Administrative procedures involving religious associations under the new Сode of Administrative Procedure

On 29 June 2020 the new Code of Administrative Procedure (CAP) was signed which will come into effect on 1 July 2021. The Code fundamentally changes the system according to which the citizens, their associations and the state interact with each other. There are provisions for new guarantees for the protection of the rights and freedoms of citizens. The state bodies will now work harder in substantiating their decisions, which will be harder to overturn.

The CAP consists of two large sections. The first section is dedicated to administrative procedures. Within the bounds of this institute, an explanation is given of how administrative bodies (state agencies and those bodies that have executive powers) must adopt administrative acts, e.g. carry out registrations of entities and facilities, issue permits, consents for various types of activities to be carried out, etc., and conduct administrative functions, e.g. seal premises, terminate meetings, introduce traffic restrictions, etc.

The second section is dedicated to the matters of public and legal disputes between citizens and the state. Kazakhstan will have a new type of judicial proceedings --administrative, which will be in addition to criminal, civil procedure and administrative offenses.

This document focuses on certain aspects pertaining to administrative acts and actions in the context of the CAP and the functioning of religious associations.

This is important since the activity of religious associations is subject to a strong government regulation. Listed below are some of the registration, licensing, notification and expert procedures that most religious associations have to deal with, one way or another:

  1. Registration of religious associations, their branch offices and representative offices.
  2. Registration of missionaries.
  3. Issuance/obtaining approvals for the locations of premises for religious rituals outsides the boundaries of religious premises (buildings).
  4. Issuance of permits to build religious premises (buildings), determine their location, repurpose (changing their functional purpose) of premises (buildings) into religious premises (buildings).
  5. Approval of the locations of special-purpose stationary premises for dissemination of religious literature and other information materials of religious nature, as well as religious artefacts.
  6. Expert review of religious literature, information materials of religious nature, and religious artefacts.

The state bodies also approve the activity of foreign religious associations within the territory of the country, appointments by the foreign religious centres of heads of religious associations in the Republic of Kazakhstan, although this is a rare case.

It is clear that by entering into various legal relations that are not directly related to religious activity, various other procedures also apply to religious associations (obtaining land plots, construction permits, registration of vehicles etc.).

All aforementioned actions are covered by the notion of an administrative procedure. At present, the procedures are governed by a great number of regulatory legal acts and are provided in the context of public services. Many acts will continue to be in effect along with the CAP.

The CAP is important in that it introduces new provisions that provide various procedural guarantees to the religious associations in the procedures, sets new principles which also protect those same associations in their interactions with the government apparatus. Those principles and provisions include:

1. Principle of the priority of the right (article 12 of the CAP).

According to such principle, any doubts, discrepancies and ambiguity contained in the legislation of the Republic of Kazakhstan on administrative procedure should be interpreted in favour of the party to the administrative procedure in question.

For instance, during registration of a regional religious association, a list of participants of each of the local religious associations which initiate the establishment of the regional religious associations must be submitted. Those local associations must come from different regions of Kazakhstan. It is unclear from the text of the regulatory legal acts whether the regions should be adjacent to each other or if they may not have a common border, which may lead to problems in real life. The principle of the priority of the right gives a basis to argue that the local associations may represent not only those regions that are adjacent to each other.

2. Principle of the presumption of credibility (article 15 of the CAP).

When carrying out an administrative procedure, the materials, objects, documents and information submitted by the participant in such procedure shall be considered authentic and true until and unless an administrative body or a public official determine otherwise.

An administrative body or a public officer must independently verify the authenticity of materials, objects, documents and information, should they have doubts regarding their veracity.

For instance, if a religious association has applied for a permit to hold religious events outside a religious building and the local authority has doubts regarding the veracity of information on the consent obtained from the people residing in the proximity to such a building, then the authority/public official shall independently verify such information.

3. Principle of administrative discretion and proportionality (articles 10-11 of the CAP).

State bodies often have a choice in whether to act (not act) or what tools to use. For instance, if an unauthorized religious meeting is taking place in a park, the police may offer the organizers to terminate the meeting or, if the meeting still continues, have the right to apply physical force in order to terminate the meeting. In other words, they have a choice to use or not to use physical force. In accordance with the principle of proportionality, when exercising administrative discretion, the state bodies shall ensure a fair balance between the interests of the participants in the administrative procedure and the society. This means that:

  1. a) an administrative act or administrative action (inaction) must fit the purpose as set forth by the legislation of the Republic of Kazakhstan (suitability);
  2. b) an administrative act, administrative action (inaction) should have a minimal impact on the rights, freedoms and law-protected interests of the participants of the administrative procedure (necessity);
  3. c) public good that has been received as a result of restriction of the rights, freedoms and law-protected interests of the participant of the administrative procedure must be larger than the damage caused by such restriction (proportionality.

