Recognizing the actions and omissions of the Police Department and the order as illegal, reinstatement at work and collection of wages for the time of forced absenteeism

On August 24, 20.., the Al-Farabi District Court of Shymkent considered in open court a civil case on the claim of: MBE DEFENDANTS: 1. State Institution "Shymkent City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Shymkent City Police Department) 2. State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan Kazakhstan" (hereinafter referred to as the DP of the city of Almaty) at the request of the plaintiff:

On recognizing the actions (inaction) of the Shymkent city DP and the Almaty city DP as illegal and obliging them to eliminate violations of the plaintiff's rights, oblige the Shymkent city DP to restore the missed deadline for obtaining the special military rank of police lieutenant colonel, the class of "Master", on reinstatement to his former position with payment of wages for the time of forced absenteeism;

On declaring illegal and canceling Order No. 1365 w/k dated December 10, 2019 on the dismissal of MB.E. from his post and secondment to the disposal of the DP of Almaty to continue further service in the DP of Almaty; 3. On recovery of moral damage from state institutions of the DP of Shymkent and the DP of Almaty.

The plaintiff, MB.E., was hired by the internal affairs bodies on April 06, 2006 as a platoon commander of a police company in the Makhtaralsky district of the USSO of the South Kazakhstan region. By Order of the Chief of the Shymkent City Police Department No. 60 w/k dated January 28, 2019, the plaintiff was appointed to the post of Deputy Chief of Investigation at the Police Department of the Al-Farabi district of the Shymkent City Police Department. On November 11, 2019, the Almaty city Police Department received a report from MB.E. requesting further service in the Almaty city police. By letter dated November 22, 2019, the DP of the city of Almaty requested the personal file of MB.E. By Order No. 13j/k dated December 10, 2019, MB.E. was relieved of his post and seconded to the DP of the city of Almaty to continue his further service in the DP of the city of Almaty. It follows from the letter of the Almaty city police department dated May 26, 2020, that in order to resolve the issue of his employment and stay in the Department of Internal Affairs, he had to come to the personnel department of the Almaty city Police Department on May 27, 2020 at 9:00 a.m. From the letter of the DP of Almaty dated May 29, 2020, it follows that the documents of the MB.E. have been sent for approval to the Ministry of Internal Affairs of the Republic of Kazakhstan. From the letter of the Ministry of Internal Affairs of the Republic of Kazakhstan dated June 11, 2020, it follows that the Ministry of Internal Affairs of the Republic of Kazakhstan agreed to accept MB.E. from the letter of the DP of the city of Shymkent, it follows that the DP of the city of Shymkent, having considered the pre-trial claim of MB.T. dated June 10, 2020, informed him about There is no need to report to the Shymkent city police department. The plaintiff asks the court to declare the action (inaction) illegal the defendants of the Shymkent city DP and the Almaty city DP, who denied him a vacant position in the Shymkent city DP and the Almaty city DP and oblige him to eliminate the violations of his rights, allow him to work in this position, pay him wages for the time of forced absenteeism, declare illegal and cancel order No. 13zh/k of 10 December 2019 on the release of MB.E. to resign from his position and be seconded to the DP of the city of Almaty to continue his further service in the DP of the city of Almaty, to recover compensation for moral damage from the defendants.

Recognizing the actions and omissions of the Police Department and the order as illegal, reinstatement at work and collection of wages for the time of forced absenteeism

