I.T. v. Kazakhstan

The author of the communication is I.T., a citizen of Mali, born in 1967. He claims to be a victim of a violation, by Kazakhstan, of his rights under articles 12 (1) and 17 (1) of the Covenant. The Optional Protocol entered into force for the State party on 30 September 2009. The author is represented by counsel, Viktoria Tyuleneva.

The author submits that he first arrived in Kazakhstan (then the Kazakh Soviet Socialist Republic) in 1989 on an exchange programme for students to train at the Almaty Veterinary Institute. After graduating in 1996, he remained in Kazakhstan. Between 2001 and 2003, he headed the Union of Africans in Kazakhstan, a non-governmental organization, the main purpose of which was the protection of the rights of all Africans in Kazakhstan.

In 2004, the author received a residence permit, valid until 2009, issued by the migration police under the Department of Internal Affairs of Almaty. Under the law, anyone in Kazakhstan is to duly register their address of residence with the local Department of Internal Affairs. This general rule also applies to foreigners having a residence in Kazakhstan. In practice, a foreigner may register as an address either a home that he or she owns, or a rented house or apartment. In the latter case, in addition to renting out the property, the owner also must give consent for the foreigner’s registration.

The author rented an apartment, but the owner refused to give him consent to register at the respective address. As a consequence, the author registered with the address of the apartment of a friend, who gave him his consent. The author was not living at that address, but maintained regular contact with his friend, who handled the author’s incoming mail. Thus, according to the author, he had provided the Kazakh authorities with an official address for contact.

On 11 August 2009, the author sought to have his residence permit renewed by the migration police in Almaty. He was issued a certificate, signed by the Deputy Chief of the migration police, in which it was stated that “the application for renewal of the residence permit is under consideration by the migration police of the Department of Internal Affairs of Almaty”. Kazakh legislation requires the migration police to issue to a foreigner a new residence permit within two months following the receipt of the application.

Since the migration police did not inform the author of the outcome of his application, he requested legal assistance from the Kazakhstan International Bureau for Human Rights and Rule of Law. The Bureau inquired with the migration police and received a reply, dated 3 November 2009, that the author would be issued a new residence permit but that his administrative responsibility had to be engaged under article 394 of the code of administrative violations.⁴

4. Article 394 on, inter alia, violation by a foreigner or a person without citizenship of the rules of stay in Kazakhstan, committed through non-compliance with the established procedure for the registration, movement or choice of a place of residence. ↩

The author maintains that the migration police conditioned issuing him a residence permit on his admitting to have committed an administrative offence and paying a fine. He claims that he wanted to appeal the ruling by which he was convicted of an administrative offence in court without fearing that he would be denied a residence permit and contends that he believed that the migration police was trying to intimidate him by withholding his residence permit.

On 20 November 2009, the author filed an appeal against the ruling of the migration police before the Almalinsky court, claiming that the condition that the police had imposed on him for the granting of a residence permit was impossible to fulfil. On 25 December 2009, the migration police decided to issue a new residence permit to the author free of conditions and the author withdrew his court case on 12 January 2010. He received his residence permit, valid until 20 July 2014, on 4 March 2010.

The author submits that for a period of six months, while he was waiting for a new residence permit to be issued, he could not move freely within the territory of Kazakhstan, since domestic legislation required him to have a residence permit or a national passport with a valid Kazakh visa and a migration card, confirming his registration as a foreigner. The migration police had not issued a visa or migration card for the author during the consideration of his application for a new permit.

On 10 May 2010, the author received a call from a bailiff, who said that he had been instructed to collect a fine from the author for a violation of article 394 of the code of administrative violations. On 12 May 2010, the author met with the bailiff and was served a copy of an administrative ruling, issued on 9 November 2009 by the Head of the Almaty migration police, imposing an administrative penalty on him for violating article 394 of the code. The bailiff also stated that since the author had not paid the fine voluntarily, on 26 January 2010 a judge of the Specialized Interregional Administrative Court of Almaty had ordered a forced recovery of the fine, amounting to the equivalent of $85.

On 17 May 2010, counsel for the author filed a request with the migration police to provide him with the original version of the administrative ruling, in order to allow him to appeal it in court. The document was provided to counsel on 29 July 2010 and on 30 July 2010 the author filed an appeal against the ruling before the Specialized Interregional Administrative Court. On 2 August 2010, the court rejected his appeal. Further attempts to petition the Office of the General Prosecutor and the Almaty Prosecutor for supervisory review of the decision also failed. The author contends that he has exhausted all available and effective domestic remedies.

