Comment to article 51. Administrative expulsion of foreigners or stateless persons from the Republic of Kazakhstan  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Administrative expulsion of foreigners or stateless persons from the Republic of Kazakhstan is applied by a judge as a measure of administrative punishment in accordance with the procedure and on the grounds provided for in the Special Part of this Code.

     The provisions of this part do not apply to cases of expulsion of foreigners or stateless persons carried out in accordance with the procedure provided for by the civil procedure legislation of the Republic of Kazakhstan.

     2. If, in the course of administrative proceedings, a person against whom an administrative penalty in the form of administrative expulsion from the Republic of Kazakhstan 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 of the Republic of Kazakhstan, then consideration of the administrative offense case against this person is postponed. before making a decision on the communication or application in accordance with the procedure established by Article 179 of the CPC of the Republic of Kazakhstan.

     Part 1. In one of his speeches, the First President of the Elbasy, N.A. Nazarbayev, noted that "in Kazakhstan, the rights and legitimate interests of both our compatriots and foreigners, both society as a whole and an individual, regardless of their origin, citizenship, social status, beliefs and religious beliefs."

     In accordance with Article 12 of the Constitution of the Republic of Kazakhstan, foreigners and stateless persons enjoy the rights and freedoms, as well as bear the duties established for citizens, unless otherwise provided by the Constitution, laws and international treaties.

     The Constitution guarantees the rights of everyone who is lawfully on the territory of the Republic of Kazakhstan to move freely on its territory and freely choose their place of residence, except in cases stipulated by law.

     According to the Law of the Republic of Kazakhstan dated June 19, 1995 "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.

     Stateless persons are persons who are not citizens of the Republic of Kazakhstan and do not have proof of their citizenship of another state.

     According to Article 34 of the Administrative Code, foreign citizens and stateless persons located on the territory of the Republic of Kazakhstan are subject to administrative responsibility on the same basis as citizens of the Republic of Kazakhstan.

     Regarding foreign citizens, restrictions on freedom of movement and choice of residence are provided for by the Law of the Republic of Kazakhstan "On the Legal Status of Foreigners", CPC, Administrative Code, Criminal Code.  

     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:

     - carrying out activities by foreigners, stateless persons, foreign legal entities and international organizations that hinder and (or) facilitate the nomination and election of candidates, political parties that have nominated a party list, and achieving a certain result in elections (art. 109);

     - harassment in public places (part 3 of art. 449);

     - violation of legislation on religious activities and religious associations (Part 3 of Article 490);

     - 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 (Part 2 of art. 495);

     - violation of the regime at checkpoints across the State border of the Republic of Kazakhstan (Part 2 of Article 513);

     - violation of the regime of the State border of the Republic of Kazakhstan (Part 2 of Article 514);

     - violation by a foreigner or a stateless person of the legislation of the Republic of Kazakhstan in the field of population migration (art. 517);

     - attracting foreign labor and labor immigrants in violation of the legislation of the Republic of Kazakhstan, illegal employment by a foreigner or a stateless person in the Republic of Kazakhstan (Part 4 of Article 519);

     - disobedience to a lawful order or request of a serviceman in connection with the performance of his duties to protect the State border of the Republic of Kazakhstan (Part 2 of Article 516).  

     The institution of expulsion in civil proceedings was introduced by the Law of the Republic of Kazakhstan dated July 22, 2011 No. 478-IV "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on population migration".

     The regulatory framework for this and related legal relations is:

     - The Constitution of the Republic of Kazakhstan;  

     - Code of Administrative Offences of the Republic of Kazakhstan dated July 5, 2014 No. 235;

     - The Law of the Republic of Kazakhstan dated July 22, 2011 No. 477-IV "On Population Migration";

     - The Law of the Republic of Kazakhstan dated June 19, 1995 "On the legal status of foreigners" No. 2337;

     - Decree of the President of the Republic of Kazakhstan dated April 20, 2012 No. 301 "On Signing the Agreement between the Republic of Kazakhstan and the Russian Federation on the procedure for the stay of Citizens of the Republic of Kazakhstan on the Territory of the Russian Federation and Citizens of the Russian Federation on the territory of the Republic of Kazakhstan";  

     - The Law of the Republic of Kazakhstan dated April 7, 2008 No. 22-IV "On ratification of the Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Armenia on mutual travel of citizens" - the parties have the right to stay without visas for up to 90 days;

     - The Law of the Republic of Kazakhstan dated March 1, 2001 No. 159 "On ratification of the Agreement between the Government of the Republic of Kazakhstan and the Cabinet of Ministers of Ukraine on mutual travel of citizens" - the parties have the right to stay without visas and registration for up to 90 days;

     - The Law of the Republic of Kazakhstan dated July 5, 2012 No. 26-V "On Ratification of the Agreement between the Government of the Republic of Kazakhstan and the Government of the Kyrgyz Republic on the procedure for the stay of citizens of the Republic of Kazakhstan on the territory of the Kyrgyz Republic and citizens of the Kyrgyz Republic on the territory of the Republic of Kazakhstan" - the parties have the right to stay without a visa for up to 90 days;

     - Resolution of the Government of the Republic of Kazakhstan dated January 21, 2012 No. 148 "On Approval of the Rules for Entry and Stay of Immigrants in the Republic of Kazakhstan, as well as their Departure from the Republic of Kazakhstan and the Rules for Migration Control, as well as Registration of Foreigners and Stateless Persons illegally Crossing the State Border of the Republic of Kazakhstan, illegally staying in the territory of the Republic of Kazakhstan, and also, persons who are prohibited from entering the territory of the Republic of Kazakhstan";

     - "Rules for registration of immigrant passports, their movement, as well as entry into certain localities (territories) closed to foreigners, transit of foreigners and stateless persons through the territory of the Republic of Kazakhstan", approved by Joint Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated March 7, 2012 No. 135, the Minister of Foreign Affairs of the Republic of Kazakhstan dated April 28 2012 No.08-1-1-1/154;

     - Joint Order of the Acting Minister of Foreign Affairs of the Republic of Kazakhstan dated March 5, 2013 No. 08-1-1-1/71 and the Minister of Internal Affairs of the Republic of Kazakhstan dated March 7, 2013 No. 175 "On approval of the Rules for Issuing visas of the Republic of Kazakhstan, as well as extending and shortening their validity";

     When resolving cases, the courts were also guided by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan."

