An analysis of practice of holding administratively liable under article 490 of the Kazakhstan Code of Administrative Offenses

Article 490 of the Code of Administrative Offenses of the Republic of Kazakhstan (CAO) establishes responsibility for violating the legislation on religious activity and religious associations. Cases under this article are considered by courts, which allowed to conduct an analysis of judicial acts contained in the Bank of Judicial Acts (https://office.sud.kz/courtActs/index.xhtml).

For 2019 the said Bank contains information on 142 cases from across Kazakhstan, except for Akmola and Almaty oblasts and the city of Shymkent--there is no information in the Bank regarding judicial considerations under article 490 of the CAO) performed in those territorial units.

The majority of the cases were tried by the courts of Karaganda oblast - 24 cases or 17 per cent of all cases; North Kazakhstan oblast (17 cases or 12 per cent of all cases), and Atyrau oblast (15 cases or 10 per cent of all cases), whereas the least number of cases was registered in Kostanay oblast (1 case or 1 per cent of all cases); Mangistau oblast (3 cases or 2 per cent of all cases), and West Kazakhstan oblast (4 cases or 3 per cent of all cases). One can see certain regional specifics. In Atyrau oblast, most of the cases involved liability for violating the rules of conduct in mosques (saying the word “Amen” out loud), while in Karaganda oblast those were related to storage and dissemination of religious materials in social networks.

The courts applied two types of penalties: fines and suspension of activity. The amount of fines, across all cases, was approximately 16,5 million tenge. The terms of suspension were mostly three months, and less frequently one month.

In 16 cases (11 per cent of all cases) that were tried no administrative penalties were imposed. The cases were dismissed for the lack of elements that would constitute an offense (56 per cent), due to being a minor offense (25 per cent), or due to expiry of the limitation period (19 per cent).

An absolute majority of the cases (98 out of 142) involved violations of legislative requirements governing the import, production, issue, publishing and/or dissemination of religious literature and other materials of religious nature, religious artefacts (subclause 3 clause 1). In general, the situation with cases due to violations of various parts of article 490 is presented in the table below:

S/n	Elements of an offense	Section, clause of article 490 of the CAO	Number of cases	Per cent of total number of cases
1.	Violations of requirements governing the import, production, issue, publishing and/or dissemination of religious literature and other materials of religious nature, religious artefacts	Subclause 3, clause 1	98	69%
2.	Carrying out a missionary activity without registration (re-registration), usage by missionaries of religious literature, information materials of religious nature, and religious artefacts without a positive conclusion of a religious expert review; dissemination of religions preached by religious associations that are not registered in the Republic of Kazakhstan)	Clause 3	18	13%
3.	Violations of requirements for conducting religious rituals, ceremonies and/or meetings	Sub-clause 1, clause 1	12	8%
4.	Obstruction of legitimate religious activity	Clause 2	11	7.5%
5.	Violations of requirements for construction of religious buildings (premises), repurpose (change of functional purpose) of buildings (premises) into religious premises	Sub-clause 4, clause 1	2	1.5%
6.	Inaction by the head of a religious association when it comes to preventing the involvement and/or participation of minors in the activity of the religious association, if there is an objection by the minor’s parent or legal representative	Clause 7	1	1%

No cases under other sections and sub-clauses of article 490 were initiated. Three repeated offenses (under clause 8 of article 490) were included by us into the same elements that pertained to the original offenses.

1. Violations of requirements governing the import, production, issue, publishing and/or dissemination of religious literature and other materials of religious nature, religious artefacts (sub-clause 3 clause 1).

The majority of offenses related to sales and distribution of religious objects in trade houses, stores, stations and other public places, a total of 41 cases (or 42 per cent of all cases). That includes both literature and various objects, e.g. icons or jewellery, statuettes, amulets, and bracelets with religious themes.

The second largest number of cases involved storage and/or dissemination of religious materials (audio and video recordings, messages) in social networks, a total of 32 cases (or 33 per cent of all cases). “V Kontakte” was mentioned most frequently, and singular cases related to Instagram or WhatsApp.

The third group includes offenses involving sales of religious literature and religious objects via the OLX platform, a total of 21 cases (or 21 per cent of all cases).

Finally, 4 cases (or 4 per cent of all cases) involved discovering religious literature at border control checks.

In all cases, the basis for liability was clause 2 article 9 of the Law of the Republic of Kazakhstan “On religious activity and religious associations” dated 11 October 2011, “distribution of religious literature, other information materials of religious nature, religious artefacts, may only be permitted at religious buildings (premises), spiritual (religious) educational organizations, and at specially designated stationary premises as determined by the local executive bodies in the oblasts, cities of republican significance, and the capital.” Sale outlets, social networks, internet services are not such places.

It is less clear with the discoveries of religious literature during border control checks. In two cases the individuals who were held responsible were carrying a singular copy of the literature (which, notably, was indicated in the relevant court resolutions). Despite the fact that religious literature existing in one singular copy may be imported into the territory of Kazakhstan for personal use, the fine was still imposed and the books were destroyed.

In all cases under this clause there was a religious expert review, even when no special expertise was necessary (e.g. review of the Quran, the Bible, icons, statuettes, etc.).

