Dismissal for Gross Violation of Official Discipline 

One of the frequently applied grounds for dismissing law enforcement officers is the ground provided for in subparagraph 12) of paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan “On Law Enforcement Service” — dismissal for gross violation of official discipline. 

For the proper resolution of disputes involving officers dismissed on this ground, it is necessary to take into account that not every violation of official discipline may serve as grounds for dismissal. It is essential to clearly establish which violations of official discipline have been classified by the legislator as gross violations. 

Pursuant to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan “On Legal Acts,” subordinate regulatory legal acts are regulatory legal acts other than legislative acts, issued on the basis of and (or) in implementation of and (or) for the further implementation of legislative and other regulatory legal acts higher in the legal hierarchy. 

Under subparagraph 8) of paragraph 2 of Article 7 of the Law “On Legal Acts,” regulatory legal orders issued by the heads of departments of central state bodies are classified as the principal types of regulatory legal acts. 

Pursuant to subparagraph 5) of paragraph 3 of Article 7 of the Law “On Legal Acts,” rules are classified as derivative types of regulatory legal acts. Regulatory legal acts of derivative types are adopted or approved through regulatory legal acts of principal types and constitute an integral whole with them. 

By Order No. 246 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 27 May 2011, which was in force before amendments were introduced to the Law, the Rules for Removing Officers Who Have Ceased Service in the Internal Affairs Bodies of the Republic of Kazakhstan from the Personnel Lists of the Internal Affairs Bodies (hereinafter referred to as the “Rules No. 246”) were approved for the purpose of implementing the Law. 

Pursuant to paragraph 24 of Rules No. 246, dismissal orders concerning officers of the internal affairs bodies must specify the grounds for dismissal provided for in paragraph 1 of Article 80 of the Law. 

Paragraph 14 of Rules No. 246 establishes an exhaustive list of gross violations of official discipline, namely: absence from work for three or more consecutive hours during one working day without a valid reason; reporting for duty in a state of alcohol, drug or toxicological intoxication (or their analogues), including the consumption during the working day of substances causing a state of alcohol, drug or toxicomanic intoxication (or their analogues); and driving a vehicle by an officer of the internal affairs bodies while under the influence of alcohol, drugs or toxic substances (or their analogues), both on and off duty. 

In one of the motions seeking review of a ruling of the appellate court, which had granted the claims of an officer dismissed under subparagraph 12) of paragraph 1 of Article 80 of the Law “On Law Enforcement Service,” a representative of the Karaganda Region Police Department advanced the following arguments: “At present, not only the violations mentioned above (in paragraph 14 of Rules No. 246) constitute gross violations. There are many actions and omissions in the activities of police officers for which an employment contract may be terminated. Therefore, the above list of gross violations is not exhaustive.” 

However, such arguments cannot be considered justified, since this would allow any violation of official discipline to be classified as gross at the discretion of the head of a law enforcement body, which could result in violations of officers’ rights. 

The Department’s Motion Was Denied. 

Following the amendments introduced by Law No. 136-VII, Article 80 of the Law “On Law Enforcement Service” was supplemented with subparagraph 2-1), which provides as follows: 

“Gross violation of official discipline shall include improper performance or non-performance by an officer of official duties resulting in harm to human life or health, provided that such actions (inaction) do not entail criminal liability; participation in actions that impede the normal functioning of state bodies and the performance of official duties, including strikes; being on duty in a state of alcohol and/or drug and/or toxicomanic intoxication, including the consumption during the working day of substances causing such intoxication; and disclosure by an officer of official information that became known to the officer in connection with the performance of official duties, where such disclosure causes harm to the interests of the service.” 

Thus, the list of gross violations is currently established by law. 

Absence from duty without a valid reason for three or more consecutive hours during one working day has been designated as a separate ground for dismissal (subparagraph 19) of paragraph 1 of Article 80 of the Law “On Law Enforcement Service”). 

Meanwhile, such violations as driving a vehicle while under the influence of alcohol and/or drugs and/or toxic substances, and an officer’s refusal to undergo a medical examination to determine whether the officer is under the influence of alcohol and/or drugs and/or psychotropic and/or toxic substances, have been included in the list of misconduct discrediting a law enforcement body. 

An analysis of the cases submitted for generalization showed that the courts had, in general, correctly resolved disputes involving former officers dismissed under subparagraph 12) of paragraph 1 of Article 80 of the Law “On Law Enforcement Service.” 

