Commentary to article 74. Obstruction of obtaining citizenship of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Illegal actions (inaction) of officials preventing a person from obtaining citizenship of the Republic of Kazakhstan, –
they entail a fine in the amount of fifteen monthly calculation indices.
2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –
they entail a fine in the amount of thirty monthly calculation indices.
Part 1. In accordance with the provisions of the Constitution of the Republic of Kazakhstan, citizenship of the Republic of Kazakhstan is acquired and terminated in accordance with the law, is uniform and equal, regardless of the grounds for its acquisition. A citizen of the Republic of Kazakhstan may not be deprived of his citizenship, the right to change his citizenship, and may not be expelled from Kazakhstan.
In 2017, the Law of the Republic of Kazakhstan dated March 10, 2017 amended Part 2 of Article 10 of the Constitution of the Republic of Kazakhstan regarding the deprivation of citizenship and today the deprivation of citizenship is allowed only by court decision for committing terrorist crimes, as well as for causing other serious harm to the vital interests of the country.
The generic object of this administrative offense is public relations, which are guaranteed by the State and the Constitution of the Republic of Kazakhstan, including regarding the acquisition of citizenship. The direct object of the offense in question is the social relations that arise when acquiring citizenship in accordance with the Law of the Republic of Kazakhstan dated December 20, 1991 "On Citizenship of the Republic of Kazakhstan". The grounds for acquiring citizenship are stipulated in Article 10 of the above-mentioned Law:
1) by birth;
2) as a result of being granted citizenship of the Republic of Kazakhstan;
3) on the grounds or in accordance with the procedure provided for by interstate treaties of the Republic of Kazakhstan;
4) on other grounds provided for by the said law.
These regulations also establish conditions for persons applying for citizenship of the Republic of Kazakhstan.:
1) persons who have been permanently residing in the territory of the Republic of Kazakhstan for at least five years or who have been married to citizens of the Republic of Kazakhstan for at least three years;
2)citizens of the former Soviet Republics who have one of their close relatives who are citizens of the Republic of Kazakhstan: a child (including an adopted child), a spouse, one of their parents, a sister, brother, grandfather or grandmother, regardless of their period of residence in the Republic of Kazakhstan.
There is also a simplified procedure for admission to citizenship for a certain category of persons, namely:
1) Oralmans who have been legally residing in the territory of the Republic of Kazakhstan for at least four years or have been married to citizens of the Republic of Kazakhstan for at least three years;
2) rehabilitated victims of mass political repression, as well as their descendants, deprived or deprived of citizenship without their free will, permanently residing in the territory of the Republic of Kazakhstan legally, regardless of the length of residence.
At the same time, the time limit for reviewing materials on acquiring citizenship in a simplified (registration) procedure should not exceed three months from the date of filing the application.
In compliance with the procedure for admission to citizenship, according to Article 17 of the Law of the Republic of Kazakhstan "On Citizenship of the Republic of Kazakhstan", the list of grounds for refusal of admission to citizenship of the Republic of Kazakhstan is clearly defined, namely:
1) has committed a crime against humanity provided for by international law, deliberately opposes the sovereignty and independence of the Republic of Kazakhstan;
2) calls for the violation of the unity and integrity of the territory of the Republic of Kazakhstan;
3) carries out illegal activities detrimental to national security and public health;
4) incites interethnic, inter-confessional and religious hostility, counteracts the functioning of the state language of the Republic of Kazakhstan;
5) belongs to terrorist and extremist organizations or has been convicted of terrorist activities;
6) is on the international wanted list, is serving a sentence under a court verdict that has entered into force, or his actions have been recognized by the court as a particularly dangerous recidivism.;
7) is a citizen of other states;
8) provided false information about himself when applying for citizenship of the Republic of Kazakhstan or, without a valid reason, did not submit the necessary documents within the time limits established by the legislation of the Republic of Kazakhstan;
9) has an outstanding or outstanding criminal record for committing an intentional crime on the territory of the Republic of Kazakhstan or abroad, recognized as such by the legislation of the Republic of Kazakhstan;
10) committed an offense in the field of economics within five years prior to applying for citizenship of the Republic of Kazakhstan or restoration of citizenship of the Republic of Kazakhstan;
11) repeatedly violated the legislation of the Republic of Kazakhstan in the field of population migration within five years prior to applying for citizenship of the Republic of Kazakhstan or restoration of citizenship of the Republic of Kazakhstan;
12) has lost the citizenship of the Republic of Kazakhstan on the basis of sub-paragraphs 1), 2) and 5) of Article 21 of the Law of the Republic of Kazakhstan "On Citizenship of the Republic of Kazakhstan" within five years prior to applying for citizenship of the Republic of Kazakhstan or restoration of citizenship of the Republic of Kazakhstan;
13) has lost the citizenship of the Republic of Kazakhstan on the basis of subparagraph 8) of the first part of Article 21 of the Law of the Republic of Kazakhstan "On Citizenship of the Republic of Kazakhstan";
14) deprived of citizenship of the Republic of Kazakhstan on the basis of art. 20-1 of the Law of the Republic of Kazakhstan "On Citizenship of the Republic of Kazakhstan".
