Imputing Misconduct to a Civil Servant for Granting Improper Preference in the Preparation and Adoption of Decisions

Most frequently, civil servants are charged with committing the disciplinary offense предусмотренный by Subparagraph 4 of Paragraph 1 of Article 50 of the Law on Civil Service — granting improper preference to individuals and/or legal entities during the preparation and adoption of decisions.

A literal interpretation of this provision indicates that, first, the civil servant must be vested with the authority to make a decision, and second, when making such a decision, he or she must improperly (without any legal grounds) give preference to an individual or legal entity.

The term “preference” itself means recognizing someone’s advantage over others. Consequently, if preference has been granted to one person, there must also be another person who was denied a similar benefit or resolution.

While performing her duties as Chief Specialist of the State Revenue Department of the city of Taraz (hereinafter – the Department), I. prepared administrative offense reports against an LLP under Subparagraph 10 of Part 5 of Article 281 of the Code of Administrative Offenses.

During the consideration of the administrative case by the Specialized Administrative Court of Taraz (hereinafter – the SAC), I. participated as a specialist from the state revenue authorities.

By the SAC ruling of March 4, 2020, the Department was instructed to conduct an analysis of the LLP’s activities. I. prepared the relevant analytical report, coordinated it with the department management, and submitted it to the court.

By the SAC decision of April 9, 2020, the proceedings were terminated due to the absence of elements of an administrative offense in the LLP’s actions.

By the decision of the Zhambyl Regional Court dated October 6, 2020, the SAC decision was overturned. The LLP was found guilty of committing an administrative offense under Subparagraph 10 of Part 5 of Article 281 of the Code of Administrative Offenses and was fined.

Subsequently, based on a submission by the Prosecutor of Taraz dated January 6, 2021, the Department issued an order on February 2, 2021, imposing disciplinary liability on I. under Subparagraph 4 of Paragraph 1 of Article 50 of the Law on Civil Service in the form of a warning of incomplete official compliance for allegedly granting improper preference to the LLP during the consideration of the above administrative case.

I. challenged the order in court.

Partially satisfying the claim, the court of first instance established that the claimant, while acting as an authorized civil servant and providing explanations in response to questions posed by the court during the hearing, did not grant any preference to the legal entity and, moreover, did not make any procedural decisions in the case.

The appellate panel, amending the first-instance decision, concluded that the claimant had granted preference to the LLP by providing the court with an analytical report, allegedly without approval from management, that contradicted the conclusions contained in the administrative offense reports, with the aim of helping the legal entity avoid administrative liability. According to the appellate court, this resulted in the adoption of an unlawful judicial decision.

Overturning the appellate ruling and upholding the first-instance judgment, the Judicial Panel for Civil Cases of the Supreme Court noted that I.’s actions in drafting administrative offense reports, preparing an analytical report approved by management regarding the LLP’s activities, and participating in the administrative proceedings as an official representative of a state body all fell within her official duties.

The decision in the administrative offense case was made by the court after examining all circumstances and evidence, without any interference in the administration of justice.

As established by the case materials, the claimant neither participated in the preparation nor in the adoption of the court’s decision, and her explanations did not have any preferential evidentiary value for the court. Therefore, they could not be regarded as granting improper preference to a legal entity (Case No. 3gp-579, January 26, 2022).

On similar grounds, by the ruling of the Judicial Panel for Civil Cases of the Supreme Court dated December 22, 2021, the decision of the Zhambyl Regional Court dated August 17, 2021, was overturned, while the judgment of the Taraz City Court dated June 11, 2021, in the case brought by B. against the State Revenue Department of the Zhambyl Region seeking recognition of an order as unlawful and its cancellation, was upheld (Case No. 3gp-525).

Likewise, by the ruling of the Judicial Panel for Civil Cases of the Supreme Court dated November 15, 2022 (Case No. 3gp-411), the decision of the Ekibastuz City Court of the Pavlodar Region dated June 2, 2022, and the ruling of the Pavlodar Regional Court dated August 16, 2022, in the case brought by M. against the Akim of Ekibastuz seeking recognition of an order as unlawful and its cancellation, were overturned. A new judgment was rendered granting the claim.

