Disciplinary offenses that discredit public service

It follows from the content of article 44 of the Law "On Civil Service" that non-fulfillment or improper performance of official duties and violation of official ethics are independent types of disciplinary offenses.

At the same time, in chapter 8 of the Law "On Civil Service" - "Official ethics of civil servants" there is a separate provision - article 50, which contains a list of disciplinary offenses that discredit the civil service.

Article 44 of the Law "On Civil Service" provides for increased responsibility for committing disciplinary offenses that discredit the civil service, in the form of imposing penalties such as a warning about incomplete official compliance or demotion in a public position, as well as dismissal.

In addition, the existence of such a penalty may be an obstacle to entering public service in the future.

The Law "On Civil Service" does not contain a clear definition of what is meant by an offense that discredits the civil service, there is only a list of these offenses, based on which it can be concluded that an offense that discredits the civil service is the commission by civil servants of actions that clearly undermine in the eyes of citizens the dignity and authority of the bodies they represent. They occur when a civil servant commits such a misdemeanor knowingly, pursuing selfish or other personal interests.

The Kerbulak District Court of Zhetisu region, satisfying A.'s claim to the mayor of the Kerbulak district for declaring illegal and canceling the akim's order and reinstatement in his former position, defined a disciplinary offense discrediting the public service as an action or omission aimed at creating conditions under which individuals or legal entities cannot exercise their rights and freedoms and legitimate interests. interests; use by an official of his official powers contrary to the interests of the service; the occurrence of consequences as a result of this in the form of a significant violation of the rights, freedoms and legitimate interests of an individual or legal entity and the existence of a direct causal link between the use of their powers by an official and these violations.

The Regional Court of the Abai region in its analysis indicated that the absence in the Law "On Civil Service" of signs of disciplinary misconduct discrediting the civil service is a problematic issue, and therefore suggests that it be more clearly resolved in a regulatory resolution.

An analysis of the received cases showed that most often civil servants are accused of committing an offense provided for in subparagraph 4) paragraph 1 of Article 50 of the Law - giving undue preference to individuals and (or) legal entities in the preparation and adoption of decisions.

From the literal meaning of the verbal expression of this norm, it follows that, firstly, a civil servant should be given the right to make a decision, and secondly, when making a decision, he unlawfully (without any legitimate grounds) gives preference to an individual or a legal entity.The very concept of "preference" means recognizing someone's advantage over others. Therefore, if someone is given preference, then there must be a person who is denied permission to resolve such a matter. And. In the course of exercising his powers, the chief specialist of the State Revenue Department for the city of Taraz (hereinafter referred to as the Department) drew up protocols regarding LLP on administrative offenses provided for in subparagraph 10) of part 5 of Article 281 of the Administrative Code.

During the consideration of the administrative case by the specialized administrative court of the city of Taraz (hereinafter referred to as the CAC), I. was involved as a specialist of the state revenue authorities.By the decision of the CAC dated March 04, 2020, the Department is responsible for conducting an analysis of the activities of LLP. I. an appropriate analysis has been prepared and provided to the court, agreed with the management of the department.

By the decision of the CAS dated April 09, 2020, the proceedings were terminated due to the absence of elements of an administrative offense in the actions of the LLP.By the decision of the Zhambyl Regional Court dated October 06, 2020, the decision of the CAC was canceled. The LLP was found guilty of committing an administrative offense under subparagraph 10) of part 5 of Article 281 of the Administrative Code, and was fined.

Further, based on the submission of the Taraz city Prosecutor dated January 06, 2021, by the order of the Department dated February 02, 2021, I. was brought to disciplinary responsibility under subparagraph 4) of paragraph 1 of Article 50 of the Law "On Civil Service" in the form of a warning about incomplete official non-compliance for providing undue preference to LLP during the consideration of the above-mentioned administrative case.

The said order was challenged by I. in court. The court of first instance, partially satisfying the plaintiff's claims, found that the plaintiff, being an authorized civil servant, having given explanations on the issues raised by the court while participating in the court session, did not give any preference to the legal entity and, moreover, did not take a procedural decision on the case.

The appeals board, changing the decision of the court of first instance, saw in the actions of the plaintiff a preference for the LLP by providing the court, without consulting the management, with an analytical report that contradicts the conclusions set out in the protocols on administrative offenses in order to ensure that the legal entity evades administrative responsibility, as a result of which the court adopted an illegal court order.

