Information regarding the regulatory resolution of the Constitutional Court
(№ 57 of 24 December 2024)
Теlegram CС - https://t.me/consot_kz/1072
The Constitutional Court considered the appeal of citizen Kintonov M.B. about checking the constitutionality of subparagraph 11) of paragraph 3 of Article 16 of the Law of the Republic of Kazakhstan ‘On Public Service’ (hereinafter - the Law), which establishes an indefinite ban on the admission to the civil service of citizens convicted of serious or especially serious crimes, regardless of the repayment or removal of the criminal record.
The subject was sentenced in 1998 to 3 years' imprisonment under article 134, part two, of the Criminal Code (for robbery in a group of persons). On the basis of Article 41-1 of the Code, the execution of his sentence was postponed for 2 years, and then he was released from serving the sentence. Subsequently, the criminal record was cancelled. The subject of the appeal started working in the civil service in 1999 and was appointed as the head of a government agency in April 2023. Previously, when being appointed to various positions, the subject of the application did not indicate information about the expunged criminal record in the CV. Since 31 October 2023, information about the expunged criminal record was entered into the information service of the Centre for Legal Statistics and Information of the General Prosecutor's Office, in connection with which, despite the expungement of the criminal record, the subject of the appeal was subject to disciplinary punishment in the form of dismissal from public service on the basis of the order of the Mayor of Kostanay region dated 4 December 2023.
According to the applicant, the contested norm violates his constitutional rights to freedom of labour and equal access to public service (Article 24, paragraph 1, and Article 33, paragraph 4, of the Constitution), since the expungement of a criminal record under the current legislation entails the cancellation of all criminal law consequences, hence the prohibition of admission to public service is a disproportionate restriction.
Following a review of the constitutionality of this provision of the Law, the Constitutional Court concluded that the legislator has the right to establish restrictions within the framework of discretionary powers and the purposes of restricting the rights and freedoms of citizens as defined by the Constitution. However, such restrictions must comply with the principles of fairness, proportionality and legal certainty.
At the same time, the Court pointed out the inconsistency between subparagraphs 10) and 11) of Article 16 of the Law, concerning the consequences of expunged or cancelled criminal record. Subparagraph (10) allows for the possibility to enter the civil service of persons with expunged convictions, whereas subparagraph (11) does not take this into account, which may lead to legal uncertainty.
On the basis of the above, the Constitutional Court recognised the above norm as compliant with the Constitution of the Republic of Kazakhstan and at the same time recommended the Government and the Agency for Civil Service to consider improving the legislation of the Republic of Kazakhstan in the field of civil service in accordance with the legal positions of the Constitutional Court, to eliminate inconsistencies and ensure legal accuracy of the provisions of the Law.