In connection with the acquittal in the initiated criminal case, recognize the orders as illegal, cancel them, rearrange them to their previous position, collect monthly wages for free time of residence and restore the terms of the claim

In the course of making a decision, the judicial collegiums allowed incorrect application of the norms of material and procedural law by incorrectly determining the circumstances relevant to the case. The Plaintiff P. In disagreement with the orders of the Department of internal affairs of Kyzylorda region No. 486 dated November 29, 2012 and No. 189 dated December 6, 2012, in connection with the acquittal in the criminal case initiated against him, he declared these orders illegal, canceled them, reinstated them in his previous position, collected a monthly salary for free free time, and applied to the court with a claim to restore the statute of limitations. By the decision of the Kyzylorda City Court of January 24, 2014, the statement of claim of P. was dismissed. The decision of the court of First Instance on April 7, 2014 was canceled by the ruling of the Appellate Judicial Board on civil and administrative cases of the Kyzylorda regional court, by the decision of the appellate collegium on April 8, 2014, the claim of P. was satisfied, the above orders were canceled, the plaintiff was reinstated in his previous position, and a monthly salary of 964,404 tenge was collected for free time.

By the decision of the Judicial Board of Cassation of the Kyzylorda Regional Court dated May 13, 2014, the complaint of the defendant and the protest of the prosecutor were dismissed, the decision of the Judicial Board of Appeal was left unchanged. The prosecutor general of the Republic of Kazakhstan, in his protest to the supervisory Judicial Board of the Supreme Court, indicated that the judicial acts adopted by the appellate and Cassation judicial boards do not meet the requirements of Article 218 of the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of Criminal Procedure) and the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "on the court decision", and asked for their violation. The supervisory judicial board heard the conclusion of the prosecutor in support of the protest, the understanding of the representative of the Department of internal affairs of Kyzylorda region in support of the protest, the objections of P. and his representative R., studied the civil case documents and the motives of the protest, and the supervisory judicial board came to the conclusion that the protest is subject to satisfaction due to the following grounds. In accordance with Part 3 of Article 387 of the code of criminal procedure, a significant violation of the norms of material or procedural law is the basis for reviewing decisions, resolutions and rulings of the court that have entered into legal force in the order of supervision. In accordance with Part 2 of Article 397 of the civil code, the court at the supervisory stage, pursuing the interests of legality, has the right to go beyond the application or protest and check in full the legality of the appealed, protested decision. The following shortcomings were allowed in the case. According to the case documents, on July 11, 2012, P. was appointed to the post of district police inspector of the preventive service group of the administrative Police Department of the Syrdarya District Department of internal affairs of the Kyzylorda Regional Department of internal affairs (hereinafter referred to as the Department).

By order of the head of the Department No. 486 of November 29, 2012, the plaintiff P. was expelled from the internal affairs bodies for committing a misdemeanor defamatory to law enforcement agencies on the basis of subparagraph 13) of Part 1 of Article 80 of the law of the Republic of Kazakhstan "on law enforcement activities", and by Order No. 189 of December 6, 2012, the internal affairs bodies were released from the reserve of the Armed Forces. The basis for the adoption of the order on the dismissal of P. was his illegal actions, that is, 50 thousand tenge was received from the brothers M., recognized as suspects in the case by paragraphs "a, B" of Part 2 of Article 175 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to persuade K., recognized as a victim, to apologize, despite the fact that this application is not within his jurisdiction, he acted as an intermediary between them.  By the verdict of the Syrdarya District Court of Kyzylorda region dated May 8, 2013 P. He was found guilty by Part 2 of Article 307 of the criminal code, sentenced to imprisonment for a period of 2 years, the specified punishment is recognized as conditional, and a probationary period of 1 year is established for him. The Appellate Judicial Board of the Kyzylorda Regional Court annulled the verdict of the court of First Instance, acquitted the plaintiff in connection with the absence of corpus delicti in his actions and released him from criminal liability. The court of first instance in a civil case dismissed his claim, indicating that P. had committed a serious misdemeanor that defamed law enforcement agencies. The appeal and Cassation courts of the Regional Court canceled the decision of the court of first instance, indicating that the plaintiff had committed a corruption crime and committed a misdemeanor that defamed law enforcement agencies, and decided to satisfy his claim. In accordance with Part 3 of Article 71 of the code of criminal procedure, a court sentence that has entered into legal force in a criminal case is mandatory for the court considering a civil case, on the issues of whether these actions took place and whether they were committed by this person, as well as in relation to the circumstances established by the sentence and their legal assessment.

In this regard, the judicial boards did not give an adequate assessment of P.'s actions, that is, they did not deny that he committed a misdemeanor. These circumstances were ignored by the courts. Also, paragraph 23 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9" on some issues of application of legislation by courts in resolving labor disputes " states that the commission of actions not related to the performance of official duties, but before the eyes of citizens that discredit the honor and reputation of law enforcement agencies, the use of official positions for personal selfish purposes, relations that caused negative public opinion are subject to Therefore, the fact that the plaintiff was in unauthorized contact with the brothers M., who passed as suspects in the criminal case, and received 50 thousand tenge from the victim K. is fully confirmed by the case documents and the plaintiff did not bring a dispute against him. In accordance with Article 9 of the law of the Republic of Kazakhstan" on civil service", civil servants are obliged to exercise their powers within the limits of the rights granted to them and in accordance with the duties of the service, observe state discipline and labor discipline, accept the restrictions established by law, comply with the norms of service ethics, bear burdens. The victim was not within the competence of P. to consider the statement written by K. about theft. The courts did not give a legal assessment due to the fact that the latter did not have the right and authority to communicate with the parties in the criminal case and withdraw any funds.

At the same time, in accordance with Part 1 of Article 172 of the Labor Code of the Republic of Kazakhstan, a period of three months is established from the date of submission of a copy of the employer's act on termination of the employment contract for re-employment disputes-to apply to the body considering the dispute. The Plaintiff P. the disputed orders were issued on November 29 and December 6, 2012, and these orders were introduced in time.These judicial boards, without taking into account these circumstances, unreasonably satisfied P.'s request to restore the deadline for filing a claim in court, despite the expiration of one year of the statement of claim for violation of the dismissal order. In the course of making a decision, the judicial collegiums incorrectly identified the circumstances relevant to the case, allowed incorrect application of the norms of material and procedural law. The judicial acts adopted against the plaintiff P. do not meet the requirements of Paragraph 3 of Article 387 of the code of criminal procedure and normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "on the application by courts of certain norms of Civil Procedure legislation". Therefore, in connection with the above grounds, the supervisory judicial board concluded that the powers of the decisions of the appellate and Cassation judicial boards are canceled and the decision of the court of first instance is subject to cancellation. 

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