The summary of concerns is drawn on the analysis[1] of the draft Law of the Republic of Kazakhstan “Introduction of Changes and Additions to Certain Legal Acts of the Republic of Kazakhstan Related to Freedom of Religion and Religious Associations” (as of June 11, 2008) (hereinafter referred to as Draft Law) and a number of respective provisions of the current legislation of the Republic of Kazakhstan in the sphere of freedom of belief and religion in view of  the constitutional guarantees of the freedom of conscience in  Kazakhstan (see part III of this document);  the principles and norms of the International Law in the sphere of legal regulation of rights and freedoms of an individual and a citizen, the related international obligations of Kazakhstan, and the criteria of admissible restrictions on the individual’s rights and freedoms as developed in the international jurisprudence of the UN Human Rights Committee and the European Court of Human Rights.

I. GENERAL CONCERNS

The Draft Law as well as the current legislation of the Republic of Kazakhstan in the sphere of freedom of conscience and religion:

- form a permit-based restrictive regulatory framework;

- was drafted in view of the “presumption of guilt” of religious associations and ideological and political expediency of the regulation, which allows for subjective interpretation.

- impose a range of restrictions that either fully or partly do not comply with the criteria of the admissibility of limitations on the individual rights and freedoms as formulated by the International Law;

- do not comply with the principle of legal certainty and predictability, which makes it possible for the authorities to interpret subjectively its provisions in the law-enforcement practice.

Such restrictive regulation does not merit amendments of the current legislation and demands a conceptual revision of all legislation in the sphere of freedom of conscience and religion.

II. Concerns related to certain provisions of the Draft Law and the current legislation on religion

1. Mandatory registration and discriminatory procedures for refusal of registration as a central instrument of control of religious associations by the State  

According to the legislation in force, religious associations are not allowed to functioning without state registration. In the absence of registration, the believer jointly with others is

prohibited from public worshiping, performing religious and ritual ceremonies and teaching. 

The Draft Law suggests that its sponsors do not only consider the registration of religious associations necessary and mandatory, but also view it as a central instrument of control.  Making such assumptions, the sponsors of the Draft Law set absolutely illegitimate requirements for any religious community to provide information on the religious doctrine and the respective practice, including the history of faith and religious association, forms and methods of its activity, information on the attitude towards marriage and family, education, specific views on health issues, etc.

Due to proposed amendments to the Law about state registration of legal entities religious associations are discriminated against all types of legal entities.  Regarding the former the Law specifies that the grounds for the refusal of state registration are determined in the special legislation on religious associations. Hence, the religious associations are detached from all other forms of legal entities, which, apparently, is linked with the emphasis on their particular “danger”, which justifies special control from the State.

2. Toughening of administrative sanctions against functioning without registration and failure to follow the bylaws of a religious organization 

The current legislation of the Republic of Kazakhstan imposes an array of administrative sanctions on religious associations, their heads for functioning without registration and failure to comply with the goals set forth in their bylaws.  These sanctions have been toughened in the Draft Law. In addition, foreign citizens will face more robust administrative sanctions than those, which are stipulated for the citizens of the Republic of Kazakhstan.

3. Geographic restrictions on functioning of registered religious communities and missionary work  

The Draft Law divides religious associations into local and national, which represents a restriction of the scope of geographic operations of religious associations. As a result, a religious association, registered on the territory of a certain area of the country, can not carry out its activities on the territory of another region. Moreover, such activities on the territory of another region shall be considered as missionary.

4. Special permit-based procedures for missionary activities  

The Draft Law as well as the current legislation gives the definition of a missionary activity that links the activity of a religious association to the place of its registration.  According to the Draft Law, the so called notification procedure for missionary activities becomes a complicated bureaucratic procedure of a permissive rather than informative character.  At the same time a number of proposed norms contradict both the principles of proportionality and non-discrimination, and does not take into account any international standards and international practice.