     In terms of content, administrative expulsion and expulsion in civil proceedings have a number of similar features and features.

     According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreign citizens and stateless persons", it follows that, in terms of content, administrative expulsion and expulsion in civil proceedings constitute forced or independent movement 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 the commission of an administrative offense or violation of the law.

     The basis for both administrative and civil liability of a foreigner in the form of expulsion of a foreigner from the Republic of Kazakhstan is the commission of an act containing elements of an offense.

     Most of the civil cases considered in the courts of civil jurisdiction on the expulsion of a foreign citizen from the Republic of Kazakhstan relate to an administrative offense committed by a foreigner earlier and for which he has already been given an administrative penalty.

     For example, a civil case on the expulsion of a foreigner Sh. for violating traffic rules. The specified person has been brought to administrative responsibility for the committed administrative offense. Then the Department of Internal Affairs appealed to the court of civil jurisdiction with a claim for expulsion.

     In accordance with Article 41 of the Administrative Code, the expulsion of a foreigner or a stateless person from the Republic of Kazakhstan is a type of administrative penalty.

     The court's decision in civil proceedings to expel a foreigner from the Republic of Kazakhstan is designed to ensure the protection of public interests from offenses, as well as the prevention of their commission. Meanwhile, the protection of public order is the task of legislation on administrative offenses (art. 6 of the Administrative Code).

According to Article 40 of the Administrative Code, an administrative penalty is a measure of state coercion applied by a judge, bodies (officials) authorized by law for committing an administrative offense, and consists in depriving or restricting the rights and freedoms of a person who has committed such an offense.

     In relation to the above example with a foreigner, Sh. is an administrative penalty in the framework of administrative proceedings and expulsion in civil proceedings, in both cases, in their content, it is a punishment for committing the same administrative offense. In civil proceedings, an additional liability has been established for a foreigner, which entails restrictions on the previously imposed administrative penalty. The right of a foreigner to a place of residence and freedom of movement is limited.

     A generalization of the judicial practice of this category of civil cases has shown that not every administrative penalty is grounds for expelling a foreigner. The courts make a decision depending on the degree of public danger of a particular type of administrative offense, as well as other circumstances that deserve attention, such as the presence of a family and minor children, elderly parents and other close relatives.  

     According to Part 2, 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, the case is postponed until a decision is made in accordance with the procedure established by the CPC.  

     Judicial practice shows that there are a number of problems when considering administrative offenses involving the use of this penalty.  

     1) Incomplete or abbreviated reflection in court decisions of such type of punishment as administrative expulsion from the Republic of Kazakhstan.  

     So, Judge SAS G. In Uralsk, West Kazakhstan region, B.T., recognizing Tajik citizen Z.Z. guilty of committing an administrative offense under Part 2 of Article 517 of the Administrative Code, imposed an administrative penalty on him in the form of administrative expulsion.  

     Such a presentation of court rulings may make it difficult or impossible to enforce it, since it is not clear from where and from which territory the person brought to administrative responsibility should be expelled.  

     2) When making a decision on administrative expulsion from the Republic of Kazakhstan, it is necessary to indicate a reasonable period during which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan, and this refers to the period of voluntary independent departure from the country.

     However, an analysis of judicial practice shows that judges are not always given a reasonable period of voluntary travel outside the republic.  

     So, for example, according to the decisions of the Arshaly district Court of the Akmola region in 2015, issued against Turkish citizens D.S. and C.M. under Part 4 of Article 517 of the Administrative Code, the time period during which foreigners had to leave the territory of the Republic of Kazakhstan was not specified.  

     When imposing penalties in the form of administrative expulsion from the republic, judges have different approaches to defining the concept of "reasonable time" for voluntary self-departure.  

     Thus, the judge of the Petropavlovsk city CAC, A.K., imposing the specified type of penalty on a citizen of Uzbekistan, Zh.I considered it sufficient and reasonable to provide a 3-day period for a foreigner to leave the Republic of Kazakhstan on his own. Other judges of the North Kazakhstan region adhere to a similar practice.  

     Otherwise, a reasonable period of time is understood by the judges of the West Kazakhstan region. For example, Judge SAS G. Uralska K.B., imposing a penalty under Part 7 of Article 517 of the Administrative Code on Uzbek citizen S.D., gave him a 10-day period to leave the territory of Kazakhstan.  

     Thus, judicial practice on setting a reasonable time varies from one area to another.  

     3) Judge SAS G. Uralska B.E., by her decree, imposed a penalty in the form of administrative expulsion from the Republic of Kazakhstan on a citizen of Uzbekistan B.Kh. under Part 2 of Article 517 of the Administrative Code, indicating that the penalty period should be calculated from May 08, 2015. The arbitrariness of setting the deadline (May 8) ultimately did not provide a reasonable time for self-voluntary departure.

     4) There are cases when judges do not specify at all the time during which the person brought to administrative responsibility must leave the Republic of Kazakhstan, respectively, the resolution actually loses its binding effect.  

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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