At the same time, there were cases involving the improper application of the law. 

For example, by a ruling of the Civil Cases Judicial Collegium of the Supreme Court dated 20 April 2022 (3гп-104), the judicial acts of the Pavlodar Region courts were overturned in a case concerning K.’s claim against the Department of the Penal Enforcement System of the Pavlodar Region for reinstatement at work. 

The case established that K. held the position of Inspector for Professional, Official and Physical Training of the Human Resources Policy Group at Institution AP-162/10. 

On 8 December 2020, the acting head of the institution verbally instructed the claimant to escort convicted persons N. and M. to the city of Ekibastuz using his personal vehicle. During this trip, convicted person N. committed a theft. 

Following an internal investigation, K. was dismissed under subparagraph 12) of paragraph 1 of Article 80 of the Law “On Law Enforcement Service.” Among other things, he was accused of failing to exercise proper supervision over the convicted persons. 

In dismissing the claim, the lower courts concluded that K.’s failure to properly supervise the convicted person during the escort constituted a violation of official discipline and grounds for imposing disciplinary liability. 

In overturning the judicial acts and granting K.’s claim, the Judicial Collegium of the Supreme Court, with reference to paragraph 14 of Rules No. 246, noted that the internal investigation report, the decision of the disciplinary commission, and the dismissal order did not contain a detailed description of the substance and nature of the alleged violation of official discipline. The lower courts had not established that the claimant had committed any of the actions listed in Rules No. 246. 

Furthermore, supervising convicted persons did not fall within the scope of the claimant’s official duties. Consequently, the courts had not established that the claimant had improperly performed the duties specified in his job description. 

The courts also identified a number of violations committed by the defendant itself when granting permission for the convicted persons to leave the institution’s premises. 

Jurisdiction 

Pursuant to Article 26 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), civil cases in this category are considered by district courts and courts equated 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 at work. 

By a ruling of the Ust-Kamenogorsk City Court dated 26 August 2021, the claim was returned on the grounds that the case fell within the jurisdiction of the specialized inter-district administrative court. 

The appellate court considered that the ruling was subject to reversal for the following reasons. 

Pursuant to Part 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 administrative courts. Under subparagraph 2) of Part 7 of Article 3 of the APPC, cases whose procedure is governed by the civil procedural legislation of the Republic of Kazakhstan are not subject to consideration under administrative judicial proceedings. 

Disputes arising from public-law relations are disputes between parties to public-law relations, involving relations of authority and subordination, in which one party is vested with public powers in relation to the other. 

The subject matter of M.’s claim, however, is an employment dispute involving a challenge to an order terminating an employment contract, reinstatement in the former position, recovery of wages, and compensation for moral damage. 

The position adopted by the Civil Cases Judicial Collegium of the East Kazakhstan Regional Court on this issue should be considered correct. 

The Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan adheres to the same position. By its ruling dated 18 August 2022 (6ап/431), it upheld the ruling of the Specialized Inter-District Administrative Court of the Zhambyl Region dated 6 December 2021 and the ruling of the Judicial Collegium for Administrative Cases of the Zhambyl Regional Court dated 12 January 2022. 

By the aforementioned judicial acts, M.’s claim against the Republican State Institution “Department of State Revenue for the City of Taraz” seeking to have the findings of an internal investigation and the decision of the disciplinary commission declared unlawful was returned pursuant to subparagraph 11) of Part 2 of Article 138 of the APPC, on the grounds that the case was not subject to consideration under administrative judicial proceedings. 

In upholding the judicial acts of the lower courts, the cassation court stated the following. 

Pursuant to subparagraph 9) of Article 4 of the APPC, an administrative claim 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 findings and decision of the disciplinary commission are not administrative acts issued by a state body within the framework of public-law relations, do not give rise to rights or obligations for the claimant, and are advisory in nature. 

Moreover, these documents had already been assessed in judicial acts as evidence in the proceedings challenging the order dismissing the claimant 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 must be filed with the court at the location of the defendant. 

The Civil Cases Judicial Collegium of the East Kazakhstan Regional Court overturned the decision of the Ust-Kamenogorsk City Court in a case involving K.’s claim against the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the RK) seeking the annulment of an order imposing a disciplinary sanction, on the grounds that the case was subject to consideration at the defendant’s location in the city of Astana. 