5. A proposed procedure for notification by religious groups does not differ in substance from mandatory registration of religious associations as legal entities

The Draft Law introduces the definition of a religious group, i.e. a voluntary group of citizens, united on the basis of their mutual interests and with the aim of facilitating the satisfaction of their spiritual needs. Such groups will need only to notify authorities, without the need to incorporate a legal entity. On the surface, it seems as a positive development. However, it should be noted here that the Draft Law introduces a

notification procedure of such groups, which has very little difference from the mandatory registration. A religious group, according to proposed amendments will not be able to effectively exercise freedom of conscience and religion. Thus, the members of a religious group only within their ranks enjoy the right to perform religious ceremonies, teach religion, and learn about the religion on the premises that directly belong to the members of the group and within the territory, where a notification was filed with the authorities.  At the same time the religious group does not have the right to: incorporate legal entities and perform missionary activities; to establish, rent or maintain places for public worship or religious meetings open for public access.

6. Introduction of state regulation of internal structure and functioning of religion associations; obligation to incorporate as a legal association    

The Draft Law sets forth the compulsory features of a religious association: proof of a general dogma; a procedure for worship, church rituals and sermons, other religious ceremonies; religious preaching and religious education of its followers. Accordingly, citizens will be deprived of the right to select forms, methods and rules for an association to practice their religion and convictions, worship, religious ritual ceremonies and ways of teaching. Moreover, the requirement to have minimum 50 people in a religious association as a prerequisite for its recognition and registration makes it practically impossible to fully exercise freedom of conscience, belief and religion in minor settlements, where small religious communities may have just a few people.

The Draft Law has a requirement according to which the establishment and functions of legal entities involved in the satisfaction of religious interests shall be implemented only in the legal form of a religious association. This requirement is groundless and violates the principle of rationality and proportionality. Not all groups of individuals, that exercise freedom of conscience, wish to unite into a member organization, represented by a religious association, and the state can not force them to do so, as this will be an illegitimate interference with freedom of conscience.

7. Introduction of vetting procedures of all religious printed materials; the return of the state censorship in direct violation of the Kazakh Constitution  

According to Draft Law, essentially, it will be compulsory to forward all religious literature, and religious items, etc. for examination through special vetting procedures administered by the State Committee on Religious Affairs.

However, neither the current Law, nor the Draft Law carry any explicit provisions for exhaustive lists of grounds for vetting of religious literature, both of them do not spell out the procedure and sufficient guarantees for observance of rights and legitimate interests of religious associations and their members, which may result in abuse in this sphere.  The Draft Law does not either provide for a possibility to make such examination independently from the state bodies. It also does not set clear reasons for conducting such examination; instead, it stipulates that such vetting can only be carried out upon request of individuals or a decision of a state body.

Pursuant to the Draft Law the production of the religious literature by religious associations can be carried out subject to an agreement of the authorized body, and the import of religious literature and other information materials to the Republic of Kazakhstan is permitted only subject to prior examination by state experts. In addition, such examination is obligatory for all religious literature items and other information materials delivered to libraries.  Thus, it looks like censorship is being resurrected in the Republic of Kazakhstan.

8.  Imposition of restrictive rules on public worship that applies currently to a peaceful assembly in Kazakhstan

The Draft Law provides for the regulation of public worship, religious ceremonies and rites through the legislation related to conducting assemblies, meetings, demonstrations and processions. This directly contradicts the International Law definition of a peaceful assembly, in particular, as spelled out in the OSCE Guidelines on Freedom of Peaceful Assembly.  This international document, as well as the legislation of the Republic of Kazakhstan, does not cover the regulation of sports, cultural, religious and educational events. Consequently, public worship, religious rites and ceremonies can not be regulated by this legislation.

9. Restriction on the use of public areas, especially in proximity to religious premises for religious purposes in view of the possibility to insult religious sentiments of other citizens

The Draft Law prohibits the distribution and publication of texts and illustrations as well as organizing public events, insulting religious sentiments of individuals, in any public places and within one hundred meters distance from religious premises.

In general, this provision of the Law represents a mixture of two different grounds for the introduction of restrictions on the rights of individuals: legal and moral-ethical. Legal ban on the offence of religious sentiments is clearly spelled out in the Kazakh Constitution, and respectively, in Administrative and Criminal Codes. The ethical and moral dimension of this provision, however, to a greater extent, depends on ethical values dominating in the public psychology, on the sense of proportion and manners of journalists, politicians, public figures, etc., and shall not be subject to legal bans. In addition, it is necessary to provide for legal and practical observance of the balance between two competing rights and freedoms: the freedom of expression and the rights and freedoms of other individuals.