In several civil cases considered by the courts of the Kostanay Region, it was established that a number of employees of the State Revenue Department of the Kostanay Region had been dismissed under Subparagraph 4 of Paragraph 1 of Article 50 of the Law on Civil Service.

The claimants were accused of committing disciplinary offenses discrediting the civil service by allegedly granting improper preference to individuals and/or legal entities when preparing and adopting decisions, specifically by allowing right-hand-drive vehicles to enter the territory of Kazakhstan through an automobile checkpoint and failing to take measures to prevent violations (including failing to report them to management).

The local courts granted the employees’ claims seeking recognition of the dismissal orders as unlawful, cancellation of the orders, and reinstatement.

The courts found that the claimants’ official duties and authority as state revenue officers did not include preparing or adopting decisions regarding the admission of vehicles into Kazakhstan. Such powers belonged to the border service authorities.

Likewise, making decisions regarding the criminal offenses and administrative violations referenced in the defendant’s written response was not within the claimants’ competence.

The Supreme Court refused to review the judicial acts in cassation proceedings.

E. held the position of Deputy Akim of the Abay District of East Kazakhstan Region and served as Chairman of the Land Commission. By order of the District Akim, he was dismissed for violations of Subparagraphs 4, 5, and 11 of Paragraph 1 of Article 50 of the Law on Civil Service.

The basis for the contested order was a decision of the Ethics Council. It was established that during a competition for granting the right of temporary compensated land use for farming purposes, the commission chaired by E. committed a number of serious violations.

For example, in one competition, the commission preferred a participant who scored only 5 points, while another participant scored 20 points. In another competition, preference was given to a participant with 1 point, whereas another participant had scored 20 points.

By a decision of the Specialized Interdistrict Economic Court, the temporary compensated land-use agreements were declared invalid. The court established that members of the commission had violated applicable legislation.

The courts dismissed E.’s claim seeking recognition of the order as unlawful and its cancellation. A Supreme Court judge refused cassation review.

It should be noted that E.’s actions clearly contained elements of the disciplinary offense provided for by Subparagraph 4 of Paragraph 1 of Article 50 of the Law on Civil Service, since he improperly favored certain participants when making decisions on the competition results.

On similar grounds, the claim of S. against the Akim of the Ayagoz District of East Kazakhstan Region seeking cancellation of an order dismissing him from his position as Deputy Akim and Chairman of the Land Commission for committing a disciplinary offense discrediting the civil service was also rejected.

Final and binding decisions of the Specialized Interdistrict Economic Court established violations committed by the Land Commission during the competition process, which served as grounds for invalidating the lease agreements.

Paragraph 15 of Article 43-1 of the Land Code provides that a Land Commission’s protocol decision on the results of a competition for granting temporary compensated land-use rights (lease) for farming or agricultural production may be challenged in court. Filing a claim suspends the execution of the commission’s decision.

Competition participants are also entitled to challenge lease agreements concluded on the basis of such competitions.

Therefore, only a court can determine whether a competition was conducted lawfully or unlawfully and whether violations were committed by the commission. Consequently, in the absence of a judicial act declaring the competition results unlawful, a report issued by an authorized body based solely on the opinion of an inspector regarding alleged violations by commission members is insufficient to impose disciplinary liability.

S. filed a lawsuit against the Akmola Regional Department for Public Procurement and Communal Property (hereinafter – the Department) seeking recognition of a disciplinary order as unlawful and its cancellation.

By the decision of the Kokshetau City Court of the Akmola Region dated August 21, 2020, the claim was dismissed.

By the ruling of the Civil Cases Panel of the Akmola Regional Court dated December 4, 2020, the decision was overturned and a new judgment was rendered granting the claim.

By the ruling of a Supreme Court judge dated January 25, 2021, review of the appellate ruling was refused.

According to the court decisions, S. worked as a Chief Specialist of the Department.

