Disciplinary offenses that discredit a law enforcement agency
Disciplinary offenses discrediting a law enforcement agency (subparagraph 13) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service") Not every disciplinary offense entails a penalty in the form of dismissal, and violation of the norms of the Code of Ethics is not at all provided for by the Law "On Law Enforcement Service" as an independent basis for the application of this type of disciplinary action, According to the preamble, the Law "On Law Enforcement Service" regulates public relations related to admission to the law enforcement service of the Republic of Kazakhstan, its passage and termination, It also defines the legal status (status), financial support and social protection of law enforcement officers of the Republic of Kazakhstan.
By virtue of subparagraph 1) of Article 79 of the Law "On Law Enforcement Service", one of the grounds for termination of service in law enforcement agencies is dismissal in accordance with the procedure established by the same Law.
The list of grounds for dismissal of law enforcement officers is provided for in article 80 of the Law "On Law Enforcement Service" and is exhaustive, since this provision, unlike article 61 of the Law "On Civil Service", does not specify that a law enforcement officer may be dismissed on other grounds provided for by the laws of the Republic of Kazakhstan.
From the systematic interpretation of the above-mentioned laws, it follows that relations related to the termination of law enforcement service are regulated exclusively by the Law "On Law Enforcement Service"Article 80 of the Law "On Law Enforcement Service" provides for such grounds for the dismissal of a law enforcement officer as committing a misdemeanor that discredits the law enforcement agency, and not the civil service.
A. was appointed to the position of senior investigator of the police Department of the Department of Internal Affairs of Aktobe. She investigated the criminal case initiated against G. and I. on the grounds of a criminal offense provided for in subparagraphs 1), 3) of part 2 of Article 188 of the Criminal Code.
During the investigation, A. unreasonably terminated the criminal proceedings against I. by Order dated December 10, 2019 "for violating the requirements of subparagraph 13) of paragraph 5, subparagraph 2) of paragraph 5 of the Code of Ethics of Civil Servants, and committing misconduct discrediting the civil service provided for in subparagraph 4). paragraph 1 of Article 50 of the Law "On Civil Service", expressed in the provision of unlawful preference to the suspect Ilushchenko A.Yu.
While preparing and making a decision to terminate the criminal case and release him from criminal liability, A. was fired from her job. By the decision of the Aktobe City Court of March 5, 2020, left unchanged by the decision of the Judicial Board for Civil Cases of the Aktobe Regional Court of June 3, 2020, A.'s claim for cancellation of the order and reinstatement was denied.At the same time, the courts indicated that investigator A. As a responsible official conducting criminal prosecution, the rights of the victim and other requirements of the criminal procedure law were grossly violated, and the objectivity and comprehensiveness of the investigation were not ensured.
By canceling the judicial acts and sending the case for a new hearing (due to the absence of the minutes of the court session), the judicial board of the Supreme Court indicated that the courts had ignored the fact of A.'s dismissal. for violating the norms of the Law "On Civil Service", but not the norms of the Law "On Law Enforcement Service", whereas according to subparagraph 3) of paragraph 1 of Article 3 of the Law "On Civil Service", this Law applies to civil servants undergoing law enforcement service, with the specifics provided for by the legislative acts of the Republic of Kazakhstan on law enforcement service.
The Police Department, imposing on A. At the same time, he did not indicate what kind of unlawful, culpable non-fulfillment or improper fulfillment of the duties of a law enforcement officer assigned to her, abuse of official authority, violation of official and labor discipline, entailing dismissal, was committed.In giving a legal assessment of the legality of the said order, the local courts again failed to take into account that not every disciplinary offense entails punishment in the form of dismissal., and violation of the norms of the Code of Ethics is not at all provided for by the Law on Law Enforcement Service as an independent basis for the application of this type of disciplinary action.
At a new hearing of the case by the local court, A.'s claims were satisfied.It should be borne in mind that the Law "On Law Enforcement Service" contains a separate provision that defines a disciplinary offense that discredits a law enforcement agency, without reference to the Law "On Public Service" (paragraph 2 of Article 80 of the Law "On Law Enforcement Service"). Consequently, an employee of a law enforcement agency may be dismissed under subparagraph 13) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service" only if he commits an offense that discredits the law enforcement agency. By a decision of the judicial board for Civil Cases of the Aktobe Regional Court dated April 13, 2021, the decision of the Aktobe City Court dated February 2, 2021 was overturned, and a new decision was made in the case to satisfy A.'s claim to the Aktobe Region Police Department to declare the order illegal, cancel it, and reinstate him.
A., being the head of the department for the control of arms trafficking, was dismissed on the basis of subparagraph 4) of paragraph 1 of Article 50 of the Law "On Civil Service" for committing misconduct, which consisted in illegally issuing permits for the storage and carrying of weapons.The Court of Appeal found that the fact of illegal issuance of a permit had not been confirmed, the Police Department had unreasonably applied the Law "On Civil Service", and the grounds for dismissal provided for in article 80 of the Law "On Law Enforcement Service" were not given in the order.
In addition, the board indicated that the Department had violated the deadline for disciplinary action. The misconduct imputed to the plaintiff was committed on October 1, 2019, and the dismissal order was issued on October 2, 2020. At the same time, the board correctly referred to paragraph 10 of article 57 of the Law.
It should be borne in mind that in the version in force at that time, the Law stipulated that disciplinary punishment should be imposed no later than one month from the date of the discovery of a disciplinary offense and six months from the date of the commission of a disciplinary offense.
Law No. 136-VII amended paragraph 10 of Article 57 of the Law: Disciplinary punishment for misconduct discrediting a law enforcement agency and gross violation of official discipline provided for by this Law is imposed no later than three months from the date of discovery of disciplinary misconduct and may not be imposed later than one year from the date of commission of disciplinary misconduct.
It is also clarified that the day of the discovery of a disciplinary offense, from which the term begins, is the day when the person to whom the employee is subordinate becomes aware of the commission of a disciplinary offense, regardless of whether he is entitled to impose disciplinary penalties or not.
It should also be borne in mind that after the amendments were introduced by Law No. 136-VII, paragraph 2 of Article 80 of the Law "On Law Enforcement Service", containing the concept of disciplinary misconduct discrediting a law enforcement agency, was set out in a new wording.
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