Canceling the decision of the court of appeal and upholding the decision of the court of first instance, the judicial board for civil cases of the Supreme Court indicated that I.'s actions were to draw up protocols on administrative offenses, prepare an analytical report on the activities of the LLP agreed with the management, as well as participate in a court hearing on an administrative offense case as an official of a state body. included in her job responsibilities.

The decision on the case of an administrative offense was made by the court as a result of a study of all the circumstances of the case, the evidence presented, without anyone interfering in the process of administration of justice.

As established by the case materials, the plaintiff did not participate either in the preparation or in the adoption of the court's decision, and her explanations do not take precedence over the court, and therefore they are not subject to assessment as giving her undue preference to a legal entity. (3gp-579 dated January 26, 2022).

On similar grounds, the decision of the Judicial Board for Civil Cases of the Supreme Court of December 22, 2021, overturned the decision of the Zhambyl Regional Court of August 17, 2021, while upholding the decision of the Taraz City Court of June 11, 2021 in the case of B.'s claim to the RSU "Department of State Revenue for the Zhambyl region" on recognizing the order as illegal and its cancellation (resolution 3gp - 525).

Also, by the decision of the Judicial board for Civil Cases of the Supreme Court dated November 15, 2022 (3gp-411), the decision of the Ekibastuz City Court of the Pavlodar region dated June 02, 2022 and the decision of the Judicial board for Civil cases of the Pavlodar Regional Court dated August 16, 2022 in the case of M.'s claim to the akim of the city of Ekibastuz on recognition as illegal and cancellation of the order. A new decision on the satisfaction of the claim has been made in the case.

In several civil cases considered by the courts of Kostanay region, it was established that a number of employees of the Department of State Revenue in Kostanay region were dismissed under subparagraph 4) of paragraph 1 of Article 50 of the Law "On Civil Service". The plaintiffs were charged with committing disciplinary offenses discrediting the civil service, expressed in providing undue preference to individuals and (or) legal entities in the preparation and decision-making, in the form of passing a vehicle with a right-hand drive on the territory of the Republic of Kazakhstan at a checkpoint and failure to take measures to prevent offenses (failure to inform management).

Judicial acts of local courts satisfied the employees' claims for recognition as illegal and cancellation of orders and reinstatement at work. The courts proceeded from the fact that the functional (official) duties and competence of the plaintiffs as employees of the state revenue authorities did not include the preparation and decision-making on the admission of the vehicle to the territory of the Republic of Kazakhstan (the specified powers for the admission of citizens and the vehicle are within the competence of the border service).

Making decisions on the types of criminal offenses and administrative offenses indicated in the written response by the defendant is also not within the competence of the plaintiffs.The Supreme Court refused to review the judicial acts in these cases in cassation.

E. held the position of deputy akim of the Abai district of the East Kazakhstan region and was chairman of the land Commission.

By order of the akim of the district, he was dismissed from his post, including for violating subparagraphs 4), 5) and 11) of paragraph 1 of Article 50 of the Law "On Civil Service".

The decision of the Ethics Council served as the basis for issuing the contested order. It was found that during the competition for granting the right to temporary paid land use for farming, the commission headed by E. committed a number of gross violations. So, for example, according to the results of one contest, the commission gave preference to the participant who scored only 5 points, while the other participant scored 20 points, according to another contest preference was given to the participant with 1 point, while the second participant scored 20 points.

By the decision of the Council of Economic and Social Council, the agreements on temporary paid land use were declared invalid. The SMEC found that the members of the commission had committed violations of the current legislation.

The courts refused to satisfy E.'s claim for recognition as illegal and cancellation of the order. By the decision of the judge of the Supreme Court, the cassation review of judicial acts was refused.

It should be noted that E.'s actions clearly showed signs of misconduct provided for in subparagraph 4) paragraph 1 of Article 50 of the Law "On Civil Service", since when making a decision on the results of the competition, he gave undue preference to individual participants in the competition.

