Information regarding the regulatory resolution of the Constitutional Court
(№ 26 of 31 August 2023)
The Constitutional Court has considered appeals on verification the constitutionality of subparagraph 2) of paragraph 2 of Article 26 of the Labour Code (hereinafter - LC) and subparagraph 8) of paragraph 3 of Article 16 of the Law ‘On Civil Service of the Republic of Kazakhstan’ (hereinafter - the Law).
In the opinion of the subjects of the appeal, the established prohibitions on employment in quasi-state sector entities of a person and entry into the civil service of a citizen who has committed a corruption offence violate the constitutional rights to freedom of labour, free choice of occupation and profession, restrict citizens' access to civil service and contradict the principle of justice.
The Constitutional Court considers that everyone's constitutionally guaranteed right to freedom of labour, free choice of occupation and profession may be restricted by law only in order to protect constitutionally significant values. Parliament has the power to impose, amend or abolish such restrictions by law. The need to observe the constitutional balance of public and private interests directs to the fact that in the case of employment in quasi-governmental organisations there are legal instruments aimed at reducing corruption risks and increasing public confidence in the activities of state organisations. By its nature in the system of current legal regulation, the restriction of everyone's right to freedom of labour, free choice of occupation and profession provided for by the above-mentioned legal provision does not directly relate to measures of criminal liability, since it is of a constitutional-legal nature: it is legislatively introduced as a legal disqualifying obstacle to holding positions in state organisations. This conclusion correlates with the requirements of international treaties to which the Republic of Kazakhstan is a party.
With regard to the prohibition of a citizen who has committed a corruption offence from entering the civil service, the Constitutional Court considers that, taking into account the mission of the civil service, the special legal status of civil servants and the specific nature of their tasks, the state has the right to determine the rules for citizens to enter and perform the civil service, including eligibility requirements and related restrictions, which may be related to the need to ensure the effectiveness of the State apparatus, the confidence of the people as the sole source of State power and the avoidance of abuse of the powers granted. The anti-corruption policy of the state is aimed at reducing corruption risks, increasing confidence in the activities of state bodies and consists of legal, administrative, organisational and other measures. The specificity of the legal status of civil servants is conditioned, first of all, by the nature of their official duties. The legislator, within the framework of his powers, has the right to set higher requirements for the reputation of civil servants so that citizens do not have doubts about the impeccability of their moral and ethical qualities and, accordingly, the legality of their decisions related to the implementation of public authority.
Thus, the Constitutional Court recognised subparagraph 2) of paragraph 2 of Article 26 of the LC as being in conformity with the Constitution and interpreted that the restriction on employment in quasi-public sector entities of a person who has committed a corruption offence is applicable to persons applying for positions related to the performance of managerial functions in the said entities, while subparagraph 8) of paragraph 3 of Article 16 of the Law was found to be in conformity with the Constitution.