April 5, 2023

The Constitutional Court found the norm of the law on civil service inconsistent with the Constitution

The Constitutional Court, following the results of consideration of the appeal of the ex-deputy mayor of Borodulikhinsky district of East Kazakhstan region Argumbayev B.K., recognized the norm of the law on civil service as inconsistent with the Constitution.

On January 24, 2023, the Constitutional Court of the Republic of Kazakhstan received an appeal from citizen Argumbayev B.K. on consideration of subparagraph 6) of paragraph 3 of Article 16 of the Law of the Republic of Kazakhstan “On Public Service of the Republic of Kazakhstan” for compliance with the Constitution.

In accordance with the contested norm of the law, a citizen who has been brought to disciplinary responsibility for a disciplinary offense discrediting the civil service for three years before entering the civil service cannot be admitted to the civil service. At the same time, a citizen dismissed for a disciplinary offense discrediting the civil service is not allowed to enter the civil service.

It follows from the appeal that by the order of Akim of Borodulikhinsky district of East Kazakhstan region dated October 31, 2019, Argumbayev B.K. was dismissed from the post of deputy akim of Borodulikhinsky district of East Kazakhstan region for committing disciplinary offenses discrediting the public service provided for in subparagraphs 5) and 11) of paragraph 1 of Article 50 of the Law. After three years, measures were taken to restore him to public service. However, the ban does not allow him to resume positions in the civil service.

Argumbayev B.K. believes that this provision deprives him of the right to work in public service for life and is unfair, infringes on the right to be elected to state bodies and violates the principle of equal right of citizens to access to public service (Article 33 of the Constitution).

The Constitutional Court considers that subparagraph 6) of paragraph 3 of Article 16 of the Law regarding the establishment of a lifetime ban on holding positions in the civil service for citizens dismissed for committing a disciplinary offense discrediting the civil service, distorts the essence of constitutional rights and freedoms, violates the constitutional limits of their permissible restriction and does not meet the requirements of fairness, proportionality and proportionality, in connection with which it contradicts paragraph 1 of Article 24, paragraphs 2 and 4 of Article 33 and paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan.

In the normative resolution of the Constitutional Court of the Republic of Kazakhstan dated March 6, 2023 No. 4, it is noted that paragraph 6) of paragraph 3 of Article 16 of the Law “On Civil Service of the Republic of Kazakhstan” is recognized as inconsistent with paragraph 1 of Article 24, paragraphs 2 and 4 of Article 33 and paragraph 1 of Article 39 of the Constitution.

The Government must submit a draft law to the Majilis of the Parliament no later than six months aimed at bringing the legislation of the Republic of Kazakhstan in line with the legal positions of the Constitutional Court set out in this regulatory resolution.