Disciplinary Offences for Failure to Perform or Improper Performance of Official Duties
Pursuant to subparagraph 15) of Article 1 of the Law “On Law Enforcement Service,” a disciplinary offence is the unlawful and culpable failure by an employee to perform, or improper performance of, the duties assigned to him or her; abuse or excess of official authority; violation of official and labour discipline; violation of the Code of Ethics of Civil Servants of the Republic of Kazakhstan (Rules of Official Ethics of Civil Servants) or codes of honour (rules of official ethics applicable within law enforcement agencies), as well as failure to comply with the established restrictions related to service in law enforcement agencies.
In accordance with paragraph 2 of Article 56 of the Law, the following types of disciplinary sanctions may be imposed on employees for failure to perform or improper performance of their official duties: reprimand; censure; severe reprimand; warning of incomplete official compliance; removal from the position held; reduction of the special rank or class rank by one level; dismissal from a law enforcement agency.
According to paragraph 3 of Article 57 of the Law “On Law Enforcement Service,” where an employee commits a disciplinary offence, a written explanation shall be requested from him or her. If, in the written explanation, the employee admits the fact of having committed the disciplinary offence, the head of the law enforcement agency or an authorized manager shall be entitled to impose a disciplinary sanction without conducting an internal investigation.
If the employee, in his or her written explanation, does not agree with the fact of having committed the disciplinary offence, an internal investigation shall be conducted by order of the head of the law enforcement agency or an authorized manager.
The Law contains a mandatory requirement that such disciplinary sanctions as a warning of incomplete official compliance, removal from the position held, and dismissal may be imposed only on the basis of the results of an internal investigation and the relevant recommendations of the disciplinary commission.
It should be noted that the previously effective version of paragraph 4 of Article 57 of the Law “On Law Enforcement Service” allowed disciplinary sanctions such as a warning of incomplete official compliance and removal from the position held to be imposed on the basis of a decision of the collegial body or an operational meeting chaired by the head of the law enforcement agency.
Following the amendments introduced by Law No. 136-VII, paragraph 4 of Article 57 of the Law was set out in the following wording:
“A disciplinary sanction in the form of a warning of incomplete official compliance, removal from the position held, dismissal, or expulsion from an educational organization of law enforcement agencies shall be imposed on the basis of the results of an internal investigation and the relevant recommendations of the disciplinary commission.
A disciplinary sanction in the form of a warning of incomplete official compliance or removal from the position held may be imposed without conducting an internal investigation and without the relevant recommendations of the disciplinary commission, on the basis of a decision of the collegial body or an operational meeting chaired by the head of the law enforcement agency, provided that the employee has submitted a written explanation confirming his or her agreement with the fact of having committed the disciplinary offence, and that there are materials confirming that the circumstances of its commission have been fully and objectively established.”
Jurisdiction
Pursuant to Article 26 of the Civil Procedure Code (CPC), civil cases of this category are heard by district courts and courts equivalent thereto.
M. filed a claim against the State Institution “Department for the Coordination of Employment and Social Programs of the East Kazakhstan Region” seeking reinstatement in employment.
By a ruling of the Ust-Kamenogorsk City Court dated 26 August 2021, the claim was returned on the grounds that it fell within the jurisdiction of the Specialized Interdistrict Administrative Court.
The appellate court held that the ruling of the first-instance court was subject to cancellation on the following grounds.
Pursuant to paragraph 2 of Article 102 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (hereinafter referred to as the “APPC”), disputes arising from public-law relations fall within the jurisdiction of courts under administrative proceedings. In accordance with subparagraph 2) of paragraph 7 of Article 3 of the APPC, cases for which the procedure for consideration is provided for by the civil procedural legislation of the Republic of Kazakhstan are not subject to consideration under administrative proceedings.
Disputes arising from public-law relations are disputes between subjects of public-law relations involving relations of authority and subordination, in which one party is vested with public powers in relation to the other party.
The subject matter of M.’s claim, however, was an employment dispute related to challenging an order terminating the employment contract, reinstatement to the previous position, recovery of wages, and compensation for non-pecuniary damage.
The position of the Judicial Panel for Civil Cases of the East Kazakhstan Regional Court on this matter should be considered correct.
The Judicial Panel for Administrative Cases of the Supreme Court of the Republic of Kazakhstan adheres to the same position. By its Resolution dated 18 August 2022 (No. 6ap/431), it upheld the ruling of the Specialized Interdistrict Administrative Court of the Zhambyl Region dated 6 December 2021 and the ruling of the Judicial Panel for Administrative Cases of the Zhambyl Regional Court dated 12 January 2022.
