MISSIONS AND DELEGATIONS 6 page

The consular service is a component of the diplomatic service. The realization of consular functions is assigned to the Department of the consular service of MFA of the Republic of Kazakhstan and consular points in some regional centers of Kazakhstan, at the international airports of Almaty, Astana, and Atrau. Abroad consular functions are carried out by the consular sections of the diplomatic representations

and independent consular establishments of the Republic.

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2, The organisation of work and structure of the consular service

of MFA RK is constructed on the basis of the Republic of Kazakhstan laws, international and internal conventions on the consular service, and normative acts of RK.

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The Department, of the consular service being one of the leading departments of MFA RK, conducts the issues of the consular service and takes direct participation in the performance of the Republic of Kazakhstan foreign policy tasks. The Department works in close interaction with other divisions of MFA RK, located in the territory of Kazakhstan, abroad and also with the ministries, departments and organizations of the Republic.

The Department of the consular service consists of territorial and functional divisions. The divisions of the countries of America and Europe, the countries of the Middle East, Africa and Asia concern to territorial divisions. The territorial divisions are engaged in problems of development of consular relations with the appropriate foreign states, control of the observance of consular conventions and agreements, signed between the Republic of Kazakhstan and other countries. In conducting territorial divisions there are the protection of rights both interests of Kazakhstan and its citizens in the territories of supervised countries, assistance of foreign consular establishments activity in the territory of the Republic of Kazakhstan.

Functional divisions are passport-visa, general consul-legal issues and chancellery. Passport-visa division, as follows from its name, makes out the foreign passports, foreign visas. The division of general consul-legal questions prepares the projects of consular conventions and agreements on without visa or facilitated visa mode with various foreign countries, takes part in the preparation of treaties about the legal help, agreements on co-operation in social area and prevention of cases of double citizenship.

Management of diplomatic representations in host countries direct the consular establishments work abroad. As follows from direct tasks, consular establishments protect the right and interests of Kazakhstan, legal persons and citizens abroad.

Consular establishments are the consular divisions of diplomatic representations of the Republic of Kazakhstan, Consulate-Generals, Consulates and consular agencies. At present Kazakhstan has 43 consular establishments, including 30 consular divisions in diplomatic representations and missions, 3 Consulate-Generals, 10 consulates and consular agencies.

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The consular divisions of diplomatic representations are headed by managing of consular divisions - Consuls. These divisions carry out the consular service of external communications of the Republic of Kazakhstan with a host country and provide legal protection of legal persons and citizens of our country in the territory of a foreign state.

The consular divisions are guided in their activity by norms of international law, acts of the Republic of Kazakhstan, instructions and orders of MFA RK and by the orders of an Ambassador and also legislative norms of a host country. Ambassadors as agreed with MFA define structure and staff of consular divisions.

Consulate-generals, Consulates, Vice-consulates, Consular agents are headed accordingly by Consul-generals, Consuls, Vice-consuls and Consular Agents.

The site of consular establishments, its class and consular district is determined as agreed with the state of a stay.

The Department of the consular service of MFA RK within the limits of its competence carries out management of an activity of consular establishments of the Republic of Kazakhstan. Department gives offers for the development of consular relations with foreign states, negotiates and has consultations with the representatives of various countries under the assignment of MFA. It prepares offers on opening of consular establishments of the Republic of Kazakhstan abroad and foreign consular establishments in Kazakhstan as agreed with the interested ministries and departments of our country. The Department has created good treaty-legal base, main item of which are bilateral consular conventions, agreement on opening of consular establishments, treaties on prevention of double citizenship and legal help in civil and criminal cases.

The Department of a consular service makes out consular patents to the heads of consular establishments of Kazakhstan abroad. Besides the Department informs foreign representations on the consent to assignment of the heads of foreign consular establishments in the Republic and registration by him an exequatur.

