Labor disputes on challenging orders to impose disciplinary penalties for corruption offenses

        It should be noted that the subject of the claims in these cases were the claims of lawsuits for the recognition of illegal orders to impose disciplinary penalties for corruption offenses that occurred before the enactment of the Law on Combating Corruption and the Law on Civil Service of the Republic of Kazakhstan, and the Rules.

The only exception is the decision rendered by the Pavlodar City Court on December 23, 2016 on the claim of Daniyar Toleubaevich Kusainov to the State Institution "Department of State Architectural Control of the Pavlodar region", involving third parties who do not make independent claims on the subject of the dispute. - State Institution "Department of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption in Pavlodar region", State Institution "Department of Housing and Communal Services, Passenger Transport, Highways and Housing Inspection of Bayanaul district", LLP "DM", LLP Training Center "Enbek kapsizdigi", on the cancellation of the order of the head of the State Institution "Department of State Architectural control of the Pavlodar region" dated July 21, 2016 No. 34-zh on the imposition of disciplinary action.

The specifics of disputes about challenging orders to impose disciplinary penalties for corruption offenses

             One of the features of disputes in this category of disputes is the claim for recognition of an order to impose disciplinary action for a corruption offense as illegal. The imposition of disciplinary penalties for the commission of a corruption offense, by virtue of the requirements of the law, is possible only for persons holding a responsible public position, persons authorized to perform public functions, persons equated to persons authorized to perform public functions.

Therefore, the second feature of the generalized category of cases, along with the specific subject of the claim, is its composition of participants. The plaintiffs in this category of cases are always persons holding a responsible government position, persons authorized to perform government functions, and persons equated to persons authorized to perform government functions.

It follows from the above that the procedure provided for in article 159 of the Labor Code for the pre-trial settlement of a dispute in a conciliation commission does not apply to these persons.

At the same time, this rule does not exclude the creation of conciliation commissions in state and other budget-funded organizations, state-owned and communal enterprises to resolve individual labor disputes of civil servants.

Persons involved in the case of challenging orders to impose disciplinary penalties for corruption offenses.

             The correct and timely consideration and resolution of cases in this category largely depends on the correct definition of the procedural status of all subjects of civil procedure.

First of all, this applies to such main parties involved in the case as the plaintiff and the defendant. As a rule, there are no special difficulties in determining the parties. They, as in any civil case considered by way of claim proceedings, are subjects of a substantive legal relationship based on relations regulated by labor legislation, including those with special features provided for by the laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan that establish special conditions for public service.

Due to the requirements of the Anti-Corruption Law, plaintiffs in this category of cases are always persons authorized to perform government functions and persons equivalent to them, including:

             1) a person holding a responsible public position is a person holding a position established by the Constitution of the Republic of Kazakhstan, constitutional and other laws of the Republic of Kazakhstan for the direct performance of state functions and powers of state bodies, including a deputy of the Parliament of the Republic of Kazakhstan, a judge, as well as a person holding a political position in accordance with the legislation of the Republic of Kazakhstan on public service a government position or an administrative government position in the "A" building;

2) official – a person who permanently, temporarily or by special authority performs the functions of a government representative or performs organizational, administrative or economic functions in state bodies, quasi-public sector entities, local self-government bodies, as well as in the Armed Forces, other troops and military formations of the Republic of Kazakhstan;

3) a person authorized to perform public functions is a civil servant in accordance with the laws of the Republic of Kazakhstan on public service, a deputy of the maslikhat, as well as a person temporarily performing duties provided for by a public position until his appointment to public service.;

4) a person equated to persons authorized to perform state functions is a person elected to local self-government bodies; a citizen registered in accordance with the procedure established by the law of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan or maslikhats, akims of cities of regional significance, towns, villages, rural districts, and also members of an elected local government body; an employee who permanently or temporarily works in a local government body, whose remuneration is made from the state budget of the Republic of Kazakhstan; a person performing managerial functions in a state organization or quasi-public sector entity, employees of the National Bank of the Republic of Kazakhstan and its departments;

The defendants in this category of cases are legal entities, usually government agencies in the form of government agencies.

The peculiarity of cases in this category, in contrast to civil law relations, as noted above, is that their subject matter and content are strictly defined by special laws. This circumstance excludes the possibility of the appearance in the process of this category of cases of persons who have independent claims regarding the subject of the claim.

Terms of applying to the court for protection of the violated right.

