On the review of Article 65 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" for compliance with the Constitution of the Republic of Kazakhstan
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated April 16, 2025 No. 70-NP.
IN THE NAME OF THE REPUBLIC OF KAZAKHSTAN
The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Kydyrbaeva A.K., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of:
Danilova Yu.V. – the legal representative of the minor R.,
representatives:
Ministry of Justice of the Republic of Kazakhstan – Director of the Department of Legislation Suleimenov D.A.,
Ministry of Internal Affairs of the Republic of Kazakhstan – T.K. Abilov, Head of the Department of Population Documentation and Internal Migration Accounting of the Migration Service Committee.,
Ministry of Education of the Republic of Kazakhstan – Deputy Chairman of the Committee for the Protection of Children's Rights Ovechkina Y.R.,
Ministry of Culture and Information of the Republic of Kazakhstan – Deputy Chairman of the Committee for the Development of Interethnic Relations A.B. Bekbaeva,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Chief Consultant of the Department of Legislation R.T. Baitelenov,
Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,
National Center for Human Rights – Head of the Department of Civil and Political Rights, D.K. Sariev.,
Institute of Legislation and Legal Information of the Republic of Kazakhstan – Chief Researcher of the Department of Analysis of the effectiveness of Legislation Turk N.N.,
Institute of Parliamentarism – Executive Director Kanatov A.K.,
Public Association "Kazakhstan International Bureau for Human Rights and Rule of Law" – Director Zhovtis E.A.,
On September 26, 2024, in an open meeting, he considered an appeal for verification of compliance with the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution, Basic Law) of Article 65 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" (hereinafter referred to as the KBS).
Having listened to the speaker, judge of the Constitutional Court of the Republic of Kazakhstan Podoprigora R.A. and the participants of the meeting, having studied the conclusions of the head of the Department of Constitutional, International Law and Customs Affairs of Kunaev University, Doctor of Law Aitkhozhin K.K., academic Professor of the Higher School of Law "Adilet" of the Caspian Public University, Candidate of Law Karaev A.A. and other materials of the constitutional proceedings, having analyzed the norms of the legislation of the Republic of Kazakhstan and individual foreign countries, international experience, judicial practice, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) received an appeal for consideration of compliance with paragraph 1 of Article 19 of the Constitution of Article 65 of the KBS.
It follows from the content of the appeal and the documents attached to it that the subject of the appeal was refused by the civil registration service to indicate the nationality of the mother in the birth certificate. Making such an indication would make it possible to determine his nationality in the absence of documents confirming the identity of the mother. Information and documents about the father of the subject of the appeal are also missing. Subsequently, by a decision of the Saransk City Court of the Karaganda region dated June 14, 2023 (hereinafter referred to as the decision of the court of first instance), the applicant was denied the requirement to establish the fact of nationality, which has legal significance. In support of its decision, the court stated that it was impossible to establish the fact of nationality of the minor R. due to the fact that his mother's nationality had not been documented. The decision of the court of first instance was upheld by the court of appeal (resolution of the Judicial Board for Civil Cases of the Karaganda Regional Court dated August 21, 2023). In these judicial acts, article 65 of the KBS was applied, which stipulates that the nationality of a child is determined by the nationality of his parents and it can only be changed to the nationality of the other parent.
The subject of the appeal believes that article 65 of the KBS contradicts paragraph 1 of Article 19 of the Constitution, according to which everyone has the right to determine and indicate or not indicate their nationality.
When verifying the constitutionality of Article 65 of the KBS, the Constitutional Court proceeds from the following.
1. The Republic of Kazakhstan is a multinational State in which ensuring civil peace and interethnic harmony, intolerance to any manifestations of ethnic exclusivity and isolation, and non-discrimination of citizens on cultural, linguistic, ethnic, and religious grounds are recognized as one of the most important priorities of state policy. These priorities are reflected in the Constitution, which stipulates that:
No one may be discriminated against in any way on the grounds of origin, race, nationality, language, attitude to religion, beliefs (paragraph 2 of article 14);
propaganda or agitation of social, racial, national, religious, class and clan superiority is prohibited (paragraph 3 of Article 20);
Any actions capable of violating interethnic and interfaith harmony are considered unconstitutional (article 39, paragraph 2).
Citizens of various nationalities, who make up the united people of Kazakhstan, represent a diversity of cultures and traditions, which is a significant cultural heritage and social value, contributes to the stable and harmonious development of the country and is subject to protection by the state and society. In accordance with subparagraph 11) of paragraph 2 of Article 4 of the Law of the Republic of Kazakhstan dated December 15, 2006 "On Culture", ensuring the realization of citizens' rights to the protection and development of national and cultural identity is one of the main tasks of the State in the field of culture. According to paragraph 2 of Article 19 of the Basic Law, everyone has the right to use their native language and culture, to freely choose the language of communication, upbringing, education and creativity.