Territorial divisions of Department of the consular service analyze reports and reference materials, arriving from consular establishments abroad, prepare the conclusions and offers on the reports. The control of performance of treaties and agreements on consular issues, which

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were signed between Kazakhstan and other states, enters into the duty of diplomats of these divisions. In case of necessity the offers on their change, addition or denotation can be brought in. These divisions also watch taking measures on the protection of rights, privileges, immunities of consular establishments of the Republic of Kazakhstan abroad and their officials.

The Department of the consular service carries out explanations with ministries and departments on application of rules of the Republic of Kazakhstan laws, decrees, decisions and orders of the RK Government on problems concerning consular activity. Besides the Department organizes periodically working meetings with the appropriate ministries and departments, with consular establishments of foreign states. The Department participates in the activity of Kazakhstan interdepartmental bodies on preparation and realization of large international measures both abroad and in the territory of Kazakhstan.

The passport-visa department makes out documents to the citizens of the Republic of Kazakhstan for departure abroad and receiving of foreign visas according to the requirements of the embassies of foreign states and in the order established by the legislation of the Republic of Kazakhstan. The issue of visa by consular establishments abroad is made with conformity with the instructions of the Department of the consular service MFA RK.

The Department supervises observance of the established order of distribution of the Kazakhstan visas to foreign citizens by the consular establishments. Samples of the visas both records in the passports and visas are coordinated and developed with competent bodies.

The Department of the consular service takes part in development of the normative acts on citizenship. Besides that it prepares the conclusions on materials of consular establishments about an accepting in our citizenship, exit of the citizenship and about the deprivation of the citizenship, as well as other documents concerning the citizenship for the Commission on citizenship at the RK President.

The Department studies and generalizes not only experience of foreign consular organizations work of Kazakhstan, but also experience of consular work of the foreign states on issues of notorious, getting

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and legalization of the documents, records of the certificates of a civil condition.

Simultaneously with perfection of passport-visa works the Department develops the Tariffs of consular taxes. For this purpose the similar documents of the CIS countries and distant foreign countries are analyzed. In 1994 the Tariff of consular taxes as agreed with the Ministry of the finance of the Republic of Kazakhstan was accepted.

The consular establishments of the Russian Federation give out the visas to foreign citizens for visiting Kazakhstan on the basis of confirmation of the Department of the consular service MFA RK with the countries, where there are no Kazakhstan diplomatic representations and consular establishments, under the arrangement between the foreign policy bodies of Kazakhstan and Russia.

3. The consular charter of the Republic of Kazakhstan was

accepted in 1999. For each state the acceptance of national legislation, determining the status, functions and structure of consular bodies and also rule, regulating separate aspects of activity of foreign consular establishments, has the important meaning.

The RK consular charter consists of 7 sections.

The tasks and organizations of consular establishments of the Republic of Kazakhstan make the First section consisting of three chapters. In the first chapter the general provisions on consular establishments of the Republic of Kazakhstan are given in 12 clauses. The characteristic of consular establishments and consular departments of diplomatic representations is resulted in clauses 1-5, About function of the consuls and his probable diplomatic functions it is said in clauses 6-7. "... The consul can carry out other functions, not stipulated by the consular charter, if they do not contradict the legislation of the Republic of Kazakhstan, legislation of a host country and international treaties". The second chapter is devoted to the personnel of consular establishments and order of assignment of a consul (clause 13-17}". The Consular officials are the employees of a diplomatic service and serve in a state service, in the Ministry of foreign affairs of the Republic of Kazakhstan". They should be only citizens of the Republic of Kazakhstan. The consular employees and attendants are not diplomatic

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personnel. In the third chapter clauses 18-22, devoted to the order of performance of consular functions are submitted.

The functions of the consul concerning legal persons and citizens of the Republic of Kazakhstan belong to the second section (chapter 4-12). In the chapter 4 the general provisions on duties of the consul are given. The consul arranges in order the legal and physical persons of Kazakhstan to use all rights represented to them by the laws of a host country and the international treaties (clause 23). The consul keeps account the Kazakhstan citizens, constantly living in his district, arranges on restoration of the broken rights of the legal and physical persons, assists in performance of the official duties to the representatives of state bodies of the Republic of Kazakhstan (clause 24-26). The consul acquaints citizens of Kazakhstan, staying temporarily in a consular district, about the current legislation and local customs of a host country, promotes realization of cultural - educational measures (clause 27-28). Without the arrangement the consul can represent the citizens of the Republic of Kazakhstan, who are absent by illness, owing to material, financial character and cannot protect the interests in establishments of the state of a stay.