             By virtue of article 160 of the Labor Code, the following deadlines are set for applying to the conciliation commission or the court for the consideration of individual labor disputes:

1) for disputes concerning reinstatement at work – one month from the date of delivery of a copy of the employer's act on termination of the employment contract to the conciliation commission, and for applying to the court – two months from the date of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or in case of non-fulfillment of its decision by the party to the employment contract;

2) in other labor disputes – one year from the day when the employee or employer learned or should have learned about the violation of his right.

The term of the application for consideration of individual labor disputes is suspended during the period of validity of the mediation agreement on the labor dispute under consideration, as well as in the absence of a conciliation commission before its establishment.

The sectoral laws regulating the procedure for passing state, law enforcement and other services, as well as the Law on Combating Corruption, do not regulate the timing of filing lawsuits challenging orders to impose disciplinary penalties.

In this regard, it seems possible to be guided by the provision of paragraphs 1) of art. 160 of the Labor Code, which establishes that a period of two months is provided for applying to court, with the proviso that the specified period should be calculated from the date of delivery of the act of the contested employer, or familiarization with it.

In case of missing the specified deadline, the judge has no right to refuse to accept the statement of claim on the grounds of missing the deadline without valid reasons. Moreover, objections to missing the deadline can only come from the defendant.

Only the defendant has the right to indicate that the plaintiff missed the deadline for going to court. If no such objections are received from the defendant, the court cannot enter into a discussion of the omission itself and its reasons, much less put the omission of the deadline without a valid reason as the basis for the decision to dismiss the claim. At the same time, the defendant must prove that the plaintiff missed the deadline for going to court, and the plaintiff, arguing that the reasons for missing the deadline are valid, must provide evidence proving the validity of this statement.

An example of the correct practice of applying the statute of limitations is the civil case considered by the Moyinkumsky district Court of the Zhambyl region on the claim of Askerbekov Zh.Zh. to the State Institution "Department of Housing and Communal Services, Passenger Transport and Highways of the Moyinkumsky district" on the recognition of the order as illegal and its cancellation.

From the circumstances of the case, it follows that the plaintiff Askerbekov Zh.Zh., being a leading specialist of the specified state institution, by order dated July 03, 2013, for committing a corruption offense under subclause 12), paragraph 1, Article 12 of the Law of the Republic of Kazakhstan "On Combating Corruption" (hereinafter – the Law on Combating Corruption) - a clear obstruction of physical or to legal entities in the exercise of their rights and legitimate interests, brought to disciplinary responsibility in the form of a warning about incomplete official compliance.

Challenging the legality of bringing Asgerbekov to disciplinary responsibility, Zh.Zh., on December 01, 2016, appealed to the court with a claim for recognizing the order to impose disciplinary punishment as illegal and its cancellation. He indicated that he had not been notified of the disciplinary action. At the same time, from the information provided by the personnel service of the state institution, the opposite conclusion followed that the plaintiff was acquainted with the specified order within the time limits established by law.

This, in the absence of any information about the validity of the omission of the limitation period, was the basis for the refusal to satisfy the statement of claim, as stated by the representative of the defendant. In this regard, the decision of the Moyinkum district court of the Zhambyl region dated March 15, 2016 denied the claim of Askerbekov Zh.Zh. It should be noted that in law enforcement practice, it is important to determine the valid reasons for missing the limitation period.

The Labor Code has not defined the concept and list of valid reasons for missing the deadline for applying to the court regarding labor disputes. Valid reasons for missing the deadline for applying to court may include circumstances that prevent an employee from filing a lawsuit in a timely manner: the plaintiff's illness, his close relatives, for whom he had to provide permanent care, a business trip, study in another locality, from where it was very difficult to send the statement of claim and the documents attached to it by mail., inability to go to court due to a natural disaster or other force majeure , etc . There are cases when, before applying to the court, plaintiffs in labor disputes apply to the prosecutor's office, after which they file a lawsuit with the court. Such reasons for missing the deadline are not always recognized as valid.

Meanwhile, if these bodies directly took legal measures to resolve the labor conflict within their competence, but they did not lead to a resolution of the conflict, then the court has the right to recognize the reason for missing the deadline in such cases as valid.

At the same time, if, during the period determined by the date of receipt of a copy of the disciplinary penalty order, circumstances occur prior to going to court that make it impossible or very difficult to file a lawsuit challenging this order, this may not lead to the court restoring the specified period. For example, an employee did not apply to the court during a period significantly exceeding the time limit set by law, and then a circumstance arose that could be regarded as preventing the filing of a claim. It is also possible that after this circumstance, which occurred during the period of validity, more than a month has passed, during which nothing prevented the plaintiff from filing an application.

