Expulsion of a citizen from the Republic of Kazakhstan
On July 20, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of the chairman N.K., judges R., A., with the participation of a representative of the defendant G., considered in open court via mobile videoconference a civil case initiated at the request of the State Institution "Police Department" on the expulsion of a citizen of the Kyrgyz Republic from the Republic of Kazakhstan. Of the Republic of G., received at the request of the representative of G. – G.Zh. for a cassation review of the decision of the City court of April 11, 2022,
The State Institution "Police Department" (hereinafter referred to as the Department) has submitted an application for the expulsion of a citizen of the Kyrgyz Republic G. from the Republic of Kazakhstan.
By the decision of the city court of April 11, 2022, the application of the Department was satisfied, the citizen of the Kyrgyz Republic G., born on May 12, 1976, was expelled from the Republic of Kazakhstan. A 7-day period has been set for travel outside the Republic of Kazakhstan. A state fee in favor of the state in the amount of 1,531 tenge has been collected from the city.
In the petition, G. pointed out that the court's conclusions contradict the evidence examined during the consideration of the case and the circumstances established at the court session, the norms of substantive and procedural law were incorrectly applied, he asked to cancel the decision of the court of first instance, to leave the application of the migration service without satisfaction.
The judicial Board, having listened to the defendant's opinion in support of the petition, examined the case documents, and discussed the arguments of the petition, came to the following conclusions.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law, resulting in the issuance of an unlawful judicial act.
Such violations were committed in the case.
If the facts relevant to the case are recognized as permissible at a court hearing in accordance with the requirements of the law and are confirmed by reliable evidence or correspond to well-known circumstances that do not require evidence, or
If the evidence collected in the case is sufficient to resolve the dispute, then such a decision is considered justified.
The court's decision on the case does not meet the above-mentioned requirements of the law.
As follows from the case documents, G. lives in Kazakhstan, supports a son born in 2010 and a daughter born in 2015, duly issued the necessary documents for work, received an individual identification number (IIN) and works as a driver based on an employment contract dated October 25, 2021, concluded with individual entrepreneur M.
On February 22, 2022, upon non-compliance with the requirements provided for by road signs or markings on the carriageway, an employee of the highway patrol police was brought to justice under Part 1 of Article 601 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), with a fine of 3 monthly calculation indices in the amount of 9 189 tenge. According to the receipt dated February 24, 50% of the fine was paid, i.e. 4,594 tenge.
The court of first instance concluded that the management's application was satisfied, taking into account the fact that G. was found guilty of committing an administrative offense under Part 1 of Article 601 of the Administrative Code on the territory of the republic, and a fine was imposed on him.
The Judicial Board of the Supreme Court considers that the conclusions of the court of first instance do not correspond to the circumstances of the case on the following grounds and the court's decision was made in violation of substantive law.
In accordance with article 28 of the Law of the Republic of Kazakhstan "On the Legal Status of Foreigners" (hereinafter referred to as the Law), a foreigner may be expelled from the Republic of Kazakhstan if he has violated the legislation of the Republic of Kazakhstan, his actions contradict the interests of ensuring state security or protecting public order, this is necessary to protect the health and morals of the population, protect the rights and legitimate interests of interests of citizens of the Republic of Kazakhstan and other persons.
According to the content of this norm, a foreigner who has violated the legislation of the Republic of Kazakhstan may be expelled from the republic if his actions contradict the interests of ensuring state security or protecting public order, which is necessary to preserve the health and moral qualities of the population.
According to the case documents, G., while residing in Kazakhstan, committed an administrative offense once and was found guilty, that is, his actions do not contradict the interests of ensuring state security or protecting public order.
In addition, according to Article 27 of the Administrative Code, an administrative offense is considered to have been committed by negligence if
the individual who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient reason thoughtlessly counted on their prevention or did not foresee the possibility of such consequences, although with due care and foresight he should have and could have foreseen them. Also, paragraph 8) of Part 1 of Article 56 of the Administrative Code provides that circumstances mitigating liability for an administrative offense are recognized as the commission of an administrative offense for the first time through negligence.
At the same time, the court did not assess the administrative offense committed by G. for the first time due to negligence.
In accordance with the explanations given in paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan", administrative expulsion of foreigners or stateless persons from the Republic of Kazakhstan may be applied as the main or additional administrative penalties imposed in accordance with the procedure and on the grounds established by the special part of the Administrative Code.
In addition, the local courts did not take into account that G. committed the offense by negligence, had no negative consequences for road users, voluntarily paid the fine imposed, because of his actions the rights and legitimate interests of the Republic of Kazakhstan and its citizens were not violated, and was duly registered in the region.
In accordance with paragraph 15 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan", the court considers an application for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan with the mandatory participation of a prosecutor.
However, the court of first instance ignored the above-mentioned norms, and the case was considered without the participation of a prosecutor.
Considering the above, the judicial board of the Supreme Court considers that there are grounds for making a new decision to reject the Office's application for the expulsion of a citizen of the Kyrgyz Republic from the Republic of Kazakhstan.
Guided by paragraph 8) of Part 2 of Article 451 of the Civil Procedure Code of the Republic of Kazakhstan, the judicial board DECIDED:
To cancel the decision of the city court of April 11, 2022.
To make a new decision on the civil case.
The application of the State Institution "Police Department" for the expulsion of a citizen of the Kyrgyz Republic from the Republic of Kazakhstan should be left without satisfaction.
To satisfy the petition of G.Zh., the representative of G.Zh.
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