By the above judicial acts, M.’s claim against the Republican State Institution “Department of State Revenues for the City of Taraz” seeking to declare unlawful the conclusion issued following the internal investigation and the decision of the disciplinary commission was returned pursuant to subparagraph 11) of part two of Article 138 of the APPC, as the case was not subject to consideration under administrative proceedings.
In upholding the judicial acts of the local courts, the court of cassation stated the following.
By virtue of subparagraph 9) of Article 4 of the APPC, an administrative claim (action) is a claim filed with a court for the purpose of protecting and restoring violated or disputed rights, freedoms, or legitimate interests arising from public-law relations.
The contested conclusion and the decision of the disciplinary commission are not administrative acts of a state body adopted within the framework of a public-law relationship. They do not create rights or obligations for the claimant and are merely recommendatory in nature.
Moreover, these documents were assessed by the courts as evidence in the course of the claimant’s challenge to the order dismissing him or her from the position held.
The jurisdiction of disputes in this category is determined in accordance with the general rules established by Article 29 of the CPC, under which claims shall be filed with the court at the defendant’s place of location.
The Judicial Panel for Civil Cases of the East Kazakhstan Regional Court set aside the decision of the Ust-Kamenogorsk City Court in the case concerning K.’s claim against the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the “Republic of Kazakhstan”) seeking to set aside the order imposing a disciplinary sanction, on the grounds that the case was subject to consideration at the defendant’s place of location in the city of Astana.
Pursuant to paragraph 12 of Article 30 of the CPC, claims against several defendants may, at the claimant’s discretion, be filed at the place of location of any one of the defendants.
E. filed a claim against the Republican State Institution “Transport Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan” and the State Institution “Police Department of Kandyagash Station,” seeking to set aside an order.
By a ruling of the Mugalzhar District Court, the case was transferred, in accordance with the rules of territorial jurisdiction, to the Saryarka District Court of the city of Astana at the place of location of the defendant, the Transport Police Department.
In setting aside the ruling of the first-instance court, the appellate court noted that the second defendant in the case was the State Institution “Police Department of Kandyagash Station,” with which the claimant was in an employment relationship. Therefore, filing the claim at the place of location of one of the defendants was the claimant’s right.
Ниже приведен перевод на английский язык с сохранением официально-правового стиля и юридической терминологии.
State Duty
Pursuant to subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from payment of the state duty in courts in claims for the recovery of remuneration amounts and other claims related to employment activities.
Consequently, the plaintiff is not required to pay state duty for claims seeking recognition of an order as unlawful and its cancellation, reinstatement to the previous position, recovery of wages for the period of forced absence from work, or recovery of other payments (unpaid wages, compensation for unused annual leave, etc.).
At the same time, it should be taken into account that labour legislation does not provide for the recovery of compensation for non-pecuniary damage. When such claims are granted, courts, in accordance with paragraph 14 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of Legislation on Compensation for Non-Pecuniary Damage,” are guided by Article 24 of the Constitution of the Republic of Kazakhstan and the provisions of Chapter 47 of the Civil Code (Articles 951 and 952). Consequently, state duty is payable on statements of claim containing a request for compensation for non-pecuniary damage at the rate of 50 per cent of the Monthly Calculation Index (hereinafter referred to as the “MCI”), as for a non-property claim.
Pursuant to Article 117 of the Civil Procedure Code (CPC), the state duty from which the plaintiff was exempt, as well as costs related to the proceedings, shall be recovered from the defendant who is not exempt from payment of court costs, in favour of the State, in full or proportionally to the satisfied part of the claim.
According to paragraph 16 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases,” the rate of the state duty is determined depending on whether the plaintiff is an individual or a legal entity.
Consequently, where a claim for the recovery of wages is granted, state duty in the amount of 1 per cent of the amount of the claim shall be recovered from the defendant in favour of the State, as well as state duty in the amount of 50 per cent of the MCI for all non-property claims.
Pursuant to Article 109 of the CPC, the court shall award the party in whose favour the judgment has been rendered all court costs incurred in connection with the case from the other party.
Where a claim filed by a legal entity against an employee for compensation for material damage is granted, the state duty paid by the plaintiff in the amount of 3 per cent of the amount of the claim shall be recovered from the employee in favour of the plaintiff.
By Regulatory Resolution No. 3 of the Constitutional Court of the Republic of Kazakhstan dated 22 February 2023, the provisions of paragraph 2 of Article 610 of the Tax Code, insofar as they contain the words “when filing an administrative claim, statement of claim (application) in such disputes,” were declared inconsistent with paragraph 2 of Article 13 and Article 14 of the Constitution of the Republic of Kazakhstan, as they result in the infringement and restriction of everyone’s constitutional right to judicial protection of his or her rights and freedoms.