In court, the plaintiff and his representative, having supported the claim and additional statements with amended requirements, explained that in connection with the letter from the DP of Almaty dated November 22, 2019, the plaintiff was seconded to the DP of Almaty to take up the post of Deputy head of the Almaly district Police Department of Almaty. However, for six months from December 10, 2019, he was not allowed to work in the DP of Almaty for this position, due to approval and approval by the Ministry of Internal Affairs of the Republic of Kazakhstan, and only in June 2020 he was informed that he had not been approved for this position in the DP of Almaty. As a result, due to illegal actions (omissions) due to the fault of the defendants of the Shymkent city Police Department and the Almaty city Police Department, he is unemployed and does not receive wages due to forced absenteeism. The defendants inflicted moral damage on him, estimated at 500,000 tenge, as the resolution of the issue with his position was limited only to correspondence between the two Departments and the Ministry of Internal Affairs of the Republic of Kazakhstan. They asked to recognize the actions (inaction) of the defendants of the Shymkent city Police Department and the Almaty city Police Department as illegal, oblige them to admit and reinstate him to his former position as deputy head of the Department of the Alfarabiy district of the Shymkent City Police Department, pay him wages for the time of forced absenteeism, oblige the Shymkent city Police Department to restore the missed deadline for obtaining the special military rank of police lieutenant colonel., the class of the "Master", to recognize as illegal and cancel order No. 1365 w/k dated December 10, 2019 on the release of MB.E. to resign from his position and be seconded to the DP of the city of Almaty to continue his further service in the DP of the city of Almaty, to recover from both defendants the amount of moral damage 500,000 tenge. The representative of the DP of Almaty, E.B. Kulbaev, did not fully recognize the claims, explained that by letter dated November 22, 2019, only MB.E.'s personal file was requested from the DP of Shymkent. According to this letter, the DP of Almaty did not ask to send MB.E. to the DP of Almaty. In the future, his position after receiving the MB.E. personal file. It was coordinated with the Ministry of Internal Affairs of the Republic of Kazakhstan, after coordination with the Ministry of Internal Affairs of the Republic of Kazakhstan, MB.E. was not employed in the Almaty city Police Department, as he had 16 penalties, as indicated in the plaintiff's personal file, requests to dismiss the claim on the grounds indicated in the review.

The representative of the Shymkent DP, Bektay A., without acknowledging the claims, testified that according to a letter dated November 22, 2019 from the DP of Almaty, MB.E. was seconded to the DP of Almaty for further service, requests to dismiss the claim on the grounds indicated in the review. On November 11, 2019, the Almaty City Police Department received a report from MB.E. requesting further service in the Almaty city police. On November 22, 2019, the DP of Almaty city requested a personal file of MB.E. On December 10, 2019, by Order No. 1365 w/k MB.E. He was relieved of his post and seconded to the DP of the city of Almaty to continue his further service in the DP of the city of Almaty. The court objectively confirmed that when sending the letter dated November 22, 2019, the DP of the Almaty city police indicated that the MB.E. had written a report on further service in the DP of the city of Almaty. In this regard, the DP of the city of Almaty requests to send a personal file, an official description of the MB.E. for coordination with the Ministry of Internal Affairs of the Republic of Kazakhstan. However, the MB.E. has not yet been accepted to the DP of the city of Almaty for the position indicated in the report. Since December 10, 2019, MB.E. has been unemployed and does not receive wages due to the fault of the defendants of the Shymkent city DP and the Almaty city DP. In June 2020, after being informed by the Almaty city DP that he had not been approved for the specified position in the Almaty city DP, he applied to the Shymkent city DP, where he was also not allowed to take up his former position. Further, the court found that on the specified day, the defendant, the Shymkent city Police Department, verbally, in violation of the provisions of Articles 40 of the Code and Article 46 of the Law on Law Enforcement Service, dismissed the plaintiff from this position without a legitimate reason and currently does not allow the deputy head of the investigation Department of the Police Department of the Alfarabiysky district of the Shymkent City Police Department.