Pursuant to Part 12 of Article 30 of the CPC, claims against several defendants may be filed, at the claimant’s choice, with the court at the location of any one of the defendants. 

E. filed a claim with the court against the Republican State Institution “Transport Police Department of the Ministry of Internal Affairs of the RK” and the State Institution “Kandyagash Station Police Department,” seeking the annulment of an order. 

By a ruling of the Mughalzhar District Court, the case was transferred, according to jurisdiction, to the Saryarka District Court of Astana at the location of the defendant, the Transport Police Department. 

In overturning the ruling of the court of first instance, the appellate court noted that the second defendant in the case was the State Institution “Kandyagash Station Police Department,” with which the claimant was in an employment relationship. Accordingly, filing the claim at the location of one of the defendants is a right of the claimant. 

State Duty 

Pursuant to subparagraph 1) of Article 616 of the Tax Code, claimants are exempt from paying state duty in courts in claims for the recovery of remuneration for work and other claims related to employment activities. 

Consequently, claimants are not required to pay state duty on claims seeking to have an order declared unlawful and annulled, reinstatement in the former position, recovery of wages for the period of forced absence from work, or recovery of other payments, including unpaid wages, compensation for unused annual leave, and other similar payments. 

At the same time, it should be noted that labor legislation does not provide for the recovery of compensation for moral damage. When granting such claims, courts 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), in accordance with paragraph 14 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of Legislation on Compensation for Moral Damage.” 

Accordingly, a state duty of 50 percent of the monthly calculation index (hereinafter referred to as the MCI) is charged on statements of claim containing a demand for compensation for moral damage, as a claim of a non-pecuniary nature. 

Pursuant to Article 117 of the CPC, the state duty from which the claimant was exempt, as well as the costs associated with the proceedings, shall be recovered from the defendant who is not exempt from court costs, in favor of the state, in full or in proportion to the satisfied part of the claim. 

Under 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 state duty is determined depending on whether the claimant is an individual or a legal entity. 

Consequently, where a claim for recovery of wages is granted, state duty amounting to 1 percent of the claim amount shall be recovered from the defendant in favor of the state, together with state duty amounting to 50 percent of the MCI for all claims of a non-pecuniary nature. 

Pursuant to Article 109 of the CPC, the court shall award to the party in whose favor the judgment was rendered all court costs incurred in the case, to be recovered from the other party. 

Where a legal entity’s claim against an employee for compensation for material damage is granted, the state duty paid by the claimant, amounting to 3 percent of the claim amount, shall be recovered from the employee in favor of the claimant. 

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 recognized as 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 their rights and freedoms. 

By 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 restated as follows: 

“State duty shall be charged on motions seeking cassation review of judicial acts concerning rulings on the annulment of arbitration awards and the issuance of writs of execution for the enforcement of arbitration awards and foreign court judgments, as well as court judgments and rulings in disputes of a non-pecuniary and pecuniary nature, in the amount of 50 percent of the corresponding state duty rate established for the applicant under paragraph 1 of this Article.” 

It follows that, when filing a cassation motion seeking review of judicial acts in a case concerning compensation for material damage against a defendant who is an employee, state duty shall be recovered in the amount of 50 percent of the applicable state duty rate for individuals, that is, 1 percent rather than 3 percent of the claim amount. 

Pre-Trial Dispute Resolution Procedure and Time Limit for Applying to Court 

Article 159 of the Labor Code establishes a mandatory pre-trial procedure for resolving individual labor disputes 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 to consider individual labor disputes in accordance with the procedure prescribed by this Code does not apply to certain categories of employees whose labor relations are governed by the Labor 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 bodies, and civil servants. 

Thus, the law does not provide for a pre-trial procedure for resolving labor disputes involving civil servants and employees of law enforcement bodies. 

A. filed a claim against the State Institution “Healthcare Department of the East Kazakhstan Region” seeking the annulment 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 Part 1 of Article 152 of the CPC. 

The court justified the return of the claim on the grounds that the dispute was subject to consideration by the defendant’s conciliation commission. 

The ruling was not appealed. However, as correctly noted in its analysis by the Civil Cases Judicial Collegium of the East Kazakhstan Regional Court, the ruling contradicts the requirements of paragraph 1 of Article 159 of the Labor Code. 

The Almaty Regional Court Adopted 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 Konaev (Kapshagay) seeking reinstatement at work was left without consideration pursuant to subparagraph 1) of Article 279 of the CPC. 

