NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 26, 2023 No. 38-NP

About consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 14) Item 3 of article 16 of the Law of the Republic of Kazakhstan of November 23, 2015 "About public service of the Republic of Kazakhstan"

Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., Eskendirov A. K. judges., Zhakipbayeva K. T., Kydyrbayeva A. K., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation:

subject of the address Eseneev E. S.,

representatives:

The agencies of the Republic of Kazakhstan for public service - the vice-chairman Muksimov S. S.,

The Prosecutor General's Office of the Republic of Kazakhstan - the adviser to the Attorney-General Adamov T. B.,

The Ministries of Justice of the Republic of Kazakhstan - the director of the department of the legislation Mankeshov Sh. Zh.,

The Ministries of Internal Affairs of the Republic of Kazakhstan - the head of legal department Dyusembekov K. S.,

The office of the Majilis of Parliament of the Republic of Kazakhstan - the manager of the sector of Department of the legislation Mombayev I.,

The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,

considered Eseneev E. S. address in open session. about check on compliance of the Constitution of the Republic of Kazakhstan of the subitem 14) Item 3 of article 16 of the Law of the Republic of Kazakhstan of November 23, 2015 "About public service of the Republic of Kazakhstan" (further - the Civil service law).

Having heard the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Eskendirov A. K. and participants of meeting, having studied materials of the constitutional production, having analyzed regulations of the law in force of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan

established:

The constitutional court of the Republic of Kazakhstan (further - the Constitutional Court) according to the address of the citizen checked for compliance of the Constitution of the Republic of Kazakhstan (further - the Constitution) the subitem 14) of Item 3 of Article 16 of the Civil service law.

Follows from the address that earlier the applicant was brought to the administrative responsibility on Article part one 468, to Article 469 and part two of article 471 of the Code of the Republic of Kazakhstan about administrative offenses of the January 30, 2001 which voided by the Code of the Republic of Kazakhstan about administrative offenses of July 5, 2014 and also by results of office investigation on January 30, 2009 it was dismissed for making of the offense discrediting rank of the employee of law-enforcement bodies.

The subject of the address believes that the subitem existing now 14) Item 3 of Article 16 of the Civil service law establishing termless (lifelong) prohibition of acceptance of the citizen on public service in case of its dismissal for negative motives from law enforcement agencies on content and consequence in law is identical to the subitem 6) of Item 3 of article 16 of this Law as the service in law enforcement agencies is one of types of public service. Therefore, the specified restriction, according to the author of the address, breaks the principle of equal access for citizens to public service (item 4 of article 33 of the Constitution) and does not correspond to the legal line items of the Constitutional Court stated in the normative resolution of March 6, 2023 to No. 4.

The applicant repeatedly addressed to state bodies concerning explanation of possibility of its participation in tenders on occupation of certain positions in public service, however in the received negative answers the reference to the provision of the law disputed by it about public service was contained.

When checking constitutionality of the challenged provisions of the Civil service law in relation to subject of the address the Constitutional Court proceeds from the following.

1. In item 4 of article 33 of the Constitution it is fixed that citizens of the Republic of Kazakhstan have the equal right to access to public service. Requirements imposed to the candidate for position of the government employee are caused only by nature of job responsibilities and established by the law.

The parliament of the Republic of Kazakhstan has the right to issue the laws which govern the major public relations, establish the fundamental principles and regulations concerning legal personality of physical persons and legal entities, the civil laws and freedoms, obligations and responsibility of physical persons and legal entities, bases of the organization and activities of state bodies and local government bodies, the public and military service (subitems 1) and 3) of Item 3 of article 61 of the Constitution).

The constitutional court noted earlier that it taking into account the mission of public service, special legal status of the government employees costing specifics before them tasks the state has the right to determine for citizens of the rule of revenues to public service and its passings, including requirements to candidates and the corresponding restrictions which can be connected with need of ensuring efficiency of activities of the state apparatus, trust of the people as the single source of the government and non-admission of abuse of the conferred powers (the normative resolution of March 6, 2023 No. 4).

The law-enforcement service has public character and is directed to the solution constitutionally of significant tasks, has much in common with military service according to the serving requirements shown to, conditions of revenues to service and its passings, the applied means and other signs. The constitutional right of citizens on access to public service, including to law-enforcement, can be limited only to the laws and only in that measure in what it is necessary for the purpose of protection of the constitutional system, protection of public order, human rights and freedoms, health and morality of the population (Item 1 of article 39 of the Constitution). In case of establishment of such restrictions the legislator shall proceed from the constitutional limits of admissible restriction of rights and freedoms of man and citizen, without distorting their essence and without introducing such restrictions which will not be approved with constitutionally particular purposes. Any legislative restrictions of human rights and freedoms shall be adequate to legally reasonable purposes and meet the requirements of justice, proportionality and proportionality.

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