CERTAIN TOPICAL ISSUES CONCERNING THE APPLICATION OF THE LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN ON RELIGIOUS ACTIVITY AND RELIGIOUS ASSOCIATION

PART 1: ISSUES CONCERNING REGISTRATION AND MEMBERSHIP

Established in 1993, the Kazakhstan International Bureau for Human Rights and the Rule of Law (KIBHR) is a Kazakhstani non-government, non-profit human rights organizations that promotes political rights and civil liberties in Kazakhstan and other countries.

The main areas in which KIBHR has been active are the creation of an effective mechanism of public protection of fundamental human rights and liberties; promotion of the creation of democratic institutions; and advancement of the rule of law and respect for political rights and civil liberties in Kazakhstan and other Central Asian countries.

The organization’s particular types of activity include the assessment of the legislation of the Republic of Kazakhstan from the standpoint of its compliance with international human rights legal documents; organization of monitoring of the observance of political rights and civil liberties in the Republic of Kazakhstan; strategic litigation with the use of domestic and international remedies; and education in the area of human rights.

Since 2020, with the support from Norway’s Stefanus Alliance International KIBHR has been implementing an action titled “A response to the legal issues associated with the protection of the right to freedom of conscience, freedom of religion or freedom of belief in the Republic of Kazakhstan.” As part of the action, on 22, 23, and 24 December 2020 the organization conducted a series of Zoom webinars for government officials (including the representatives of the Ministry of Justice and Ministry of Information and Social Development (the Ministry’s Committee on Religious Affairs), attorneys, lawyers, and representatives of religious communities and groups on practical aspects of protecting the right to freedom of religion or freedom of conscience, in Russian and Kazakh. The webinars provided the opportunity for experts to present their speeches, and for exchange of experience and legal practices to take place concerning the issues of promotion of freedom of conscience, freedom of religion or belief, and protection of the rights of victims of violations of those rights.

As a follow-up to the webinars, KIBHR jointly with the lawyers, attorneys and members of the religious associations drafted and submitted to the Ministry of Justice of the Republic of Kazakhstan (MJ) and Ministry of Information and Social Development of the Republic of Kazakhstan (MISD) the topical questions on the practice of application of the legislation on religious activity and religious associations.

By mid-June 2021, KIBHR had received official responses from MJ (No. 1-9/ZT-Zh-1104 dated 16 June 2016) and MISD (No. 02-24/ZT-ZhZh-362 dated 15 June 2016), which it included along with the original questions in an information brochure that has been made available to the attorneys, lawyers, heads and regular members of religious associations for use in practical life.

At the same time, in its response the Ministry of Justice noted that in accordance with the Law of the Republic of Kazakhstan “On Normative Legal Acts” dated 6 April 2016, as amended on 1 July 2021, said response was not to be deemed to be the official clarification of a normative legal act. In its response, the Ministry of Information and Social Development specified that government authorities may provide clarifications of normative legal acts, subject to and within the scope of their competence. Such clarifications have no binding legal force and should be considered as recommendations only.

In accordance with clause 4 of article 60 of the Law of the Republic of Kazakhstan “On Normative Legal Acts,” government agencies that are tasked with advancing the state policy, or with regulation and management in a certain sector (area of activity), or whose scope of competence covers handling certain issues, or other government agencies subject to the scope of their authority, may provide within the bounds of their competence clarifications regarding the regulatory legal acts as they concern particular subjects or a particular situation.

Therefore, the responses that were provided should be viewed as clarifications provided by the authorized state agencies concerning normative legal acts in respect of particular subjects or situations (even though the responses provided by the MJ are not to be deemed to constitute an act of official clarification of a normative legal act), because it is MISD that is the authorized body in this area as per the Law of the Republic of Kazakhstan “On Religious Activity and Religious Associations” dated 11 October 2011 as amended on 1 July 2021, while the MJ, according to clause 2 of article 18 of the Law of the Republic of Kazakhstan “On the Bodies of Justice” dated 18 March 2002 as amended on 12 March 2021, is tasked with state registration of legal entities that are non-profit organizations, and with registration of their branch offices and representative offices, and under clause 1 and 3 of article 23 of the Law, performs such functions as the observance and protection of the rights, freedoms and law-protected interests of individuals and citizens, organizations and the state, as well as the reception and review of applications and petitions from the citizens and legal entities on any issue that falls within the scope of competence of the justice authorities.