By order dated June 24, 2020, S. was subjected to disciplinary action in the form of a warning of incomplete official compliance for committing a disciplinary offense under Subparagraph 4 of 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 compliance with legislation in public procurement carried out by the Department. Following monitoring of the state procurement web portal, the prosecutor concluded that members of the tender commission had granted improper preference to legal entities during the preparation and adoption of decisions.

However, under the Public Procurement Law, a potential supplier has the right to challenge the actions (or inaction) and decisions of the customer or procurement organizer if such actions or decisions violate the supplier’s rights and legitimate interests.

The potential suppliers did not exercise this right and did not challenge the actions of the tender commission. Nor did the authorized body file such a claim in court.

Since there were no judicial acts declaring the competition or the actions of the tender commission unlawful, nor any decisions invalidating the public procurement contract and confirming the inspectors’ allegations that the rights of legal entities had been violated, the first-instance court’s conclusions that the claimant had committed a disciplinary offense discrediting the civil service and had been lawfully subjected to disciplinary liability were premature.

Jurisdiction

According to Article 26 of the Civil Procedure Code (CPC), civil cases of this category are considered by district courts and courts equivalent thereto.

M. filed a claim against the State Institution “Department for Employment Coordination and Social Programs of the East Kazakhstan Region” seeking reinstatement to employment.

By the ruling of the Ust-Kamenogorsk City Court dated August 26, 2021, the claim was returned on the grounds that it fell within the jurisdiction of the Specialized Interdistrict Administrative Court.

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

Under Part 2 of Article 102 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (hereinafter – the APPC), disputes arising from public-law relations fall within the jurisdiction of administrative courts. Pursuant to Subparagraph 2 of Part 7 of Article 3 of the APPC, cases for which the procedure is established 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, characterized by relations of authority and subordination, where one party is vested with public powers in relation to the other.

However, the subject matter of M.’s claim was an employment dispute concerning the challenge of an order terminating an employment contract, reinstatement to a previous position, recovery of wages, and compensation for moral damages.

The position of the Judicial Panel for Civil Cases of the East Kazakhstan Regional Court on this issue should be considered correct.

The same position is adhered to by the Judicial Panel for Administrative Cases of the Supreme Court of the Republic of Kazakhstan, which, by its ruling of August 18, 2022 (Case No. 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 Panel for Administrative Cases of the Zhambyl Regional Court dated January 12, 2022.

By those judicial acts, the claim of M. against the State Revenue Department for the City of Taraz seeking recognition as unlawful of the findings of an internal investigation and the decision of the disciplinary commission 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 proceedings.

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

Under Subparagraph 9 of Article 4 of the APPC, an administrative claim is a demand filed with a court for the protection and restoration of violated or disputed rights, freedoms, or lawful interests arising from public-law relations.

The challenged internal investigation findings and disciplinary commission decision were not administrative acts of a state authority adopted within public-law relations, did not create rights or obligations for the claimant, and were merely advisory in nature.

Moreover, these documents had already been evaluated by courts as evidence in proceedings challenging the claimant’s dismissal order.

Jurisdiction over disputes of this category is determined by the general rules established by Article 29 of the CPC, according to which claims are filed at the location of the defendant.

The Judicial Panel for Civil Cases of the East Kazakhstan Regional Court overturned the decision of the Ust-Kamenogorsk City Court in the case brought by K. against the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan seeking cancellation of a disciplinary order because the case should have been heard at the location of the defendant in Astana.

According to Part 12 of Article 30 of the CPC, claims against multiple defendants may be filed at the location of any one of the defendants, at the plaintiff’s discretion.

E. filed a claim against the State Institution “Transport Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan” and the State Institution “Kandyagash Railway Station Police Department” seeking cancellation of an order.

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

In overturning the ruling of the first-instance court, the appellate court stated that the second defendant in the case was the Kandyagash Railway Station Police Department, with which the claimant had an employment relationship; therefore, filing the claim at the location of one of the defendants was the claimant’s right.

