Constitutional Court: Mandatory Dismissal for a Corruption Offence Must Be Applied with Due Regard to an Employee’s Legal Status

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The Constitutional Court considered an application filed by a citizen challenging the constitutionality of subparagraph 2) of paragraph 1-1 of Article 52 of the Labour Code for compliance with Article 24(1) of the Constitution. Under this provision, an employer is required to terminate the employment contract of an employee of a quasi-public sector entity if that employee has committed a corruption offence.

Background of the Case

The applicant was dismissed after being found guilty of a corruption offence (bribery) and sentenced to an additional penalty of a lifetime prohibition on holding positions in state organizations and quasi-public sector entities.

The applicant argued that the contested provision violated his constitutional right to freedom of labour, as he had worked as an electric locomotive driver and was now deprived of the opportunity to continue working in his profession.

Position of the Constitutional Court

The Constitutional Court held that the contested provision must be interpreted in conjunction with other provisions of the applicable legislation.

In particular, subparagraph 2) of paragraph 2 of Article 26 of the Labour Code prohibits the employment in quasi-public sector entities of persons convicted of corruption offences.

The Criminal Code identifies the following categories of persons as subjects of corruption offences:

1. persons authorized to perform state functions; and
2. persons equated to those authorized to perform state functions.

The Court emphasized that the decisive criterion for imposing such restrictions is the functional nature of the individual’s duties, rather than merely the place of employment.

Accordingly, applying the contested provision to all employees of quasi-public sector entities, regardless of their functional status, would result in a disproportionate extension of the restriction on the constitutional right to work.

Findings of the Constitutional Court

Following its constitutional review, the Constitutional Court declared subparagraph 2) of paragraph 1-1 of Article 52 of the Labour Code to be consistent with the Constitution, when interpreted in conjunction with the relevant provisions of the Criminal Code and the Law “On Combating Corruption”, as follows:

Mandatory termination of an employment contract at the employer’s initiative on the grounds that an employee of a quasi-public sector entity has committed a corruption offence applies only to persons who are equated to those authorized to perform state functions.

The Government has also been recommended to consider improving the relevant legislation in light of the Constitutional Court’s legal interpretation.

The full text of the Constitutional Court’s Regulatory Resolution is available at: https://www.gov.kz/memleket/entities/ksrk/documents/details/1023866?lang=ru