Constitutional Court: legal norms should not allow for arbitrary interpretation

The Constitutional Court checked the constitutionality of subparagraph 14) of paragraph 3 of Article 16 (3) of the Law "On Civil Service of the Republic of Kazakhstan" based on the appeal of a citizen.

The applicant suggests that the current subparagraph 14) of Article 16, paragraph 3 (3), of the Civil Service Act, which establishes an indefinite (lifelong) ban on the employment of a citizen in the civil service if he or she is dismissed for negative reasons from law enforcement agencies is identical in content and legal consequences to subparagraph 6) of Article 16, paragraph 3, of the Act, because service in law enforcement agencies is a type of civil service. Furthermore, he states that the restriction stated above violates the principle of equal access of citizens to public service (Article 33, paragraph 4 of the Constitution) and does not comply with the legal positions of the Constitutional Court contained in the normative decision No. 4 of 6 March 2023.

In verifying the constitutionality of the challenged provisions of the Law on Civil Service, the Constitutional Court stated the following.

Paragraph 4 of the Article 33, of the Constitution establishes the equal right of citizens of Kazakhstan to have access to public service. The requirements for a candidate for the appointment of a civil servant are conditioned only by the nature of the job duties and are established by law.

Considering the mission of the civil service, the special legal status of civil servants and the specifics of their tasks, the state has the right to determine for citizens the rules for entering and performing civil service, including requirements for candidates and appropriate restrictions, which may be related to the need to ensure the effectiveness of the state apparatus, the trust of the people as the sole source of state power and the prevention of abuse of the powers granted (Normative Decision No. 4 of 6 March 2023).

The Constitutional Court held that, in view of the legal nature and general principles of legal regulation, the termination of law enforcement service on this ground may entail negative general legal consequences for the citizen and can be considered when he or she further enters the civil service. However, such restrictions must be mutually agreed upon and fulfil the requirements of Article 39(1) of the Constitution.

Differences in approaches to the nature and consequences of certain grounds for termination of powers in different spheres lead to an imbalance in legal regulation and create conditions for violation of constitutional rights related to freedom of labour and free choice of occupation and profession by establishing restrictions that do not meet the principles of necessity, fairness and proportionality. It is important to correctly determine the effect of normative legal acts in time and in the circle of persons.

The Constitutional Court stated that the law must fulfil the requirements of legal precision and predictability of consequences, that is, its norms must be formulated with a sufficient degree of clarity and based on comprehensible criteria excluding the possibility of arbitrary interpretation.

Based on the above and in accordance of the results of the review, the Constitutional Court recognised that subparagraph 14) of paragraph 3 of Article 16, paragraph 3 of the Law of the Republic of Kazakhstan "On the Civil Service of the Republic of Kazakhstan" in terms of establishing, in conjunction with subparagraph 13) of paragraph 1 and paragraph 3 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service", an indefinite ban on the admission to the civil service of persons dismissed from law enforcement service for committing a misdemeanour discrediting a law enforcement agency, is not in conformity with the Constitution of the Republic of Kazakhstan, due to the absence of proportionality of this prohibition.

The full text of the regulatory resolution can be found at the link https://www.gov.kz/memleket/entities/ksrk/documents/details/575243?lang=ru