About functions of the consul concerning the military service of the RK citizens is resulted in the chapter 5, The consul conducts the military account among the man's population of a consular district and provides returning young men, who have reached 18 years, to military commissariats in the place of a constant residence (clause 30).

The separate chapter 6 is devoted to function of the consul concerning the performance of orders of state bodies and officials, carrying out function of criminal prosecution, and courts of the Republic of Kazakhstan. The consul carries out the assignments of state bodies, if there is no rejection in the host country laws (clause 31).

The chapter 7 defines the order of an adoption, trusteeship and guardianship. The consul registers adoption and carries out the control of children handed to the foreign citizens (clause 32). "The Consul arranges establishment of trusteeship and guardianship above the RK minor citizens, living in his consular district, who have remained without parental care ". The consul also promotes an establishment of trusteeship and guardianship above the full age citizens, requiring it (clause 33).

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In the chapter 8 the functions of the consul in relation of Kazakhstan citizens property are submitted. The consul arranges protection of the property, which has stayed after of the RK citizen death and can transfer it to their successors. Besides, the consul can accept money, valuable papers, and jewelry for keeping in safety (clause 34-36).

In the chapter 9 (clause 37) the functions of the consul are opened concerning the RK citizens, who are under arrest and detained or who are deprived freedom in other form or stays in the country of a stay for punishment. There is the consul duty to watch that the specified citizens are not exposed to severe reference, contained in conditions adequate the international treaties and the host country legislation.

In the chapter 10 the functions of the consul concerning problems of the passports and visas are resulted. In clause 38 it is told that the consul gives, replaces the passports and brings necessary marks in them. The consul can give, prolong or cancel the visas on entrance and departure and also transit travel through the territory of the Republic of Kazakhstan (clause 39).

In the chapter 11 of the Charter it is stated the tasks of the consul on the citizenship. In the district the consul accepts applications on the citizenship and registers loss of the citizenship by persons, constantly living abroad.

In the chapter 12 the functions of the consul are submitted on registration of the certificates of a civil condition of the RK citizens. The consul accepts the petition from the Kazakhstan citizens about modification, corrections and additions in record of the certificates of a civil condition, and restoration of the lost records (clause 42).

The section 3 is devoted to the important sphere of activity of the consul - notary's actions, consular legalization, and consular taxes. In the chapter 13 it is shown that the consul makes notaries actions with conformity with the RK legislation. Consul accepts documents, made according to the requirements of the international treaties, in which Kazakhstan and a host country take part, makes confirming inscription in the form stipulated by the foreign legislation, if it does not contradict bases of the Kazakhstan legislation. The consular legalization consists in checking of conformity of documents to the working legislation of the states of a stay, establishment of authenticity of the signature of the

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official and seal with the purpose of use them in the other state. The legalizations are not subject of documents contradicting to the RK law (clause 45-46).

In the chapter 15 the order of collection of the consular taxes abroad is described and in the Kazakhstan territory according to the established Tariff of the consular taxes of the Republic of Kazakhstan (clause 47-50). In clause 51 the cases are listed, when the consular taxes are not raised.

In the section 4 the functions of the consul concerning military ships and military-auxiliary ships of RK, stationed in ports of the country of a stay are submitted. In clause 60 it is underlined that the rules are distributed to planes (helicopters) of the RK Armed forces fleet.

The section 5 of the Charter explains functions of the consul concerning the RK ships. The consul should watch that in his consular district the right and immunities within the limits of its complete volume given to arriving Kazakhstan ships according to the legislation of the state of a stay and international treaties, which participant isRK.

The section 6 represents functions of the consul concerning the RK civil aircrafts. The rules of the section distribute in automobile and railway transportations.

