Information regarding the regulatory resolution of the Constitutional Court
(№ 4 of 6 March 2023)
The Constitutional Court considered the appeal of a citizen to review the constitutionality of subparagraph 6) of paragraph 3 of Article 16, paragraph 3 of the Law ‘On Civil Service of the Republic of Kazakhstan’ (hereinafter - the Law).
According to this Article, a citizen who, within three years before entering the civil service, has been brought to disciplinary responsibility for a disciplinary offence discrediting the civil service may not be admitted to the civil service.
The applicant believes that this article deprives him of his right to work in the civil service for life and infringes his right to be elected to State bodies and violates the principle of the equal right of citizens to access to civil service.
The Constitutional Court considers that any legislative restrictions on human rights and freedoms must be adequate to legitimately justified objectives and meet the requirements of fairness, proportionality and proportionality. In some cases, the expungement or removal of a criminal record does not prevent entry into the civil service. Thus, citizens who have committed administrative and criminal offences and who have caused more serious harm to the interests protected by law are in a more favourable position compared to persons for whom the ban on entry into the civil service is linked to their dismissal for disciplinary offences. Establishing a lifetime ban on holding civil service positions for citizens dismissed for committing a disciplinary offence 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 commensurability.
The Constitutional Court found unconstitutional subparagraph (6) of paragraph 3 of Article 16 of the Law in terms of establishing an indefinite ban on the entry into the civil service of citizens dismissed for disciplinary offences discrediting the civil service, in connection with the lack of proportionality of legal restrictions arising from measures of disciplinary, administrative and criminal liability for offences against the interests of the civil service and public administration, and recommended that the Government should submit to the Mazhilis of Parliament, within six months, a draft law aimed at bringing the legislation into line.