 The representative of the Shymkent DP, Bektai A., without acknowledging the claims, testified that according to the letter dated November 22, 2019 from the DP of Almaty, MB.E. was seconded to the DP of Almaty for further service, requests to dismiss the claim on the grounds indicated in the review. On November 11, 2019, the Almaty City Police Department received a report from MB.E. requesting further service in the Almaty city police. On November 22, 2019, the DP of Almaty city requested a personal file of MB.E. On December 10, 2019, by Order No. 1365 w/k MB.E. He was relieved of his post and seconded to the DP of the city of Almaty to continue his further service in the DP of the city of Almaty. The court objectively confirmed that when sending the letter dated November 22, 2019, the DP of the Almaty city police indicated that the MB.E. had written a report on further service in the DP of the city of Almaty. In this regard, the DP of the city of Almaty requests to send a personal file, an official description of the MB.E. for coordination with the Ministry of Internal Affairs of the Republic of Kazakhstan. However, the MB.E. has not yet been accepted to the DP of the city of Almaty for the position indicated in the report. Since December 10, 2019, MB.E. has been unemployed and does not receive wages due to the fault of the defendants of the Shymkent city DP and the Almaty city DP. In June 2020, after being informed by the Almaty city DP that he had not been approved for the specified position in the Almaty city DP, he applied to the Shymkent city DP, where he was also not allowed to take up his former position. Further, the court found that on the specified day, the defendant, the Shymkent city Police Department, verbally, in violation of the provisions of Articles 40 of the Code and Article 46 of the Law on Law Enforcement Service, dismissed the plaintiff from this position without a legitimate reason and currently does not allow the deputy head of the investigation Department of the Police Department of the Alfarabiysky district of the Shymkent City Police Department.

In fact, the defendant of the Shymkent city Police Department left the plaintiff without a job and behind the staff of his office, refused to reinstate him to the post of Deputy Chief of Investigation of the Police Department of the Alfarabiy district of the Shymkent City Police Department in violation of the requirements of Article 40 of the Code and Article 46 of the Law on Law Enforcement, thereby violating the constitutional labor rights of the plaintiff. The above-mentioned objective facts were not denied and could not be refuted by the defendants in court, and the plaintiff's arguments at Claim No. 1 and No. 2 were objectively confirmed by a set of appropriate and admissible evidence. By virtue of Part 1 of Article 293 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), decisions, actions (inaction) of state bodies, officials, and civil servants subject to judicial challenge include collegial and individual decisions and actions (inaction) resulting in: 1) the rights and freedoms of a citizen have been violated; 2) obstacles have been created to the exercise of a citizen's rights and freedoms. In accordance with part 1 of Article 227, part 1 of Article 297 of the CPC, the court, having recognized as justified the statement about the illegality of actions (inaction) and decisions of state bodies, local governments, public associations, organizations, officials and civil servants, decides to satisfy the application. The decision specifies which laws these actions (inaction) contradict, and the time period during which the court's decision must be executed. The court shall oblige a state body, a local government body, a public association, an organization, an official and a civil servant to eliminate the violation in full and restore the violated rights, freedoms and legitimate interests of a citizen or a legal entity, to cancel the measures of responsibility applied to the person or otherwise restore the violated rights, freedoms and legitimate interests. Based on what has been established, the court partially satisfies Claims No. 1 and No. 2 and recognizes the facts established above, admitted by the defendant DP of the city of Shymkent, upon the refusal of the plaintiff M. B.E. reinstatement to his former position by the Deputy head of the Investigation Department of the Police Department of the Al-Farabi district of the Shymkent city Police Department, illegal actions (omissions), as they contradict the norms of Article 46 of the Law. In addition, the court considers that Order No. 1365 w/k dated December 10, 2019, on the dismissal of MB.E. from his post and secondment to the disposal of the DP of Almaty city to continue further service in the DP of Almaty city, is subject to recognition as illegal.