The rules of the section 7 are distributed in automobile and railway transportation.

The section S describes the consul functions on sanitary protection. At an appearance quarantine of diseases in the territory of a consular district the consul operatively informs the RK interested bodies.

The section 9 is devoted to the problem of honorable consuls. Under the agreement with the state of a siay MFA RK charges performance of separate functions to honorable consuls. The honorable consul can be both a citizen of Kazakhstan and foreigners. The honorable consuls do not consist on the state service; MFA RK determines their functions and powers (clause 87-89).

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THE LAWS, OTHER NORMATIVE ACTS OF THE

REPUBLIC OF KAZAKHSTAN AND THE USSR

REGULATING THE ACTIVITY OF THE CONSULAR

SERVICE. CONSULAR CONVENTIONS AND OTHER

AGREEMENTS ON CONSULAR ISSUES. THE VIENNA

CONVENTION ON CONSULAR RELATIONS, 1963

/. The laws, other normative acts of the Republics of Kazakhstan and the USSR regulating the activity of the consular service

The activity of consular establishments of any state is defined by the national legislation, which determines the status, function, and structure of consular bodies and supervises the activity of foreign consular establishments.

The constitution of the Republic of Kazakhstan guarantees protection its citizens in the country and abroad (clause 11). This task is assigned to consular establishments of the Republic of Kazakhstan.

Before the acceptance of the Law "About a diplomatic service " the Temporary rule about passage of the diplomatic service of April 22, 1993 worked. In this rule the order of joining to the consular service, its passage and termination was regulated.

The RK law "About a diplomatic service" is basic interstate source of the consular rule. It defines legal bases of the activity of a consular service. Clause 6 defines consular functions as "the realization in the territory of the Republic of Kazakhstan and abroad of consular functions regulated by international-legal norms and the legislation of the Republic of Kazakhstan... assistance to functioning of foreign consular representations in the territory of the Republic of Kazakhstan... ".

The Consular charter of the Republic of Kazakhstan concerns the basic interstate legislative documents in issues of the consular service, which we have considered previously in detail. Before its acceptance in September 1999 at the development of normative-legal acts and instructions in every day work the rules of the USSR Consular Charter of June 25, 1976 were used.

The norms of the international consular law, experiences of the Soviet consular service and various countries of the world, rules of consular

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conventions and agreements, concluded by Kazakhstan with various countries, Law "About the diplomatic service of the Republic of Kazakhstan ", Rules "About MFA RK" and other acts of Kazakhstan were taken into account at the development of the Consular charter.

The Rule about Consular management of MFA RK, accepted in March 1993 plays the key role in functioning of the consular service. The basic tasks of Management (Department of the consular service), its function and right as well as the structure of its staffs are determined by that Rule.

Rule about MFA RK, Rule about Embassy RK concern to the number of acts used in the consular activity.

Consular officials guided by Law "About citizenship of RK", Civil code of RK, Civil-remedial code of RK, Criminal code of RK, Criminal -remediaJ code of RK, Law "About a marriage and family", Decree, valid of the Law "About the right rule of foreign citizens in the Republic of Kazakhstan" Decree, valid of the Law "About customs business in RK" etc.

Simultaneously with the development of departmental acts and instructions, a consular service carries out joint work on preparation of normative-legal documents having relation to its direction. Following instructions and rules, having the practical importance for normal functioning of consular establishments, concern to them;

- About rules of a stay of foreign citizens in the Republic of
Kazakhstan (1993);

- About the order of departure abroad on service businesses (1993);

- About the diplomatic passport of the Republic of Kazakhstan
(1994);

- About the passport service of the Republic of Kazakhstan (1994);

- About a legal rule of foreign citizens in the Republic of Kazakhstan
(1995);

- About the order of registration of entrance into the Republic of
Kazakhstan and departure from the Republic of Kazakhstan of foreign
citizens (1995);

- About issue of the visa of the Republic of Kazakhstan (1996).