On 19 October 2010, the author inquired with the migration police in Almaty whether he should request from them permission for his movement within the city of Almaty, as well as for trips outside the city limits. He received a reply, dated 26 October 2010, stating that he must notify the migration police of any change of his residential address, as well as notify the police of any trip outside the city of Almaty that was longer than 10 days. The author maintains that the need to notify the police about all his movements within the city and outside it, as well as the established practice of holding foreigners responsible for not living at their place of registration, are incompatible with the freedom of movement and residence of foreigners lawfully present in Kazakhstan.

The author claims that he was in Kazakhstan legally because he had a valid residence permit and, consequently, article 12 (1) of the Covenant fully applied to him and he was entitled to freedom of movement within the country without having to seek special permission from the authorities and without any hindrance from the State party. He submits that the requirement to register an address is not a restriction within the meaning of article 12 of the Covenant, but the practice of bringing a foreigner to account for living at an address other than the one at which he or she is registered is not compatible with the concept of the freedom to choose one’s residence and is an illegal restriction within the meaning of article 12.

The author also submits that his living at an address that was different from the address of registration did not threaten national security or public safety, public order, health, morals or the rights and freedoms of others. Therefore, he considers that being subjected to measures of administrative responsibility constitutes a disproportionate measure and cannot be considered a legitimate limitation within the meaning of article 12 of the Covenant.

The author further claims that the requirement for foreigners to notify the migration police of all their movements within the city and outside it is incompatible with the notion of freedom of movement and violates his rights under article 17 of the Covenant. He also maintains that the above requirement is not imposed by a law, but by an instruction that had been enacted before the entry into force in the State party of the Optional Protocol to the Covenant, and that it amounts to police control over foreigners and to disproportionate interference in their private lives.

In notes verbales dated 19 June and 8 November 2012, the State party provided its comments on the merits of the present communication. The State party explains that in accordance with article 16 of the law on the legal status of foreigners and article 5 of the law on migration, foreigners have a right of free movement within the territory of Kazakhstan and have a right to choose their place of residence.

According to article 77 of instruction No. 215 of 9 April 2004, all foreigners must be registered at their place of residence. This does not limit their freedom of movement, since the persons can first move to their place of residence and then have the residence registered.

In addition, this requirement is applicable not only to foreigners, but also to citizens of Kazakhstan. In accordance with government resolution No. 1063 of 12 July 2000, every citizen of Kazakhstan, foreigner and stateless person must register at his or her place of permanent residence.

The State party concludes that in the light of the above it appears that the author’s contentions regarding violations of articles of the Covenant are without merit.

In submissions dated 4 September 2012 and 21 January 2013, the author states that, despite the State party’s contentions, the system of address registration as implemented violates the provisions of the Covenant, as described in his initial complaint. The author concedes the need of the State party to have this system in place. Such a system can help the authorities for planning purposes or in the provision of social security services and the issuance of identification documents.

The author, however, argues that the State party violated his rights because he was subjected to an administrative fine for failure to reside at his registered address. Article 12 (3) of the Covenant lists restrictions that the State party can impose on freedoms listed in article 12 (1). The author contends that the restriction imposed on him by the State party does not fall under any of the legitimate restrictions allowed by the Covenant. The restrictions imposed by the State party should not undermine the essence of the right itself. As in this case, the State party claims to recognize the right to freedom of movement, but imposes a fine on the author for choosing to reside at a place different from the location at which he was registered.

The author argues that the registration information is used by the State party to establish police control of the places of residence of foreigners. Such control, in practice, consists of entering the foreigners’ places of residence and demanding their identification documents. In addition to interference with the freedom of movement, such intrusions violate provisions contained in article 17 (1) of the Covenant.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

The Committee has ascertained, in accordance with article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee takes note of the author’s claim that he has exhausted all effective domestic remedies available to him. In the absence of any objection by the State party in this connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

The Committee has noted the author’s claims under article 12 (1) of the Covenant (see paras. 3.1 and 3.2 above). It notes, however, that the author, a foreign resident, did not register his true place of residence, as required under domestic law, and was fined as a consequence. The Committee also observes that, in the circumstances of the case, the fine imposed on the author cannot be described, in itself, as an unreasonable restriction on the author’s freedom of movement. The Committee notes in this regard that the author’s residence permit was renewed before the fine was paid. Accordingly, in the particular circumstances of the case, and in the absence of any further pertinent information on file, the Committee considers that the author has failed to sufficiently substantiate his claims for the purposes of admissibility. Therefore, the Committee considers that this part of the communication is inadmissible under article 2 of the Optional Protocol.

The Committee has further noted the author’s claims under article 17 (1) of the Covenant (see paragraph 3.3 above). However, and in the absence of any further information or explanation on file, the Committee considers that the author has failed to substantiate his allegations for the purposes of admissibility. Accordingly, it declares this part of the communication inadmissible under article 2 of the Optional Protocol.

The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;