The Constitutional Court protected the rights of Kazakhstanis living abroad

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The Constitutional Court of the Republic of Kazakhstan checked the norms of the laws on road traffic (paragraph 1 of Article 65) and on compulsory insurance of civil liability of vehicle owners (paragraph 5-2 of Article 10) on the appeal of a citizen for compliance with the Constitution.

Previously, a citizen of the Republic of Kazakhstan, who has a permanent residence abroad, was denied compulsory civil liability insurance for his vehicle registered in another state. The reason for the refusal was the non-recognition by the mentioned norms of laws of the car, owned by him on the right of ownership, as being in international traffic, despite the fact that his entries to Kazakhstan on this vehicle, operated by him personally, were of temporary nature, in order to participate in sports competitions and visit relatives.

According to paragraph 1 of Article 65 of the Law on Road Traffic, “a vehicle in international traffic on the territory of the Republic of Kazakhstan” is a vehicle that is “operated by a foreigner or stateless person who does not have a residence permit in the Republic of Kazakhstan, which simultaneously meets three criteria: 1) belongs to an individual or legal entity having permanent residence or location outside the Republic of Kazakhstan; 2) is not registered in the Republic of Kazakhstan; 3) is temporarily imported into the Republic of Kazakhstan”. This status allows a vehicle to stay in Kazakhstan without registration for up to one year and exempts it from customs clearance procedures due to temporary importation.

According to paragraph 5-2 of the Law on compulsory civil liability insurance of vehicle owners “it is not allowed to conclude a contract of compulsory liability insurance of owners of vehicles that are not in international traffic on the territory of the Republic of Kazakhstan, except for vehicles registered (subject to state registration) in territorial subdivisions of the authorized body on road safety”.

These changes in the laws were adopted in 2022 to prevent the illegal importation of vehicles from other states and their operation on the territory of Kazakhstan on the basis of a power of attorney for more than one year, without proper registration and customs clearance. This situation was due to the legislation in force at the time, which recognized vehicles belonging to any person permanently residing abroad as being in international traffic, without regard to the status of owners and ownership of the vehicle.

At the same time, the introduced amendments did not consider the peculiarities of such group of individuals as citizens of the Republic of Kazakhstan permanently residing in the territory of other states, who own a vehicle and operate it personally during temporary entry into Kazakhstan. According to the Convention on Road Traffic ratified by Kazakhstan, which is relevant to the current law of the Republic of Kazakhstan (the Law on Road Traffic does not contain an exception in the application of this Convention), a vehicle is considered to be in international traffic by virtue of belonging to a natural person with a habitual residence outside the state and its temporary entry into this state, without reference to citizenship. Priority should be given to the fact of residence (habitual, permanent) in the State where the main vital interests of the natural person are concentrated.

The Constitutional Court came to the following conclusions.

The considered norms of the laws on road traffic (clause 1 of Article 65) and on compulsory insurance of civil liability of vehicle owners (clause 5-2 of Article 10) comply with the Constitution of the Republic of Kazakhstan in respect of temporarily imported transport belonging to a foreigner or stateless person who does not have a residence permit in the Republic of Kazakhstan, and operated by them on the territory of our state.

However, in respect of temporarily imported transport, which is not registered in the Republic of Kazakhstan, is owned by a Kazakhstani citizen with permanent residence outside our state, and is operated by him personally on the territory of the Republic of Kazakhstan, these norms of laws do not comply with the Constitution. The obligation to insure the civil liability of the said vehicle is preserved in accordance with other norms of the considered law on insurance and the Convention on Road Traffic.
In accordance with the decision made appropriate recommendations to the Government to improve the legislation.

The full text of the regulatory resolution of the Constitutional Court can be found at the link https://www.gov.kz/memleket/entities/ksrk/documents/details/758649?lang=ru