Besides, an important condition for adoption of an administrative act and/or carrying out an administrative action (inaction) when exercising administrative discretion is whether the authority granted to the administrative body is commensurate with the intended purpose.

If we were to analyse the use of physical force in the case of termination of an unauthorized religious meeting in a public place, after the police’s request to terminate was not complied with, we would see that:

- first of all, the actions by the police officers were commensurate with the purpose of authority they were granted. They have an obligation to protect public order and have the right to suppress illegitimate forms of expression of public, group or personal interests. In a narrower sense, in accordance with article 59 of the Law of the Republic of Kazakhstan “On the Law Enforcement Services” dated 6 January 2011, physical force may be used by the law enforcement to terminate public threats, with due account for the nature of offense and particular situation.

If the police officers use force not to suppress an unauthorized meeting but simply because they do not like the religious affiliations of those participating in the meeting or are bothered by the noise coming from it, then we are talking about the violation of the boundaries of discretion. This is the so-called first level (criterion) of inspection of administrative discretion, which allows further assessment to take place.

- second, use of physical force may be considered a suitable measure because it actually can suppress the meeting. For instance, inspecting religious literature or other materials or objects that are used during the religious meeting should be considered as unsuitable measure;

- third, use of physical force is unlikely to be qualified as necessary. The police officers could have asked again that the meeting be terminated, or they could have had a chat with those in charge of the meeting;

- fourth, use of physical force, most likely, would be considered disproportionate, because public good gained as a result of such actions is doubtful, while the violation of the rights of citizens to conduct a religious ritual in community with others is obvious.

Therefore, the actions by the administrative bodies, if subjected to a review, will be undergoing a test of compliance with the aforementioned criteria of administrative discretion and proportionality.

4. Principle of the protection of the right to trust (article 13 of the CAP).

This principle means that the citizens have trust in the state bodies’ acts and actions and believe that those acts have been duly and reasonably issued and the actions have been duly and reasonably carried out, until and unless a higher body or court establishes otherwise. The state bodies may not reverse their acts any time they want. Even where a state body has issued an illegitimate act which works in favour of a citizen or organization through no fault of such citizen/organization, such act may not be reversed without respecting the principle of the right to trust. However, if a law does stipulate that an act may be reversed, then the victim should be compensated for any damage caused by such act /action of the state bodies.

For instance, if a religious association has been issued a permit to build a religious building and it is discovered afterwards that some legal norms were breached in the process of issuance of the permit, the decision to issue the permit may not be invalidated provided that the religious association had nothing to do with illegitimate actions. At the same time, the CAP stipulates cases when the principle of the right to trust will not be considered (e.g. the legal act on the basis of which the administrative act has been issued is declared unconstitutional; it has been established with certainty that the document or information provided by the participant in an administrative procedure is invalid or false; an administrative act has been adopted as a result of the participant in an administrative procedure committing some illegal acts; an administrative act concerns state or public interests or national security, or may lead to grave irreversible consequences for human health or life).

5. Right to a hearing (article 73 of the CAP).

If a state body is going to adopt an encumbering legal act, it is obliged to conduct a hearing. The hearing is conducted to ascertain the position of the applicant, ensure a comprehensive, full and unbiased review of factual circumstances that are important for a correct consideration and resolution of the issue. A hearing may be conducted in various forms: as an in-person session; by submitting a written objection; by using various means of communications (video conferencing, IT systems). Prior to a hearing the state body shall notify the participant in the administrative procedure of its preliminary decision.

For instance, a Ministry of justice body plans on denying a state registration of a religious association. Prior to issuing the relevant order denying the registration, it must conduct a hearing with the initiators of the establishment of the religious association, so that they have the opportunity to submit additional documents or correct any errors.

Ignoring the right to a hearing may cause an administrative act to be overturned.

The CAP contains many other provisions which serve to protect the rights and interests of the applicant: the right to receive from an administrative body/public official an explanation of the applicant’s rights and obligations it may have in respect to an administrative procedure; the right to familiarize yourself with the administrative case materials, make notes and copies both during and after the review of the administrative case; the right to file petitions; the right to have a representative; etc.

The acts and actions by the administrative bodies may be contested with a higher authority or in a court of law. Unlike the existing procedure, the applicant will be able to refer the matter to a court of law only after the matter has been reviewed by a higher authority. If there is no such a higher authority, then the applicant may refer the contested matter to a court of law directly.

It is the law drafters’ plan that the CAP will provide some serious help to individuals and legal entities in resolving the great many issues that depend on government administration. How it will play out in real-life law enforcement practice remains to be seen. However, the religious associations should know that they now have additional legal remedies.


Prof. Roman Podoprigora, Director of the Caspian University Research Institute of Public Law, PhD Law.

17 November 2020