By a ruling of the Civil Cases Judicial Collegium of the Almaty Regional Court dated 16 November 2022, the ruling of the court of first instance was upheld. 

The courts justified their decisions by stating that, under the meaning of paragraphs 1 and 2 of Article 159 of the Labor Code, disputes must be considered by a conciliation commission as a mandatory requirement. However, 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 in law enforcement bodies be provided for at the legislative level, which would make it possible to resolve conflicts locally, within the workforce, within a short period of time. 

This 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. This excludes the possibility of establishing a conciliation commission on an equal basis comprising rank-and-file employees and heads of law enforcement bodies. 

Pursuant to subparagraph 10) of paragraph 1 of Article 4 of the Law “On Civil Service,” one of the fundamental principles of civil service is the mandatory nature of decisions adopted by higher state bodies and officials within the scope of their powers for subordinate civil servants and civil servants of lower-level state bodies. 

The proposal of the North Kazakhstan Regional Court to introduce a mandatory pre-trial dispute resolution procedure for civil servants and law enforcement officers, involving appeals to higher-ranking officials through the chain of command and to higher authorities, may be supported. 

At present, this right is provided for as an alternative procedure (subparagraph 11) of Article 15 of the Law “On Law Enforcement Service” and paragraph 5 of Article 61 of the Law “On Civil Service”). 

Pursuant to Article 160 of the Labor Code, the following time limits are established for participants in labor relations who are entitled, under this Code, to apply to court without first referring the dispute to a conciliation commission for the consideration of individual labor disputes: 

For disputes concerning reinstatement at work — three months from the date on which a copy of the employer’s act terminating the employment contract is delivered or sent by registered mail with acknowledgment of receipt. 

For other labor disputes — one year from the date on which the employee, including a person who was previously in an employment relationship, became aware or should have become aware of the violation of their rights. 

By an order of the Head of the North Kazakhstan Region Police Department dated 24 December 2020, S. was dismissed from the internal affairs bodies. On 11 February 2022, the claimant applied to court. 

By a judgment of Court No. 2 of Petropavlovsk dated 11 March 2022, the claim was dismissed. 

The court of first instance reasonably concluded that the claimant had failed, without valid reasons, to comply with the time limit for applying to court established by subparagraph 1) of Article 160 of the Labor Code. 

By a judgment of Court No. 2 of Uralsk dated 24 September 2021, which was upheld by the appellate court, the claim of Zh. against the State Institution “Firefighting and Emergency Rescue Service” seeking reinstatement at work was dismissed. 

The claimant challenged the dismissal effected by an order dated 24 February 2017. At the preliminary hearing, the defendant’s representative filed a motion requesting the application of the limitation period. The claimant failed to provide evidence demonstrating valid reasons for missing the deadline. This circumstance served as grounds for dismissing the claim. 

The position of the Judicial Collegium of the West Kazakhstan Regional Court that Article 185 of the Civil Code should be applied when deciding whether there are grounds for restoring the limitation period should be supported. 

Regulatory Framework 

The principal regulatory legal acts applicable to the consideration of cases in the category under review are: 

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 Labor Code of the Republic of Kazakhstan dated 23 November 2015 No. 414-V ZRK (hereinafter referred to as the Labor Code); 

The Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget” (Tax Code) dated 25 December 2017 No. 120-VI ZRK (hereinafter referred to as the Tax Code); 

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”); 

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”); 

Law of the Republic of Kazakhstan dated 23 April 2014 No. 199-V ZRK “On Internal Affairs Bodies”; 

Law of the Republic of Kazakhstan dated 18 November 2015 No. 410-V ZRK “On Combating Corruption”; 

The Code of Ethics for 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, approving the Rules and Time Limits for Conducting Performance Assessments of Civil Servants; the Rules and Time Limits for Rotation, as well as the Categories and Positions of Civil Servants Subject to Rotation; and the 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 Reviewing the 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’”; and No. 3 dated 22 February 2023, “On Reviewing the 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 Mandatory 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 the Resolution of Labor Disputes”; 

No. 7 dated 27 November 2015, “On the Application by Courts of Legislation on Compensation for Moral Damage”; 

No. 5 dated 11 July 2003, “On Judicial Decisions 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, “Certain Issues of Service in the Internal Affairs Bodies of the Republic of Kazakhstan” (hereinafter referred to as Order No. 246). 

Order No. 830 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 22 October 2022 repealed Order No. 246.

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