On recognition as illegal and cancellation of the conclusion, on the obligation to send a message on making adjustments to the database

No.6001-23-00-6ap/344 dated 08/3/2023

Plaintiff: K.L.

Respondent: GU "City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan".

Interested party: State Institution of the Migration Service Committee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

The subject of the dispute: on the recognition of the illegal and cancellation of the conclusion, on the obligation to send a message to make adjustments to the database.

Review of the defendant's cassation appeal.

PLOT: By the decision of the SMAS of the city on December 22, 2021, K.L.'s claim to the State Institution "Department of the Committee for Labor and Social Protection and Migration for the City", NAO "State Corporation Government for Citizens" on recognition of illegal decisions on the suspension of pension payments was refused. The said court issued a private ruling to the Department to resolve the issue of registration of loss of citizenship of the Republic of Kazakhstan.

On February 16, 2022, the defendant approved conclusion No. 77 on the loss of citizenship of the Republic of Kazakhstan in respect of the plaintiff (hereinafter referred to as the Conclusion) based on the citizenship of another country, the Russian Federation (hereinafter referred to as the Russian Federation), with a message for making changes and adjustments to the database of the documented population of the Republic of Kazakhstan, which was reported to the plaintiff on April 11, 2022 a year in response to her appeal.

In the database of the non-profit joint stock company "Government for Citizens State Corporation", the identity card No. 019199082, issued by the Ministry of Justice of the Republic of Kazakhstan on April 13, 2006, belonging to the plaintiff, is listed with the status "Loss of citizenship of the Republic of Kazakhstan". The plaintiff, disagreeing with the Conclusion, appealed it in court. The claim is motivated by the fact that she did not acquire Russian citizenship, and the 161 passport issued in her name by the Department of Internal Affairs of the city of Yasny, Orenburg region of the Russian Federation, was seized as unjustifiably issued and has been listed as invalid in the database since March 2005. The defendant misinterpreted the private court ruling.

The defendant did not take the necessary measures to determine citizenship.

Judicial acts:

1st instance: the claim is satisfied. Appeal: the court's decision is upheld. Cassation: judicial acts are cancelled, the claim is denied.

Conclusions: The courts, satisfying the claim, proceeded from the fact that the plaintiff is not and has never been a citizen of the Russian Federation, there is no dual citizenship, and the defendant violated the procedure for issuing an Opinion.

These conclusions of the courts, as set out in the judicial acts, do not correspond to the circumstances of the case. It has been reliably established that K.L., being a citizen of the Republic of Kazakhstan, simultaneously acquired Russian citizenship on July 31, 2002. At the same time, she did not take any actions to notify the authorized bodies of the Republic of Kazakhstan about this fact.

Having reached the retirement age according to the legislation of the Russian Federation – 55 years, K.L. applied to the relevant management of the Pension Fund of the Russian Federation, as a citizen of the Russian Federation permanently residing in the Russian Federation (Tomsk, Leninskaya str., 54, building 1, apartment 107), with an application for an old-age pension. Accordingly, she has been granted an old-age insurance pension since March 7, 2006. Also, K.L., having reached the retirement age under the legislation of the Republic of Kazakhstan – 58 years old, applied for a pension under the legislation of the Republic of Kazakhstan.

At the same time, she concealed that she was a pension recipient in the Russian Federation. On August 17, 2008, K.L. was awarded pension payments in connection with reaching retirement age by decision of the Department for Control and Social Protection of the city in accordance with the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan".

These circumstances are confirmed by a copy of K.L.'s passport of the Russian Federation, other documents and information from authorized bodies of the Russian Federation and the Republic of Kazakhstan. Moreover, these circumstances, established by the above-mentioned decision of the SMAS on December 22, 2021 and the decision of the district court of the city of February 21, 2022 on the satisfaction of the claim of the State Institution "Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" to recover unjustifiably received pension payments from K.L., are of prejudicial importance, and such evidence is not proved again during the proceedings. other things to do.

The courts also failed to take into account that when considering these cases, K.L. did not deny receiving a passport of a citizen of the Russian Federation and pension payments in the Russian Federation. According to paragraph 3 of Article 10 of the Constitution of the Republic of Kazakhstan and article 3 of the Law of the Republic of Kazakhstan "On Citizenship of the Republic of Kazakhstan", citizenship of another state is not recognized for a citizen of the Republic of Kazakhstan, which provides for the unacceptability of multiple, including dual citizenship in the Republic. Also, in accordance with subparagraph 5 of Article 21 of this Law and Resolution of the Constitutional Council of the Republic of Kazakhstan No. 12 "On the official interpretation of Articles 10 and 12 of the Constitution of the Republic of Kazakhstan", citizenship of the Republic of Kazakhstan is lost if a person has acquired citizenship of another state.

According to article 8 of the Civil Code of the Republic of Kazakhstan, citizens must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, moral entrepreneurs and the rules of business ethics. the principles of the company, and the actions of legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.

No one has the right to take advantage of their unscrupulous behavior. In case of non-compliance with these requirements, the court may refuse to protect the person's right. The above circumstances of the case indicate that K.L.'s actions are seen as unfair behavior and abuse of law, which is the legal basis for the court to refuse her judicial protection.

In such circumstances, there were no grounds for satisfying the claim.

 

 

 

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