Labor disputes Termination of criminal prosecution against an employee on the grounds of lack of evidence does not release such an employee from disciplinary responsibility
I. filed a lawsuit with the State Institution "Nur-Sultan City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Department) to declare the dismissal order illegal, reinstatement at work, recovery of wages for forced absenteeism, recovery of court costs and compensation for moral damage. The claim was dismissed by the decision of the Saryarkinsky District Court of Nur-Sultan dated July 9, 2019. By the decision of the Judicial Board for civil cases of the Nur-Sultan City Court dated October 11, 2019, the court's decision remained unchanged. In the petition And. Requests that the contested judicial acts be annulled and that a new decision be made to satisfy the claim in view of violations of substantive and procedural law committed by the courts. The Judicial Board for Civil Cases of the Supreme Court has left judicial acts of local courts unchanged on the following grounds. It follows from the materials of the civil case that I. had been working in a specialized battalion as a communications inspector since October 2009. Since September 2013, he has been seconded to a specialized Public Service Center (hereinafter referred to as the PSC). By Order of the Head of the Department No. 193 l/s dated June 6, 2018, I. was dismissed from service on February 1, 2018 for gross violation of official discipline and commission of misconduct discrediting a law enforcement agency, expressed in using his official position for personal gain, namely in committing fraud on an especially large scale on the basis of subparagraphs 12) and 13) paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter – the Law).
Labor disputes Termination of criminal prosecution against an employee on the grounds of lack of evidence does not release such an employee from disciplinary responsibility
The decision on dismissal was based on the decision of the Disciplinary Commission dated May 28, 2018. In rejecting the plaintiff's claim, the court of first instance proceeded from the fact that the plaintiff had missed the deadline for applying to the court. The Court of Appeal agreed with this conclusion of the court, stating that the dismissal order is based on the materials of the internal investigation and the materials of the pre-trial investigation, which confirmed the commission of disciplinary misconduct. At the same time, the board considered it necessary from the text of the dismissal order. delete the words "namely, the commission of fraud on an especially large scale" as prematurely indicated. The Judicial Board of the Supreme Court considers these conclusions of the local courts to be justified on the following grounds. Thus, by virtue of the provisions of subparagraphs 12), 13) of paragraph 1 of Article 80 of the Law, employees are dismissed for gross violation of official discipline and for committing misconduct discrediting a law enforcement agency. The materials of the civil case established that since December 19, 2017, in relation to I. A pre–trial investigation was conducted under part 4 of Article 361 of the Criminal Code of the Republic of Kazakhstan (hereinafter - CC). On January 19, 2018, a preventive measure in the form of detention was chosen against I.. On February 22, 2018, I. was charged with committing crimes under part 2 of Article 262, paragraphs 1, 2 of part 4 of Article 190 of the Criminal Code. From the conclusion of the internal investigation, approved by the head of the Department on June 5, 2018, it follows that according to the materials of the pre-trial investigation, police Captain I. He assisted an organized group of civilians, registered cars stolen on the territory of the Russian Federation with a specialized PSC using forged documents, that is, he committed fraud on an especially large scale using his official position.
By the verdict of the district court No. 2 of the Saryarkinsky district of Astana city dated July 18, 2018, I. was acquitted for the lack of evidence of his commission of a criminal offense. By the decision of the Judicial Board for Criminal Cases of the Astana City Court dated September 20, 2018, the said verdict was overturned, the criminal case was returned to the prosecutor of Astana city to take measures to eliminate significant violations of the criminal procedure legislation that impede the conduct of the main trial. On October 15, 2018, the criminal case was accepted into proceedings in the Department's SU. By the resolution of the prosecutor of the Almaty district of Astana dated May 10, 2019, the criminal case was sent for additional investigation. By paragraph 2 of this resolution, the criminal prosecution against suspect I. was terminated for lack of proof of guilt. During the consideration of the case, the courts established that by the decision of the first Deputy Prosecutor of Astana city dated July 2, 2019, the decision of the prosecutor of the Almaty district of Astana city dated May 10, 2019 regarding the termination of criminal prosecution against the plaintiff was canceled. Thus, according to the rules of paragraphs 1, 2 of Article 57 of the Law, the basis for imposing a penalty is the commission of a disciplinary offense by an employee. When imposing a disciplinary penalty and determining its type, the presence of the employee's guilt, the severity and circumstances of the committed disciplinary offense, the employee's personality and attitude to the service, the occurrence of negative consequences and damage to the image of the law enforcement agency are taken into account.
In the case under consideration, the reason for the plaintiff's dismissal from service was the commission by an employee of gross misconduct and misconduct discrediting a law enforcement agency, expressed in using his official position for personal gain while working in a specialized PSC. Thus, the conclusions of the courts that the dismissal order is based on the materials of the internal investigation and pre-trial investigation, in which the commission of disciplinary misconduct was confirmed, are substantiated. The Board notes that an employee of the internal affairs bodies should take care of preserving his honor and dignity, not harming the authority of the internal affairs bodies. The very fact of initiating a criminal case against an employee is defamatory and damages the authority of the internal affairs bodies. Termination of criminal prosecution against an employee on the grounds of lack of evidence does not exempt such an employee from disciplinary liability. Moreover, a pre-trial investigation is currently underway against I., meaning that no final decision has been made on the criminal case. The arguments of the petition that the local courts did not take into account that the fact of fraudulent actions on his part was not confirmed and, accordingly, there was no evidence that he had committed defamatory misconduct were legitimately ignored by the local courts.
Labor disputes Termination of criminal prosecution against an employee on the grounds of lack of evidence does not release such an employee from disciplinary responsibility
The plaintiff based his claim on the arguments indicated in the acquittal of July 18, 2018, therefore, the local courts correctly calculated the time limit for applying to the court to declare the dismissal and reinstatement order illegal. In this regard, the arguments of the petition for the plaintiff to skip the deadline for applying to the court for a valid reason were declared untenable by the judicial board. In such circumstances, it is correct for the courts to conclude that the plaintiff's claims are unfounded. Since there were no grounds for restoring the plaintiff to his previous job, the courts reasonably refused to recover compensation for moral damage from wages for the time of forced absenteeism. Thus, the judicial acts of the local courts adopted in the case comply with the provisions of Article 224 of the CPC and paragraphs 5, 11 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision".
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
