Disciplinary offenses that discredit a law enforcement agency / Not every disciplinary offense is punishable by dismissal
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 provided by the Law "On Law Enforcement Service" as an independent basis for the application of this type of disciplinary punishment According to the preamble of 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 misconduct 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) According to paragraph 1 of Article 50 of the Law "On Civil Service", which resulted in giving undue preference to the suspect Ilushchenko A.Y. during the preparation and adoption of a decision to terminate the criminal case and release him from criminal liability, A. was dismissed 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, while imposing disciplinary action on A. as a civil servant, did not indicate exactly what kind of unlawful, culpable non-fulfillment or improper fulfillment of the duties assigned to her by a law enforcement officer, abuse of official authority, violation of official and labor discipline, entailing dismissal.
In making 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 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 punishment.
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 the concept of disciplinary misconduct that discredits a law enforcement agency, without reference to the Law "On Public Service" (paragraph 2 of Article 80 of the Law
"About the 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 committing an offense discrediting a law enforcement agency and gross violation of official discipline provided for by this Law shall be imposed no later than three months from the date of discovery of the disciplinary offense and may not be imposed later than one year from the date of the commission of the disciplinary offense.
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.
Jurisdiction
According to Article 26 of the CPC, civil cases of this category are considered by district and equivalent courts.
M. filed a lawsuit against the State Institution "Department for the Coordination of Employment and Social Programs of the East Kazakhstan region" for reinstatement.
By the ruling of the Ust-Kamenogorsk City Court of August 26, 2021, the claim was returned to the specialized interdistrict administrative court in connection with its jurisdiction.
The Court of Appeal considered the court's ruling to be set aside on the following grounds.
In accordance with Part 2 of Article 102 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APPC), disputes arising from public law relations are subject to the jurisdiction of the courts in administrative proceedings. Are not subject to consideration in administrative proceedings in accordance with subparagraph 2) part 7 of Article 3 of the CPC of the case, the procedure for which is provided for by the civil procedure legislation of the Republic of Kazakhstan.
Disputes arising from public law relations are disputes between subjects of public law relations, relations of authority and subordination, in which one party is endowed with public powers in relation to the other.
The subject of M.'s claim is a labor dispute related to challenging an order to terminate an employment contract, reinstatement at work in a previous position, recovery of wages and compensation for moral damage.
The position of the judicial board for civil cases of the East Kazakhstan Regional Court on this issue should be recognized as correct.
The same position is held by the judicial board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan, whose resolution dated August 18, 2022 (6ap/431) upheld the ruling of the specialized interdistrict administrative court of the Zhambyl region dated December 6, 2021 and the ruling of the judicial board for administrative cases of the Zhambyl Regional Court dated January 12, 2022.
The said judicial acts returned M.'s claim to the State Revenue Administration for the City of Taraz for declaring illegal the conclusion based on the results of an internal investigation and the decision of the disciplinary commission based on subparagraph 11) of the second part of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings.
While upholding the judicial acts of the local courts, the Court of cassation stated the following.
By virtue of the provisions of subparagraph 9) of Article 4 of the CPC, an administrative action (claim) is a claim filed with a court in order to protect and restore violated or disputed rights, freedoms or legitimate interests arising from public law relations.
The appealed conclusion and decision of the disciplinary commission are not administrative acts of a state body adopted in public law, do not give rise to rights and obligations for the plaintiff, and are advisory in nature.
Moreover, these documents were the subject of evaluation in judicial acts as evidence when the plaintiff appealed the dismissal order.
The jurisdiction of disputes in this category is determined according to the general rules established by Article 29 of the CPC - claims are filed in court at the location of the defendant.
The Judicial Board for Civil Cases of the East Kazakhstan Regional Court overturned the decision of the Ust-Kamenogorsk City Court in the case of K. to the Ministry of Ecology, Geology and Natural Resources of the Republic Kazakhstan (hereinafter – the Republic of Kazakhstan) on the cancellation of the order to impose a disciplinary penalty due to the fact that the case was to be considered at the defendant's location in Astana.
According to Part 12 of Article 30 of the CPC, claims against several defendants may be filed at the location of one of the defendants at the plaintiff's choice.
Ye. filed a lawsuit against the State Institution "Police Department for Transport of the Ministry of Internal Affairs of the Republic of Kazakhstan", the State Institution "Police Department of the Kandygash station" to cancel the order.
By the ruling of the Mugalzhar District Court, the case was sent under the jurisdiction of the Saryarkinsky District Court of Astana at the location of the defendant - the Department of Police for Transport.
Canceling the ruling of the court of first instance, the Court of Appeal pointed out that the second defendant in the case is the State Institution "Police Department of the Kandygash station", with which the plaintiff has an employment relationship, therefore, filing a claim at the location of one of the defendants is the plaintiff's right.
State duty
In accordance with subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from paying state duties in courts for claims for recovery of wages and other claims related to work.
