The commission of a corruption offense during an internal investigation is not grounds for dismissal.
E. filed a lawsuit with the state institution "Department of Internal Affairs of the West Kazakhstan region" (hereinafter - DIA) for the cancellation of the order, reinstatement at work and recovery of wages for the time of forced absenteeism. He motivated the claims by the fact that the reason for his dismissal was that he allegedly, being in a criminal conspiracy with employees of the insurance company, assisted citizens B. and U. in obtaining driver's licenses without passing tests and driving exams. These circumstances were allegedly confirmed by the materials of the internal investigation report dated July 4, 2013. Therefore, by Order of the Department of Internal Affairs No. 164 dated July 12, 2012, he was dismissed from the Ministry of Internal Affairs on the basis of subparagraph 14) of paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter - the Law) in connection with the commission of a corruption offense. A criminal case was opened on this fact under part 1 of Article 314 and part 2 of Article 307 of the Criminal Code. However, during the preliminary investigation, a decision was made to terminate the criminal case on the basis of subparagraph 2) of part 1 of Article 37 of the CPC, due to the absence of corpus delicti. In fact, these circumstances were not confirmed during the preliminary investigation of the criminal case. Ye. believes that the conclusion of the internal investigation does not correspond to the actual circumstances of the case, since prior to the issuance of this conclusion, the preliminary investigation of the criminal case had not been completed. Therefore, the dismissal order is illegal, as it was issued on the basis of the conclusion of the internal investigation dated July 4, 2013. In this regard, he asked the court to declare order No. 164 zh of July 12, 2013 illegal, reinstate him at work and collect wages for the time of forced absenteeism. By the decision of the court No. 2 of the city of Uralsk, West Kazakhstan region, dated September 4, 2014, E.'s claim was satisfied.
The commission of a corruption offense during an internal investigation is not grounds for dismissal.
The court ruled: - to declare illegal the order of the Department of Internal Affairs No. 164 zh dated July 12, 2013 regarding the dismissal of E. and to cancel; - to restore E. at his previous job as a state traffic inspector of the Registration and examination Department of the Traffic Police Department (hereinafter referred to as the ORER UDP) DVD; - collect wages from the DVD in favor of E. for the time of forced absenteeism in the amount of 604,860 tenge; - collect a state duty in the amount of 7,901 tenge from the DVD to the state revenue. The decision of the Court of first instance was left unchanged by the decision of the appeal and cassation judicial boards of the West Kazakhstan Regional Court. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court has annulled the judicial acts of local courts, as a new decision was made to dismiss the claim. It follows from the case file that Ye. worked as a state traffic inspector of the Department of Internal Affairs. By order dated July 12, 2013, Ye. was dismissed on the basis of subparagraph 14) of paragraph 1 of Article 80 of the Law for committing a corruption offense. Disagreeing with the reason for his dismissal, the plaintiff appealed to the court on July 24, 2014. In satisfying E.'s claims, the court of first instance proceeded from the fact that the defendant, having failed to establish the plaintiff's guilt in committing a corruption offense, decided to dismiss him. Meanwhile, the plaintiff's guilt in the commission of corruption by the preliminary investigation authorities had not been proven at that time. The court considered that the plaintiff had missed the limitation period for a good reason, as he was waiting for the final procedural decision on the criminal case initiated against him. The Court considered that disciplinary action against the plaintiff could be applied after the adoption of a procedural decision to terminate the criminal case. The appellate and cassation instances, leaving the court's decision unchanged, agreed with the conclusions of the court of first instance. The Supervisory Board considers that the conclusions of the courts are illegal, based on a misinterpretation of the law and do not correspond to the factual circumstances established in the case. According to Article 218 of the CPC, the court's decision must be lawful and justified. In accordance with paragraph 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision", a decision is lawful when it is rendered in compliance with the norms of procedural law and in full compliance with the norms of substantive law. Bulletin of the Supreme Court of the Republic of Kazakhstan No. 8/201519 It follows from the meaning of Article 12 of the Law of the Republic of Kazakhstan "On Combating Corruption" that for the commission by persons authorized to perform state functions, or persons equated to them, any of the specified in the sub-paragraphs 2), 3), 4), 5), 9), 13), 13-1) of paragraph 1 of this Article of offenses, if it does not contain signs of a criminally punishable act, entails dismissal from office or termination of performance of state functions in accordance with the procedure established by law.
The commission of a corruption offense during an internal investigation is not grounds for dismissal.
According to Article 257 of the Labor Code of the Republic of Kazakhstan, the work of persons in military service, employees of special state and law enforcement agencies is regulated by this Code with the specifics provided for by special laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, establishing special conditions and procedures for admission to service, its passage and termination, special working conditions, terms of payment labor, as well as additional benefits, advantages, and restrictions. As mentioned above, the plaintiff was dismissed from the internal affairs bodies under subparagraph 14) of paragraph 1 of Article 80 of the Law (for committing a corruption offense). The dismissal was based on the facts established during the internal investigation of the provision of assistance to citizens U. and B. in obtaining driver's licenses without passing tests and exams on driving a motor vehicle. The case materials established that, indeed, a criminal case was initiated against the plaintiff on the basis of a statement from citizens U. and B. on the grounds of a crime provided for in part 2 of Article 307 and part 1 of Article 314 of the Criminal Code, it was terminated for lack of corpus delicti. The criminal case initiated against A. and H. (on the grounds of the crime provided for in part 2 of paragraph "a, b" of Article 177 of the Criminal Code), it was terminated after the reconciliation of the parties. A. and Kh. are the persons to whom the money was transferred to U. and B. for obtaining driver's licenses without passing tests and driving exams. It should be noted that in the future, U. and B. They were not held liable for defamation or giving deliberately false testimony, which does not allow us to conclude that these persons had slandered the plaintiff. However, when deciding to satisfy the claim, the court did not take into account that the defendant brought the plaintiff to disciplinary responsibility for committing a corruption offense provided for in subparagraph 4) paragraph 1 of Article 12 of the Law of the Republic of Kazakhstan "On Combating Corruption", and not for committing a criminally punishable act.
The commission of a corruption offense during an internal investigation is not grounds for dismissal.
The fact of the committed corruption offense took place and was confirmed during the internal investigation conducted by the defendant, and is also confirmed by the evidence available in the case. Consequently, the defendant lawfully and reasonably imposed on the plaintiff a penalty in the form of dismissal in accordance with subparagraph 14) of paragraph 1 of Article 80 of the Law, while imposing the penalty, the defendant did not violate the Law regarding the time limits and procedures for bringing the plaintiff to justice. In addition, by appealing to the court, the plaintiff missed the limitation period established by Article 172 of the Labor Code of the Republic of Kazakhstan, and the court illegally restored this period, since there was no valid reason to restore the period, there is no such evidence in the case file.
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