Recognizing the value and importance for a person of identifying with a certain ethnic group, the Constitution, in accordance with paragraph 1 of article 19, grants everyone the right to determine their nationality and the right to indicate or not indicate it. According to the meaning of this norm, nationality refers to belonging to a certain ethnic community, and not to the state, respectively, it is not related to citizenship. This approach is also enshrined in the current legislation of the Republic of Kazakhstan. According to article 9 of the Law of the Republic of Kazakhstan dated August 8, 2002 "On the Rights of the Child in the Republic of Kazakhstan", every child has the right to nationality and citizenship from the moment of birth.
The definition of nationality is an expression and manifestation of individual freedom and is directly related to the right to individuality, which a child also possesses from birth. The State undertakes to respect the child's right to preserve his or her identity, including citizenship, name and family ties, as provided for by law, without allowing unlawful interference (paragraph 1 of article 8 of the Convention on the Rights of the Child dated November 20, 1989, ratified by the resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994 (hereinafter – the Convention).
National origin is one of the components of a child's personality and, for various reasons and to varying degrees, may be of significant importance to him. Belonging to an ethnic community can be important in terms of both self-awareness and awareness of belonging to certain traditions, language, culture, lifestyle, place of birth and residence. National identification also makes it possible to emphasize the importance of a person's connection with previous generations of his family, the desire to preserve his ethnic group and the inherent features of national identity in the present and future.
National identity can also be important in various legal relationships.
Thus, in accordance with paragraph 1 of Article 118 of the KBS, the nationality of a child, as well as belonging to a certain religion and culture, and the native language are taken into account when arranging for orphaned children and children left without parental care. A similar provision is contained in article 20 of the Convention: when deciding on issues related to the care of a child deprived of a family environment, his ethnic origin, religious and cultural affiliation and native language must be taken into account.
The definition and subsequent indication of nationality may be important for citizens when receiving appropriate state support measures (for example, in cases of Kandas, ethnic Kazakhs, foreigners or stateless persons of Kazakh nationality), repatriation, etc.
2. The Constitution does not contain conditions or procedures for determining, specifying, or changing nationality. The relevant provisions on this are fixed in the KBS and other regulatory legal acts of various levels.
According to article 65 of the KBS, the nationality of a child is determined by the nationality of his parents (paragraph 1). If the nationality of the parents is different, it is determined at the request of the child in accordance with the nationality of the father or mother when issuing an identity card or passport (paragraph 2). In the future, the nationality of the child may be changed upon his application only to the nationality of the other parent (paragraph 3). Thus, this article of the KBS contains the only option for determining the nationality of a child or changing it, which is related to the nationality of the parents.
In accordance with subparagraph 4) Paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan dated January 29, 2013 "On Identity documents", nationality, at the request of the owner, is indicated in identity documents (identity card of a citizen of the Republic of Kazakhstan, passport of a citizen of the Republic of Kazakhstan, diplomatic and service passports of the Republic of Kazakhstan). This rule does not apply to the birth certificate.
Article 193 of the KBS states: "If, when registering a birth, the applicant expresses a desire to indicate the nationality of the parents, then in the record of the child's birth certificate, the nationality of the parents – citizens of the Republic of Kazakhstan – is indicated in accordance with the nationality indicated in the identity documents of citizens of the Republic of Kazakhstan." Subparagraph 9) of Article 201 of the KBS stipulates that the record of the child's birth certificate contains information about the nationality of the parents, if it is indicated in the identity documents.
In accordance with paragraph 176 of the Rules for the organization of state registration of acts of civil status, amendments, corrections, additions, cancellation and restoration of acts of civil status, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated February 25, 2015 No. 112, the nationality of a person in acts of civil status is indicated by an identity document.
Based on the provisions of paragraphs 9 and 16 of the Rules for Registration, Issuance, Replacement, Surrender, Withdrawal and Destruction of a passport of a citizen of the Republic of Kazakhstan, an identity card of a citizen of the Republic of Kazakhstan, a residence permit for a foreigner in the Republic of Kazakhstan, a certificate of a stateless person and a travel document approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 30, 2023 No. 532 when filling out a passport or identity card of a citizen of the Republic of Kazakhstan, nationality is recorded in accordance with the document that served as the basis for their issuance.