When it comes to the registration and membership in religious associations (RA), some responses provided by the MJ and MISD were of particular interest.

Thus, the representatives of RA posed this question: “The provision of the Kazakhstan legislation on mandatory registration of religious associations is in contradiction to the International Covenant on Civil and Political Rights. Does having this provision of mandatory registration mean that without state registration, the believers will not be able to congregate and meet their religious needs? Is there a solution to this question in the plans?”

Here is the MJ’s response: “In accordance with clause 1 of article 23 of the Constitution of the Republic of Kazakhstan, the citizens of the Republic of Kazakhstan have the right to freedom of association. The right of the citizens of the Republic of Kazakhstan to freedom of conscience or religion is based upon the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan, the Law “On Religious Activity and Religious Associations,” and on those international legal acts on the rights and freedoms of individuals and citizens that are recognized by the Republic of Kazakhstan.

The legal capacity of a non-profit organization as a legal entity arises at the moment the organization has been registered by the state. Therefore, the state, while recognizing the freedom of conscience, uses its legislation to regulate the practice of how this freedom is used, and creates a basis for public formations that are being created to implement such freedoms, to function.

State registration is mandatory for absolutely all legal entities that are created within the territory of the country, irrespectively of their objectives, type, kind and nature of activity, and also irrespectively of what kind of membership they have. This procedure is necessary for ensuring the organization in question is independent and distinct in terms of its property, is able to act in a civil turnover on its own behalf thereby acquiring the relevant rights and responsibilities, and engage in a dialogue with, and represent its own interests before, the state. In doing so, the religious associations are not subjected to some insurmountable responsibilities. To this end, the current legislation on registration of religious associations is not in contradiction to the International Covenant on Civil and Political Rights.”

This response suggests that the MJ views religious associations exclusively as legal entities and so it believes that in order for the freedom of conscience to be implemented, the public formations that are created for this purpose must be registered. In fact, it speaks of mandatory registration to obtain the status of a legal entity, but does not offer any information on creation of non-formal, unincorporated associations of citizens irrespectively of the objectives for which they are created.

The next question touched on re-registration in the event of a change in the composition of the original founders of a RA: “The citizens of the Republic of Kazakhstan initiated the establishment of a local religious association, the foundation documents received a positive opinion of the religious expert review board, and the LRA was registered. However, subsequently the bodies of justice demand that the LRA be re-registered if the founders have had certain events e.g. legal problems, death et cetera; in other words, the MJ requires that the founders must maintain good health and fitness throughout the entire life of the RA. How can this problem be solved?”

Here is how the MJ responded: “In accordance with article 14-2 of the Law “On the state registration of legal entities and registration of branch offices and representative offices” [dated 17 April 1995 as amended on 1 July 2021 – author’s note] the registration data of a legal entity shall be changed and amended whenever there is a change in the composition of the founders (participants, members) of a non-profit organization. The change in participants in a non-commercial organization shall be on a notification basis. Therefore, when there is a change in participants, there is no requirement for registration procedures to be carried out.”

This response is significant from the point of view of practical law enforcement, because the local departments of justice quite often regard such changes and amendments as a re-registration of an RA.

However, according to MJ’s response it is not the legal entity that is re-registered—new changes and amendments to its foundation documents are registered instead, and in such a case the legislation stipulates no requirements for any registration procedures.

Essentially, a similar question posed by the representatives of religious community concerned the following: “The registration bodies require that when a legal entity changes its address in one and the same city (region) it must obtain a new certificate of state registration (wherein the new address will be specified), even though the said legal entity could have done with a simple notice? When a legal entity’s whereabouts are changed within one and the same district or city in an oblast, will it be sufficient to simply notify the registration body without re-registering the legal entity in question and obtaining a new certificate of state registration?”

In its response, the MJ clarified: “In accordance with Article 14-1 of the Law “On the state registration of legal entities and registration of branch offices and representative offices” when a legal entity changes its whereabouts the new changes and amendments to its foundation documents shall be state registered.

The government service is provided by the Ministry of Justice and territorial bodies of justice in respect of legal entities, branch offices and representative offices that are non-profit organizations.”

Same as in its response to the previous question, the MJ clarifies that it is not the legal entity that is re-registered but the new changes and amendments to its foundation documents, and that there are no requirements in the legislation for any registration procedures to be carried out.