In this situation, the court has the right to dismiss the claim by its decision, recognizing the omission of the deadline as disrespectful. Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes" (hereinafter referred to as the Regulatory resolution) (with subsequent amendments) clarified that if it is established that the deadlines provided for in Article 172 of the Labor Code were missed for a valid reason, then In the operative part of the decision, the court indicates this and resolves the dispute on the merits.

If the court finds that the plaintiff's labor rights have been violated, but they have missed the deadline provided for by the Labor Code without valid reasons, the court in the reasoning part of the decision indicates a violation of these rights, and in connection with the missed deadline, denies the claim. In connection with the above, it seems advisable to provide for the concept of respectability of reasons and their approximate list in the said regulatory decree.

Jurisdiction of disputes.

             During the analysis, attention is paid to the correctness of determining the jurisdiction of labor disputes. As judicial practice shows, the requirements of the procedural law regarding the jurisdiction of labor disputes in this category are applied correctly and do not cause any difficulties.

As a general rule, lawsuits, including those challenging employers' acts, as well as other labor disputes, are filed at the location of the defendant, a legal entity.

According to Article 39 of the Civil Code of the Republic of Kazakhstan, the location of a legal entity is determined by the place of its state registration, unless otherwise specified in the constituent documents of the legal entity in accordance with the law.

Therefore, claims for the restoration of labor rights, including challenging acts of employers, are subject to the general rules of jurisdiction, as indicated in paragraph 4 of the regulatory decree, according to which claims for disputes arising from labor relations are subject to filing in court according to the general rules of civil procedure at the location of the defendant – a legal entity. faces.

Consequently, lawsuits challenging orders to impose disciplinary penalties for corruption offenses are filed at the location of the defendant, a legal entity, a government agency in the form of a government agency.

Law enforcement.

According to the previous legislation, the imposition of disciplinary penalties for committing a corruption offense was possible for a strictly legally defined circle of persons, exclusively those authorized to perform state functions and persons equated to them.

When bringing civil servants to disciplinary responsibility for corruption offenses, the requirements of the Laws of the Republic of Kazakhstan on Civil Service, on combating Corruption, as well as the Rules for Imposing Disciplinary Penalties on Administrative Civil Servants of the Republic of Kazakhstan, approved by the Decree of the President of the Republic of Kazakhstan dated December 31, 1999, were directly applied.

These regulatory legal acts are currently invalid. However, as judicial practice shows, in the event of non-compliance with the requirements of these laws, as well as the Rules governing the imposition of disciplinary penalties, including for corruption offenses, the contested acts of employers were canceled by the courts. This practice was correct and contributed to the protection of violated or disputed rights, freedoms, and legally protected interests of citizens, the State, and organizations, strengthening law and order, and preventing offenses.

At the same time, it should be pointed out that the types of corruption offenses and offenses that create conditions for corruption specified in the expired Anti-Corruption Law and the new Anti-Corruption Law are absent.

At the same time, in the Law on Combating Corruption, the concept of corruption is defined as the illegal use by persons holding a responsible public position, persons authorized to perform public functions, persons equated to persons authorized to perform public functions, by officials of their official (official) powers and related opportunities in order to obtain or extract personally or through intermediaries of property (non-property) benefits and advantages for themselves or third parties, as well as bribing these individuals by providing benefits and advantages.

A corruption offense is recognized as an unlawful culpable act (action or omission) with signs of corruption, for which administrative or criminal liability is established by law.

Paragraph 2 of Article 1 of the Law states that criminal liability and punishment for corruption crimes are provided for by the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), administrative liability and punishment for administrative corruption offenses by the Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code).

In the Administrative Code, which entered into force on January 1, 2015, Chapter 34 regulates exclusively administrative corruption offenses.

Of which the following can be distinguished:

Article 676. Provision of illegal financial remuneration by individuals.

Article 677. Receiving illegal financial remuneration by a person authorized to perform state functions, or a person equivalent to him.

Article 678. Provision of illegal material remuneration by legal entities

Article 679. Carrying out illegal business activities and obtaining illegal income by state and local government bodies.

Article 680. Failure of the heads of state bodies to take measures to combat corruption.

Article 681. Employment of persons who have previously committed a corruption offense.

