On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4.
Warning. Throughout the text, the words "gcc", "gcc-інде" were replaced by the words "GCC", "in GCC", respectively-by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
Plenary Session of the Supreme Court of the Republic of Kazakhstan with the aim of uniform clarification and application of the rules of law on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan based on the results of the generalization of judicial practice
decided:
When considering cases of this category by the courts, the legislation of the Republic of Kazakhstan regulating the issues of expulsion of foreigners or stateless persons from the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan and includes the provisions of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), the Code of the Republic of Kazakhstan "on administrative offenses" (hereinafter referred to as the Administrative Code), the law of the Republic of Kazakhstan dated June 19, 1995 No. 2337 - The law on the legal status of foreigners), it should be borne in mind that it contains the norms of other regulatory legal acts.
At the same time, courts should be guided by the International Covenant on Civil and Political Rights (New York, December 16, 1966), the convention on the legal status of migrant workers and their family members of the Commonwealth of Independent States (Chisinau, November 14, 2008), the Treaty on the legal status of citizens permanently residing in the territory of one state of another (Moscow, April 28, 1998) and other international treaties ratified by the Republic of Kazakhstan.
Warning. Paragraph 1 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
In accordance with the law of the Republic of Kazakhstan" on the legal status of foreigners", a person who is not a citizen of the Republic of Kazakhstan and has proof of his / her belonging to the citizenship of another state is recognized as a foreigner. A person who is not a citizen of the Republic of Kazakhstan and does not have proof of his / her belonging to the citizenship of another state is recognized as a stateless person (Article 2).
Warning. Paragraph 2 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
Paragraph 3 of Article 10 of the law of the Republic of Kazakhstan dated April 6, 2016 No. 480-V" on legal acts " establishes that each of the normative legal acts of a lower level should not contradict the normative legal acts of a higher level. In accordance with paragraph 1 of Article 12 of this law, in the presence of contradictions in the norms of normative legal acts of various levels, the norms of an act of a higher level are applied.
Warning. Item 3 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (entered into force from the date of its first official publication).
Administrative removal and expulsion in the order of civil proceedings means the forced expulsion of foreigners or stateless persons from the Republic of Kazakhstan, carried out on the basis of a court decision (decision) for committing an administrative offense or violation of legislation, or their own passage by authorized bodies under control.
When considering cases of expulsion of foreigners or stateless persons, it is necessary to distinguish between administrative removal, which is applied in the procedure for implementing the norms of the Administrative Code, and expulsion, which is carried out in a special procedural procedure provided for by the civil code.
Administrative removal 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 section of the Administrative Code.
The use of exclusion:
implementation by foreigners, stateless persons, foreign legal entities and international organizations of activities that prevent and / or contribute to the nomination and election of candidates, political parties representing party lists, achieving a certain result in elections (Article 109 of the Administrative Code) ;
contact in public places (part three of Article 449 of the Administrative Code);
violation of the legislation on religious activities and religious associations (part three of Article 490 of the Administrative Code;
submission of knowingly false information to state bodies of the Republic of Kazakhstan upon receipt of identity documents or when applying for a permanent residence permit in the Republic of Kazakhstan or for admission to citizenship of the Republic of Kazakhstan or restoration of citizenship of the Republic of Kazakhstan (part two of Article 495 of the Administrative Code);
Violation of the regime at checkpoints across the state border of the Republic of Kazakhstan (part two of Article 513 of the Administrative Code);
Violation of the regime of the state border of the Republic of Kazakhstan (part two of Article 514 of the Administrative Code);
violation by a foreigner or stateless person of the legislation of the Republic of Kazakhstan in the field of Population migration (article 517 of the Administrative Code);
Involvement of foreign labor and labor immigrants in violation of the legislation of the Republic of Kazakhstan, illegal exercise of labor activity in the Republic of Kazakhstan by a foreigner or stateless person (part four of Article 519 of the Administrative Code);
When a serviceman performs duties to guard the state border of the Republic of Kazakhstan, the basis is disobedience to his legal order or requirement (part two of Article 516 of the Administrative Code).
Warning. Paragraph 6 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication); dated 31.03.2017 No. 2 (effective from the date of its first official publication).
The case on administrative removal from the Republic of Kazakhstan is considered on the day of receipt of the protocol on an administrative offense and other materials of the case.
In accordance with the second part of Article 51 of the administrative code, if a person, who may be removed administratively in the course of Administrative Proceedings, Reports on the commission of an act against him that is recognized as a serious or especially serious crime in accordance with the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), then the consideration of the case is postponed until a decision is made in accordance with the procedure established by the Code of Criminal Procedure.
