Information regarding regulatory decision of the Constitutional Court
(№ 70-RD of 16 April, 2025)
The Constitutional Court considered the appeal to check for compliance with paragraph 1 of Article 19 of the Constitution of the Republic of Kazakhstan with article 65 of the Code of the Republic of Kazakhstan of 26 December 2011 «On Marriage (Spousal) and Family» (hereinafter – the Code).
This article establishes that the nationality of a child is determined by the nationality of his parents and can subsequently be changed only to the nationality of the other parent.
According to the appeal and the materials of the constitutional proceedings, the child's mother died. She was not documented during her lifetime. There is no information about the child's father. Based on the available information, the guardian tried to make an addition to the child's birth certificate (indicate the mother's nationality) in order to subsequently determine his nationality based on the parent's nationality, but was refused due to the lack of supporting documents.
Later, the courts, referring to article 65 of the Code, decided that it is impossible to establish the nationality of a child if the nationality of his parents is not established. The applicant considered that this article contradicts paragraph 1 of article 19 of the Constitution, according to which everyone has the right to determine and indicate or not indicate their nationality.
The Constitutional Court, having analyzed the norms of the legislation of the Republic of Kazakhstan and individual foreign states, international experience, and judicial practice, indicated that, according to the meaning of the Constitution, the definition of nationality is associated with the self-identification of a person, which may be affected by family and kinship ties and other circumstances.
The choice based on the nationality of the parents is certainly dominant, however, it is not always possible due to various life situations (the parents are unknown, there is no information about their nationality, the child is adopted or raised by other people, etc.). Article 65 of the Code does not take such situations into account and thus does not fully comply with what is laid down in the Constitution.
The constitutional review body also noted that when nationality is indicated in identity documents or has some other legal significance, it is not enough for a person to wish to belong to a certain nationality. The state may verify the information provided by the person in such cases.
The Constitutional Court found the said article of the Code to be unconstitutional in the part that does not provide for other (except by parents) methods of determining and changing nationality in cases where the child's parents or their nationality are unknown, as well as in other life situations affecting the legitimate interests of citizens. At the same time, the Constitutional Court did not question the constitutionality of determining and changing nationality by parents.
The Government is recommended to submit to the Majilis of Parliament a draft of the corresponding amendments to the legislation within six months.