Argumbaev, 6/3/23

Last updated Mar 29, 2023 Edit Source

On 31 October 2019, Akim of Borodulikhin District (East Kazakhstan Oblast) discharged Petitioner Argumbaev B. for acts discrediting civil service.

After three years, Petitioner applied for positions in the civil service. Petitioner maintains that the provisions of the Law on Civil Service (“Law”) prevent him from accessing employment in the civil service.

Subparagraph 6, Paragraph 3, Article 16 of the Law provides as follows:

A citizen cannot be admitted to the civil service: … who, within three years before entering the civil service, was found liable for a disciplinary offense discrediting the civil service. At the same time, a citizen dismissed for a disciplinary offense that discredits the public service cannot be admitted to the public service;

• Does a lifelong prohibition for entering the civil service for individuals previously found liable and dismissed in disciplinary proceedings for acts discrediting the civil service violate Articles 33 and 24 of the Constitution?

• Yes. Article 33 guarantees an equal right to serve in public office, and the requirements imposed must be conditioned only by the character of the duties of the office that are established by law. Article 24 provides the right to freedom of labor and free choice of occupation. The court held that Parliament may impose restrictions such as those limiting access to public service on the basis of prior offenses where such restrictions are related to objective criteria such as the applicant’s ability and character. However, any such restrictions must be fair, proportional, and rationally related to the government’s goals. Disciplinary violations are in their magnitude of social harm less serious than criminal and administrative offenses; individuals do not have to be found liable for such offenses in courts. Despite this, certain criminal and administrative offenses carry less onerous restrictions than what subparagraph 6 provides. Because the restrictions are disproportional to the interests protected by its imposition, the lifelong prohibition on civil service in subparagraph 6 violates Articles 33 and 24 of the Constitution. The Government is ordered to introduce legislation in less than 6 months consistent with these findings.

• International Covenant on Civil and Political Rights (ICCPR)
• United Nations Convention Against Corruption (UNCAC)

• Judges: Azimova (Chief); Nurmukhanov (Rapporteur); Eskendirov; Zhakipbaev; Zhatkanbayeva; Kydyrbaeva; Musin; Ongarbaev; Podoprigora; Sarsembaev; Udartsev
• Date: March 6, 2023
• Tags: employment-law
• Link: Нормативное постановление Конституционного Суда Республики Казахстан от 6 марта 2023 года №4 (www.gov.kz)

• The website’s summary of the Court’s holding is made for educational purposes only, is not legal advice, and does not form an attorney-client relationship. The summary represents author’s interpretation of the decision, and may be incomplete or inaccurate. For the text of the decision, see the hyperlink above.