Consequently, the plaintiff does not pay the state fee for claims to declare the order illegal and cancel it, reinstate it in its former position and collect wages for the time of forced absenteeism, or collect other payments (unpaid wages, compensation for unused vacation, etc.).
At the same time, it should be borne in mind that labor legislation does not provide for the possibility of collecting compensation for moral damage. When satisfying such claims, the courts, in accordance with paragraph 14 of the regulatory decree of the Supreme Court "On the application by courts of legislation on compensation for moral damage", are guided by Article 24 of the Constitution of the Republic of Kazakhstan and the norms of Chapter 47 of the Civil Code (Articles 951, 952). Consequently, state duty is charged in the amount of 50% of the monthly calculation index (hereinafter referred to as the MCI) for claims containing a claim for compensation for moral damage, as for a non–property claim.
In accordance with Article 117 of the CPC, the state fee from which the plaintiff was exempted, as well as the costs associated with the proceedings, are collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.
According to paragraph 16 of the regulatory decree 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 state duty is determined depending on who the plaintiff is – an individual or a legal entity.
Consequently, in the case of satisfaction of the claim for recovery of wages from the defendant, a state fee to the state income in the amount of 1% of the amount of the claim, as well as in the amount of 50% of the MCI for all non-property claims, is subject to collection.
In accordance with Article 109 of the CPC, the court awards all court costs incurred in the case to the party in whose favor the decision was made.
In case of satisfaction of the claim of a legal entity against an employee for compensation of material damage, the state fee paid by him in the amount of 3% of the claim amount is subject to recovery from the employee in favor of the plaintiff.
By a normative resolution of the Constitutional The provisions of paragraph 2 of Article 610 of the Tax Code regarding the words "when filing an administrative claim, statement of claim (application) for such disputes", which lead to infringement and restriction of the constitutional right of everyone to judicial protection of their interests, were found by the Court of the Republic of Kazakhstan dated February 22, 2023, No. 3. rights and freedoms.
The Law of the Republic of Kazakhstan dated March 20, 2023 No. 213-VII SAM amended Article 610 of the Tax Code, paragraph 2 reads as follows: "From petitions for the review of judicial acts in cassation to rulings on the cancellation of arbitral awards and the issuance of writ of execution for the enforcement of arbitral awards and foreign courts, decisions and court rulings on non-property and property disputes State duty is charged in the amount of 50 percent of the corresponding state duty rate, established by paragraph 1 of this Article for the subject of the appeal."
It follows from this that when filing a cassation petition for the review of judicial acts on compensation for material damage, a state duty in the amount of 50% of the corresponding state duty rate for individuals is to be collected from the defendant employee, that is, not 3%, but 1% of the amount of the claim.
Pre-trial dispute settlement procedure and time limit for applying to court
Article 159 of the Labor Code provides for a mandatory pre-trial procedure for the settlement of an individual labor dispute through consideration of the dispute by a conciliation commission.
However, this rule contains a number of exceptions.
The requirement to establish a conciliation commission to consider individual labor disputes in accordance with the procedure established by this Code does not apply to certain categories of employees whose work is regulated by the Labor Code of the Republic of Kazakhstan with the specifics provided for by special laws and other laws.
regulatory legal acts of the Republic of Kazakhstan, including those in military service, employees of special state and law enforcement agencies, and civil servants.
Thus, the law does not provide for a pre-trial procedure for resolving labor disputes for civil servants and law enforcement officers.
A. appealed to the court to the State Institution "Health Department of the East Kazakhstan region" to cancel the order.
By the ruling of the Ust-Kamenogorsk City Court dated March 25, 2021, the claim was returned on the basis of subparagraph 1) of part 1 of Article 152 of the CPC.
The court motivated the return of the claim by the fact that the dispute should be considered by the defendant's conciliation commission.
The court's ruling has not been appealed, however, as the Judicial Board for Civil Cases of the East Kazakhstan Regional Court correctly pointed out in its analysis, this ruling contradicts the requirements of paragraph 1 of Article 159 of the Labor Code.
The Almaty Regional Court expressed a different position.
By a ruling of the Konaev City Court dated August 17, 2022, the civil case against S. against the mayor of Konaev (Kapshagai) for reinstatement was left without consideration on the basis of subparagraph 1) of Article 279 of the CPC.
By the ruling of the Judicial Board for Civil Cases of the Almaty Regional Court dated November 16, 2022, the ruling of the court of first instance remained unchanged.
The courts motivated their decision by the fact that, within the meaning of paragraphs 1 and 2 of Article 159 of the Labor Code, mandatory dispute resolution is provided for in the conciliation commission. At the same time, the courts did not take into account that the requirement to establish a conciliation commission does not apply to civil servants.
The Pavlodar Regional Court proposes at the legislative level to provide for the creation of conciliation commissions in law enforcement agencies, which will make it possible to resolve the conflict on the ground in a short time within the team.
