Corruption offenses and corruption-related offenses are disciplinary offenses that discredit public service.

The corruption offenses previously mentioned in the Law "On Combating Corruption", which became invalid, and offenses related to corruption by virtue of the provisions of the Law "On Combating Corruption" dated November 18, 2015, and the Law "On Civil Service of the Republic of Kazakhstan" dated November 23, 2015, are currently not such. According to the new legislation, the previously mentioned corruption offenses and corruption-related offenses fall under the concept of disciplinary offenses that discredit the civil service.

The Saryarkinsky District Court of Astana rejected V.A.A.'s claim against the State Revenue Department of Astana for declaring the order illegal and canceling it, reinstating the chief specialist of the Auezhai-Astana customs post of the State Revenue Department of Astana. In support, the plaintiff pointed out that by the investigator's decision of 16.03.2016, the criminal case against him was terminated due to the absence of a criminal offense in the actions provided for in paragraph 1 of Part 3 of Article 366 of the Criminal Code. On 28.03.2016, the Disciplinary Commission recommended considering the dismissal of the plaintiff from his post on negative grounds in accordance with Part 4 of Article 50 of the Law "On Civil Service" for committing misconduct discrediting the civil service. By an order dated 31.03.2016, he was dismissed for committing a disciplinary offense discrediting the civil service, expressed in providing undue preference to individuals and legal entities in preparing and making decisions. He did not commit any acts of extortion or bribery, nor did he attempt to commit such acts.

The court found that V.A.A. was dismissed for committing a disciplinary offense discrediting the civil service, expressed in providing undue preference to individuals and (or) legal entities during the preparation and decision-making.

According to Article 50 of the Law "On the Civil Service of the Republic of Kazakhstan", the following acts of civil servants are recognized as disciplinary offenses discrediting the civil service:

1) unlawful interference in the activities of other state bodies and organizations;

2) the use of their official powers in resolving issues related to the satisfaction of their material interests or close relatives and relatives;

3) providing benefits not provided for by law (protectionism, nepotism) when applying for and advancing in public service;

4) giving undue preference to individuals and (or) legal entities when preparing and making decisions, and others…

At the hearing, the plaintiff did not dispute the fact that in January 2016, a certain "Petrov" contacted him, informing him of his desire to illegally export currency in the amount of 250,000 US dollars. During the conversation, V.A. Petrov was asked to declare the exported currency in accordance with the procedure established by law. Further, "Petrov" repeatedly called V.A., in a conversation with whom V.A. was informed of the amount of remuneration for the service rendered by him in the amount of 1% of the amount of exported currency, also V.A. He suggested that Petrov postpone the departure date, which would coincide with the day of his job change, and send a photo of the ticket to his cell phone.

According to V.A., these actions were committed by him in order to identify the valid personal data of the Petrov citizen, to clarify the date of departure, in order to take further measures to curb smuggling. He did not warn the management about the impending crime, because he was not sure that Petrov would export the currency, since he had doubts that Petrov even had such a large amount of money.

The court of first instance refuted the plaintiff's arguments that he had not informed the management of the impending offense, as he was negotiating with Petrov in order to take measures to curb smuggling in the future. According to the requirements of paragraphs 1, 3 of Article 52 of the Law "On Civil Service of the Republic of Kazakhstan", paragraph 1 of Article 24 of the Law of the Republic of Kazakhstan "On Combating Corruption", a civil servant is immediately obliged in writing to inform the leadership of the state body in which he works, authorized state bodies about an impending corruption offense. The specified actions were not taken by the plaintiff, and after he became aware of the personal data of the Petrov passenger, the date and time of departure. The plaintiff took active steps to prepare for receiving illegal funds from citizen Petrov. In addition, the plaintiff is not an employee of the Department's law enforcement service and, according to his functional duties, should not carry out operational investigative activities in order to prevent money smuggling.

In accordance with subparagraph 21 of paragraph 1 of Article 61 of the Law "On Civil Service of the Republic of Kazakhstan", the basis for termination of public service by administrative civil servants is the commission of a disciplinary offense discrediting the civil service.

According to paragraph 23 of the regulatory decree of the Supreme Court "On certain issues of the application of legislation by courts in the resolution of labor disputes", when considering disputes between persons dismissed from service for misconduct that discredits the authority of the bodies they represent, courts should proceed from the fact that discrediting is understood as committing actions, even if not related to the execution of official duties, but clearly undermining in the eyes of citizens the dignity and authority of the bodies they represent.

The court correctly resolved the disputed legal relations on the basis of legal acts regulating the fight against corruption, which entered into force in 2016.

 

 

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