State Duty (Court Fee)

Pursuant to Subparagraph 1 of Article 616 of the Tax Code, plaintiffs are exempt from payment of state duty in court for claims concerning recovery of wages and other claims related to employment.

Accordingly, no state duty is payable by a claimant for claims seeking:

• recognition as unlawful and cancellation of an order;
• reinstatement to a previous position;
• recovery of wages for the period of forced absence from work;
• recovery of other employment-related payments (unpaid wages, compensation for unused vacation, etc.).

At the same time, it should be taken into account that labor legislation does not provide for recovery of compensation for moral damages. When satisfying such claims, courts are guided by Paragraph 14 of the Supreme Court Regulatory Resolution “On the Application by Courts of Legislation on Compensation for Moral Damage,” Article 24 of the Constitution, and Chapter 47 of the Civil Code (Articles 951 and 952).

Therefore, claims seeking compensation for moral damages are subject to a state duty of 50% of the Monthly Calculation Index (MCI), as claims of a non-property nature.

Under Article 117 of the CPC, state duty from which the plaintiff was exempt, as well as litigation costs, shall be recovered from the defendant who is not exempt from court expenses, in favor of the state, in full or proportionally to the satisfied part of the claim.

According to Paragraph 16 of the Supreme Court Regulatory Resolution “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases,” the rate of state duty depends on whether the plaintiff is an individual or a legal entity.

Accordingly, if a claim for wages is granted, state duty shall be recovered from the defendant in favor of the state in the amount of 1% of the claim value, as well as 50% of the MCI for all non-property claims.

Under Article 109 of the CPC, the court awards to the prevailing party all court costs incurred in the case.

Where a legal entity’s claim against an employee for compensation of material damage is satisfied, the employee shall reimburse the plaintiff for the state duty paid by the plaintiff in the amount of 3% of the claim value.

By Regulatory Resolution No. 3 of the Constitutional Court of the Republic of Kazakhstan dated February 22, 2023, the words “when filing an administrative claim, statement of claim (application) in such disputes” contained in Paragraph 2 of Article 610 of the Tax Code were declared inconsistent with Paragraph 2 of Article 13 and Article 14 of the Constitution because they restricted the constitutional right of everyone to judicial protection of rights and freedoms.

By the Law of the Republic of Kazakhstan dated March 20, 2023, No. 213-VII, amendments were made to Article 610 of the Tax Code. Paragraph 2 was restated as follows:

“For petitions seeking cassation review of judicial acts concerning rulings on the annulment of arbitration awards and the issuance of writs of execution for the compulsory enforcement of arbitration awards and foreign court judgments, as well as court judgments and rulings in property and non-property disputes, state duty shall be charged in the amount of 50 percent of the corresponding state duty rate established by Paragraph 1 of this Article for the applicant.”

Consequently, when filing a cassation petition seeking review of judicial acts regarding recovery of material damage from an employee, state duty shall amount to 50% of the corresponding rate applicable to individuals, i.e., 1% rather than 3% of the claim value.

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

Article 159 of the Labor Code establishes a mandatory pre-trial procedure for resolving individual labor disputes through a conciliation commission.

However, this provision contains several exceptions.

The requirement to establish a conciliation commission for the consideration of individual labor disputes does not apply to certain categories of employees whose employment is regulated by the Labor Code with specific features established by special laws and other regulatory legal acts of the Republic of Kazakhstan, including:

• military personnel;
• employees of special state bodies;
• law enforcement officers;
• civil servants.

Accordingly, the law does not provide for a mandatory pre-trial dispute resolution procedure for civil servants and law enforcement officers.

A. filed a claim against the State Institution “Health Department of the East Kazakhstan Region” seeking cancellation of an order.

By a ruling of the Ust-Kamenogorsk City Court dated March 25, 2021, the claim was returned pursuant to Subparagraph 1 of Part 1 of Article 152 of the CPC.

The court reasoned that the dispute should first be considered by the defendant’s conciliation commission.

