The complaint against the decision of the regional attestation commission on his inconsistency with his position and, accordingly, the dismissal order are illegal and unfounded.
A. filed a lawsuit with the court, arguing that the decision of the regional attestation commission on his inconsistency with his position and, accordingly, the dismissal order were illegal and unfounded. The Taraz City Court's decision of April 10, 2013 partially satisfied the claim. The decision of the regional attestation commission of November 08, 2012 regarding non-compliance with A. was declared illegal and canceled. his current position and recommendations for his dismissal, orders of the Department of Customs Control for the Zhambyl region No. 240-zh dated November 09, 2012 and the Kordai Customs No. 198-zh dated November 14, 2012. A. was reinstated as a specialist dog handler at the Kordai Customs Anti–smuggling department. Wages in the amount of 480,437 tenge, a bonus in the amount of 56,500 tenge, 30,000 tenge in compensation for moral damage, and court costs for the payment of state duty of 866 tenge were collected from the Kordai Customs in favor of the plaintiff. The rest of the claim was denied.
The complaint against the decision of the regional attestation commission on his inconsistency with his position and, accordingly, the dismissal order are illegal and unfounded.
By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Zhambyl Regional Court dated May 24, 2013, this decision was left unchanged. By the decision of the cassation judicial board of the same court dated July 24, 2013, the decision of the appeals board remained unchanged. In the petition, the applicant requested to cancel the judicial acts that had taken place in the case and to make a new decision to dismiss the claim. He pointed out that the courts had given an inadequate assessment of the evidence and factual circumstances of the case, and violations of substantive law had been committed. He claims that when making a decision against the plaintiff, the regional attestation commission took into account the results of the work, practical skills and the ability of the employee to perform the duties assigned to him, and the courts overestimated the professional suitability of the plaintiff. The Supervisory Judicial Board of the Supreme Court overturned the decision of the Taraz City Court, the decisions of the appellate and cassation judicial boards of the Zhambyl Regional Court and issued a new decision to dismiss A.'s claim. The request of the Department of Customs Control in Zhambyl region was satisfied, in view of the following. As can be seen from the case file, A. worked as a specialist veterinarian at the anti-smuggling department of the Kordai Customs.
By Order No. 198 w/c dated November 14, 2012, the plaintiff was dismissed from the customs authorities in accordance with Article 481 of the Code of the Republic of Kazakhstan "On Customs Affairs in the Republic of Kazakhstan", Article 29 of the Law "On Law Enforcement Service", subparagraph 5) paragraph 16 of the Rules for the extraordinary certification of law enforcement officers of the Republic of Kazakhstan, approved by Presidential Decree Of the Republic of Kazakhstan dated April 08, 2012 No. 292 (hereinafter referred to as the Decree). The basis for issuing the contested order was the decision of the regional attestation commission of the Customs Control Department, according to which the plaintiff was declared unfit for his position and recommended for dismissal, as well as the order of the Customs Control Department No. 240 w/k dated November 09, 2012. The court of first instance, satisfying A.'s claim, proceeded from the fact that the above-mentioned decision of the regional attestation commission was made without taking into account his knowledge, skills, professional aptitude, and the characteristics and results of other stages of attestation were not taken into account during the interview. The Appeal and cassation boards agreed with this conclusion of the court of first instance. In accordance with the Decree, an extraordinary certification was carried out in all structural divisions of the Customs Committee of the Republic of Kazakhstan. The procedure for attestation, its stages, the formation of the composition of the attestation commission and the appeal of its decision are determined by the Rules for the extraordinary attestation of law enforcement officers of the Republic of Kazakhstan. By virtue of paragraph 2 of these Rules, the main criteria for evaluating the conduct of an extraordinary certification are: - the ability of employees to perform their duties and the results of their work; - the level of theoretical knowledge and practical skills. Additional criteria for evaluating certified employees, taking into account the specifics and responsibilities assigned to them, are determined by the head of the law enforcement agency.
In the petition, the applicant argued that the basis for the decision of the regional attestation commission in respect of A. was the low performance of the plaintiff: in 6 years of service, there were only 2 cases of drug detection, of which 1 case was identified by the development of operational investigative measures. In 2007, the plaintiff allowed the loss of the working qualities of a service search dog, was punished for providing false information on the tax return. The lower courts did not take these arguments into account, pointing out that these indicators are not criteria for evaluating work. Meanwhile, these arguments of the petition are based on the case file. The official duties of a specialist dog handler are to implement measures to improve the methods of using service dogs in the fight against drug smuggling, to carry out veterinary services for service dogs, to ensure their maintenance, and to regularly conduct classes with them.
The professional activity of a specialist dog handler is aimed at preventing the illegal entry of narcotic drugs across the border. Indicators for the detection of narcotic drugs are the result of the work of a specialist dog handler and indicate his ability to fulfill the duties assigned to him. However, the plaintiff did not meet the above requirements. Thus, the regional attestation commission has made the right decision that meets the requirements of the Decree. Taking into account that the courts made a mistake in applying and interpreting the norms of substantive law, the supervisory judicial board of the Supreme Court considered it necessary to cancel the judicial acts that took place in the case and make a new decision to dismiss the claim.
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