Labor disputes, an employee of the internal affairs bodies may be dismissed for committing an offense discrediting a law enforcement agency

T. filed a lawsuit with the State Institution "Police Department of the Aktobe Region of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Police Department) to declare illegal and cancel Order No. 1290 dated November 27, 2019, reinstate the inspector of the service of the combatant battalion of the highway patrol police of the Aktobe City Police Department, and collect wages for the time of forced absenteeism. By the decision of the Aktobe City Court of September 10, 2020, the claim was dismissed. By the decision of the judicial Board for Civil Cases of the Aktobe Regional Court dated November 12, 2020, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of local courts and issued a new decision on the satisfaction of the claim. The order of the Aktobe Region Police Department No. 1290 dated November 27, 2019 regarding T.'s dismissal from the internal affairs bodies on the basis of subparagraph 13) of paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" was declared illegal and canceled. He was reinstated in his former position as an inspector of the service of the combatant unit of the battalion of the highway patrol police of the Aktobe City Police Department of the State Institution "Police Department of the Aktobe region" on the following grounds. In the case, it was established that T. held the position of service inspector of the combat unit of the battalion of the highway patrol police of the Aktobe City Police Department. On November 24, 2019, T., according to a report received by the 102 control panel on the fact of hooliganism in the cafe "Come in" in Aktobe, as part of a patrol police squad, went to the scene. Based on the video recording of the camera located in the corridor of the city police department No. 3 of the Almaty district of Aktobe, where the participants of the fight were taken, it was established that the detainees A. and A., who are in handcuffs, were approached by police officers, along with the lawful taking of measures to physically restrain the detainees in order to avoid harm to themselves and others, the fact of unlawful use of violence and infliction of bodily harm was admitted.

Labor disputes, an employee of the internal affairs bodies may be dismissed for committing an offense discrediting a law enforcement agency

A criminal case has been opened on this fact, in which six police officers of the Police Department have been brought to criminal responsibility. T. was a witness during the pre-trial investigation, his involvement in the commission of illegal actions has not been established. By Order of the Police Department No. 1290 dated November 27, 2019, T. was dismissed from the internal affairs bodies on the basis of subparagraph 13) of paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter referred to as Law No. 380-IV). The reason for issuing this order was T.'s inaction, which was expressed in the fact that he did not stop the illegal actions of his colleagues, did not take measures to protect the rights and freedoms of detainees, which was regarded by the Police Department as non-compliance with legal requirements, failure to perform official duties, and job descriptions. The Aktobe City Court refused to satisfy the claim with reference to the clarifications contained in the regulatory decree of the Supreme Court dated October 6, 2017 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes", motivated by the indication that T. In violation of the requirements of Law No. 380-IV, the Code of Ethics, and the job description, he held a detained person in a supine position with handcuffed hands, which caused a wide public outcry in the media and was considered a violation of the prohibition on degrading treatment. Therefore, bringing the plaintiff to disciplinary responsibility for committing an offense that discredits a law enforcement agency in the eyes of citizens and the public is recognized as legitimate. In addition, in the opinion of the court of first instance, the absence of an opinion on the failure of an internal investigation and the relevant recommendation of the disciplinary commission does not constitute a significant violation of the procedure for dismissing a law enforcement officer and cannot be an unconditional basis for satisfying the claim. The conclusions of the court of first instance by the Aktobe Regional Court were recognized as based on the correct application of the norms of substantive and procedural law, it was pointed out that there was no need to conduct an internal investigation due to the confirmation of the fact and circumstances of T.'s commission of disciplinary misconduct by the available video recording.

Labor disputes, an employee of the internal affairs bodies may be dismissed for committing an offense discrediting a law enforcement agency

The Judicial Board believes that it is impossible to agree with the conclusions of the judicial authorities, since they were made when incorrectly determining the circumstances relevant to the case and are based on the incorrect application of substantive law. By virtue of subparagraph 13) of paragraph 1 of Article 80 of Law No. 380-IV, an employee of the internal affairs bodies may be dismissed for committing an offense discrediting a law enforcement agency. Paragraph 2 of Article 80 of Law No. 380-IV contains an exhaustive list of offenses that discredit a law enforcement agency, which include actions that are not related to the performance of official duties, but clearly undermine the dignity and authority of the law enforcement service in the eyes of citizens: the appearance of employees in public places in a state of alcoholic or narcotic intoxication; disclosure of information. of a nature that has caused harm to the investigation; using official position for personal gain; non-statutory relationships between employees and cadets of law enforcement education organizations, which caused a negative public response. The actions imputed to T. do not fall under the above list of offenses leading to dismissal under subparagraph 13) of paragraph 1 of Article 80 of Law No. 380-IV. The defendant's representative explained the application of this rule to T. in the case by referring to the instruction of the Police Department's leadership on the need to dismiss all police officers whose presence in the lobby of the police department was recorded by a surveillance camera at the time of the incident. At the same time, such an instruction and action by the Police Department contradicts the requirements of paragraph 2 of Article 57 of Law No. 380-IV on the need to take into account the guilt of the employee, the severity and circumstances of the committed disciplinary offense, the personality of the employee and his attitude to the service, the occurrence of negative consequences and damage to the image of the law enforcement agency. According to subparagraph 4) of paragraph 1 of Article 60 of Law No. 380-IV, employees have the right to use physical force, including fighting techniques, as well as special means, including handcuffs, to detain offenders if they disobey or resist employees, if there are sufficient grounds to believe that they can escape. or cause harm to others or themselves, as well as to persons who intentionally prevent employees from fulfilling their duties assigned to them by law. According to the testimony of a witness, K., a senior prosecutor of the Almaty district of Aktobe, one of those taken to the police station was lying on the floor in handcuffs behind his back, behaved aggressively, kicked police officers and surrounding objects, and used obscenities. In turn, T., at the entrance to the foyer of the corridor of the police department, saw that the delivered A. he lies on the floor with his hands in handcuffs behind his back and, using obscene language, kicks metal cabinets and a metal detector, perceiving the detainee's actions as disobedience to police officers, approaching and being next to A., in order to prevent the possibility of the latter harming others and himself, the property of the police department, at first restrained without violence on the floor, and then moved him to a safe place. Since the appearance of T. In the lobby of the police department, none of the police officers unlawfully used violence against the detainees, while he himself was not entitled to remove the handcuffs from the detained person without instructions from his superiors or the prosecutor.