By the Law of the Republic of Kazakhstan No. 213-VII dated 20 March 2023, amendments were introduced to Article 610 of the Tax Code, and paragraph 2 was set out in the following wording:
“State duty on petitions for review of judicial acts by way of cassation concerning rulings on matters of setting aside arbitral awards and issuing writs of execution for the compulsory enforcement of arbitral awards and judgments of foreign courts, as well as decisions and rulings of courts in disputes of a non-property and property nature, shall be levied at the rate of 50 per cent of the corresponding state duty rate established by paragraph 1 of this Article for the applicant.”
It follows that, when filing a cassation petition for the review of judicial acts concerning the recovery of material damage from an employee-defendant, state duty shall be charged at 50 per cent of the relevant state duty rate applicable to individuals, that is, at 1 per cent of the amount of the claim rather than 3 per cent.
Pre-Trial Dispute Resolution Procedure and the Time Limit for Applying to Court
Article 159 of the Labour Code establishes a mandatory pre-trial procedure for the settlement of an individual labour dispute through consideration of the dispute by a conciliation commission.
At the same time, this provision contains a number of exceptions.
The requirement to establish a conciliation commission for the consideration of individual labour disputes in accordance with the procedure established by the Labour Code does not apply to certain categories of employees whose labour relations are regulated by the Labour Code of the Republic of Kazakhstan, subject to the specific provisions established by special laws and other regulatory legal acts of the Republic of Kazakhstan, including persons performing military service, employees of special state and law enforcement agencies, and civil servants.
Thus, the law does not provide for a mandatory pre-trial procedure for resolving labour disputes involving civil servants and employees of law enforcement agencies.
A. filed a claim with the court against the State Institution “Department of Healthcare of the East Kazakhstan Region” seeking cancellation of an order.
By a ruling of the Ust-Kamenogorsk City Court dated 25 March 2021, the claim was returned pursuant to subparagraph 1) of paragraph 1 of Article 152 of the CPC.
The court justified the return of the claim on the grounds that the dispute had to be considered by the defendant’s conciliation commission.
The court ruling was not appealed. However, as correctly stated in its analysis by the Judicial Panel for Civil Cases of the East Kazakhstan Regional Court, the said ruling contradicted the requirements of paragraph 1 of Article 159 of the Labour Code.
The Almaty Regional Court expressed a different position.
By a ruling of the Konaev City Court dated 17 August 2022, the civil case concerning S.’s claim against the Akim of the City of Konaev (Kapshagay) seeking reinstatement was left without consideration pursuant to subparagraph 1) of Article 279 of the CPC.
By a ruling of the Judicial Panel for Civil Cases of the Almaty Regional Court dated 16 November 2022, the ruling of the first-instance court was upheld.
The courts justified their decisions on the grounds that, based on the meaning of paragraphs 1 and 2 of Article 159 of the Labour Code, disputes are subject to mandatory consideration by a conciliation commission. At the same time, the courts failed to take into account that the requirement to establish a conciliation commission does not apply to civil servants.
The Pavlodar Regional Court proposes that the establishment of conciliation commissions within law enforcement agencies be provided for at the legislative level, which would make it possible to resolve conflicts within the workplace promptly and internally.
Such a proposal appears debatable, since, pursuant to Article 4 of the Law “On Law Enforcement Service,” one of the special principles of law enforcement service is the principle of unity of command and subordination, which precludes the possibility of establishing a conciliation commission on an equal basis from among rank-and-file employees and managers of a law enforcement agency.
One of the fundamental principles of public service, pursuant to subparagraph 10) of paragraph 1 of Article 4 of the Law “On Public Service,” is the mandatory execution by subordinate civil servants and civil servants of lower-level state bodies of decisions adopted by higher state bodies and officials within the limits of their powers.
It is possible to agree with the proposal of the North Kazakhstan Regional Court to introduce, for civil servants and employees of law enforcement agencies, such a mandatory pre-trial dispute resolution procedure as an appeal, in accordance with the chain of command, to higher-ranking officials and superior bodies. At present, such a right is provided as an alternative mechanism (subparagraph 11) of Article 15 of the Law “On Law Enforcement Service” and paragraph 5 of Article 61 of the Law “On Public Service”).
Pursuant to Article 160 of the Labour Code, the following time limits are established for participants in labour relations who, in accordance with the Labour Code, are entitled to apply directly to a court without first applying to a conciliation commission for the consideration of individual labour disputes:
for disputes concerning reinstatement – three months from the date of delivery or dispatch by registered mail with acknowledgement of receipt of a copy of the employer’s act terminating the employment contract;
for other labour disputes – one year from the date on which the employee, including a former employee, became aware or should have become aware of the violation of his or her right.