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2. The Vienna convention on consular relations, 1963 concerns the multilateral treaties on consular problems. There are three multilateral basic consular conventions. Two of them carry regional character: the Caracas convention on the consular relations, 1911 and Havana convention on consular officials, 1928. The actions of these conventions are distributed in the American continent. The long-term consular practice of the countries of this continent has allowed creating the document of universal character - Vienna convention on the consular relations, 1963. The UN international law Commission was engaged in preparation of multilateral consular convention since 1949. In September 1960 the convention project about consular relations was sent to governments of the UN state - members for acquaintance and comments. Simultaneously the issue on acceptance of universal consular convention was discussed during XV and XVI sessions and Sixth committee of the UN Assembly, called in 1.963. Under the initiative of the UN General Assembly the conference of the states - members of the Organization of the United Nations has accepted final variant of the Convention about consular relations. The convention has fundamental meaning, as it adjusts consular relations on a global scale.

The Vienna convention on consular relations has fixed the idea on the establishment of consular relations between the states, which is carried out in mutual consent (item 1, clause 2). The diplomatic and consular practice has shown that the consent to an establishment of the diplomatic relations simultaneously means the consent to the establishment of the consular relations. During discussion England, Germany, Japan have not agreed to inclusion of this rule in the text of the convention. The majority of the countries have not supported this point of view. In the convention the rule was fixed, on which from the moment of an establishment of the diplomatic relations the diplomatic representation can carry out also consular functions in necessary cases.

In the Vienna convention the important principle is displayed, on which the changes in the diplomatic relations do not entail break "ipso facto", break of consular relations (item 3, clause 2).

According to the Convention the consular establishments, their class and consular district are defined between the interested states on mutual base.

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At the conference two different approaches to the problem of inviolability of consular premises, consular officials and volume of their immunities were found out. A number of the countries, led by the USSR, proceeded from the precondition that the consular establishments and heads of consular establishments are the representatives of the directing state. The importance of their functions is dictated by necessity of granting to them of a level of protection, guaranteed to diplomatic representations and the members of the diplomatic personnel.

Other countries the USA, Great Britain, France adhered to the opposite point of view, rejecting representation of complete volume of immunities to consular establishments and consular officials. This point of view has found reflection in final variant of the Convention. In the issue on the status of consular establishments the Vienna convention on the consular relations, 1963 represents to the consular persons limited or so-called functional immunity (clause 41-43).

The Soviet Union, being one of the initiators of the development of the Vienna convention about the consular relations, 1963, has not joined it, as volume of immunity of consular premises consular post valise, guarantees of personal inviolability of the consular officials are insufficient. The USSR has adjusted these and other questions, having signed the bilateral consular conventions with a number of countries. These bilateral treaties equated immunities of consular officials and immunities of diplomatic representatives. The Soviet Union has found it possible to join the Vienna convention on consular relations in 1989.

The Republic of Kazakhstan became the participant of the Vienna convention since March 13, 1993.

The joining to the Vienna convention on consular relations does not mean thatthe states cannot provide more acceptable conditions. As the practice demonstrates consular relations between various states can differ from conditions stated in clauses of the Vienna convention 29, 31,35, 40, 43 and 74. Therefore, the majority of the state-participants of the Convention concluded bilateral consular conventions, in which rule of the Vienna convention come nearer to interests of each state.

Let's consider the structure and contents of the Vienna convention about consular relations, 1963. It consists of a preamble, 5 chapters

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and 79 clauses. The convention mentions all issues of consular relations between the states.

Definitions and terms meeting in the Convention for uniform interpretation and also purposes of the treaty are given in a preamble.

Chapter 1 covers the general provisions on consular relations and consists of two sections. In the first section the speech goes about an establishment and realization of consular relations. In second it is termination of consular functions.

Chapter II has also two units. Advantages, privileges and immunities of consular establishments and their employees are represented in the chapter. In section 1 the rules about advantages, privileges and immunities of consular establishments are described. Section 2 is devoted to regular consular posts and other workers of consular establishments, their privileges and immunities.

Date: 2015-12-17; view: 765