the Labor Code, as well as other laws of the Republic of Kazakhstan.

Thus, in paragraph 4 of Article 139 of the Labor Code, as well as in paragraph 2 of Article 231 of the previously valid Labor Code (2007), it is stipulated that a person who has previously committed a corruption offense cannot be accepted into the civil service, for a position related to the performance of managerial functions.

Also, in accordance with subparagraph 6-2) of paragraph 4 of Article 10 of the Law "On Civil Service" dated 07/23/1999, a person who had committed a corruption offense could not be accepted into public service.

A similar provision is retained in subparagraph 8) of paragraph 3 of Article 16 of the current Law "On Civil Service" dated November 23, 2015.

For example, M.K. Sarsenbayev filed a lawsuit with the Akim of the Uspensky district of the Pavlodar region to cancel Order No. 46 dated April 20, 2016 on his dismissal from his post and reinstatement as head of the Department of Housing and Communal Services, Passenger Transport and Highways of the Uspensky District (hereinafter referred to as the Department of Housing and Communal Services of the Uspensky District, FRI and HELL of the Uspensky district") and collecting wages for the time of forced absenteeism.

M.K. Sarsenbayev motivated the claim by the fact that by the order of the akim, he was dismissed from his post as head of the State Institution "Housing and Communal Services, PT and AD of the Uspensky district" on the basis of the submission of the prosecutor of the Uspensky district dated April 20, 2016, due to the fact that he has a criminal record under art. 307 part 1, art.308 part 4 of paragraph "b" He was convicted of committing a corruption crime, and was illegally hired as the chief specialist of the department of the State Institution "Housing and Communal Services, PT and AD of the Uspensky district", and then transferred to the position of head of the institution. The plaintiff considered his dismissal illegal, since by the decision of the Uspensky District Court of 09.12.2010, the criminal record and the ban on holding public office were lifted, respectively, all legal consequences related to the criminal record were annulled. When entering the civil service, he did not conceal his criminal record, and a special check by the National Security Committee found no obstacles to his holding public office.

The court found that the fact that Sarsenbaev M.K. committed corruption crimes before accepting him for a public position in the State Institution "Department of Housing and Communal Services of the Uspensky district" was not disputed by him and confirmed by a court verdict.

By virtue of the requirements of subparagraph 17 of paragraph 1 of Article 61 of the Law "On Civil Service" dated 11/23/2015, non-compliance with the requirements established by this law when appointed to a public position is the basis for termination of public service by administrative civil servants.

Under such circumstances, M.K. Sarsenbayev could not be employed in the civil service due to his corruption crimes.

The court found the plaintiff's arguments that the conviction for committing a corruption crime had been removed, which, by virtue of the provisions of the Criminal Code, annuls all legal consequences related to the conviction. This right is implemented in subparagraph 10 of paragraph 3 of Article 16 of the Law "On Civil Service" (also sub-paragraph 7 of paragraph 4 of Article 10 of the previously valid Law), which stipulates that a person with a criminal record who has not been expunged or removed in accordance with the established procedure cannot be accepted into public service. It's fine.

However, the provisions of subparagraph 8 of paragraph 3 of Article 16 of the Law "On Civil Service" prohibiting the admission to public service of a person who has committed a corruption crime are a special norm and are subject to application in relation to a special entity - a person who has committed a corruption crime. The plaintiff is such a person (a similar indication was contained in subparagraph 6-2 of paragraph 4 of Article 10 of the previously valid Law).

As established by the court, the defendant had grounds for dismissing the plaintiff due to his non-compliance with the requirements established by the Law "On Civil Service" when appointed to a public position. This ground is provided for in subparagraph 17) of paragraph 1 of Article 61 of the Law "On Civil Service". In such circumstances, S.M.K. was subject to dismissal on the basis of the specified rule of law, as indicated by the court in the decision.

The plaintiff appealed the decision on appeal, and the judicial board of the regional court upheld it.

From the same category of disputes, the following case is of interest, considered by the Taldykorgan City Court of the Almaty region. The plaintiff, Sh.A.L., motivated his demands for recognition of the order as illegal and reinstatement to his former position by the fact that since 03.11.2014 he had been working as the chief specialist - state inspector of the Almaty Regional Territorial Inspectorate of Forestry and Wildlife. On the basis of Order No. 58 dated 03.03.2016, it was due to the presence of an incoming conviction for committing a crime. He considered the dismissal illegal because there was no conviction.

The court found from the order that the plaintiff was dismissed on the basis of subparagraph 12, paragraph 1, Article 61 of the Law "On Civil Service of the Republic of Kazakhstan", as there is an effective verdict of the Kapshagai City Court of the Almaty region dated 12/28/1915, the decision of the Judicial Board for Criminal Cases of the Almaty Regional Court dated 02/16/216 and letter No.3-6-1-17/1300 dated 02.03.2016 State Institution "Department of the Ministry of Civil Service Affairs in the Almaty region".

According to subparagraph 12 of paragraph 1 of Article 61 of the Law of the Republic of Kazakhstan "On Civil Service of the Republic of Kazakhstan", the grounds for termination of public service by administrative civil servants are the entry into force of a court conviction for committing a crime or intentional criminal misconduct. The court found that by the verdict of the Kapshagai city Court of the Almaty region dated December 28, 2015, Sh.A.L. He was found guilty of committing a crime under paragraphs 2 and 3 of Part 3 of Article 190 of the Criminal Code of the Republic of Kazakhstan and sentenced to imprisonment for a period of 3 years and 6 months with confiscation of property and life imprisonment with the right to engage in activities related to the protection of forests and wildlife, while serving his sentence in a penal colony.

However, by the decision of the Judicial Board for Criminal Cases of the Almaty Regional Court dated 02/16/216, the verdict of the Kapshagai City Court of the Almaty region dated 12/28/2015 against Sh.A.L. was overturned. The criminal case against the plaintiff was terminated on the basis of part 1 of Article 68 of the Criminal Code in connection with reconciliation with the victim, with his release from criminal liability.

Under such circumstances, the court concluded that the order to dismiss Sh.A.L., based on the court's final conviction for committing a crime, was unlawful, due to the cancellation of the Kapshagai City Court's conviction of 12/28/2015. The plaintiff's claims regarding reinstatement are subject to satisfaction.

 

 

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