In the Rules for registration, filling in, accounting, storage, transfer, expenditure, and destruction of the form for the production of identity documents (except for the refugee certificate), approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 31, 2016 No. 583 (hereinafter referred to as Rules No. 583), it is noted that the entry of nationality in the passport and identity card Identification is made according to the nationality of the parents. With different nationalities of parents, a citizen of the Republic of Kazakhstan voluntarily chooses the nationality of his father or mother. Subsequently, upon his application, the nationality is changed only to the nationality of the other parent. As an exception, it is allowed to change the record of nationality in the passports and identity cards of citizens of the Republic of Kazakhstan who were forcibly relocated to the territory of the Republic of Kazakhstan during the period of repression. Appendix 2 to Regulation No. 583 contains a reference book of nationality codes, which is used when completing and filling out the relevant forms.
Thus, the approach outlined in the KBS is also applied in other regulatory legal acts that apply not only to the child. Since the data of the parents, including their nationality, are recorded in the record and birth certificate (as a rule, in the initial identity document), it is these records and birth certificates that are the primary and main documents for determining the nationality of the child and then indicating it in other identity documents.
In the absence of an indication of the nationality of the parents in the registration and birth certificate, state authorities, as law enforcement practice shows, may refuse to indicate the nationality in other identity documents, as well as to change the nationality in documents, which forces citizens to apply to the courts (with applications to establish the legal fact of belonging to nationality, to establish the inaccuracy of records acts of civil status or with claims for amendments to relevant documents and other issues). In judicial practice, there are cases of satisfaction of such applications and claims, as well as refusals to satisfy them, as well as refusals to accept applications as not subject to consideration and resolution in civil proceedings.
3. The contested and other norms of the current legislation of the Republic of Kazakhstan and law enforcement practice related to the issues of determining, specifying and changing nationality indicate significant obstacles to the realization of citizens' rights provided for in paragraph 1 of Article 19 of the Constitution.
This paragraph of the Constitution speaks about interrelated rights: the right to determine and the right to indicate or not to indicate nationality, understood as belonging to a particular ethnic community. The right to determine nationality is primarily related to a person's inner freedom, while the right to indicate such an affiliation is related to the need for an external expression of a person's decision about his nationality, which may have legal significance for him in the future.
Regarding the definition of nationality, paragraph 1 of article 19 of the Constitution grants everyone the right to voluntarily and independently determine such an affiliation. Within the meaning of this article of the Constitution, the definition of nationality is the result of a person's self–identification, which can be affected by various factors: family and kinship ties, the environment in which a person was raised, his stay in a specific socio-cultural environment, and others.
Everyone has the right to associate their choice with the ethnicity of their parents, but due to various life circumstances, the definition of nationality cannot be limited to just such a choice. In specific situations, a person cannot always determine the nationality of his parents due to objective (for example, if the parents are not known) or subjective (for example, wanting to accept the nationality of the person who actually raised him) reasons. Due to various factors, ethnic identity can change, which also depends on the choice of the person himself and is covered by the right to determine nationality. No one can be forced to determine their nationality.
Everyone also has the right to indicate or not indicate their nationality. It assumes that everyone decides for themselves whether such an indication is necessary, and no one can require a person to indicate their nationality. This right is implemented in official documents if they contain information about nationality. Specifying information about nationality or unwillingness to specify it cannot affect the scope of human rights, freedoms and duties, or lead to their restriction.
Recognizing that the right to determine and indicate one's nationality is based on a person's ethnic self-identification, the Constitutional Court considers that in cases where nationality is indicated in identity documents at the request of a person (which is a form of official confirmation by the State of ethnicity), and in a positive (non-discriminatory) sense affects the granting of rights, benefits, preferences, or may have any other legal significance for a person, such identification should not be based solely on a person's desire., his subjective preferences are to belong to a certain nationality. In this regard, the State may verify the information provided by persons when indicating their nationality, or establish rules according to which a person's belonging to an ethnic community is confirmed. According to subparagraph 1) of paragraph 3 of Article 61 of the Constitution, the Parliament of the Republic of Kazakhstan has the right to issue laws that regulate the most important public relations, establish fundamental principles and norms concerning the legal personality of individuals and legal entities, civil rights and freedoms, obligations and responsibilities of individuals and legal entities. Evidence of nationality can be not only within the framework of family ties (taking into account varying degrees of kinship) or contained in relevant documents, but also be in the plane of belonging to a particular culture, common language, traditions, religion, lifestyle.