The next important question from the representatives of religious associations concerned the possibility for citizens to initiate the creation of several RA: “Can the citizens be the initiators of several religious associations? Within the boundaries of one and the same oblast, city of Republican significance, or capital, there may be several religious associations of the same confessional category. A local religious association operates within the boundaries of a single oblast, city of Republican significance, or capital. In this regard, the question is whether the local religious associations can open branch offices in other oblasts the cities of Astana and Almaty.”

This is what the MJ had to say: “The law does not stipulate any restrictions. Several religious associations of the same confessional category may operate within the boundaries of one and same oblast, city of national significance, or capital.

In accordance with clause 2 of Article 12 of the Law, a local religious association operates within the boundaries of one oblast, city of national significance, or capital.

Under the Civil Code, any legal entity has a right to create branch offices.”

It follows from this response that:

- the citizens may be initiate several religious associations, with no restrictions on their number;

- a religious association, including a local one, may create branch offices, just like any other legal entity, because this is not prohibited by the Civil Code.

What this means is that a citizen may initiate the creation of any number of religious associations. In the meantime, the already-established and registered local religious associations may open an unlimited number of branch offices across the entire territory of the country, because the Civil Code of the Republic of Kazakhstan dated 27 December 1994 as amended on 1 July 2021 contains no restrictions to this effect.

One other question posed by the representatives of religious associations concerned foreign citizens: “Can foreign citizens be members in a religious association?”

To this, the MJ responded: “In accordance with clause 4 of Article 1 of the Law, a religious association is a voluntary association of citizens of the Republic of Kazakhstan, foreigners and stateless persons who have united in a procedure established by the legislative acts of the Republic of Kazakhstan on the basis of a common interest in order to satisfy their spiritual needs.

In view of the foregoing, we inform you that these provisions of the Law should be followed, in accordance with which foreign citizens indeed can be members of a religious association.”

Therefore, it follows from the MJ response that there are no restrictions in the legislation of the Republic of Kazakhstan for foreigners and stateless persons to be members of religious associations.

The next question concerned the stay of foreign nationals who are members in an RA in the territory of the Republic of Kazakhstan: “Foreign citizens are issued a visa for a term of six months which can be extended for another six months only, after which they have to leave the territory of the country. This requirement is expensive and inconvenient. Can the term of stay of foreign nationals who are members in religious associations in Kazakhstan be extended?”

In its response to this question, the MJ referred to the fact that such matters are regulated by the law on migration, irrespectively of the purpose of stay in Kazakhstan.

One question posed by the representatives of religious associations concerned the membership in those: “How does the authorized body interpret the term “member of a religious association,” since quite often the congregants are not members of a particular religious association but still participate in the prayer meetings, much like who are not Christians of Muslims come to a church or a mosque? How does the authorized agency regard individuals who are not members of a particular religious association but still participate in its rituals and events?

The MISD responded to this question, albeit in a somewhat vague manner: “The legislation does not define the term “a member of a religious association.” At the same time, based on clause 3 of Article 13 of the Law, a member of a religious association is a participant to a certain religious association, which has been inoculated with religious education of the said association.

According to clause 4 of Article 1 of the Law, a religious association is a voluntary association of citizens of the Republic of Kazakhstan, foreigners and stateless persons who have united in a procedure established by the legislative acts of the Republic of Kazakhstan on the basis of common interest in order to satisfy their spiritual needs.

Every person has a right to hold his/her own religious beliefs, disseminate them, participate in the activities of religious associations, and engage in a missionary activity in accordance with the legislation of the Republic of Kazakhstan.”

It still unclear from the response provided by the MISD just how the authorized body distinguishes between members (participants) of a religious association and those who are not formally members (participants) of the said RA but who are religious partisans and participate in religious service and rituals.

Nevertheless, on balance the official responses given by the authorized state bodies, the Ministry of Justice and the Ministry of Information and Social Development, to the questions posed by the representatives of religious associations and lawyers, along with their clarifications of the normative legal acts and law enforcement practice in respect of particular subjects or situations, make it possible to a certain extent to implement the principle of legal certainty and uniform approach toward certain legislative provisions concerning religious activity and religious associations in the Republic of Kazakhstan.