Since the plaintiff did not write an application for release and secondment to the Shymkent city police department. Consequently, in accordance with part 1 of Article 227, part 1 of Article 297 of the CPC, in such circumstances of the case, the court obliges the defendant of the Shymkent city DP to eliminate the violations of the plaintiff's labor rights and reinstate the plaintiff in his job as deputy head of the investigation Department of the Al-Farabi district Police Department of the Shymkent city Police Department. By virtue of paragraph 1 of Article 161 of the Code, an employee who is reinstated in his previous job is paid the average salary for the entire period of forced absenteeism (suspension from work), but not more than six months. Therefore, the court finds the plaintiff's claim regarding the recovery of the average salary for the period of forced absence from service justified and to be satisfied. In this regard, the average earnings for the time of forced absenteeism in the amount of 2,199,102 tenge based on wages in the amount of 366,517 tenge per month, taking into account the additional payment for the title, are to be recovered from the defendant of the Shymkent city Police Department in favor of the plaintiff. The arguments of the representatives of the defendants of the Shymkent city DP and the Almaty city DP that in relation to MB.T. No illegal actions were committed by the Police Departments, all actions were directed and committed according to the report of the MB.T., the court considers them untenable, since the plaintiff was left without a job, he has not been accepted into his former position in the Shymkent city Police Department to date. At the same time, the court rejects the Claim No. 3 of the plaintiff on the following grounds. Paragraphs 1,2 of Article 951 of the Civil Code establish that moral harm is a violation, diminution or deprivation of personal non–property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (endured, experienced) by the victim as a result of the offense committed against him. Moral damage is compensated by the causer in the presence of the causer's fault. In the case, it was established that the plaintiff's side, which is responsible for proving moral damage to him, did not provide the court with objective and reliable evidence that moral damage had been caused to him. Therefore, the court does not see the grounds provided for in paragraphs 1,2 of Article 951 of the Civil Code for the recovery of the amount of compensation for moral damage to the plaintiff from the defendants. In terms of the plaintiff's claims, the court rejects the part of the defendant in the Almaty city DP due to the unreasonableness and lack of evidence, since in this case the defendant did not violate the plaintiff's labor rights, illegal actions (inaction) and causing moral harm to them were not allowed. The appointment of the plaintiff to a similar position in the DP of the city of Almaty is the right of the employer, not an obligation. Guided by Articles 223-226 of the CPC, the court DECIDED: Partially satisfy the claims of the IBE.

To recognize as illegal the action (inaction) of the state institution "Shymkent City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" on the refusal of MBE to be reinstated to the post of Deputy Chief of Investigation in the Police Department of the Al-Farabi district of the Shymkent City Police Department. To declare illegal and cancel Order No. 13// w/k dated December 10, 2019 of the state institution "Shymkent City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" on the dismissal of the MBE from his post and secondment to the Almaty City Police Department to continue further service in the Almaty City Police Department. To oblige the state institution "Shymkent City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" to eliminate the violations of the MBE's rights and reinstate him as Deputy Chief of Investigation of the Police Department of the Al-Farabi district of the Shymkent City Police Department. To collect from the State Institution "Shymkent City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of the MBE the average salary for the time of forced absenteeism in the amount of 2,199,102 (two million one hundred ninety nine thousand one hundred two) tenge.

The rest of the claim must be dismissed. To put into immediate effect the court's decision regarding the admission to work of the MBE and the award of his salary for three months. In addition, the judge of the Al-Farabi District Court of Shymkent, having considered in open court a civil case on the claim of the IBE against the defendants, the State Institution "Shymkent Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan", the State Institution "Almaty Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" on recognizing the actions and inaction of the defendants, the order illegal, restoration at work and collecting wages for the time of forced absenteeism and moral damage, Guided by Articles 268, 269, 270 of the CPC, The court DETERMINED: To bring to the attention of the Minister of Internal Affairs of the Republic of Kazakhstan the facts of violations of labor legislation and the Law "On Law Enforcement Service" in the state institution "Shymkent City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" in order to take appropriate measures. To inform the Al-Farabiysky District Court of Shymkent within one month about the measures taken and the results of the consideration of the private definition in writing.and the disputes #Almaty #Kazakhstan

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