Similarly to the Administrative Code, the Criminal Code, which entered into force on January 01, 2015, contains Chapter 15 "Corruption and other criminal offenses against the interests of the civil service and public administration." Paragraph 29 of Article 3 of the Criminal Code states that corruption crimes should include acts provided for in articles:

             189 (paragraph 2) part three) - Embezzlement or embezzlement of someone else's entrusted property committed by a person using his official position,

190 (paragraph 2) part three) - Fraud committed by a person using his official position,

215 (paragraph 3) of the second part) - False entrepreneurship committed by a person authorized to perform public functions, or a person equated to him, or an official, or a person holding a responsible public position, if they involve the use of his official position,

216 (paragraph 4) part two) - The commission of actions to issue an invoice without actually performing work, rendering services, or shipping goods committed by a person authorized to perform government functions, or a person equivalent to him, or an official, or a person holding a responsible government position, if they involve the use of his official position,

217 (paragraph 3) of Part three) - Creation and management of a financial (investment) pyramid committed by a person using his official position, 218 (paragraph 1) part three) - Legalization (laundering) of money and (or) other property obtained by criminal means by a person using his official position,

234 (paragraph 1) part three) - Economic smuggling by a person using his official position,

249 (paragraph 2) part three) - Raiding committed by a person using his official position, 307 (paragraph 3) of part three) - Organization of illegal gambling by a person using his official position,

361 - Abuse of official authority,

362 (paragraph 3) of Part four) - Abuse of power or official authority committed for the purpose of obtaining benefits and advantages for oneself or other persons or organizations, or harming other persons or organizations,

364 Illegal participation in business activities,

365 Obstruction of legitimate business activities, 366 - Receiving a bribe, 367 - Giving a bribe,

368 - Mediation in bribery, 369 - Forgery, 370 - Inaction in the service,

450 - Abuse of power,

451 (paragraph 2) part two) - Abuse of power in order to obtain benefits and advantages for oneself or other persons or organizations, or to harm other persons or organizations, and 452 - Inaction of the authorities

Thus, the Criminal Code contains 20 elements of corruption acts.

An important innovation is the procedure provided for by the Law on Civil Service for bringing civil servants to disciplinary responsibility.

44 of this Law, disciplinary misconduct of a civil servant (hereinafter referred to as misconduct) is unlawful, culpable failure or improper performance by a civil servant of the duties assigned to him, abuse of official authority, violation of official discipline and ethics, as well as non–compliance with the restrictions established by the laws of the Republic of Kazakhstan related to public service.

Disciplinary offenses also include the voluntary dismissal of persons who have committed a disciplinary offense that results in dismissal for negative reasons, the unlawful appointment of persons to administrative government positions and (or) the dismissal of persons from administrative government positions, the unlawful imposition of disciplinary penalties on administrative officials, the disclosure of the contents of test assignments and other competitive issues, the deliberate failure to take measures to prevention and resolution of conflicts of interest.

The following types of penalties are imposed on civil servants for committing a disciplinary offense:

1) Remark;

2) Reprimand;

3) severe reprimand;

4) warning about incomplete official compliance or demotion in a public position;

5) dismissal from public office.

Disciplinary punishment in the form of demotion from a public position is imposed if there is any vacant lower-level public position and the civil servant meets the qualification requirements established for this public position. Demotion in public office is carried out without competitive procedures.

Disciplinary punishment in the form of a warning about incomplete official compliance is imposed in the absence of the possibility of imposing disciplinary punishment in the form of demotion in a public position.

Commission by a civil servant of any disciplinary offense specified in the sub-paragraphs 1), 6), 7), 8), 10), 11), 12) and 15) of paragraph 1 of Article 50 of the Law, if it does not contain signs of a criminally punishable act or an administrative offense, entails demotion in public office, and in the absence of a vacant lower-level public position, disciplinary punishment in the form of a warning about incomplete official compliance is imposed in accordance with the procedure established by law.

The repeated commission of any of these disciplinary offenses within a year after the imposition of a disciplinary penalty for the first disciplinary offense entails dismissal from public office.

The commission by a civil servant of any disciplinary offense specified in subitems 2), 3), 4) and 5) of paragraph 1 of Article 50 of the Law, if it does not contain signs of a criminally punishable act or an administrative offense, entails the imposition of disciplinary punishment in the form of a warning about incomplete official compliance or dismissal in accordance with the procedure established by law.

Repeated commission of any of these disciplinary offenses within a year after the imposition of a disciplinary penalty for the first disciplinary offense entails dismissal from public office.

