A working group consisting of the head of the Administrative Department, the Ethics Commissioner Zhamanbayeva B.K., head of legal specialist Bekbosynova R.R. in accordance with paragraph 5 of Article 8 of the Law of the Republic of Kazakhstan "on Combating Corruption" dated 18.11.2015, as well as in accordance with the "Standard Rules for internal analysis of corruption risks" approved by the Order of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption No. 12 dated 19.10.2016 on the basis of the order of the head of the UPR and RP of the East Kazakhstan Region No. ot, an internal analysis of corruption risks of the management was conducted.
The internal analysis covers the period of work of the management of the local executive body for the period from 01.01.2020 to 01.05.2021.
To achieve this goal, the Department of Natural Resources and Environmental Management of East Kazakhstan Region (MIO) perform 82 functions. In the introduction, it has 15 subordinate municipal institutions and enterprises: 14 municipal state institutions: (hereinafter, KSU) forestry-13, KSU "Rapid Response Unit of Forestry and Hunting", and municipal state enterprise (hereinafter, KGP) "sHygys-su koimalary".
Head of the Department M. M. Kusainov - appointed to this position by the Order of the Akim East Kazakhstan Region No.194-K. dated 29.11.2018 w.
Internal analysis of corruption risks was carried out in the following areas: 1) identification of corruption risks in regulatory legal acts affecting and regulating the activities of management, subordinate state organizations; 2) identification of corruption risks in the organizational and managerial activities of the facility.
In the direction - identification of corruption risks in regulatory legal acts.
The analysis revealed gaps in the legislation on disciplinary responsibility of officials of state organizations, quasi-public sector, for corruption offenses and offenses.
According to According to Article 22 of the Law of the Republic of Kazakhstan "On Combating Corruption", all state bodies, organizations, quasi-public sector entities and officials are obliged to conduct anti-corruption within their competence.
Officials, employees of state organizations subordinate to the department are civil servants. Accordingly, labor relations in these organizations are regulated by the Labor Code of the Republic of Kazakhstan and other by-laws. (Government Resolution No. 850 of 27.09.2007, etc.).
The analysis shows that the activities of the subordinate forestry institutions and the operational detachment are carried out with the direct performance of state functions for the protection of forests and wildlife, prevention and suppression of offenses in the field of forest and wildlife protection, bringing violators to appropriate administrative responsibility in accordance with current legislation, associated with the exercise of authority of an official, the provision of public services for forest management, regulation of environmental management, public procurement. Accordingly, they are endowed with a wide range of powers, including those of authority, to carry out state functions in one of the strategic directions of the state and the activities of employees of these institutions are potentially subject to corruption risks.
The analysis of regulatory legal acts on combating corruption, on labor legislation, on the civil service of the Republic of Kazakhstan revealed gaps in the disciplinary responsibility of officials of state organizations for committing corruption disciplinary offenses that are not corruption crimes and administrative offenses.
In particular,
The absence in the Law "On Combating Corruption" of specific definitions of violations attributed to corruption. Earlier, in the old Law of the Republic of Kazakhstan "on combating corruption" (Article 12), specific violations (corruption violations) were defined as acts that create conditions for corruption. The subjects of responsibility for corruption-related offenses were also identified, which included "persons equated to persons authorized to perform state functions." The new anti-corruption law does not contain this provision.
The Law "On the Civil Service of the Republic of Kazakhstan" (Article 50) provides for "disciplinary offenses discrediting the civil service." The specified norm defines as disciplinary offenses discrediting the public service, acts involving corrupt elements. The law applies only to civil servants.
In the Labor Code (Article 52, Part 1, paragraph 21), liability for corruption offenses is provided for in the form of termination of the contract at the initiative of the employer only in the case of "an employee committing a corruption offense that excludes, in accordance with a judicial act that has entered into force, the possibility of further work ...". That is, only when a verdict or court order for corruption crimes or administrative offenses that exclude the possibility of further work in this position comes into force.
The Code of Administrative Offences provides for administrative corruption offences in chapter 34.
Thus, the legislation of the Republic of Kazakhstan does not provide for disciplinary liability of officials -civil servants of state organizations, for disciplinary offenses containing corruption components: abuse or abuse of official authority, official forgery, which do not form criminal offenses or administrative offenses in terms of the degree of public danger, consequences, and for other disciplinary violations provided for in Article 50 of the Law "On Public Service of the Republic of Kazakhstan". This article provides for disciplinary liability only for civil servants..
In addition, civil servants of state organizations, with the exception of persons equated to public service, are not subjects of responsibility for corruption administrative offenses and crimes committed using official powers in the exercise of public functions.
These circumstances give rise to a sense of impunity for corruption offenses among civil servants performing state functions, serve as conditions for their unpunished commission, which constitute a significant corruption risk and generates latent corruption.
The legislation does not provide for a legal mechanism for bringing civil servants to disciplinary responsibility. The procedure for conducting official investigations in necessary cases is not provided for and is not regulated by the norms of the Labor Law. (Absence of by-laws: Rules, Instructions).
We believe that these gaps give rise to different interpretations of the norms and are also elements of corruption risk, negatively affecting the preventive effect of anti-corruption activities in state organizations, in the quasi-public sector and contradict the anti-corruption policy on strengthening responsibility for corruption violations.
Recommendation:
Initiate consideration of the issue of making amendments and additions to the Law of the Republic before the authorized bodies Kazakhstan "ON Combating Corruption":
in paragraph 4) of Article 1 of the Law of the Republic Kazakhstan "ON Combating Corruption" "a person equated to persons authorized to perform state functions," - after the words "a quasi-public sector entity", add "civil servants working in state organizations, in quasi-public sector organizations when carrying out activities related to the direct performance of a state function: the provision of public services, consideration of appeals, conducting a concourse on public procurement, (tender, auction). protection of state property and the fight against offenders in one area or another"
After Chapter 3, instead of the current 4th Chapter "Elimination of the consequences of corruption offenses", add:-"Chapter 4. "RESPONSIBILITY FOR CORRUPTION OFFENSES". Add additional articles to this chapter:
- Article 25-Responsibility for corruption offenses.
Disciplinary, administrative and criminal liability provided for by the norms of the relevant laws are provided for the commission of corruption offenses.
- Article 26. Subjects of corruption offenses.
1. Persons authorized to perform state functions and persons equated to them are responsible for offenses related to corruption.
Leave the current Chapter 4 under No. 5 and further.
II. In the direction - identification of corruption risks in organizational and managerial activities :
2.1. Personnel management, including the turnover of personnel.