Certain Challenges in Determining Legitimate Grounds for Limiting the Right to Freedom of Conscience, Religion and Belief in the Legislation of the Republic of Kazakhstan

The need to maintain a balance between the rights and freedoms of an individual and the interests of society and the state motivated the inclusion in international human rights instruments permissible state restrictions on human rights and freedoms. However, such restrictions must be established by law, be necessary in a democratic society, must pursue legitimate goals and be proportionate to these goals. But not all legitimate goals may be grounds for restricting the right to freedom of religion or belief, and in this regard, national legislation and law enforcement practice in Kazakhstan must comply with the international obligations of the state with respect to such goals.

Introduction

The criteria for legitimate restriction of individual rights and freedoms were first set in the 1948 Universal Declaration of Human Rights (UDHR).

In accordance with Article 29 of the UDHR “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

Similar criteria are set forth in Articles 12, 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR), ratified by the Republic of Kazakhstan.

The idea of such criteria lies in that certain rights and freedoms cannot be restricted except in cases where limitations are prescribed by law, are necessary in a democratic society in the interests of national security, public order, in order to prevent disorder and crime, protection of public health or morals or the protection of the rights and freedoms of others.

1. Interests of the state (national) security and public safety as legitimate reasons for limiting human rights

In determining which restriction of human rights and freedoms is legitimate and proportionate to the aim pursued, an important role belongs to the instruments of 'soft law', including the General Comments and decisions by the UN convention bodies (e.g. the UN Committee on Human Rights), decisions of the European Court of Human Rights and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (the Siracusa Principles).

The international legal instruments recognize the interests of state (national) and public safety as one of the legitimate purposes for restriction of certain rights and freedoms.  

The interests of national and state security are mentioned in a number of ICCPR articles covering fundamental political rights and freedoms, including the freedom of association, peaceful assembly, freedom of expression and freedom of conscience, religion and belief.

Article 19 of the ICCPR states that the right to freedom of expression may be limited for “…the protection of national security…”.

Article 21 of the ICCPR determines that the exercise of the right of peaceful assembly may be limited  “…in the interests of national security or public safety…”

Article 22 of the ICCPR provides that the right to freedom of association may also be limited “…in the interests of national security or public safety…”

Finally, Article 18 of the ICCPR states that the right to freedom of conscience and religion may be restricted “… to protect public safety…”

From these provisions in the ICCPR, which is a fundamental international document on political rights and freedoms, it follows that the interests of national security and/or public safety are among the legitimate reasons for restriction of certain human rights and freedoms.

2. State (national) security and public safety as justification for limiting the right to freedom of religion or belief

It should be noted that the “national security” and “public safety” is not the same thing.

The official text of the ICCPR (as published on the United Nations website) uses two terms “national security” («государственная безопасность» in the Russian text) and “public safety” («общественная безопасность» in the Russian text).

Similar articles in the English text of the European Convention on Human Rights (Convention on Protection of Human Rights and Fundamental Freedoms - ECHR) on the right to freedom of expression, association, peaceful assembly and conscience and religion employ the same terms of “national security” and “public safety”.

At the same time the official Russian text of the ECHR uses the term «национальная безопасность» instead of «государственная безопасность» and similarly, ICCPR uses «общественная безопасность» (public safety).

The official English text of Siracusa Principles also refers to “national security” and “public safety”, which are translated in the official Russian text of the document as «национальная безопасность» and «общественная безопасность».

The Siracusa Principles contain an interpretation of these terms.

For example they provide the following explanation for “national security”:

“…29.  National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.

  1. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.
  1. National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.
  2. The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population…».

As for “public safety” the Siracusa Principles establish that:

“…33.  Public safety means protection against danger to the safety of persons, to their life or physical integrity, or serious damage to their property.

  1. The need to protect public safety can justify limitations provided by law. It cannot be used for imposing vague or arbitrary limitations and may only be invoked when there exist adequate safeguards and effective remedies against abuse…”

This way the international legal documents envisage that certain human rights and freedoms may be restricted in the interests of national (state) security and public safety, which are not the same and have a different meaning. 

With respect to certain rights and freedoms national security and public safety may be treated as legitimate grounds, whereas with respect to others as illegitimate.

Thus, according to the ICCPR the freedom of expression can be restricted for protection of national security, the right to peaceful assembly and association - in the interests of national security and public safety, while the right to freedom of conscience and religion - only in the interests of public safety.

3. State (national) security and public safety in the legislation of the Republic of Kazakhstan

The Constitution of the Republic of Kazakhstan specifies the legitimate restriction of some rights and freedoms in Article 39: «1. Rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional order, protection of public order, human rights and freedoms, health and morality of the population».

It should be noted that this article does not mention either national security or public safety among the legitimate reasons for restricting human rights and freedoms. One might assume that “national security” and “public safety” fall under the scope of “protection of the constitutional order”, but these are merely speculations, even though the Law of Kazakhstan on National Security contains certain provisions to that effect.

For example, Article 1.6) of this Law defines “national interests of the Republic of Kazakhstan” as a “complex of legislatively recognized political, economic, social and other needs of the Republic of Kazakhstan that have to be met in order to ensure the State’s capability to provide protection of human and civil rights, values of Kazakhstan society and foundations of the constitutional system…”

Article 4.3) of the Law under Types of National Security provides a definition of “political security” as “the condition that ensures protection of the foundations of constitutional order, the activities of the state bodies and the state administration rule against real and potential threats, which ensure respect  for human rights and civil freedoms, rights of social groups and balance of their interests, integrity and favourable international position of the state…”.

In essence, these definitions can be construed to mean that certain rights and freedoms can be restricted in the interests of state or national security, as understood by international human rights instruments.  At the same time, the provisions in the Kazakhstan's legislation are much wider and much more vague as compared to those that are set forth in the Siracusa Principles. 

But what creates even larger problem in ensuring compliance with legitimate purposes of restricting human rights and freedoms, in particular, the right to freedom of conscience, religion or belief, the requirements of international law, is that in paragraph 1) of the same article of the said Law public safety is named as a type of national security and defined as “the condition that ensures protection of life, health and well-being of citizens, spiritual and moral values of Kazakhstan's society, social security system against real and potential threats; a condition that ensures integrity and stability of the society…”

Basically, “public safety” is regarded as a type of national or state security, which results in confusion of the terms that are separate in the international law.

It should be emphasized again that protection of public safety is a legitimate aim for restricting the right to freedom of conscience, religion and belief. Interests of national of state security cannot be used as grounds for restricting the right to freedom of religion.

This point is specifically made clear in paragraph 8 of the CCPR General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights: «8.  Article 18.3 permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others...

Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security”.

Conclusions

Notwithstanding the fact that the definition of public safety contained in Article 4.1) of the Law on National Security generally corresponds  to the internationally accepted terms that is set out in the Siracusa Principles, Kazakhstan's legislation, however, approaches “public safety” as part of national or state security.

This approach contradicts international standards, in particular the provisions of the International Covenant on Civil and Political Rights, and allows restriction of the right to freedom of conscience, religion and belief in the interests of national security, which is inadmissible and is specifically referred to in the CCHR General Comment No. 22: Article 18 of the International Covenant on Civil and Political Rights which contains guarantees with respect to such right.

We believe that the national  legislation of the Republic of Kazakhstan should be amended to comply with the ratified international treaty and Kazakhstan's international commitments in the area of human rights and freedoms, in particular the right to freedom of conscience, religion and belief.

Eugene Zhovtis, expert