Commission by a civil servant of any disciplinary offense specified in paragraphs 9), 13), 14), 16), 17), 18) and 19) of paragraphs 1 and 2 of Article 50 of the Law, if it does not contain signs of a criminally punishable act or an administrative offense, entails dismissal from public office.

Disciplinary action:

1) is imposed by officials (body) who have such a right in accordance with their official powers;

2) may not be imposed repeatedly for the same offense, provided that the first disciplinary penalty is lawful and the disciplinary penalty corresponds to the severity of the offense.;

In accordance with Article 45 of the Law, disciplinary punishment is imposed no later than one month from the date of the discovery of misconduct and may not be imposed later than six months from the date of the commission of misconduct.

A continuing offense is an offense that is characterized by the continuous implementation of a single component of a certain act and has not been completed by the time it is discovered. Disciplinary punishment for the commission of disciplinary offenses discrediting the civil service, provided for by Law, is imposed no later than three months from the date of discovery of the offense and may not be imposed later than one year from the date of commission of the offense.

In the event of termination of a criminal case by a criminal prosecution body or a court, or proceedings on an administrative offense, but if there are signs of a disciplinary offense discrediting the civil service provided for in this Law, disciplinary punishment shall be imposed no later than three months from the date of the decision to terminate the criminal case, but no later than one year from the date of the commission of this offense.

Disciplinary punishment for violation of the budget legislation of the Republic of Kazakhstan is imposed no later than three months from the date of detection of misconduct and may not be imposed later than one year from the date of commission of misconduct.

The specified time limits for disciplinary liability do not include the time of criminal proceedings or administrative proceedings. The penalty cannot be applied during the period:

1) temporary disability of a civil servant;

2) the civil servant is on vacation or on a business trip;

3) the release of a civil servant from the performance of his official duties for the duration of his performance of state or public duties;

4) the presence of a civil servant in training, retraining, advanced training courses and internships;

5) judicial appeals by a civil servant against acts of state bodies on the commission of a disciplinary offense.

At the same time, previously related to corruption offenses and related to corruption, according to the Law on Combating Corruption, which has become invalid, the following acts of civil servants and persons equated to them, in accordance with the Law on Civil Service of the Republic of Kazakhstan, are classified as misconduct discrediting the civil service.

Thus, in accordance with Article 50 of this Law, the following acts of civil servants are recognized as disciplinary offenses discrediting the civil service:

1) unlawful interference in the activities of other state bodies and organizations;

2) the use of their official powers in resolving issues related to the satisfaction of their material interests or close relatives and relatives;

3) providing benefits not provided for by law (protectionism, nepotism) when applying for and advancing in public service;

4) giving undue preference to individuals and (or) legal entities when preparing and making decisions;

5) providing anyone with any assistance not provided for by the legislation of the Republic of Kazakhstan in carrying out entrepreneurial and other income-generating activities;

6) the use of information obtained in the performance of government functions for personal or group interests, if such information is not subject to official dissemination.;

7) unjustified denial of information to individuals and legal entities, the provision of which is provided for by the legislation of the Republic of Kazakhstan, or its delay, the transfer of unreliable or incomplete information;

8) requiring individuals or legal entities to provide information that is not provided for by the legislation of the Republic of Kazakhstan.;

9) transfer of state financial and material resources to the electoral funds of individual candidates;

10) giving gifts and rendering non-official services to officials in order to obtain property benefits, benefits or advantages using the official powers of these persons;

11) explicit obstruction of individuals or legal entities in the exercise of their rights, freedoms and legitimate interests;

12) gross violations of the requirements for the organization and conduct of inspections in respect of business entities established in the sub-paragraphs 1), 2), 3), 4) and 7) of Article 151, subitems 2), 6) and 8) of paragraph 2 of Article 156 of the Entrepreneurial Code of the Republic of Kazakhstan;

13) delegation of authority for state regulation of entrepreneurial activity to individuals or legal entities engaged in such activities, as well as for control and supervision of them;

14) transfer of state control and supervisory functions to organizations that do not have the status of a state body;

15) participation in gambling of a monetary or other property nature with superiors or subordinates or officials who are otherwise dependent on them for service or work;

16) accepting for the performance of their state or equivalent functions any remuneration in the form of money, services and other forms from organizations in which the person does not perform the relevant functions, as well as from individuals, unless otherwise provided by the legislation of the Republic of Kazakhstan.