PART 2: ACTIVITY OF RELIGIOUS ASSOCIATIONS

In mid-June 2021 the Kazakhstan International Bureau for Human Rights and the Rule of Law received official responses from the Ministry of Justice of the Republic of Kazakhstan (No.1-9/ZT-Zh-1104 dated 16 June 2021) and the Ministry of Information and Social Development of the Republic of Kazakhstan (No.02-24/ZT-ZhZh-362 dated 15 June 2016) to the questions raised by representatives of religious associations, lawyers, attorneys and experts.

Part 1 of the responses from the state bodies, on the matters that concern registration and membership in religious associations, was published earlier.

This article addresses the responses to questions that concerned the activity of religious associations (hereinafter, the “RA”).

The Ministry of Information and Social Development of the Republic of Kazakhstan (MISD RoK) was asked this: “Can a religious association engage in a religious activity outside the premises of its management body? It is the opinion of certain state agencies that the activity of a religious association should not be carried out outside the premises of its management body, even though a registration of a local religious association means that its activity covers the entire territory of the oblast (city of national significance).”

The response received from the MISD was: “In accordance with article 12 of the Law of the Republic of Kazakhstan “On Religious Activity and Religious Associations,” religious associations in the Republic of Kazakhstan may be established with the following types of status: local, regional, and national.

A local religious association is a religious association that has been established at the initiative of no less than fifty citizens of the Republic of Kazakhstan and which operates within the boundaries of a single oblast, city of national significance, and the capital.

A regional religious association is a religious association that has been established at the initiative of no less than five hundred citizens of the Republic of Kazakhstan, which is a participant (member) in two or more local religious associations, each with a membership of no less than two hundred and fifty citizens of the Republic of Kazakhstan and representing no less than two oblasts, cities of national significance, and the capital.

Regional religious associations are established and operate within the territory of activity of such local religious associations.

A national religious association is a religious association that has been established at the initiative of no less than five thousand citizens of the Republic of Kazakhstan who represent all the oblasts, cities of national significance, and the capital, each with a membership of no less than three hundred citizens of the Republic of Kazakhstan, and which has structural units (branch offices and representative offices) across the entire territory of the Republic of Kazakhstan.”

Thus, based on the MISD response, a local religious association operates across the entire territory of an oblast (a city of national significance, and the capital) where it has been registered, regardless of the location of its management body. Accordingly, a regional religious association operates within the entire territory of regions (oblasts, cities of national significance, and the capital) where its constituent religious associations are located.

Several questions touched on the necessity to obtain a permit to hold religious meetings outside the boundaries of cult structures (premises), for instance: “Does a religious association have to obtain a special permit to lease a premise, for example, a palace of culture, to hold a religious congress, conference, or simply a religious service or a meeting at a stadium? An open stadium is no different from an indoor premise because it is not directly accessible and according to legislation it does not fall under the law on the procedure for organizing and holding a peaceful assembly.”

The MISD provided the following clarification: “In accordance with clause 2 of article 7 of the Law on religious activity and religious associations, religious services, rituals, ceremonies and/or meetings should be able to be held (conducted) unobstructed at cult buildings (premises) and within the assigned space, at places of worship, at religious associations’ establishments and premises, at cemeteries and crematoriums, in dwellings, public catering facilities when necessary, on the condition that the rights and interests of persons living nearby are respected.

Otherwise, religious events should be conducted in accordance with clause 7 of article 5 of the Law. In particular, the local executive bodies should give consent to the location of the premises that are to be used for religious events and are located outside the boundaries of cult buildings (premises), in accordance with the Rules of government services as approved by the Order No.97 dated 31 March 2020 of the Minister of Information and Social Development of the Republic of Kazakhstan.

The requirements and procedures for obtaining consent for the location of premises used for religious events outside the boundaries of cult buildings (premises) are transparent, fair and identical for all religious associations.”

The MISD’s response suggests that in order to hold a religious congress, a conference, or simply to conduct a religious service outside a cult building, including at a stadium, there must be a consent decision issued by an authorized body. However, the procedure for organizing and holding such events at indoor facilities or at a stadium are regulated by the Law of the Republic of Kazakhstan on religious activity and religious associations and not by the Law of the Republic of Kazakhstan on the procedure for organizing and holding peaceful assembly.

Certain issues arise in respect to charitable activity of religious associations: “Religious associations have a right to engage in charitable work both through public foundations and on their own, and also to establish charitable facilities (shelters, boarding schools, hospitals etc.). Why do the provisions of article 10 of the Law on religious activity and religious associations not comply with the provisions of clause 3 article 1, clause (b) article 13, clause (c) of article 55 of the United Nations Charter, as well as article 6, 7 and 8 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (as adopted by the UN General Assembly resolution 36/55 on 25 November 1981)?”

