On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan
Based on the results of the generalization of judicial practice, the plenary session of the Supreme Court of the Republic of Kazakhstan decided to uniformly clarify and apply the rules of law on the expulsion of foreigners or stateless persons from the Republic of Kazakhstan:
The legislation of the Republic of Kazakhstan regulating the issues of expulsion of foreigners or stateless persons from the Republic of Kazakhstan when considering cases of this category by the courts is based on the Constitution of the Republic of Kazakhstan and includes the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of Administrative Offenses), the code of the Republic of Kazakhstan "on administrative offenses" (hereinafter referred to as the code of Civil Procedure of the Republic of Kazakhstan), the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan). – Administrative code), contains the norms of the law of the Republic of Kazakhstan dated June 19, 1995" on the legal status of foreigners", 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.
On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan
According to the law" 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). 3.Paragraph 3 of Article 4 of the law of the Republic of Kazakhstan dated March 24, 1998" on normative legal acts " defines that each of the normative legal acts of the lower level should not contradict the normative legal acts of the higher level. In accordance with paragraph 1 of Article 6 of this law, in the presence of contradictions in the norms of normative acts of different levels, the norms of an act of a higher level are applied. As follows from the specified norms, Article 28 of the law "on the legal status of foreigners", which contradicts the Administrative Code and the code of administrative offenses, is not subject to application in the part where not only the court, but also the state bodies authorized to do so make a decision on the expulsion of foreigners or stateless persons.
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 administrative 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.
Exclusion can be applied: foreigners, stateless persons, foreign legal entities and international organizations to nominate and elect candidates, political parties that have nominated party lists, to carry out activities that prevent and (or) contribute to achieving a certain result in elections (article 102-3); violation of the laws on public associations (article 374); violation of the legislation on religious activities and religious associations (article 375); submission of deliberately false information to state bodies of the Republic of Kazakhstan when receiving identity documents or 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 of the Republic of Kazakhstan on citizenship (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 of the rules of stay of a foreigner or stateless person in the Republic of Kazakhstan (article 394); violation of the rules for attracting foreign labor in the Republic of Kazakhstan and illegal exercise of labor activity by a foreigner or stateless person (article 396) are grounds.
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 Part 2 of Article 56 of the administrative code, if a person who may be removed administratively in the course of administrative proceedings reports that an act has been committed against him, which, in accordance with the Criminal Code (hereinafter referred to as the criminal code), is recognized as a serious or especially serious crime, 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.
When considering a case leading to 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 be present.. 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 651 of the Administrative Code). The courts should understand a reasonable period as a sufficient period 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 against him (article 394-1 of the Administrative Code, Article 330-1 of the criminal code).
Part 1 of Article 56 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. An administrative offense in accordance with Part 1 of Article 9 of the administrative code and the measures of administrative and legal influence applied for its commission are established only by this code.
In cases other than the grounds and procedure established by the administrative code, no one should be involved in administrative penalties, administrative measures of 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 proceedings.
Consideration of cases at the request of the internal affairs bodies on 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 36-4 of the Civil Code). 12.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 317-12 of the Civil Code).
In accordance with Part 3 of Article 55 of the code of criminal procedure, an application for the expulsion of these persons may also be submitted by the prosecutor, in connection with the requirements of Article 317-13 of the code of criminal procedure, 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.
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 66 of the Administrative Code). Cancellation or withdrawal of a criminal record cancels all legal consequences related to a criminal record (Part 7 of Article 77 of the criminal code).
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 2 of Article 187 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 2 of Article 135 of the civil code), as well as have the right to suspend proceedings in the case (subparagraph 4 of Article 243 of the civil code).
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