Money deposited into the account of a civil servant without the knowledge of the said person, as well as funds received by him in connection with the performance of relevant functions in violation of paragraph one of this subparagraph, shall be transferred to the republican budget no more than two weeks after their discovery, with an explanation to the relevant state revenue authority on the circumstances of receipt of such funds.;

17) accepting gifts or services in connection with the performance of their state or equivalent functions from civil servants and other persons dependent on them in the service, for general patronage or connivance in the service.

Gifts received without the knowledge of a civil servant, as well as received by him in connection with the performance of relevant functions in violation of paragraph one of this subparagraph, shall be donated to a special state fund within seven days, and services rendered to a civil servant under the same circumstances must be paid for by transferring money to the republican budget. The civil servant who received the gifts has the right, with the consent of a higher official, to redeem them from the specified fund at market retail prices in force in the relevant area. The proceeds from the sale of gifts are transferred by a special state fund to the republican budget.;

18) acceptance of invitations to domestic and foreign tourist, health and wellness and other trips at the expense of individuals and legal entities, both foreign and the Republic of Kazakhstan, with the exception of trips: at the invitation of a spouse, relatives at their expense; at the invitation of other individuals (with the consent of a higher official or body) if the relationship with them does not affect the issues of professional activity of the invited; carried out in accordance with international treaties of the Republic of Kazakhstan or by mutual agreement between state bodies of the Republic of Kazakhstan and state bodies of foreign states at the expense of relevant state bodies and (or) international organizations; carried out with the consent of a higher official or body for participation in scientific, sports, creative, professional, humanitarian events at the expense of organizations, including trips carried out within the framework of the statutory activities of such organizations;

19) the use of advantages not provided for by the legislation of the Republic of Kazakhstan in obtaining loans, loans, the acquisition of securities, real estate and other property. It should also be mentioned that on December 25, 2015, the Decree of the Head of State approved the Rules for imposing disciplinary penalties on civil servants. These rules regulate in detail the procedure for bringing to disciplinary responsibility both political and administrative civil servants of corps "A" and "B".

From the above, it follows that the concept of a corruption offense, offenses related to corruption, has now lost its meaning, as well as the previously existing Anti-Corruption Law. As it was noted, 16 judicial acts issued by the courts of the republic on the generalized category of cases were received for study.

It can be seen from 15 judicial acts that the plaintiffs challenged the employer's orders to impose disciplinary penalties for corruption offenses that took place before the entry into force of the Labor Code as amended on January 01, 2016, the Law on Combating Corruption dated November 18, 2015, the Law on Civil Service of the Republic of Kazakhstan dated November 23, 2015, the Rules of imposing disciplinary penalties on civil servants approved by the Decree of the President of the Republic of Kazakhstan dated December 29, 2015, The Ethical Code of Civil Servants of the Republic of Kazakhstan (Rules of Official Ethics of Civil Servants of the Republic of Kazakhstan) approved by the Decree of the President of the Republic of Kazakhstan dated December 29, 2015. An example of judicial practice in considering a dispute on challenging an employer's act of imposing disciplinary punishment for committing an offense discrediting the civil service, according to the Law on the Civil Service of the Republic of Kazakhstan, is the case considered by the Pavlodar City Court on the claim of Kusainov D.T. to the State Institution "Department of State Architectural Control of Pavlodar region" (hereinafter referred to as the Department of State Architectural Control), with the involvement of third parties who do not make independent claims on the subject of the dispute - State Institution "Department of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption in Pavlodar region", State Institution "Department of Housing and Communal Services, Passenger Transport, highways and Housing Inspection of Bayanaul district", LLP "DM", LLP Training Center "Enbek kauipsizdigi", on the cancellation of the order of the head of the Department of State Architectural Control from On July 21, 2016, No. 34-zh on the imposition of disciplinary action.

By Order of the Head of the State Architectural Control Department No. 34-z dated July 21, 2016, for committing an offense discrediting the civil service provided for in subparagraph 5 of paragraph 1 of Article 50 of the Law on Civil Service of the Republic of Kazakhstan, D.T. Kusainov, head of the Architectural and Construction Inspection Department of the State Architectural Control Department, was disciplined in the form of a warning about incomplete official compliance.

The basis for issuing this order was the decision of the Ethics Council dated July 04, 2016. According to this decision, in the actions of Kusainov D.T. there was a commission of a disciplinary offense discrediting the civil service - 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, for which the head of the State Architectural Control Department was recommended to impose disciplinary action on the plaintiff in the form of a warning about incomplete official compliance.