Such a proposal seems controversial, since according 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 (subordination), which excludes the possibility of creating a conciliation commission on a parity basis from among ordinary employees and heads of law enforcement agencies.
One of the basic principles of civil service by virtue of subparagraph 10) of paragraph 1 of Article 4 of the Law "On Civil Service" is the obligation to execute decisions taken by higher state bodies and officials within their powers for subordinate civil servants and civil servants of lower state bodies.;
We can agree with the proposal of the North Kazakhstan Regional Court on the introduction of such a mandatory pre-trial dispute resolution procedure for civil servants and law enforcement officers, as an appeal to higher-ranking officials in the order of subordination, to higher authorities. Currently, such a right is provided as an alternative (subparagraph 11) of Article 15 of the Law "On Law Enforcement Service", paragraph 5 of Article 61 of the Law "On Civil Service").
In accordance with article 160 of the Labor Code, the following deadlines are set for participants in labor relations who have the right, in accordance with this Code, to go to court without contacting the conciliation commission for individual labor disputes.:
for disputes about reinstatement at work – three months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract;
In other labor disputes, it is one year from the day when the employee, including those who had previously been in an employment relationship, learned or should have learned about the violation of his right.
By order of the head of the Police Department of the North Kazakhstan region dated December 24, 2020, S. was dismissed from the internal affairs bodies. On February 11, 2022, the plaintiff appealed to the court.
The claim was dismissed by the decision of the Petropavlovsk City Court No. 2 dated March 11, 2022.
The court of first instance reasonably concluded that the plaintiff had missed the deadline for applying to the court provided for in subparagraph 1) of Article 160 of the Labor Code without valid reasons.
By the decision of the court No. 2 of the city of Uralsk dated September 24, 2021, left unchanged by the decision of the appellate instance, in satisfaction of the claim of Zh. The State Institution "Fire Extinguishing and Emergency Rescue Service" has been refused reinstatement.
The plaintiff challenged the dismissal by order dated February 24, 2017. The defendant's representative filed a motion at the preliminary hearing to apply the statute of limitations, but the plaintiff did not provide evidence of the validity of the omission. This circumstance served as the basis for the refusal to satisfy the claim.
We should agree with the opinion of the judicial board of the West Kazakhstan Regional Court that when deciding on the presence or absence of grounds for restoring the limitation period, Article 185 of the Civil Code should be guided.
Regulatory framework
The main regulatory legal acts to be applied in the consideration of cases of the generalized category are:
The Constitution of the Republic of Kazakhstan;
The Civil Code of the Republic Kazakhstan (General part) dated December 27, 1994; The Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 (hereinafter referred to as the Civil Code);
The Civil Procedure Code of the Republic Kazakhstan dated October 31, 2015 No. 377- V (hereinafter – CPC);
The Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414- V SAM (hereinafter referred to as the Labor Code);
On Taxes and Other Mandatory Payments to the Budget (Tax Code) dated December 25, 2017 No. 120-VI SAM (hereinafter referred to as the Tax Code);
The Law of the Republic of Kazakhstan dated November 23, 2015 No. 416-V SAM
"About the Civil Service of the Republic Kazakhstan" (hereinafter referred to as the Law
"About public service");
The Law of the Republic Kazakhstan dated January 6, 2011 No. 380-IV
"On Law Enforcement Service" (hereinafter – the Law "On Law Enforcement Service");
The Law of the Republic of Kazakhstan dated April 23, 2014 No. 199-V SAM
"About internal affairs bodies";
The Law of the Republic of Kazakhstan dated November 18, 2015 No. 410-V SAM
"On combating corruption";
The Ethical Code of Civil Servants of the Republic of Kazakhstan, approved by Decree of the President of the Republic of Kazakhstan dated December 29, 2015 No. 153;
Decree of the President of the Republic of Kazakhstan dated December 29, 2015 No. 152, which approved: Rules and deadlines for evaluating the activities of civil servants; Rules and deadlines for rotation, categories and positions of civil servants subject to rotation; Rules for imposing disciplinary action on civil servants;
Regulatory rulings of the Constitutional Court of the Republic of Kazakhstan: dated March 6, 2023 No. 4 "On review for 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"; dated February 22, 2023 No. 3 "On review for 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 December 25, 2017 "On Taxes and other mandatory payments to the Budget" (Tax Code);
Regulatory rulings of the Supreme Court of the Republic of Kazakhstan:
"On some issues of the application of legislation by courts in the resolution of labor disputes" dated October 6, 2017 No. 9; "On the application by Courts of legislation on compensation for moral damage" dated November 27, 2015 No. 7; "On judicial decisions in civil cases" dated July 11, 2003
No. 5; "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9.
Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 27, 2011 No. 246 "Some issues of service in the internal affairs bodies of the Republic of Kazakhstan" (hereinafter – Order No. 246). Abrogated by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated October 22, 2022 No. 830.
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