Commentary on Article 51. Expulsion of a Foreigner or Stateless Person from the Republic of Kazakhstan under the Criminal Code of the Republic of Kazakhstan
1. The expulsion of a foreigner or stateless person from the Republic of Kazakhstan shall be carried out compulsorily, with the imposition of a five-year ban on that person's entry into the territory of the Republic of Kazakhstan.
2. The expulsion of a foreigner or stateless person from the Republic of Kazakhstan for committing a crime may be imposed as an additional type of punishment, and for committing a criminal misdemeanor, as either a principal or an additional type of punishment.
Where this type of punishment is imposed by the court as an additional punishment, it shall be enforced after the principal punishment has been served or after the person has been released from further service of that punishment on the grounds provided for in subparagraphs 3), 5), 6) and 7) of part one of Article 161 of the Criminal Executive Code of the Republic of Kazakhstan, and in cases where a suspended sentence is applied, from the moment the judgment enters into legal force.
Pursuant to Article 4 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, adopted by United Nations General Assembly Resolution 40/144 of December 13, 1985, foreigners are obliged to comply with the laws of the State in which they reside or are present and to treat the customs and traditions of the people of that State with respect.
Issues concerning the expulsion of a foreigner or stateless person beyond the borders of the country are based on the Constitution of the Republic of Kazakhstan and include the provisions of the Civil Procedure Code of the Republic of Kazakhstan, the Code of Administrative Offences, the Law of the Republic of Kazakhstan dated June 19, 1995, “On the Legal Status of Foreigners,” and other regulatory legal acts.
Courts must also be guided by the International Covenant on Civil and Political Rights (New York, December 18, 1966), the Convention on the Legal Status of Migrant Workers and Members of Their Families of the Member States of the Commonwealth of Independent States (Chisinau, November 14, 2008), the Treaty on the Legal Status of Citizens of One State Permanently Residing in the Territory of Another State (Moscow, April 28, 1998), and other international treaties ratified by the Republic of Kazakhstan.
In terms of their substance, administrative expulsion and expulsion under civil proceedings constitute the compulsory or controlled independent removal of foreigners and stateless persons beyond the borders of the Republic of Kazakhstan by authorized bodies, carried out on the basis of a court ruling (decision) for committing an administrative offence or violating legislation. In other words, a decision on the expulsion of foreigners and stateless persons is made by a court under the provisions of the Code of Administrative Offences (Articles 109, 490, 495, 513, 514, 517, 519, etc.) and in accordance with the special proceedings provided for by the Civil Procedure Code (Article 49 of the Civil Procedure Code).
The expulsion of a foreigner or stateless person from the Republic of Kazakhstan as a type of criminal punishment constitutes the compulsory removal of a foreigner or stateless person from the territory of that country for committing a criminal offence, pursuant to a court judgment, for a period of five years.
In accordance with Article 2 of the Law of the Republic of Kazakhstan “On the Legal Status of Foreigners,” foreigners in the Republic of Kazakhstan are persons who are not citizens of the Republic of Kazakhstan and have evidence of their belonging to the citizenship of another State.
Persons who are not citizens of the Republic of Kazakhstan and have no evidence of their belonging to the citizenship of another State are recognized as stateless persons.
The conditions for restricting the rights and freedoms of foreign citizens or stateless persons, including restrictions associated with expulsion, are formulated in the fundamental instruments of international law. Thus, Article 29 of the Universal Declaration of Human Rights establishes that “...in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
According to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, restrictions on rights are permissible only where the following conditions are met: a) if the restrictions are prescribed by law; b) if they are necessary in a democratic society; c) if they pursue a lawful (legitimate) aim. Compliance with these conditions serves as a guarantee of legality in the implementation of restrictions on human and civil rights and freedoms.
Thus, paragraph 3 of Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms establishes that no restrictions shall be imposed on the exercise of the right to freedom of movement and freedom to choose one's residence other than those which are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, the prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others.
In accordance with Article 28 of the Law of the Republic of Kazakhstan “On the Legal Status of Foreigners,” a foreigner may be expelled from the Republic of Kazakhstan:
if his or her actions are contrary to the interests of ensuring State security or protecting public order;
if this is necessary for the protection of public health and morals, and for the protection of the rights and legitimate interests of citizens of the Republic of Kazakhstan and other persons;
if he or she has violated the legislation of the Republic of Kazakhstan;
if the marriage is declared invalid in accordance with the procedure established by legislative acts, where the conclusion of the marriage with a citizen of the Republic of Kazakhstan served as the basis for the foreigner's remaining in the Republic of Kazakhstan for permanent residence.
Cases based on applications by internal affairs bodies for the expulsion of foreigners or stateless persons from the Republic of Kazakhstan for violating the legislation of the Republic of Kazakhstan are considered under special proceedings.
Article 51 of the Criminal Code was subject to substantial amendments and additions by the Laws of the Republic of Kazakhstan dated April 9, 2016, December 22, 2016, and January 21, 2019.
According to part 1 of the commented article, the expulsion of a foreigner or stateless person from the Republic of Kazakhstan shall be carried out compulsorily, with the imposition of a five-year ban on that person's entry into the territory of the Republic of Kazakhstan.
The expulsion of a foreigner or stateless person from the Republic of Kazakhstan for committing a crime may be imposed as an additional type of punishment, and for committing a criminal misdemeanor, as either a principal or an additional type of punishment (part 2 of Article 51 of the Criminal Code).
