On confessions of the conclusion of an internal investigation, the order of dismissal from the internal affairs bodies illegal and reinstatement in his former position

 

 

According to the conclusion of the official investigation dated April 26, 2021, approved by the head of the Almaty City Police Department, K.D. Taimerdenov, A.T. committed a disciplinary offense that discredits a law enforcement agency, expressed in using his official position for personal gain, as well as in violation of the requirements of paragraphs 1, 5, 7, paragraph 1, Article 16 of the Law of the Republic of Kazakhstan "On law enforcement service", paragraphs 2, 11, 13, paragraph 5 of the Code of Ethics of Civil Servants of the Republic of Kazakhstan

By Order No. 303 l/s dated April 27, 2021, I was dismissed from the internal affairs bodies under subparagraph 13 of paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" for committing an offense discrediting a law enforcement agency.

I believe that the conclusion of the internal investigation dated April 26, 2021 and the order on my dismissal from the internal affairs bodies dated April 27, 2021 are illegal on the following grounds.

The reason for the internal investigation was the materials extracted from the materials of the pre-trial investigation, registered in the Unified Register of Pre-Trial Investigations No. 217500041000033 at the request of R.E. and M. V.A.

Subsequently, on November 9, 2021, the pre-trial investigation was terminated on the basis of article 35 of part 1 of paragraph 2 of the Criminal Procedure Code of the Republic of Kazakhstan.

The defendant, while imposing disciplinary action on me as a civil servant, did not indicate what kind of unlawful, culpable non-fulfillment or improper fulfillment of the duties assigned to me by a law enforcement officer, abuse of official authority, violation of official and labor discipline, entailing dismissal.

I would also like to draw the court's attention to the fact that not every disciplinary offense entails a penalty in the form of dismissal, and violation of the norms of the Code of Ethics is not provided for by the Law "On Law Enforcement Service" as an independent basis for the application of this type of disciplinary action.

According to paragraph 28 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 9 "On certain issues of application of legislation by courts in resolving labor disputes" – "When considering disputes between persons dismissed from service for misconduct that discredits the authority of the bodies they represent, courts should proceed from the fact that discrediting means committing actions, even if unrelated to the performance of official duties, but clearly undermining in the eyes of citizens the dignity and authority of the bodies they represent..

Offenses that discredit a law enforcement agency are actions, including those unrelated to the performance of official duties, but clearly undermining the dignity and authority of the law enforcement service in the eyes of citizens, namely: the appearance of employees in public places in a state of alcoholic or narcotic intoxication (obvious to others belonging to a law enforcement agency); disclosure of operational information, causing harm to the investigation; using official position for personal gain; non-statutory relations between employees, trainees and cadets of law enforcement education organizations, which caused a negative public response (paragraph 2 of Article 80 of the Law of the Republic of Kazakhstan dated January 6, 2011 No. 380-IV "On Law Enforcement Service" (hereinafter - the Law on Law Enforcement Service))".

The list of offenses discrediting a law enforcement agency is clearly limited by the Law of the Republic of Kazakhstan "On Law Enforcement Service" and is not subject to broad interpretation. However, there is no information that I committed the actions specified in paragraph 2 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" in the conclusion of the internal investigation and in the text of the dismissal order. And they are refuted by the decision to terminate the pre-trial investigation and the materials of the criminal case.

In addition, according to paragraph 3 of Article 58 of the Law of the Republic of Kazakhstan "On Law Enforcement Service", during an internal investigation, measures must be taken to objectively and comprehensively establish the nature and extent of the harm caused by an employee as a result of committing a disciplinary offense. As can be seen from the text of the conclusion of the internal investigation, there is no information about my causing any harm.

Thus, the illegality of the conclusion of the internal investigation and the dismissal order has been fully confirmed.

The conclusions of the internal investigation report and the dismissal order are based only on the materials provided by the pre-trial investigation body. However, in this way, the defendant violated the provision of article 77 of the Constitution of the Republic of Kazakhstan, according to which a person is considered innocent of committing a crime until his guilt is recognized by a court verdict that has entered into force.

According to part 2 of Article 37 of the Criminal Procedure Code of the Republic of Kazakhstan, the court and the criminal prosecution body must take all measures provided for by law to rehabilitate the person against whom the decision to terminate the criminal case was made on the basis of paragraph 2 of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan.

According to part 3 of Article 39 of the Criminal Procedure Code of the Republic of Kazakhstan, claims for compensation for damage caused by illegal actions of the body conducting the criminal process, in accordance with the procedure provided for in this chapter, may be filed within six months from the date of receipt of a notice explaining the procedure for restoring rights. If this period is missed for a valid reason, it may be restored by the court at the request of the persons concerned.

I have not received a notice explaining the procedure for restoring my rights, and there is no information in the materials of the criminal case that it was sent to me. Thus, I believe that I have not missed the statute of limitations for applying to the court.

In accordance with the provisions of article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms.

In accordance with Article 9, paragraph 1, of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the protection of civil rights is carried out by the court by recognizing the rights; restoring the situation that existed before the violation of the right; suppressing actions that violate the right or threaten to violate it.

According to article 4 of the Civil Procedure Code of the Republic of Kazakhstan, the objectives of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the State and legal entities, respect for the rule of law in civil turnover and public law relations, promote peaceful settlement of disputes, prevent offenses and form a respectful attitude towards the law and the court in society.

According to paragraph 21 of Article 57 of the Law of the Republic of Kazakhstan "On Law Enforcement Service, "An employee has the right to appeal a disciplinary penalty imposed on him to a higher authority, a court in accordance with the procedure established by the laws of the Republic of Kazakhstan."

According to paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes", "The court is not related to the conclusions of the conciliation commission and the individual labor dispute is resolved on its merits within the limits of the plaintiff's claims." Regarding my dispute, I also ask the court to apply the requirement of this paragraph to the conclusion of an internal investigation, in accordance with the provisions of Article 5 of the Civil Code of the Republic of Kazakhstan on the application of legislation by analogy.

According to article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", plaintiffs are exempt from paying state duties in courts for claims for recovery of wages and other claims related to work.

Based on the above, I ask:

- to recognize the conclusion of the internal investigation dated April 26, 2021, approved by the head of the Almaty city Police Department, K.D. Timerdenov, as illegal;

- to recognize the order No. 303/ls of April 27, 2021 on dismissal from the internal affairs bodies as illegal;

- to reinstate T A T in the former position of Deputy Head of the Criminal Police Department of the Almaty City Police Department from April 27, 2021.

 

 

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