By an order of the Head of the Police Department of the North Kazakhstan Region dated 24 December 2020, S. was dismissed from the internal affairs bodies. The plaintiff applied to the court on 11 February 2022.
By the judgment of Court No. 2 of the City of Petropavl dated 11 March 2022, the claim was dismissed.
The court of first instance reasonably concluded that the plaintiff had missed, without valid reasons, the time limit for applying to the court provided for by subparagraph 1) of Article 160 of the Labour Code.
By the judgment of Court No. 2 of the City of Oral dated 24 September 2021, which was upheld by the appellate decision, J.’s claim against the State Institution “Firefighting and Emergency Rescue Service” seeking reinstatement was dismissed.
The plaintiff challenged his dismissal under an order dated 24 February 2017. During the preliminary hearing, the defendant’s representative filed an application requesting the application of the limitation period, and the plaintiff failed to provide evidence confirming valid reasons for missing the prescribed time limit. This circumstance served as the basis for dismissing the claim.
It is appropriate to agree with the opinion of the Judicial Panel of the West Kazakhstan Regional Court that, when deciding whether grounds exist for restoring a missed limitation period, courts should be guided by Article 185 of the Civil Code.
Regulatory Framework
The main regulatory legal acts applicable to the consideration of cases in the category under review are as follows:
The Constitution of the Republic of Kazakhstan;
The Civil Code of the Republic of Kazakhstan (General Part) dated 27 December 1994; the Civil Code of the Republic of Kazakhstan (Special Part) dated 1 July 1999 (hereinafter referred to as the “Civil Code”);
The Civil Procedure Code of the Republic of Kazakhstan dated 31 October 2015 No. 377-V (hereinafter referred to as the “CPC”);
The Labour Code of the Republic of Kazakhstan dated 23 November 2015 No. 414-V ZRK (hereinafter referred to as the “Labour Code”);
The Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (Tax Code) dated 25 December 2017 No. 120-VI ZRK (hereinafter referred to as the “Tax Code”);
The Law of the Republic of Kazakhstan dated 23 November 2015 No. 416-V ZRK “On Civil Service of the Republic of Kazakhstan” (hereinafter referred to as the “Law on Civil Service”);
The Law of the Republic of Kazakhstan dated 6 January 2011 No. 380-IV “On Law Enforcement Service” (hereinafter referred to as the “Law on Law Enforcement Service”);
The Law of the Republic of Kazakhstan dated 23 April 2014 No. 199-V ZRK “On Internal Affairs Bodies of the Republic of Kazakhstan”;
The Law of the Republic of Kazakhstan dated 18 November 2015 No. 410-V ZRK “On Countering Corruption”;
The Code of Ethics of Civil Servants of the Republic of Kazakhstan, approved by Decree No. 153 of the President of the Republic of Kazakhstan dated 29 December 2015;
Decree No. 152 of the President of the Republic of Kazakhstan dated 29 December 2015, by which the following were approved:
- Rules and time limits for conducting performance evaluations of civil servants;
- Rules and time limits for rotation, as well as categories and positions of civil servants subject to rotation;
- Rules for imposing disciplinary sanctions on civil servants.
Regulatory Resolutions of the Constitutional Court of the Republic of Kazakhstan:
- No. 4 dated 6 March 2023 “On consideration of the issue of compliance with the Constitution of the Republic of Kazakhstan of subparagraph 6) of paragraph 3 of Article 16 of the Law of the Republic of Kazakhstan ‘On Civil Service of the Republic of Kazakhstan’”;
- No. 3 dated 22 February 2023 “On consideration of the issue of compliance with the Constitution of the Republic of Kazakhstan of subparagraph 1) of paragraph 1 and paragraph 2 of Article 610 of the Code of the Republic of Kazakhstan dated 25 December 2017 ‘On Taxes and Other Obligatory Payments to the Budget’ (Tax Code).”
Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan
- No. 9 dated 6 October 2017 “On Certain Issues of the Application by Courts of Legislation in Resolving Labour Disputes”;
- No. 7 dated 27 November 2015 “On the Application by Courts of Legislation on Compensation for Non-Pecuniary Damage”;
- No. 5 dated 11 July 2003 “On a Judicial Decision in Civil Cases”;
- No. 9 dated 25 December 2006 “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases.”
Order No. 246 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 27 May 2011 “On Certain Issues of Service in the Internal Affairs Bodies of the Republic of Kazakhstan” (hereinafter referred to as “Order No. 246”).
Order No. 246 was repealed by Order No. 830 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 22 October 2022.
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