Warning. Paragraph 7 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication); dated 31.03.2017 No. 2 (effective from the date of its first official publication).
When considering a case that entails the removal of a foreigner or stateless person from the Republic of Kazakhstan for committing an administrative offense, a person brought to administrative responsibility must necessarily participate.
Within a reasonable period specified in the decision on administrative eviction, these persons must leave the territory of the Republic of Kazakhstan (Part 2 of Article 822 of the Administrative Code).
The courts should understand a reasonable period as a period sufficient for the execution of the decree, taking into account the established administrative or criminal liability for the failure of a foreigner or stateless person to comply with the decision on expulsion adopted in relation to him.
Warning. Paragraph 9 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication).
Part 1 of Article 51 of the administrative code determines that its provisions do not apply in the case of expulsion of foreigners or stateless persons, applied in accordance with the procedure provided for by the Civil Procedure legislation of the Republic of Kazakhstan.
In accordance with Part 1 of Article 8 of the administrative code, administrative offenses, measures of administrative punishment, measures to ensure production in the case of an administrative offense and measures of administrative and legal influence are determined exclusively by the Administrative Code. In cases other than the grounds and procedure established by the administrative code, no one should be involved in administrative penalties, measures of administrative and legal influence or measures to ensure the proceedings on an administrative offense.
From the specified legal norms, it follows that a violation of the legislation, manifested in the commission of an administrative offense by a foreigner or stateless person, for which administrative removal is provided within the sanctions, is excluded from the number of grounds for expulsion of a person in civil procedure.
Warning. Paragraph 10 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication); dated 31.03.2017 No. 2 (effective from the date of its first official publication).
Consideration of cases at the request of the internal affairs bodies on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan for violation of the legislation of the Republic of Kazakhstan is carried out in a special procedural order (Chapter 49 of the APC).
Warning. Paragraph 11 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
The case on administrative removal from the Republic of Kazakhstan is considered on the day of receipt of the protocol on an administrative offense and other materials of the case.
In accordance with the second part of Article 51 of the administrative code, if a person, who may be removed administratively in the course of Administrative Proceedings, Reports on the commission of an act against him that is recognized as a serious or especially serious crime in accordance with the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), then the consideration of the case is postponed until a decision is made in accordance with the procedure established by the Code of Criminal Procedure.
Warning. Paragraph 7 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication); dated 31.03.2017 No. 2 (effective from the date of its first official publication).
When considering a case that entails the removal of a foreigner or stateless person from the Republic of Kazakhstan for committing an administrative offense, a person brought to administrative responsibility must necessarily participate.
Within a reasonable period specified in the decision on administrative eviction, these persons must leave the territory of the Republic of Kazakhstan (Part 2 of Article 822 of the Administrative Code).
The courts should understand a reasonable period as a period sufficient for the execution of the decree, taking into account the established administrative or criminal liability for the failure of a foreigner or stateless person to comply with the decision on expulsion adopted in relation to him.
Warning. Paragraph 9 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication).
Part 1 of Article 51 of the administrative code determines that its provisions do not apply in the case of expulsion of foreigners or stateless persons, applied in accordance with the procedure provided for by the Civil Procedure legislation of the Republic of Kazakhstan.
In accordance with Part 1 of Article 8 of the administrative code, administrative offenses, measures of administrative punishment, measures to ensure production in the case of an administrative offense and measures of administrative and legal influence are determined exclusively by the Administrative Code. In cases other than the grounds and procedure established by the administrative code, no one should be involved in administrative penalties, measures of administrative and legal influence or measures to ensure the proceedings on an administrative offense.
From the specified legal norms, it follows that a violation of the legislation, manifested in the commission of an administrative offense by a foreigner or stateless person, for which administrative removal is provided within the sanctions, is excluded from the number of grounds for expulsion of a person in civil procedure.
Warning. Paragraph 10 as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication); dated 31.03.2017 No. 2 (effective from the date of its first official publication).
Consideration of cases at the request of the internal affairs bodies on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan for violation of the legislation of the Republic of Kazakhstan is carried out in a special procedural order (Chapter 49 of the APC).
Warning. Paragraph 11 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
An application for expulsion of a foreigner or stateless person from the Republic of Kazakhstan for violation of the legislation of the Republic of Kazakhstan is submitted by the internal affairs bodies to the court at the place of stay (actual stay) and (or) registration of foreigners or stateless persons (article 382 of the Civil Code).
