Disputes on the expulsion of foreign citizens without citizenship from the Republic of Kazakhstan

The Department of Police of the Karaganda Region of the Ministry of Internal Affairs of the Republic of Kazakhstan (hereinafter referred to as the Department) applied to the court for T.'s expulsion from the Republic of Kazakhstan. By the decision of the Oktyabrsky District Court of the city of Karaganda dated March 5, 2020, the Department's application was satisfied. The Judicial Board for Civil Cases of the Supreme Court upheld the decision of the court of first instance on the following grounds. In satisfying the Department's application, the court of first instance proceeded from the fact that T. he violated the norms of the legislation of the Republic of Kazakhstan, did not take proper measures to repay the debt imposed on him by an administrative penalty, is not married, is not officially employed. The Judicial Board of the Supreme Court considers these conclusions of the local courts to be justified on the following grounds. Thus, by virtue of the provisions of article 3 of the Law "On the Legal Status of Foreigners" (hereinafter referred to as the Law), foreigners in the Republic of Kazakhstan have all rights and freedoms, as well as bear all duties established by the Constitution, laws and international treaties of the Republic of Kazakhstan, with the exception of cases provided for by laws and international treaties of the Republic of Kazakhstan.

Disputes on the expulsion of foreign citizens without citizenship from the Republic of Kazakhstan

The use of their rights and freedoms by foreigners should not prejudice the interests of the Republic of Kazakhstan, the rights and legitimate interests of its citizens and other persons, and is inseparable from their performance of duties established by the legislation of the Republic of Kazakhstan. In accordance with article 28 of the Law, a foreigner may be expelled from the Republic of Kazakhstan if he has violated the legislation of the Republic of Kazakhstan. Thus, by granting foreigners equal rights with citizens of the Republic of Kazakhstan, the legislator, as an additional measure to protect the interests of the state and its citizens, provided for the possibility of expelling those foreigners who, by their actions, pose a threat to the security of both the state as a whole and its individual citizens. The materials of the civil case established that T. is a citizen of the Russian Federation, permanently residing in the territory of the Republic of Kazakhstan. On January 6, 2020, he was documented with a residence permit valid until May 30, 2027. During his stay in the territory of the Republic of Kazakhstan, he was brought to criminal responsibility under Article 190 of Part 1 of the Criminal Code of the Republic of Kazakhstan (fraud). On February 23, 2019, the criminal case against T. was terminated on the basis of paragraph 12 of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan in connection with the reconciliation of the parties. On March 2, 2019, he was brought to administrative responsibility under part 2 of Article 612 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) (driving a vehicle by a person without documents and without driving rights), with a fine of 37,875 tenge. As established by the court of first instance, at the time of consideration of the case, the fine imposed in the amount of 37,875 tenge had not been paid. On December 23, 2019, he was brought to administrative responsibility under part 4 of Article 492 of the Administrative Code (residence in the Republic of Kazakhstan without registration or without identity documents), with a fine of 25,250 tenge.

From the meaning of paragraph 14 of the normative resolution of the Supreme Court of December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan" it follows that courts, when deciding on expulsion in civil procedure, must take into account the offenses committed by a foreigner or a stateless person. Consequently, the court of first instance legitimately motivated the satisfaction of the application by pointing out that the citizen of the Russian Federation T. During his stay in Kazakhstan, he repeatedly violated the norms of current legislation and committed administrative offenses, which, in accordance with article 28 of the Law, is the basis for his expulsion. When making such a decision, the court of first instance took into account the fact that the defendant repeatedly showed disrespect for the requirements of national legislation and the foundations of the rule of law of the country that provided him with the opportunity to live with his family for a long time. Taking into account the above, the court of first instance made a legitimate conclusion that in order to strengthen law and order, prevent and suppress the commission of offenses by foreigners on the territory of Kazakhstan, T., who violated the legislation of the Republic, is subject to expulsion from the country. The panel considers the applicant's arguments that he is the sole support of his mother in raising his minor nephew and caring for his disabled grandmother, a group 1 disabled person, to be unfounded on the following grounds. T., being on the territory of the Republic from 2008 to the present, did not exercise the right to receive education and a specialty, although he had the opportunity to find a job as a minor, committed a criminal act, and subsequently, as an adult, intentionally committed two administrative offenses during 2019.

Disputes on the expulsion of foreign citizens without citizenship from the Republic of Kazakhstan

According to the board, such behavior characterizes the offender as a person who is irresponsible towards both himself and his close relatives. His guilt is confirmed by the evidence examined in court, namely, the decision to terminate the criminal case, the protocols of the administrative offense. At the same time, the guarantee of the realization of the right to judicial protection and a fair trial provides for ensuring real access of citizens to justice, strict observance of the judicial procedure, ensuring the rights and guarantees of participants in the judicial process, as well as the possibility of appealing court decisions. Accordingly, T. was granted the right to judicial protection, as he personally participated in the court of first instance and provided his explanations, as well as the right to file a cassation appeal. Thus, the inconsistency of the applicant's arguments that he was not provided with the right to defense in the court of first instance is evident. Also, T.'s arguments that he does not pose a danger to society do not entail the cancellation of the contested judicial act, since the fact that he committed a criminal offense and administrative offenses, that is, violations of the norms of current national legislation, is the basis for expelling a foreigner from the Republic of Kazakhstan. The applicant's arguments that he was not listed as an administrative debtor on the day of the decision on the case are also untenable, since, by virtue of Article 61 of the Administrative Code, the person on whom an administrative penalty has been imposed for an administrative offense is considered to have been subjected to this penalty within one year from the date of the end of the execution of the administrative penalty. 

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