This approach is consistent with the experience of other States where ethnic identity is also not sufficient to address immigration issues, provide benefits or advantages to individuals in the context of positive discrimination and other issues. The right of State bodies to require objectively verifiable evidence of the declared ethnicity of citizens is also recognized in the practice of international courts.
4. Article 65 of the KBS contains a provision on determining and changing the nationality of a child based only on the nationality of the parents. The Constitutional Court believes that this approach does not fully comply with the constitutional and legal meaning of paragraph 1 of Article 19 of the Constitution, according to which the definition of nationality as a result of an internal choice of a person cannot be categorically conditioned. The State has the right to verify information about the declared nationality if the person intends to indicate it in identity documents or in other cases involving legal consequences. But it has no right to determine without alternative how a person's nationality should be determined, and thus interfere in matters of a person's choice. Article 65 of the KBS, providing for the definition of nationality only by the nationality of the parents, does not allow any other choice, thereby limiting the human rights specified in paragraph 1 of Article 19 of the Constitution. In accordance with paragraph 3 of article 39 of the Constitution, in no case are the rights and freedoms provided for in this article subject to restriction.
The Constitutional Court recognizes that the nationality of parents is the dominant criterion in determining, specifying and changing nationality, which is understandable and justified from the point of view of national, cultural and family traditions. Such a choice emphasizes respect for the ethnic group, history, language, ensures cultural and spiritual continuity of generations, promotes unity and preservation of the ethnic community. The definition of a child's nationality based on the nationality of his parents or one of them is closely interrelated with the constitutional provisions on the protection of the institutions of marriage and family, motherhood, fatherhood and childhood, that the care of children and their upbringing are the natural right and duty of parents (paragraphs 1 and 2 of article 27 of the Constitution). This definition is also interrelated with the constitutional right of everyone to use their native language and culture (paragraph 2 of article 19 of the Constitution).
At the same time, the Constitutional Court notes that Article 65 of the KBS does not take into account various life situations when determining and changing the nationality of a child solely based on the nationality of the parents is impossible. For example, the identity of the parents may be unknown, or there may be no documents or information in them confirming the nationality of the parents. This article also does not take into account situations when a child is placed in a family for upbringing or is being raised in an organization for orphaned children, children left without parental care, and wishes to adopt a nationality different from the nationality of the parents, due to his stay and upbringing in a different national and cultural environment, etc.
5. In the opinion of the Constitutional Court, when State bodies decide issues related to nationality, along with the nationality of parents, other circumstances and factors caused by various life situations should be taken into account in special cases. Such situations may be related, in particular, to the fact that both parents of the child are not known, to the lack of documents or relevant records in them about the nationality of the parents (parent), the actual upbringing of the child by persons who are not his parents, the desire to restore the true nationality lost for various reasons. In specific situations, the nationality of not only the parents, but also the grandparents and other close relatives, the persons actually raising the child, as well as other objective and reliable evidence of nationality can be taken into account. Such evidence may be contained in various documents, materials, and other sources.
The Constitutional Court draws attention to the fact that Article 65 of the KBS regulates issues related to the nationality of the child only. As the law enforcement practice investigated during the constitutional proceedings shows, this article is also applied by analogy to adults. This indicates that such issues regarding such persons remain unresolved and require proper legal regulation, taking into account the constitutional and legal meaning of paragraph 1 of Article 19 of the Constitution in order to avoid restrictions on their rights.
The Constitutional Court considers that the right to change nationality provided for in paragraph 3 of Article 65 of the KBS is derived from the right to determine nationality, respectively, the constitutional right to determine one's nationality covers the right to change one's nationality.
Based on the above, guided by paragraph 3 of Article 72 and paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62, paragraph 3 of article 63, paragraph 4 of Article 64 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan
Decides:
1. To recognize article 65 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" as inconsistent with the Constitution of the Republic of Kazakhstan in the part that does not provide for other ways to determine and change the nationality of a child in cases where the parents are not known or it is not possible to establish their nationality, as well as in other life situations affecting the legitimate interests of a citizen.
2. The Government of the Republic of Kazakhstan shall, no later than six months from the date of publication of this regulatory resolution, submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law on amendments and additions to legislative acts of the Republic of Kazakhstan in accordance with the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.
To inform the Constitutional Court of the Republic of Kazakhstan about the measures taken within the specified period.
3. Paragraph 1 of Article 19 of the Constitution of the Republic of Kazakhstan and this decision of the Constitutional Court of the Republic of Kazakhstan are directly applied until appropriate amendments and additions are made to regulatory legal acts.
4. This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, final and not subject to appeal.
5. To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.
Constitutional Court of the Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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