Where this type of punishment is imposed by the court as an additional punishment, it shall be enforced after the principal punishment has been served or after the person has been released from further service of that punishment on the following grounds: conditional early release from serving the sentence; an act of amnesty; an act of pardon; an illness of the convicted person included in the list approved by the authorized body in the field of penal enforcement activities in coordination with the authorized body in the field of healthcare (part 1 of Article 161 of the Criminal Executive Code), and in cases where a suspended sentence is applied, from the moment the judgment enters into legal force.
The decision on expulsion shall be made by the court. The foreigner is obliged to leave the Republic of Kazakhstan within the period specified in that decision. If the person in respect of whom an expulsion decision has been made fails to leave the territory of the Republic of Kazakhstan within the period specified in the decision, that person shall be subject to detention, with the prosecutor's authorization, and compulsory expulsion. In this case, detention shall be permitted for the period necessary to carry out the expulsion. The detained person shall be held in special facilities of the internal affairs bodies in accordance with the procedure determined by the Government of the Republic of Kazakhstan.
The punishment in the form of expulsion of a foreigner or stateless person from the Republic of Kazakhstan shall be enforced by the national security bodies and the internal affairs bodies of the Republic of Kazakhstan (part 5 of Article 24 of the Criminal Executive Code).
The procedure for enforcing the punishment in the form of expulsion of a foreigner or stateless person from the Republic of Kazakhstan is regulated by Article 70 of the Criminal Executive Code.
The enforcement of a court judgment that has entered into legal force concerning the expulsion of a foreigner or stateless person from the Republic of Kazakhstan shall be carried out compulsorily.
Expulsion shall be carried out by escorting the expelled immigrant to the State Border of the Republic of Kazakhstan in the manner determined by the Government of the Republic of Kazakhstan, with a five-year ban on entry into the territory of the Republic of Kazakhstan (part 1 of Article 70 of the Criminal Executive Code).
In accordance with part 1 of Article 70 of the Criminal Executive Code, the Government of the Republic of Kazakhstan adopted, by Resolution dated April 6, 2017, the Rules for the Compulsory Expulsion of a Foreigner or Stateless Person from the Republic of Kazakhstan.
According to this Resolution:
the punishment in the form of expulsion of a foreigner or stateless person shall be enforced by the national security bodies and internal affairs bodies of the Republic of Kazakhstan;
the enforcement of a court judgment that has entered into legal force concerning the expulsion of a foreigner or stateless person shall be carried out compulsorily after the principal type of punishment has been enforced;
the authorized bodies and/or bodies responsible for enforcing the principal type of punishment shall inform the internal affairs bodies of the enforcement of the principal type of punishment in respect of the foreigner or stateless person subject to expulsion;
within three working days from the receipt of the relevant information, the internal affairs bodies shall take measures to organize the expulsion of the foreigner or stateless person (determining the route and the place of crossing the State Border and purchasing travel tickets), and shall also inform the Border Service of the National Security Committee of the Republic of Kazakhstan of the forthcoming expulsion;
the expulsion of a foreigner or stateless person shall be carried out by escorting that person by the internal affairs bodies to a checkpoint across the State Border by railway transport. In the absence of railway communication (a railway route), expulsion shall be carried out by other means of transport (air, road or water). Where the expelled immigrant is located in the same settlement as the checkpoint across the State Border, escorting shall be carried out by road transport or on foot;
the Border Service shall ensure the passage of the specified category of foreigners or stateless persons across the State Border in accordance with the procedure established by the legislation of the Republic of Kazakhstan;
at the checkpoint across the State Border, officials of the internal affairs bodies and the Border Service shall draw up an act on the expulsion of the foreigner or stateless person from the Republic of Kazakhstan, which shall be signed by them after the expelled immigrant has crossed the State Border;
the expenses associated with the expulsion of a foreigner or stateless person shall be borne by that person or by the individuals or legal entities that invited him or her to the Republic of Kazakhstan. Where the aforementioned persons have no funds or insufficient funds to cover the expenses, the expulsion shall be carried out at the expense of budgetary funds;
the estimate of expenses associated with the expulsion of a foreigner or stateless person shall include the cost of:
travel documents for the foreigner or stateless person, as well as for the employees of the internal affairs bodies escorting that person;
the preparation of documents and the performance of other actions associated with the expulsion;
the funds spent on the expulsion shall be reimbursed through judicial proceedings pursuant to claims brought by the internal affairs bodies against the individuals or legal entities that invited the foreigner or stateless person to the Republic of Kazakhstan.
Administrative expulsion and expulsion under civil proceedings are addressed in the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013, “On Judicial Practice in Considering Cases Concerning the Expulsion of Foreigners or Stateless Persons from the Republic of Kazakhstan.”
Paragraph 5 of the aforementioned Resolution states that, when considering cases concerning the expulsion of foreigners and stateless persons, it is necessary to distinguish between administrative expulsion, applied in accordance with the provisions of the Code of Administrative Offences, and expulsion carried out under the special proceedings provided for by the Civil Procedure Code.
Paragraph 14 of the aforementioned Normative Resolution notes that, when issuing a decision on expulsion under civil procedural law, courts must take into account the offences committed by the foreigner or stateless person.
Courts must be guided by the relevant provisions of the Code of Administrative Offences and the Criminal Code concerning the period for the removal of an administrative penalty and the consequences of expungement and removal of a criminal record. A person shall not be considered to have been subjected to an administrative penalty upon the expiry of one year from the date of enforcement of the court ruling (Article 61 of the Code of Administrative Offences). The expungement or removal of a criminal record nullifies all legal consequences provided for by the Criminal Code, with the exception of restrictions established by an additional type of punishment imposed for life.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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