Although the ruling was not appealed, the Judicial Panel for Civil Cases of the East Kazakhstan Regional Court correctly noted in its analysis that the ruling contradicted Paragraph 1 of Article 159 of the Labor Code.

A different position was taken by the Almaty Regional Court.

By a ruling of the Konaev City Court dated August 17, 2022, the civil case brought by S. against the Akim 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 November 16, 2022, the first-instance ruling was upheld.

The courts reasoned that Paragraphs 1 and 2 of Article 159 of the Labor Code require mandatory consideration of disputes by a conciliation commission. However, they failed to take into account that this requirement does not apply to civil servants.

The Pavlodar Regional Court proposed introducing legislation requiring the establishment of conciliation commissions within law enforcement agencies to allow workplace conflicts to be resolved quickly within the organization.

Such a proposal appears debatable because, under Article 4 of the Law on Law Enforcement Service, one of the special principles governing law enforcement service is the principle of unity of command and subordination, which excludes the possibility of creating a conciliation commission on an equal basis from among rank-and-file employees and managers.

Likewise, under 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 execution by subordinate civil servants of decisions made by superior state bodies and officials within their authority.

One may agree with the proposal of the North Kazakhstan Regional Court to introduce, as a mandatory pre-trial procedure for civil servants and law enforcement officers, an appeal to superior officials or higher authorities through the chain of command.

At present, such recourse exists only 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 Civil Service).

Under Article 160 of the Labor Code, for participants in labor relations who may apply directly to court without first applying to a conciliation commission, the following limitation periods apply:

• For reinstatement disputes: three months from the date the employee receives, or is sent by registered mail with acknowledgment of receipt, a copy of the employer’s act terminating the employment contract.
• For other labor disputes: one year from the date the employee, including a former employee, learned or should have learned of the violation of his or her rights.

By order of the Head of the North Kazakhstan Regional Police Department dated December 24, 2020, S. was dismissed from the internal affairs bodies. On February 11, 2022, the claimant filed a lawsuit.

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

The first-instance court reasonably concluded that the claimant had missed the limitation period established by Subparagraph 1 of Article 160 of the Labor Code without valid reasons.

By the decision of Court No. 2 of Uralsk dated September 24, 2021, upheld on appeal, the claim of Zh. against the State Institution “Firefighting and Emergency Rescue Service” seeking reinstatement was dismissed.

The claimant challenged a dismissal order dated February 24, 2017. During the preliminary hearing, the defendant requested application of the statute of limitations. The claimant failed to provide evidence of valid reasons for missing the deadline. This circumstance served as grounds for dismissal of the claim.

The opinion of the Judicial Panel of the West Kazakhstan Regional Court appears correct that, when determining whether there are grounds to restore a missed limitation period, courts should be guided by Article 185 of the Civil Code.

Regulatory Framework

The principal legal acts applicable to cases of this category include:

• the Constitution of the Republic of Kazakhstan;
• the Civil Code of the Republic of Kazakhstan;
• the Civil Procedure Code of the Republic of Kazakhstan;
• the Labor Code of the Republic of Kazakhstan;
• the Tax Code of the Republic of Kazakhstan;
• the Law on Civil Service of the Republic of Kazakhstan;
• the Law on Law Enforcement Service;
• the Law on Internal Affairs Bodies;
• the Law on Combating Corruption;
• the Code of Ethics of Civil Servants of the Republic of Kazakhstan;
• Presidential Decree No. 152 of December 29, 2015, approving rules on evaluation, rotation, and disciplinary liability of civil servants;
• Regulatory Resolutions of the Constitutional Court of Kazakhstan No. 4 of March 6, 2023, and No. 3 of February 22, 2023;
• Regulatory Resolutions of the Supreme Court of Kazakhstan on labor disputes, moral damage compensation, civil judgments, and court costs;
• Order No. 246 of the Minister of Internal Affairs dated May 27, 2011, “Certain Issues of Service in the Internal Affairs Bodies of the Republic of Kazakhstan” (repealed by Order No. 830 dated October 22, 2022). 

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