10.  Transformation of the Committee on Religion under the RK Ministry of Justice into a punitive body with wide discretionary powers to control activity of religious communities

The Draft Law establishes the right for the designated authority in sphere of the freedom of religion and interaction with religious associations (i.e. the Committee on Religion under the RK Ministry of Justice) to draw minutes of administrative violations, committed by religious associations. Thus, the aim of this body will not be to facilitate the fulfillment of individual rights of Kazakh citizens to associate and practice their beliefs, but rather to design a scheme for a full-scale control over the activity of any religious organization.  At the same time the state body has no resources and staff available for the fulfillment of this task, if only it does not significantly increase the number of its staff, and turn into some kind of the state authority with the functions of a secret police to control religious communities.

11. Potential abuse of the provision of the law related to prohibition of “illegal funding or donations” and wide subjectivity of application of punitive sanctions related to non-compliance for minor infractions.

According to the Draft Law, “religious associations are not permitted to receive financial or other donations from illegal sources”. However, the current Law of the Republic of Kazakhstan does not define what sources of financial or other donations to religious associations are considered illegal.

In accordance with the Draft Law provisions, the state bodies have the right to ban the religious association even for minor violations. Moreover, these provisions allow state bodies free interpretation, which provides opportunities for abuse.

III. BACKGROUND INFROMATION ON RELEVANT PROVISIONS OF KAZAKH CONSTITUTION

1. Pursuant to Clause 1 of Article 1 of the RK Constitution: “The Republic of Kazakhstan proclaims itself a democratic, secular, constitutional and social state, its higher value being a human, his life, rights and freedoms”.

Thus, the Constitution by and large determines that religious institutions in the Republic of Kazakhstan (of all kinds and manifestations) are separated from the state, and that no confessions whatsoever perform state functions, that there is no religion protected by the state and that no religion whatsoever represents a state-constituting factor. 

2. Pursuant to Clause 2 of Article 14 of the RK Constitution: “No person whatsoever can be exposed to any kind of discrimination on the basis of origin, social position, job and proprietorship position, sex, race, nationality, language, religion, convictions, place of residence or any other circumstances».

Thus, the Constitution determines that no individual (a citizen of Kazakhstan, a foreigner legally residing or visiting Kazakhstan, a refugee or a stateless individual) in the Republic of Kazakhstan can be exposed to discrimination resulting from his religion, membership in different religious currents, groups or unions.  Furthermore, no religion, religious groups or union can enjoy any preference over any other religions, religious groups or unions.

3. Pursuant to Clause 1 of Article 19 of the RK Constitution: “Every individual has the right to determine and indicate or not indicate his nationality, party membership and religious adherence».

Pursuant to Clause 3 of Article 39 of the RK Constitution: “…. Under no circumstances rights and freedoms stipulated in … Article 19 … of the Constitution shall be limited».

Hence, the Constitution determines that the religious membership represents private matter of an individual and the state has no right to ascertain religious membership or demand to disclose it, and the aforementioned right shall not be subject to any restriction whatsoever under no circumstances.

4. Pursuant to Clause 1 of Article 22 of the RK Constitution: “Every individual has the right of conscience”.

Pursuant to clause 3 of Article 39 of the RK Constitution: “…. Under no circumstances rights and freedoms, provided for in … clause 22 … of the Constitution are subject to restriction”.

Pursuant to Clause 1 of Article 18 of the International Covenant on Civil and Political Rights  that was ratified by the Republic of Kazakhstan on November 28, 2005: “Every individual has  freedom of thought, conscience and religion. This right includes freedom to have and adopt religion or views at his own discretion and the freedom to practice his religion and views both individually as well as together with other individuals, both publicly and in private, in the cult exercise, the performance of religious and ritual ceremonies and teaching”.

It is constitutionally provided that every individual in the Republic of Kazakhstan (a citizen of Kazakhstan, a foreigner, a refugee or a stateless individual) has freedom of conscience, i.e. taking into account the provisions of the International Law, representing an inherent part of the effective Legislation of the Republic of Kazakhstan, every individual has the right to have or adopt a religion or views at his own discretion, the freedom to practice his religion and views both individually and in groups with other people, in public and in private, in the cult exercise, the performance of religious and ritual ceremonies and teaching, and this right is not subject to restriction under no conditions.