On the same grounds, S.'s claim was denied. to the akim of the Ayagoz district of the East Kazakhstan region about the cancellation of the order by which S., who held the position of deputy akim of the district and chairman of the land commission, was dismissed for committing misconduct discrediting the civil service.The final decisions of the Council of Economic and Social Council established violations committed by the land Commission during the competition., which was the basis for invalidating lease agreements.Paragraph 15 of Article 43-1 of the Land Code, the protocol decision of the land commission on the results of the tender for granting the right to temporary paid land use (lease) for farming or agricultural production, may be appealed to the court. Filing an application to the court suspends the execution of the protocol decision of the land commission.

Also, the participants of the competition are not deprived of the right to challenge lease agreements concluded on the basis of the competitions held.Thus, we believe that only the court can make a conclusion about the legality or illegality of the competition and the violations committed by the commission. Consequently, in the absence of a judicial act that declared the results of the competition illegal, one act of the authorized body with conclusions about the presence, in the opinion of one inspector, of violations committed by members of the commission is not enough to bring them to disciplinary responsibility.

S. filed a lawsuit with the State Institution "Department for Public Procurement and Communal Property in the Akmola region" (hereinafter referred to as the Department) to declare the disciplinary punishment order illegal and cancel it.By the decision of the Kokshetau City Court of the Akmola region dated August 21, 2020, the claim was dismissed.By a decision of the judicial board for civil Cases of the Akmola Regional Court dated December 4, 2020, the court's decision was overturned, and a new decision was made to satisfy the claim in the case.

The decision of the judge of the Supreme Court of January 25, 2021, refused to review the decision of the court of appeal.It follows from the judicial acts that S. worked as the chief specialist of the Department. By order dated June 24, 2020, a disciplinary penalty was imposed on S. in the form of a warning of incomplete official compliance for committing a disciplinary offense provided for in subparagraph 4) paragraph 1 of Article 50 of the Law "On Civil Service". According to the materials of the internal investigation, the Prosecutor's office conducted an analysis of the state of legality in the conduct of public procurement by the Department, where, following monitoring of the public procurement web portal, the Prosecutor's office concluded that members of the competition commission gave undue preference to legal entities in the preparation and decision-making process during public procurement.

At the same time, according to the Law on Public Procurement, a potential supplier has the right to appeal against the actions (inaction), decisions of the customer, the organizer of public procurement, if their actions (inaction), decisions violate the rights and legitimate interests of the potential supplier.Potential suppliers did not exercise their right, did not appeal the actions of the competition commission. The authorized body did not apply to the court with such a claim either.Since there are no judicial acts recognizing the conducted tender and the actions of the tender commission as illegal, invalidating the public procurement contract, which would confirm the arguments of the inspectors about violations of the rights of legal entities committed by members of the tender commission, the conclusions of the court of first instance on the commission of disciplinary misconduct by the plaintiff, discrediting the civil service, the correctness of bringing to disciplinary responsibility, are premature.

In accordance with subparagraph 5) of paragraph 1 of Article 50 of the Law "On Civil Service", a disciplinary offense discrediting the civil service is providing anyone with any assistance not provided for by the legislation of the Republic of Kazakhstan in carrying out entrepreneurial and other income-related activities, the analysis shows that employers do not distinguish between the content of subparagraphs 4) and 5) paragraph 1 of Article 50 of the Law "On Civil Service" and when an employee commits a disciplinary offense, both sub-paragraphs are imputed to him. Some courts repeat this mistake when resolving disputes.

S. held the position of head of the Russian State Institution "State Revenue Administration for the city of Pavlodar". By order of the Department of State Revenue for the Pavlodar region dated June 02, 2021, S. was disciplined in the form of dismissal for committing an offense discrediting the civil service, provided for in subparagraphs 4) and 5) of paragraph 1 of Article 50 of the Law "On Civil Service".

During the internal investigation, it was established that the Management had sent a notification to LLP "B" about the elimination of violations in the amount of 9.6 million tenge, in connection with the non-fulfillment of which the expenditure operations of this legal entity were suspended.The management of the LLP, unwilling to pay the debt, began to look for ways to remove restrictions for the subsequent withdrawal of funds in the account, for which the director of the LLP turned to S.S. She informed the director of the LLP of the ways to unblock the account and cash out the funds available on it, and then instructed her subordinates to assist the LLP in lifting restrictions. This led to the fact that the LLP managed to withdraw funds from the account before paying off the tax arrears.