In accordance with the third part of Article 54 of the APC, an application for the expulsion of these persons may also be submitted by the prosecutor.
Warning. Paragraph 12 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
In connection with the requirements of Article 383 of the APC, the application for the expulsion of foreigners or stateless persons must contain circumstances certifying a violation of the legislation of the Republic of Kazakhstan.
The application for expulsion is accompanied by documents confirming the commission by these persons of violations of the legislation, which include legal acts of state bodies, including court decisions, resolutions, sentences.
Warning. Paragraph 13 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
When making a decision on expulsion in civil proceedings, the courts must take into account the offense committed by a foreigner or stateless person.
The courts should be guided by the relevant norms of the Administrative Code and the criminal code on the terms of lifting an administrative penalty, the consequences of canceling and obtaining a criminal record. A person is not considered to have suffered an administrative penalty within one year from the moment of execution of a court order (Article 61 of the Administrative Code). Cancellation or withdrawal of a criminal record cancels all legal consequences related to a criminal record (Part 9 of Article 79 of the criminal code).
Warning. Paragraph 14 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 24.12.2014 No. 3 (effective from the date of its official publication).
An application for expulsion of a foreigner or stateless person from the Republic of Kazakhstan is considered by the court within ten days from the moment of initiation of the case with the mandatory participation of a foreigner or stateless person, as well as a prosecutor. The absence of a foreigner or stateless person at the court session is the basis for postponing the consideration of the case (part two of Article 196 of the civil code), if there is no information about the notification in relation to him.
If the actual location of these persons is unknown and the application for their expulsion cannot be considered within the time limits established by law, the court is obliged to declare a search (part two of Article 133 of the APC), and also has the right to suspend proceedings in the case (subparagraph 8 of Article 273 of the APC).
Warning. Paragraph 15 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
The deadlines set by the court for expulsion must be reasonable.
When determining the deadline for a foreigner or stateless person to leave the territory of the Republic of Kazakhstan, it is necessary to take into account the specifics of financing expulsion procedures.
In accordance with the third part of Article 384 of the civil code, legal costs, as well as expenses for expulsion, are borne by expatriates or stateless persons who are being expelled, or by organizations or individuals who have invited them to the Republic of Kazakhstan. In cases where these persons do not have or do not have enough funds to cover the costs of expulsion, financing of the relevant activities is carried out at the expense of budget funds.
Warning. Paragraph 16 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
A court decision on expulsion of a foreigner or stateless person from the Republic of Kazakhstan comes into legal force from the date of its adoption and is the basis for expulsion of a foreigner or stateless person from the Republic of Kazakhstan (article 385 of the Civil Code).
Warning. Paragraph 17 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).
In connection with the requirements of Article 401 of the civil code, the decision of the court on the expulsion of a foreign or stateless person outside the Republic of Kazakhstan is not subject to appeal and review in an appeal and at the request of the prosecutor, but may be reviewed in a cassation manner.
It should be noted that the possibility of reviewing the appeal without observing the appeal procedure depends on the provisions of Article 13 of the International Covenant on Civil and Political Rights (New York, December 16, 1966, ratified by the law of the Republic of Kazakhstan dated November 28, 2005 No. 91-III, entered into force for the Republic of Kazakhstan on April 24, 2006).
When making a decision on expulsion to the courts, explain in the resolution part of the decision the need to indicate the right to appeal a judicial act in a cassation manner.
A decision that refuses to satisfy an application for expulsion of a foreigner or stateless person outside the Republic of Kazakhstan enters into legal force in accordance with the rules of Article 240 of the civil code and may be appealed on appeal in accordance with the procedure provided for in the rules of Article 403 of the civil code.
In case of receipt of a complaint or protest no later than the deadline established for expulsion, the court decision on expulsion of a foreigner or stateless person outside the Republic of Kazakhstan is subject to suspension until the Cassation instance makes a decision (article 386 of the Civil Code). In this case, the issuance of a separate judicial act is not required. If the court decision on expulsion is left unchanged, the decision of the Cassation instance indicates a new period for which a foreigner or stateless person must leave the territory of the Republic of Kazakhstan.
Warning. Item 18 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 20.04.2018 No. 7 (effective from the date of its first official publication).
In accordance with Article 4 of the Constitution of the Republic of Kazakhstan, this normative resolution is included in the composition of the current law, and is also universally binding and comes into force from the date of its official publication.
The Republic Of Kazakhstan
Chairman Of The Supreme Court
K. Mami
The Republic Of Kazakhstan
Judge of the Supreme Court,
Secretary of the plenary session
D. Nuralin
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