Thus, based on the above-mentioned regulations, the objective side of the commented administrative offense is determined, the form of expression of which may be actions or omissions of officials related to non-compliance with the rules and procedures for admission to citizenship of the Republic of Kazakhstan.
When qualifying acts in this composition, if necessary, attention should be paid to the procedure for reviewing applications and proposals on citizenship of the Republic of Kazakhstan (Chapter 6 of the Law), as well as to take into account a number of regulations of a subordinate nature (for example, the Regulation on the Commission on Citizenship under the President of the Republic of Kazakhstan, approved by Decree of the President of the Republic of Kazakhstan October 10, 2006 No. 198, Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated January 28, 2016 No. 85 "On Approval of the Rules for the admission, Registration and Consideration by Internal affairs Bodies of petitions (applications) for admission to Citizenship of the Republic of Kazakhstan and restoration to citizenship of the Republic of Kazakhstan, including in a simplified (registration) procedure, renunciation of citizenship, loss, deprivation of citizenship and determination of belonging to the citizenship of the Republic of Kazakhstan", etc.).
Based on the content of the above-mentioned departmental regulations, in the practice of applying norms on citizenship, such cases should also be taken into account. Thus, the Semeysky City Court, having considered the civil case on the claim of E.Orazaev to the Department of Internal Affairs of the East Kazakhstan region, declared invalid and canceled the conclusion on the loss of citizenship.
The plaintiff motivated his claims by the fact that the registration of loss of citizenship was carried out by employees of the Migration Police Department of the Department of Internal Affairs of East Kazakhstan Region on the basis that the person acquired citizenship of another state. However, he did not personally apply for citizenship of the Russian Federation; the application on his behalf was submitted by an unknown person on the basis of forged documents. His appeals to the competent authorities did not yield results, the disputed conclusion was not canceled, which violates his rights and legitimate interests, since he is deprived of the rights of a citizen of the Republic of Kazakhstan.
During the court session, it was established that the decision of the court of the Russian Federation established the fact of using forged documents on behalf of E.Orazaev when obtaining citizenship of the Russian Federation. This court decision has entered into legal force. E.Orazaev noted this in his explanatory note addressed to the head of the Department of Internal Affairs of Semey. Nevertheless, the defendant issues the appealed opinion and deprives the plaintiff of the citizenship of the Republic of Kazakhstan.
Following the court's decision, the Federal Migration Service of the Russian Federation issued an opinion on the cancellation of the decision to grant E.Orazaev citizenship of the Russian Federation. Despite the available written evidence, the defendant, four years after the above-mentioned conclusion on the revocation of citizenship, issues his opinion on its loss, violating the constitutional rights of the plaintiff.
The Semeysky city court is the claim of E.Orazaev was satisfied. The conclusion on the loss of his citizenship of the Republic of Kazakhstan by the Migration Police Department of the Department of Internal Affairs of the East Kazakhstan region was declared invalid and canceled.
On the subjective side, this offense can be characterized, as a rule, by an intentional form of guilt.
The subjects of the offense may be officials authorized to grant citizenship, or those participating in the procedure for persons to acquire citizenship of the Republic of Kazakhstan.
Part 2 of the commented norm defines repetition as a qualifying feature, i.e. the commission of a similar offense within a year after the imposition of an administrative penalty under Part 1 of Article 74 of the Administrative Code.
The jurisdiction of cases on these offenses is determined in accordance with Part 1 of Article 684 of the Administrative Code and assigned to judges of specialized district and equivalent administrative courts.
In accordance with Article 805 of the Administrative Code, the prosecutor has the right to initiate proceedings on an administrative offense under Article 74 of the Administrative Code.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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