The judges took varying approaches toward imposing additional penalties in the form of suspension of activity. Most of them ruled to suspend the activity pertaining to the sale of literature or operation of a sales outlet, or simply activity in general, for a term of three months, even when it made no sense to prescribe such suspension and was impossible to comply in particular cases. For instance, such a measure was taken with respect to a foreign citizen who was in transit and was found to carry religious literature on him. It should also be noted that some courts ignored this measure altogether and limited the penalty to a fine. Only in a handful of cases (in the courts of North Kazakhstan oblast) did the courts refuse to hand down a suspension and referenced clause 3 of the Regulatory resolution of the Supreme Court dated 6 October 2017 which stated that additional penalties such as suspension or ban on an activity as a whole or its certain parts should be applied with respect to persons that have the relevant permit to engage in such activity.

It should be noted that in certain cases the judges were thorough in their judicial review and took account of all factual circumstances. For instance, a judge in Nur-Sultan did not recognize jewellery as objects necessary for religious worships, rituals and ceremonies, and defined them as jewellery that may be used by anyone for personal purposes, and on that basis dismissed the case for the lack of components that would constitute an offense.

2. Carrying out a missionary activity without registration (re-registration), usage by missionaries of religious literature, information materials of religious nature, and religious artefacts without a positive conclusion of a religious expert review; dissemination of religions preached by religious associations that are not registered in the Republic of Kazakhstan (clause 3).

In accordance with clause 1 article 8 of the Law of the Republic of Kazakhstan On religious activity and religious associations, citizens of Kazakhstan, foreign citizens and stateless persons may engage in a missionary activity after registration. In all cases under this article, the state bodies claimed violations of this requirement.

Most of the cases concerned storage and distribution of information in social networks, a total of 6 cases or 32 per cent. The same cases in numerous similar situations were qualified under sub-clause 1 clause 1. Only in two cases it was said the person was preaching on YouTube and expressed his/her point of view on Facebook.

Talks outside on the street or inside a building, which relate more to the missionary activity, were noted in five cases, or 28 per cent.

Aside from that, the courts deemed as illegal missionary activity preaching a religion at home or at charity establishments (4 cases, 22 per cent); dissemination of a religion at a meeting of an unregistered organization (1 case, 6 per cent); arranging a prayer room in a residential house (1 case, 6 per cent); distribution of religious literature in a trade house (1 case, 6 per cent).

3. Violations of requirements for conducting religious rituals, ceremonies and/or meetings (sub-clause 1, clause 1).

The Law on religious activity and religious associations defines places and locations where religious rituals and ceremonies may be conducted without hindrance. In accordance with article 7 of the Law, such rituals and ceremonies may be conducted in religious buildings (structures), religious establishments and premises, in dwellings and certain other places. The general rule is that in order to conduct a religious activity outside the boundaries of religious buildings, there must be a permit/approval from the local executive bodies.

The majority of the cases here related to arranging a namaz-khana (prayer room) at business centres, trade houses, stations and markets, or at home, a total of 7 cases or 58 per cent. In three cases (25 per cent) cases were initiated for at-home worships. An athlete who prayed in a boxing gym was also held liable (8.5 per cent).

4. Obstruction of legitimate religious activity (clause 2).

Most of the cases related to holding persons liable for pronouncing the word “Amen” out loud at the end of a prayer, a total of 10 cases or 90 per cent, which goes against the practice of Hanafi madhhab. The judicial acts specified that the Rules of conduct as adopted by the Spiritual Administration of Muslims of Kazakhstan were violated.

Thus, the state bodies effectively protect the internal norms of religious associations. It is clear that qualifying such actions as obstruction of legitimate religious activity is a dubious task. In this regard it should be noted that in one case a judge ruled that pronouncing the word “Amen” out loud does not preclude the prayer, does not bother those around the person pronouncing this word, and consequently dismissed the case as lacking the elements that constitute an offense.

One case involved a call for a prayer without the permission of the imam (10 per cent).

5. Violations of requirements for construction of religious buildings (premises), repurpose (change of functional purpose) of buildings (premises) into religious premises (clause 4).

In accordance with sub-clause 8 of article 5 of the Law On religious activity and religious associations, construction of religious buildings (structures), repurposing (changing the functional purpose) of buildings (structures) into religious buildings (structures) require permission (resolution) from the local executive bodies.

In one case a namaz-khana (prayer room) was being built without permission of the local executive body, and in the other a residential house was repurposed into a prayer facility.

6. Inaction by the head of a religious association when it comes to preventing the involvement and/or participation of minors in the activity of the religious association, if there is an objection by the minor’s parent or legal representative (clause 7).

In accordance with clause 16 of article 3 of the Law on religious activity and religious associations, the head of a religious association is obliged to take measure to ensure minors are not involved and/or participate in the activity of the religious association if one of the minor’s parents or other legal representatives object to such involvement.

In a single case initiated under this part, the heads of a religious associations were accused of contacting a former underage member of the commune while his/her parents objected.

The analysis of judicial practice of holding administratively responsible under article 490 of the CAO reveals the following issues:

- actions that do not pose a significant public threat are criminalized;

- persons that have nothing to do with a religion (sellers of religious literature, objects, and symbols) are being held administratively responsible;

- identical actions are qualified differently under different sections or clauses of article 490;

- people are being held administratively responsible for committing actions that are not prohibited by law or without considering all elements that together constitute an offense;

- suspension of activity is being applied formally, even when it makes little sense;

- the state interferes with the internal affairs of religious associations and protection of their internal procedures;

- significant resources are being spent on religious expert reviews, even when there is no need in special expertise.

One part of the listed issues pertains to the relevant provisions of the existing Law on religious activity and religious associations. The other part relates to the problems of judicial process when it comes to administrative cases. Therefore, to fix these issues both the legislation and the quality of work of the judges needs further improvement.

 

 

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

17 November 2020