Facts of the Case
Article 65 of the Code on Marriage and Family provides that a child’s nationality is determined by the nationality of their parents, and if the parents have different nationalities, the child may choose either parent’s nationality when receiving identity documents. The nationality can subsequently be changed only to the other parent’s nationality. Petitioner Danilova, as legal representative of minor R., was denied registration of the mother’s nationality in the birth certificate because identity documents confirming the mother’s nationality were absent. Information about the father was also unavailable. The trial court denied Petitioner’s administrative complaint reasoning that the mother’s nationality could not be documented. The appellate court upheld this decision. Petitioner filed constitutional complaint, arguing that Article 65 unconstitutionally restricts the determination of nationality solely to parental nationality, thereby preventing those without documented parental nationality from exercising their constitutional rights.
Question
Does Article 65 of the Marriage Code violate Article 19 of the Constitution of Kazakhstan?
Holding
Yes, in part. Article 19 (1) guarantees everyone the right to determine their national belonging and to indicate or not indicate it. National belonging (nationality) refers to belonging to an ethnic community, not citizenship, and represents an element of personal identity. The Court distinguishes two interconnected rights: the right to determine nationality is connected primarily with internal freedom of the person, while the right to indicate such belonging relates to the need for external expression of one’s decision about nationality, which may have legal significance. Determining one’s nationality is based on ethnic self-identification influenced by various factors including family connections, upbringing environment, and sociocultural context. When nationality is indicated in identity documents or has legal consequences, the state may verify the claimed nationality, since in such cases identification should not rest solely on subjective preference. The Court recognizes that parental nationality is the dominant and justified criterion for determining nationality, reflecting respect for ethnic heritage, language, and cultural continuity, and consistent with constitutional protections of family and the natural rights of parents. However, Article 65 fails to account for various life situations where determination by parental nationality is impossible—such as when parents are unknown, documents or records about parental nationality are absent, or the child is raised in a different national-cultural environment. By providing only one method of determination without alternatives for such exceptional cases, Article 65 does not permit another choice and thereby restricts the rights guaranteed by Article 19(1). In special circumstances where parental determination is impossible, other factors must be considered, including nationality of grandparents or other close relatives, persons actually raising the child, and other objective evidence of national belonging—which may be found in connection with particular culture, language community, traditions, religion, or way of life. The constitutional right to determine nationality thus encompasses the right to change nationality. Until legislative amendments are adopted, Article 19(1) of the Constitution applies directly
Foreign Authorities Cited
- Convention on the Rights of the Child, Art. 8, Art. 20
Metadata
- Judges: Azimova (Chief); Podoprigora (Rapporteur); Sarsembaev; Eskendirov; Zhakipbaev; Kydyrbaeva; Musin; Nurmukhanov; Ongarbaev; Udartsev
- Date: 16 April, 2025
- Link: Danilova
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