In denying the plaintiff's claim for revocation of the order and reinstatement, the local courts agreed that the plaintiff's actions showed signs of disciplinary misconduct, as provided for in subparagraph 4) as well as subparagraph 5) of paragraph 1 of Article 50 of the Law "On Civil Service". Although in this case, the actions of S. are covered by the content of subparagraph 5) of the specified norm. When making the decision, the plaintiff did not give preference to LLP "B", as there was no other person who would be refused.

By virtue of subparagraph 11) of paragraph 1 of Article 50 of the Law "On Public Service, a disciplinary offense discrediting public service is the explicit obstruction of individuals or legal entities in the exercise of their rights, freedoms and legitimate interests. A. held the position of deputy akim of Semey, his official duties included organizing the work of the city land commission.

By the order of the akim of the city of Semey dated May 18, 2021, a disciplinary penalty was imposed on A. for committing a disciplinary offense under subparagraph 11) of paragraph 1 of Article 50 of the Law "On Civil Service" in the form of a warning about incomplete official compliance.

It follows from the case file that A. was charged with illegally rejecting applications for participation in the competition of five land users. It was established that the applications were rejected due to non-compliance with paragraph 13 of the Rules for Organizing and Holding a tender for granting the right to Temporary paid land use (Lease) for farming, agricultural production, approved by Order No. 518 of the Deputy Prime Minister of the Republic of Kazakhstan - Minister of Agriculture of the Republic of Kazakhstan dated December 20, 2018 (hereinafter referred to as Rules No. 518) (the page numbers in the bids were not typed, but entered, not in indelible ink, but in pencil).

The Semeysky City Court motivated the satisfaction of the claim by pointing out that initiated by A. As chairman of the land commission, the decision to disqualify land users from participating in the above-mentioned competition, due to a misinterpretation of current legislation, may indicate improper performance of official duties, but does not constitute an offense discrediting the civil service.

The judicial board of the East Kazakhstan Regional Court justified the change in the decision of the Semey City Court by concluding that A., being the chairman of the land commission, prevented the participants of the competition from exercising their land use rights.

By overturning the decision of the appellate instance and upholding the decision of the court of first instance, the Judicial Board for Civil Cases of the Supreme Court (resolution 3gp-398 of November 8, 2022) proceeded from the fact that, by virtue of the requirements of paragraph 1 of Article 6 of the Civil Code, if the literal meaning of the verbal expression contained in subparagraph 11) of paragraph 1 of Article 50 of the Law "On Civil Service", "obvious obstruction" should be understood as the relevant actions or decisions of a civil servant., committed or taken knowingly in contradiction with the law in order to unlawfully create obstacles in the exercise by individuals or legal entities of their rights, freedoms and legitimate interests.

Since Rules No. 518 were developed and approved on the basis of, in pursuance of, and for the further implementation of the provisions of Article 43-1 of the Land Code, the plaintiff's arguments that the correct interpretation and application of paragraph 13 of Rules No. 518 is necessary for the proper resolution of the dispute in this case. According to paragraph 13 of Rules No. 518, the tender proposal is submitted by the bidder in in a closed envelope, printed or written in indelible ink, stitched with numbered pages. Therefore, page numbering should also be done by printing or using indelible ink. Explicit obstruction of individuals or legal entities in the exercise of their rights, freedoms and legitimate interests should be understood as such actions of a civil servant, during which he is obviously and indisputably aware that an individual or legal entity has any right, but he intentionally hinders its implementation.

The presence of an erroneous opinion of a civil servant about the absence of such a right, when such an opinion was formed as a result of a misinterpretation of current legislation or improper preparation for decision-making, may indicate improper performance of official duties, but does not constitute an offense discrediting the civil service by the Decision of the Judicial Board for Civil Cases of the Supreme Court of May 26, 2021 (3gp-191) annulled the decision of the Petropavlovsk City Court No. 2 dated November 25, 2020, The decision of the judicial board for civil Cases of the North Kazakhstan Regional Court dated February 24, 2021, in the case, a new decision was made to satisfy the claim of A. and others to cancel the orders of the akim.

