Kazakhstan: Found liable for refusing a resident’s entry on grounds of national security

23.12.2014

In July 2014, the Human Rights Committee was asked to consider whether Kazakhstan’s denying entry to an individual with permanent residency on grounds of national security violated the individual’s rights under the Covenant. The communication was submitted by a Russian national of Chechen ethnicity under the Optional Protocol to the Covenant.

Ilyasov v. Kazakhstan (2009/2010)

Summary

In July 2014, the Human Rights Committee was asked to consider whether Kazakhstan’s denying entry to an individual with permanent residency on grounds of national security violated the individual’s rights under the Covenant.

The communication was submitted by a Russian national of Chechen ethnicity under the Optional Protocol to the Covenant.

Background

The author of the communication, Mr Timur Ilyasov, arrived in Kazakhstan in 1994 and subsequently received a permanent residence permit in 2000. In 2003, the author married a Kazakh national, with whom he later had a son.

On 14 February 2008, the author travelled together with his son to Russia, returning to Kazakhstan on 24 August 2008. The author was, however, refused entry by the border service of the National Security Committee (NSC) of Kazakhstan without explanation. The author’s son, a Kazakh national, was granted entry and met by his mother at the border.

In contesting the NSC’s decision, the author’s wife requested the assistance of the Kazakhstan International Bureau for Human Rights and Rule of Law. The Bureau wrote a letter to the NSC requesting confirmation of the grounds upon which the author had been refused entry.

On 23 September 2008, the Deputy Commander of the NSC replied stating that the author was prohibited from re-entering the country in accordance with Kazakh migration law and for reasons of national security.

On 17 November 2008, the Bureau lodged a complaint on behalf of the author before the Astana City Court. On 21 November 2008, the Court refused to hear the complaint, stating that the Bureau did not have the necessary authorisation from the author to lodge the complaint. On 27 February 2009, the Bureau supplemented the complaint, claiming a violation of the author’s right to receive information regarding the reason for his denied entry.

On March 2009, the Astana City Court rejected the complaint stating that the NSC had acted in accordance with the law and that the rights of the author had not been violated. The Court stated that the author had been denied entry by the NSC due to his alleged involvement in unspecified illegal activities in Russia.

On 4 March 2009, the Bureau sent a request to the NSC to declassify the information relating to the author’s activities so that this information could be provided it to the author. The NSC refused its disclosure on the basis that the information obtained from the Russian authorities was classified in accordance with the applicable Russian regulations.

On 16 March 2009, the Bureau submitted an appeal against the Astana City Court decision to the Sarsk Regional Court. On 21 April 2009, the Court rejected the appeal and confirmed the first instance decision.

On 18 May 2009, the Bureau filed a supervisory review request before the supervisory appeals board of the Sarsk Regional Court, which was rejected on 11 June 2009. On 16 July 2009 and 11 September 2009 respectively, the Bureau attempted to submit supervisory review requests to the Procurator-General of Kazakhstan and the Supreme Court. These requests were rejected on 16 August 2009 and on 15 October 2009 respectively.

On 21 July 2010, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that he was the victim of violations by Kazakhstan of his rights to: (i) adjudication of his claim by a competent judicial authority, (ii) freedom of movement, (iii) equality before the courts, (iv) family life, and (v) freedom from discrimination (under articles 2(3)(b), 12, 14, 23 and 26 of the Covenant respectively).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee found that the communication was admissible to the extent that it raised issues under articles 12, 17, 19(2), and 23 of the Covenant. The Committee found that the author’s claims under article 2, 14 and 26 were inadmissible, either for lack of substantiation or for failure to exhaust all available domestic remedies (under articles 2 and 5(2)(b) of the Optional Protocol respectively).

On the merits, the Committee observed that the mere fact that a family member resided in Kazakhstan did not necessarily guarantee the author the right to re-enter the country. Referring to its General Comment 16, the Committee noted that a State party may deny the right of re-entry in pursuit of a legitimate aim. In the context of article 17 of the Covenant, the Committee also recalled that any interference with the family must be provided for by law, be in accordance with the provisions, aims and objectives of the Covenant and be reasonable in the particular circumstances of the case.

In the instant circumstances, the Committee considered that the author’s denied entry into Kazakhstan constituted an interference with his family life. The author had been residing lawfully in Kazakhstan for 14 years before being refused re-entry, during which time he had developed a private and family life, with both his wife and son being Kazakh nationals.

In considering whether such interference was legitimate for the purposes of article 17, the Committee noted that the author had been refused entry to Kazakhstan for a period of more than three years. He had also not been informed of the specific reason for this decision, nor had he been given the possibility of accessing the necessary information to challenge the decision. No criminal investigation had been initiated against the author, either in Kazakhstan or in Russia, and his freedom of movement had been restricted solely on the basis of information that Kazakhstan had received from the intelligence service of another state. Further, the Committee observed that the author had later been allowed to re-enter Kazakhstan on the basis of intelligence information that he had renounced his illegal activities. On the basis of these observations, the Committee considered that Kazakhstan’s interference with his family life had been arbitrary, contrary to articles 17 and 23 of the Covenant.

In addressing Kazakhstan’s submission that the author’s family could have resided together in Russia, the Committee noted the author’s uncontested submission that his family was able to enter Russia for only limited periods of time. As the author’s family life had been established in Kazakhstan for over a decade, the Committee concluded that the possibility of a temporary relocation to Russia was not a viable alternative.

In light of the above, the Committee concluded that Kazakhstan had violated the author’s rights under articles 17 and 23 of the Covenant. Having established a violation of articles 17 and 23, the Committee did not find it necessary to assess possible violations by Kazakhstan of articles 12 and 19.

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Kazakhstan was under an obligation to provide the author with an effective and appropriate remedy, including adequate compensation. Kazakhstan was also under an obligation to prevent similar violations in the future.

Kazakhstan must now submit its written response within six months of the Committee’s decision, including information on the action taken in light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.

UN Photo/Pierre Albouy