Challenging the order to impose a penalty, the plaintiff pointed out that he had not committed any disciplinary offense discrediting the civil service. As a member of the admissions committee, he fully fulfilled his duties within the competence of the commission and the body of which he was a representative.

The project for the repair of the Karazharyuzhnoye site provides for control by the customer over the contractors' compliance with construction technology and the implementation of all environmental measures, including the reclamation of land damaged during major repairs. At the same time, the control is carried out by the customer's own needs or by involving third-party specialized enterprises.

The customer has involved certified experts in the field of construction at each facility, including design and technical supervision, who participated in the construction and installation work. All works are confirmed by entries in the work log, as well as acts of hidden work. According to these acts, all the construction and installation works provided for by the project have been completed.

Therefore, he signed the acts of the admissions committee. It follows from the circumstances of the case that in 2015, as part of the restoration of highways, repair work was carried out on sections of the Bayanaul-Ugolnoye, road and access to the village of Birlik, UzynbulakTendyk, Karazhar-Yuzhnoye, Kara-zhar-Zhanatlek highways.New Zhaima", "Zhanazholeskeldy".

In violation of the requirements of the concluded contract, the contractor of Sapa+ LLP performed certain types of work in the amount of 769.4 thousand tenge poorly, as well as failed to perform certain types of work provided for in the design documentation, work on the reclamation of the bypass road and sowing of the slopes of the highway with perennial grasses. The total amount of outstanding work amounted to 1,341,000 tenge. Certain types of work provided for in the design and estimate documentation have not been completed during the overhaul of the Karazhar-Yuzhnoye highway, in the amount of 3,519,900 tenge.

The specified works, if there is a clear deviation in the volume of work performed from the requirements of the design and estimate documentation, were accepted by the members of the state acceptance commission. Thus, the court found that, based on the results of the internal investigation, violations committed by D.T. Kusainov and other members of the admissions committee were established.: Belgubaev A.A., Bizhanov B.U., Manenov S.B., Tusupov O.T., Salikov A.S., who were also brought to disciplinary responsibility. Therefore, the plaintiff's arguments that he had not committed any disciplinary misconduct were reasonably rejected.

Since, by virtue of the Decree of the Government of the Republic of Kazakhstan dated October 15, 2001 No. 1328 "Some issues of the implementation of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction activities in the Republic of Kazakhstan", the duties of the working commission include assessing the compliance of completed construction and installation works with the design and estimate documentation approved in accordance with the established procedure.

The duties of the acceptance commission include establishing the actions of the contractor to comply with the regulatory requirements of the approved project or to identify deviations and coordinate them in accordance with the procedure established by state regulations. The plaintiff's arguments that the defendant did not conduct an internal investigation were not taken into account, since, by virtue of paragraph 35 of the Rules, when an authorized person examines the recommendations and materials of the National Commission, Ethics Commission, Regional Personnel Commission or Ethics Council, internal investigations are not conducted.

The decision to impose a disciplinary penalty is made by the authorized person within ten working days in accordance with the recommendation of the National Commission, Ethics Commission, Regional Personnel Commission or Ethics Council.

Consequently, there were no violations when considering the issue of bringing the plaintiff to disciplinary responsibility by the defendant, and therefore the claim was dismissed by the decision of the Pavlodar City Court of December 23, 2016.

Disagreeing with the court's decision, Kusainov D.T., in the appeal, asked to cancel the decision of the court of first instance and make a new decision on satisfaction of the stated claims. In his opinion, he did not commit a disciplinary offense according to his job description, did not cause damage to the state, and there was no irrefutable evidence that he provided assistance to contractors that was not provided for by the legislation of the Republic of Kazakhstan, and the court did not establish it.

The Judicial Board for Civil Cases of the Pavlodar Regional Court, in a resolution dated March 09, 2017, indicated that on July 4, 2016, the Ethics Council decided to recommend to the head of the State Architectural Control Department that D.T. Kusainov be disciplined in the form of a warning about incomplete official compliance for committing misconduct discrediting the civil service provided for in subparagraph 5 of paragraph 1 of Article 50 of the Law on Civil Service of the Republic of Kazakhstan.

In accordance with paragraph 6 of Article 44 of the Law on Civil Service of the Republic of Kazakhstan, the commission by a civil servant of any disciplinary offense specified in subparagraphs 2), 3), 4) and 5) of paragraph 1 of Article 50 of this Law, if it does not contain signs of a criminally punishable act or an administrative offense, entails the imposition of in accordance with the procedure established by law for disciplinary punishment in the form of a warning about incomplete official compliance or dismissal.

