NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 16, 2025 No. 70-NP

About consideration on compliance of the Constitution of the Republic of Kazakhstan of article 65 of the Code of the Republic of Kazakhstan of December 26, 2011 "About scrap (matrimony) and family"

NAME OF THE REPUBLIC OF KAZAKHSTAN

Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., Eskendirov A. K. judges., Zhakipbayeva K. T., Kydyrbayeva A. K., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation:

Danilova Yu. V. - legal representative of minor R.,

representatives:

The Ministries of Justice of the Republic of Kazakhstan - the director of the department of the legislation Suleymenov D. A.,

The Ministries of Internal Affairs of the Republic of Kazakhstan - the head of department of documentation of the population and accounting of internal migration of Committee of migratory service Abilov T. K.,

The Ministries of Public Education of the Republic of Kazakhstan - the vice-chairman of Committee on protection of the rights of children Ovechkina Yu. R.,

The Ministries of Culture and Information of the Republic of Kazakhstan - the vice-chairman of Committee on development of the interethnic relations Bekbayeva A. B.,

The Prosecutor General's Office of the Republic of Kazakhstan - the adviser to the Attorney-General Adamov T. B.,

The office of the Majilis of Parliament of the Republic of Kazakhstan - the main consultant of Department of the legislation Baytelenov R. T.,

The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,

The national center for human rights - the head of department of the civil and political rights Sariyev D. K.,

Institute of the legislation and legal information of the Republic of Kazakhstan - the chief researcher of department of efficiency analysis of the legislation of the Turkish N.N.,

Institute of parliamentarism - the chief executive Kanatov A. K.,

Public association "Kazakhstan international bureau on human rights and respecting the rule of law" - the director Zhovtis E. A.,

considered on September 26, 2024 in open session the address about check on compliance of the Constitution of the Republic of Kazakhstan (further - the Constitution, the Fundamental Law) article 65 of the Code of the Republic of Kazakhstan of December 26, 2011 "About scrap (matrimony) and family" (further - KOBS).

Having heard the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Podoprigora R. A. and participants of meeting, having studied the conclusions of the head of the department of the constitutional, international law and customs affairs of University Kunayev of the doctor of jurisprudence Aytkhozhin K. K., academic professor of the Higher school of the right of "Adilet" of the Caspian public university, Candidate of Law Sciences Karayev A. A. and other materials of the constitutional production, having analyzed regulations of the legislation of the Republic of Kazakhstan and the certain foreign states, the international experience, court practice, the Constitutional Court of the Republic of Kazakhstan

established:

In the Constitutional Court of the Republic of Kazakhstan (further - the Constitutional Court) the address about consideration on compliance to Item 1 of article 19 of the Constitution of article 65 KOBS arrived.

Follows from contents of the address and the documents attached to it that was refused to the subject of the address by service of civil registration specifying of nationality of mother in the birth record. Introduction of such specifying would allow to determine his nationality in the absence of identity documents of mother. Data and documents on the father of the subject of the address are also absent. Afterwards by the decision of the Saransk city court of the Karaganda region of June 14, 2023 (further - resolution of the Trial Court) to the applicant it was refused satisfaction of the requirement about factual determination of national identity having legal value. In reasons for the decision the court specified that factual determination of national identity of minor R. is impossible because the nationality of his mother is not documented. The resolution of the Trial Court was supported by Appeal Court (the resolution of judicial board on civil cases of the Karaganda regional court of August 21, 2023). In the specified court resolutions article 65 KOBS in which it is enshrined that the nationality of the child is determined by nationality of his parents was applied and it can be changed only to nationality of other parent.

The subject of the address considers that article 65 KOBS contradicts Item 1 of article 19 of the Constitution according to which everyone has the right to determine and specify or not to specify the national identity.

When checking constitutionality of article 65 KOBS the Constitutional Court proceeds from the following.

1. The Republic of Kazakhstan is the multinational state which one of the most important priorities of state policy providing the civil world and interethnic concord, intolerance to any manifestations of ethnic exclusiveness and isolation, non-admission of discrimination of citizens on cultural, language, ethnic, religious basis are recognized. These priorities find the reflection in the Constitution in which provisions that are enshrined:

nobody can be exposed to any discrimination based on origin, race, nationality, language, the relation to religion, beliefs (Item 2 of Article 14);

promotion or propaganda of social, racial, national, religious, class and patrimonial superiority are not allowed (Item 3 of Article 20);

any actions capable to break interethnic and interfaith concord (Item 2 of Article 39) are recognized unconstitutional.

The citizens of different nationalities constituting the single people of Kazakhstan represent variety of cultures and traditions that is significant cultural heritage and social value, promotes stable and harmonious development of the country and is subject to protection from the state and society. According to the subitem 11) of Item 2 of article 4 of the Law of the Republic of Kazakhstan of December 15, 2006 "About culture" ensuring realization of the rights of citizens to protection and development of national and cultural originality is one of the main objectives of the state in the field of culture. According to Item 2 of Article 19 of the Fundamental Law everyone has the right to use of the native language and culture, to the free choice of language of communication, education, training and creativity.

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