It was established that the plaintiffs were brought to disciplinary responsibility in the form of a warning about incomplete official compliance for committing a disciplinary offense provided for in subparagraph 11) of paragraph 1 of Article 50 of the Law "On Civil Service" for the fact that, being civil servants and members of the housing commission, they made an illegal decision to expel S. out of concern for the provision of housing from the state housing fund.At the same time, it followed from the case file that the decision was made by the members of the housing commission as a result of a misinterpretation of the norms of housing legislation, and was also due to violations committed by the Housing and Communal Services Department during the preparation of materials, and could not be regarded as a deliberate overt obstruction in the exercise of S.'s right to housing.

In accordance with subparagraph 12) of paragraph 1 of Article 50 of the Law "On Civil Service", disciplinary offenses that discredit the civil service include gross violations of the requirements for organizing and conducting inspections of business entities established in the subparagraphs 1), 2), 3), 4) and 7) of Article 151, sub-paragraphs 2), 6) and 8) of paragraph 2 of Article 156 of the Entrepreneurial Code of the Republic of Kazakhstan, by order of the akim of Bulandynsky district, E. was appointed to the position of acting akim of the city of Makinsk.

In pursuance of the Improvement Action Plan, an oral instruction was given to the Deputy akim of the city of Makinsk to visit individuals in order to identify the facts of misuse of land plots.During the execution of this order, the misuse of the land plot by individual E. was established, namely: the plot intended for the maintenance of an apartment building was used by him for the storage of scrap metal. In this regard, in relation to an individual, E. for non-fulfillment of obligations by the owner of the land plot for the use of the plot, manifested in misuse, an administrative protocol was drawn up in accordance with part 1 of Article 339 of the Administrative Code and a decision was issued to impose a fine in a reduced procedure.

On September 10, 2020, the acting Head of the Department of the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan initiated disciplinary proceedings against the Mayor of Makinsk Ye. and his deputy K. By the Orders of the Akim of Bulandyn district dated October 7, 2020, disciplinary action was imposed on them in the form of a warning about incomplete official compliance based on the decision of the Ethics Council.

E. and K. appealed to the court with claims for cancellation of the order.By the decision of the Bulandyn District Court of the Akmola region dated December 8, 2020, K.'s claim was satisfied. By the resolution of the judicial board for Civil cases of the Akmola Regional Court dated March 10, 2021, the court's decision remained unchanged.

By the decision of the Bulandyn District Court of the Akmola region dated January 21, 2021, Ye.'s claim was satisfied. By the decision of the judicial board for civil Cases of the Akmola Regional Court dated March 17, 2021, the court's decision was overturned, and a new decision was made to dismiss the claim. Thus, in two cases, the appellate instance gave a different assessment of the circumstances of the case, applied different rules of substantive law and made opposite decisions. By the decision of the judge of the Supreme Court of June 7, 2021 in the revision of judicial acts in respect of K. it was refused (3g-2849).By the decision of the Judicial Board for Civil Cases of the Supreme Court dated July 14, 2021 (3gp-258), the decision of the judicial board for Civil cases of the Akmola Regional Court dated March 17, 2021 regarding E. was canceled, with the decision of the Bulandinsky District Court of January 21, 2021 remaining in force.

At the same time, the board pointed out that from the literal interpretation of subparagraph 12) of paragraph 1 of Article 50 of the Law "On Civil Service" it follows that the composition of disciplinary misconduct is formed by gross violations of the requirements for organizing and conducting inspections only in relation to business entities.

According to the data of the tax authorities, the individual E. is an individual entrepreneur (type of activity – breeding other breeds of cattle).However, it follows from the case file that the check was carried out against an individual. The purpose of the land plot is the maintenance of an apartment building, however, during the control, the fact of misuse of the land plot was established.

In this regard, a protocol on an administrative offense has been drawn up against him as a non-working individual. At the same time, E. He did not provide the inspectors with documents indicating that he is an individual entrepreneur engaged in the collection of scrap metal.

The courts of the Ulytau region reasonably denied I.'s claim to the Department of Land Relations for the cancellation of the order to bring disciplinary responsibility in the form of demotion for committing disciplinary misconduct provided for in subparagraph 12) of paragraph 1 of Article 50 of the Law "On Public Service".In the case, it was established that, being a civil servant (head of the sector), I. during a technical break, she visited a cafe with her colleagues and, not having the right to exercise control in the field of architectural and construction activities, demanded that the cafe owner provide documents for the redevelopment of the facility. After receiving the refusal, I. threatened with inspections and the imposition of a fine.

 

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