The court of first instance reliably established that the disciplinary penalty in the form of a warning about incomplete official compliance against the head of the architectural and construction inspection of the State Architectural Control Department, D.T. Kusainov, was imposed on the basis of a decision of the Ethics Council.

At the same time, the employer has observed the procedure for applying disciplinary penalties, and the deadlines for imposing disciplinary penalties have been met. The procedure for imposing disciplinary punishment by the defendant has not been violated.

According to the current Rules, if there is a recommendation from the Ethics Council, an internal investigation is not required. In addition, along with D.T. Kusainov, all members of the admissions committee were brought to disciplinary responsibility.

Based on the norms of this article, it follows that the disciplinary penalty imposed on D.T. Kusainov in the form of a warning about incomplete official compliance is lawful, since it meets the requirements of the above-mentioned rule of law.

At the same time, the court did not allow violations of the norms of procedural law during the consideration of the case and the issuance of a decision entailing the cancellation or amendment of the judicial act, and therefore the decision of the court of first instance was left unchanged, and the appeal was dismissed.

In conclusion, it should be pointed out that the previously established judicial practice, in which, in case of non-compliance with the requirements of these laws, as well as the Rules governing the imposition of disciplinary penalties, is correct, and contributes to the protection of violated or disputed rights, freedoms and legally protected interests of citizens, the state and organizations, strengthening law and order, prevention of offenses.

The change in legislation, in general, does not change the approaches in which, in case of violations, procedures guaranteed by law and grounds for bringing a person to disciplinary responsibility, employers' acts were recognized as illegal and canceled.

Regulatory framework The main regulatory legal act regulating public relations arising between subjects of labor disputes in cases of this category is, of course,

The Constitution of the Republic of Kazakhstan, as well as the corresponding Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code) as amended on January 01, 2016,

The Law of the Republic of Kazakhstan "On Combating Corruption" (hereinafter – the Law on Combating Corruption) dated November 18, 2015,

The Law "On Civil Service of the Republic of Kazakhstan" (hereinafter – the Law on Civil Service) dated November 23, 2015,

The Law of the Republic of Kazakhstan "On Law Enforcement Service" dated January 06, 2011 No. 380-IV, as well as the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9 "On certain issues of application of legislation by courts in the resolution of labor disputes",

The Rules for imposing disciplinary penalties on civil servants, approved by the Decree of the President of the Republic of Kazakhstan dated December 29, 2015 (hereinafter referred to as the Rules),

Rules for bringing to disciplinary responsibility employees of the internal affairs bodies of the Republic of Kazakhstan, approved by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 27, 2011 No. 246,

The Ethical Code of Civil Servants of the Republic of Kazakhstan (Rules of Official Ethics of Civil Servants of the Republic of Kazakhstan), approved by the Decree of the President of the Republic of Kazakhstan dated December 29, 2015.

It should be borne in mind that if an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in national legislation, with the exception of the Constitution of the Republic of Kazakhstan, the rules of the international agreement apply.

Since both civil procedure and labor legislation establish the priority of international legal norms in case of their conflict with national legislation. The main international treaties ratified by the Republic of Kazakhstan, applied by courts in the consideration of cases of this category, are:

- The Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948; - The International Covenant on Civil and Political Rights, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005;

- International Labour Organization (ILO) Convention No. 155 of 1981 "On Occupational Safety and Health and the Working Environment", ratified by the Law of the Republic of Kazakhstan dated June 13, 1996 No. 7-1;

- Convention on Labor Inspection in Industry and Trade (Convention 81), adopted in Geneva by the 30th session of the General Conference of the International Labor Organization on July 11, 1947, ratified by the Law of the Republic of Kazakhstan dated May 7, 2001;

- Convention on Forced or Compulsory Labour (Convention 29), adopted in Geneva by the 14th session of the General Conference of the International Labour Organization on June 28, 1930, ratified by the Law of the Republic of Kazakhstan dated December 14, 2000 No. 120-II;

- Convention on the Protection of Wages (Convention 95), adopted in Geneva at the 32nd session of the General Conference of the International Labour Organization on July 1, 1949, ratified by the Law of the Republic of Kazakhstan dated April 7, 2014 No. 184-V.;

- Convention on Discrimination in Employment and Occupation of 1958, ratified by the Law of the Republic of Kazakhstan dated July 20, 1999 No. 444- 1.

 

 

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