Labor disputes, an employee of the internal affairs bodies may be dismissed for committing an offense discrediting a law enforcement agency

Thus, T. acted in accordance with the requirements of Law No. 380-IV, the Code of Ethics and the job description, did not exceed the limits of his powers and did not allow degrading treatment. The conclusions of the local courts that there was no need for an internal investigation and the corresponding recommendation of the disciplinary commission due to the presence of a video recording and the pre-trial investigation conducted at the time of the plaintiff's dismissal, in which T. was questioned as a witness, cannot be considered valid. According to paragraph 3 of article 57 of Law No. 380-IV, when an employee commits a disciplinary offense, a written explanation is required from him. If the employee agrees in a written explanation with the fact that he committed this disciplinary offense, the head of the law enforcement agency or the authorized head has the right to impose a penalty without conducting an internal investigation. If an employee in his written explanation does not agree with the fact that he committed a disciplinary offense, then an internal investigation should be conducted by order of the head of the law enforcement agency or an authorized head. At the same time, by virtue of paragraph 4 of the said norm, a penalty in the form of a warning about incomplete official compliance, dismissal from office and dismissal is imposed based on the results of an internal investigation and the relevant recommendations of the disciplinary commission. A penalty in the form of a warning about incomplete official compliance or dismissal from office is also imposed on the basis of a decision of the board or an operational meeting with the first head of a law enforcement agency. Similar requirements are contained in the Rules for the exclusion from the staff of the internal affairs bodies of the Republic of Kazakhstan of employees who have stopped serving in the internal affairs bodies, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 27, 2011 No. 246 (hereinafter referred to as Rules No. 246). Thus, according to paragraphs 17, 21 of Rules No. 246, dismissal from the internal affairs bodies (hereinafter referred to as the Department of Internal Affairs) under sub–paragraphs 12), 12-1), 13), 14), 16) Paragraph 1 of Article 80 of Law No. 380-IV is carried out based on the results of an internal investigation and the relevant conclusions of the commission of the Department of Internal Affairs. For ordinary and commanding officers who are subject to dismissal, the relevant direct superior sends representations to the chief who enjoys the right of dismissal, which briefly outline the orientation and characterizing data on the dismissed person, indicate his length of service, the degree of fitness for service, the motives and grounds (wording) of dismissal.

The submissions are accompanied, in particular, by the conclusion of an internal investigation (when an employee is dismissed for gross misconduct and for committing misconduct discrediting a law enforcement agency). It follows from the above legal norms that without conducting an official investigation, disciplinary action may be applied, as specified in article 56 of Law No. 380-IV, except for a warning about incomplete official compliance, dismissal from office and dismissal. A disciplinary penalty such as dismissal is imposed only based on the results of an internal investigation and the relevant recommendations of the disciplinary commission. From the response of the Department of Internal Security of the Ministry of Internal Affairs of the Republic of Kazakhstan (hereinafter the Ministry of Internal Affairs) to the request of the plaintiff's representative, it follows that there are no orders or instructions from the Ministry of Internal Affairs giving the right to dismiss an employee for committing misconduct discrediting a law enforcement agency without conducting an internal investigation and without the appropriate recommendation of the disciplinary commission. Moreover, the events described in the dismissal order occurred on November 24, 2019, and the dismissal order was issued on November 27, 2019, while T. was questioned as a witness in a criminal case only in January 2020.

In such circumstances, the judicial board concludes that there are no signs of disciplinary misconduct in T.'s actions that discredit the law enforcement agency. The defendant grossly violated the rules for bringing an employee to disciplinary responsibility in the form of dismissal from the internal affairs bodies. Therefore, the judicial acts that took place in the case are subject to cancellation with the issuance of a new decision on the satisfaction of the claim in the case. In accordance with article 161 of the Labor Code of the Republic of Kazakhstan, an employee who is reinstated in his previous job is paid wages for the entire time of forced absenteeism, but not more than six months. From the salary certificate of T. for the last twelve months before his dismissal, it follows that his average monthly salary was 128,551 tenge. Consequently, 771,305 tenge (128,551 x 6) is to be recovered from the defendant in favor of the plaintiff, as well as, in accordance with part 1 of Article 117 of the CPC, a state fee to the state revenue in the amount of 7,713 tenge. 

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