Judicial practice of considering cases on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan

Based on the results of the generalization of judicial practice, in order to uniformly interpret and apply the norms of law on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

When considering cases of this category, the courts should take into account that the legislation of the Republic of Kazakhstan regulating the expulsion of foreigners or stateless persons from the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan and includes the norms of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), the Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter – CAO), the Law of the Republic of Kazakhstan dated June 19, 1995 "On the legal status of foreigners", and other regulatory legal acts.

The courts also need to 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 Members of Their Families of the Member States of the Commonwealth of Independent States (Chisinau, November 14, 2008), the Treaty on the Legal Status of Citizens of One State Permanently Residing in the Territory of of another State (Moscow, April 28, 1998) and other international treaties ratified by the Republic of Kazakhstan.

In accordance with the Law of the Republic of Kazakhstan "On the Legal status of Foreigners", foreigners are persons who are not citizens of the Republic of Kazakhstan and have proof of their citizenship of another state. Persons who are not citizens of the Republic of Kazakhstan and who do not have proof of their citizenship of another State are recognized as stateless persons (Article 2).

Paragraph 3 of Article 4 of the Law of the Republic of Kazakhstan dated March 24, 1998 "On Normative Legal Acts" establishes that each of the normative legal acts of the lower level should not contradict the normative legal acts of the higher levels.

In accordance with paragraph 1 of Article 6 of this Law, if there are contradictions in the norms of normative acts of different levels, the norms of a higher-level act apply. It follows from these norms that Article 28 of the Law of the Republic of Kazakhstan "On the Legal Status of Foreigners", which contradicts the Administrative Code and the CPC, is not applicable in terms of making a decision on the expulsion of foreigners or stateless persons not only by a court, but also by authorized state bodies.

In terms of content, administrative expulsion and expulsion in civil proceedings constitute the forced or independent transfer of foreigners or stateless persons controlled by authorized bodies outside the Republic of Kazakhstan, carried out on the basis of a court order (decision) for committing an administrative offense or violation of the law.

When considering cases of expulsion of foreigners and stateless persons, it is necessary to distinguish between administrative expulsion applied in the order of implementation of the norms of the Administrative Code and expulsion carried out in the order of special proceedings provided for by the CPC.

Administrative expulsion of foreigners or stateless persons from the Republic of Kazakhstan may be applied as a primary or additional administrative penalty imposed in accordance with the procedure and on the grounds established by the special part of the Administrative Code.

The grounds for the application of expulsion are: the conduct by foreigners, stateless persons, foreign legal entities and international organizations of activities that hinder and (or) facilitate the nomination and election of candidates, political parties that have nominated a party list, to achieve a certain result in elections (Article 102-3); 1/2014 violation of legislation on public associations (Article 374); violation of legislation on religious activities and religious associations (article 375); submission of deliberately false information to the 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 (Article 380); violation of the legislation on citizenship of the Republic of Kazakhstan (Article 380-2); violation of the regime at checkpoints across the State Border of the Republic of Kazakhstan (Article 391); violation of the regime of the State Border of the Republic of Kazakhstan (Article 391-1); violation by a foreigner or a stateless person of the rules of stay in the Republic of Kazakhstan (Article 394); violation of the rules for attracting foreign labor and illegal employment by a foreigner or a stateless person in the Republic of Kazakhstan (Article 396).

The case of administrative expulsion from the Republic of Kazakhstan is considered on the day of receipt of the protocol on the administrative offense and other case materials.

According to part 2 of Article 56 of the Administrative Code, if in the course of administrative proceedings a person against whom administrative expulsion may be applied reports an act committed against him that is recognized as a grave or especially grave crime in accordance with the Criminal Code (hereinafter referred to as the Criminal Code), then consideration of the case is postponed until a decision is made in accordance with the procedure established by the Criminal Procedure Code. the code.

When considering a case of an administrative offense, the commission of which entails the expulsion from the Republic of Kazakhstan of a foreigner or a stateless person, the presence of a person brought to administrative responsibility is mandatory.

The decision on administrative expulsion specifies a reasonable period during which the named persons must leave the territory of the Republic of Kazakhstan (part 2 of Article 651 of the Administrative Code). A reasonable period of time should be understood by the courts as a sufficient period for the execution of the decision, taking into account the established administrative and criminal liability for failure by a foreigner or a stateless person to comply with the decision to expel him (Article 394-1 of the Administrative Code, Article 330-1 of the Criminal Code).

Part 1 of Article 56 of the Administrative Code defines that its provisions do not apply to cases 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 9 of the Administrative Code, administrative offenses and the administrative and legal measures imposed for their commission are determined only by this Code. No one may be subjected to administrative penalties, administrative and legal measures, or measures to ensure proceedings in an administrative offense case, except on the grounds and in accordance with the procedure established by the Administrative Code. It follows from these legal norms that a violation of the law, expressed in the commission by a foreigner or a stateless person of an administrative offense, providing for administrative expulsion as sanctions, is excluded from the grounds for expelling a person in a civil procedure.

Consideration of cases on the application of internal affairs bodies for 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 procedure (Chapter 36-4 of the CPC).

An application for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan for violating the legislation of the Republic of Kazakhstan is submitted by the internal affairs bodies to the court at the place of residence (actual location) of foreigners or stateless persons and (or) at the place of their registration (Articles 317-12 of the CPC).

An application for the expulsion of these persons in accordance with part 3 of Article 55 of the CPC may be submitted by the prosecutor. Due to the requirements of Articles 317-13 of the CPC, the statement on the expulsion of foreigners or stateless persons must set out the circumstances indicating violations of the legislation of the Republic of Kazakhstan. The application for expulsion shall be accompanied by documents confirming that these persons have committed violations of the law, which include legal acts of authorized state bodies and court decisions, resolutions, and verdicts.

When making a decision on expulsion in a civil procedure, the courts must take into account the offenses committed by a foreigner or a stateless person. Courts should be guided by the relevant norms of the Administrative Code and the Criminal Code on the period of lifting an administrative penalty, the consequences of repayment and removal of a criminal record. A person is not considered to have been subjected to an administrative penalty after one year from the date of execution of a court decision (Article 66 of the Administrative Code). The cancellation or removal of a criminal record cancels all legal consequences related to a criminal record (part 7 of Article 77 of the Criminal Code).

The court considers an application for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan within ten days from the moment of initiation of the case with the mandatory participation of the foreigner or stateless person, as well as the prosecutor.

Failure to appear at a court hearing of a foreigner or a stateless person, in respect of whom there is no information about the notification, is the basis for postponing the trial (part 2 of Article 187 of the CPC). If the actual place of stay is unknown and it is impossible to consider the application for the expulsion of these persons within the time limits established by law, the court is obliged to declare a search (part 2 of Article 135 of the CPC), and also has the right to suspend the proceedings (subparagraph 4) of Article 243 of the CPC).

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