MISD’s response reads as follows: “In accordance with clause 1 of article 10 of the Law, religious associations have a right to engage in charitable work and establish charitable organizations, which is in compliance with the requirements of article 6, 7, 8 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (as adopted by the UN General Assembly resolution 36/55 on 25 November 1981).”

Thus, it follows from the MISD’s response that religious associations have a right to engage in charitable activity and establish charitable organizations.

A number of questions were concerned the construction of new cult buildings (premises), in particular: “Why are new cathedrals not allowed to be built in the regions?”

This is how the MISD responded to this question: “There are no restrictions on the construction of cult buildings, this matter is governed by the Rules of government services: “Issuance of a resolution on the construction of cult buildings (premises) and determination of their location” as approved by Order No.97 dated 31 March 2020 of the Minister of Information and Social Development.

In other words, the MISD’s response suggests that there are no restrictions on the construction of cult buildings.

However, responses to the next questions highlighted certain difficulties when it comes to building or leasing buildings and premises to use them for religious purposes.

One question that was posed is as follows: “The main difficulty a project of construction of a cult building faces is the invariably impossible-to-comply-with requirement of obtaining a consent from residents that live nearby—in practice, not only the consent of neighbours is sought, but also the consent from people who live on the same street or in the same district.

The legislation is not clear as to who is among those individuals. Even if one of those individuals makes an objection, it will be sufficient for the permit to be denied.

There are requirements for holding a public meeting, but there is no procedure for organizing and holding such a meeting, or for appealing its decisions. As a result, the minorities are not able to secure the consent of the majority of residents living in district in question, because the latter follow a different religious or hold subjective biases. What is the position of the state on this matter?”

The MISD provided the following clarification: “In accordance with clause 1 of article 41-1 of the Law of the Republic of Kazakhstan “On Housing Relations,” owners of apartments, non-residential premises, consider at their meeting the matters and make decisions that concern the management of the condominium facility and maintenance of such facility’s common property.

Any decisions made by the meeting of residents is binding on all owners of apartments, non-residential premises.

At the same time, in accordance with clause 5 of article 42-1 of the Law, a meeting has the authority to make a decision if it is attended by more than a half of the total number of owners of apartments, non-residential premises.

A decision is made based on the agreement of a majority of the total number of owners of apartments, non-residential premises who were in attendance at the vote.

According to clause 1 of article 42-2 of the Law, a meeting is held by a written poll, if the in-person meeting that was announced earlier did not take place due to a lack of quorum. The decision on holding a written poll and on the date on which it will be held is made by the condominium’s council.

We also remind you that a copy of the decision of the meeting of the local community, or of a decision of the meeting of the owners of premises (apartments) consenting to the construction of a cult building (premise) must be obtained from each house that borders the territory of the cult building.”

As it follows from the response provided by the MISD, decisions must be made by the meetings of the owners of apartments, non-residential premises, of every residential house that borders the territory of the cult building.

The next question on this matter was as follows: “The requirements for repurposing a premise to make it suitable for religious rituals (which includes the rent) are practically impossible to meet. Thus, the requirement of locating the premise at 300 meters from certain facilities does not account for town planning norms. The law is not specific as to how the distance should be calculated in practice, and the state officials simply consider the radius. However, certain confessions do not consider such requirements when holding their celebrations (e.g. Epiphany processions, ice-hole bathing etc.). How can such impossible restrictions be eliminated?”

In its response, the MISD clarified as follows: “In accordance with clause 7 of the Instructions for determining the location of special-purpose stationary premises for dissemination of religious literature and other informational materials of religious nature, religious artefacts, and also the premises for holding religious events beyond the boundaries of cult buildings (premises), as approved by Order No.89 of 9 June 2017 of the Minister of Religious Affairs and Civil Society of the Republic of Kazakhstan, it is determined that a premise for religious events should  be located not less than 300 meters from the territories and buildings (if there is no adjacent territory) of educational establishments (except for spiritual (religious) educational establishments), with the exception of railway stations, bus stations, airports, and ports.

Cult premises (mosques, churches, synagogues etc.) that are owned by the religious associations are exempt from the above requirements.

The matter of repurposing of the buildings and premises is governed by the Rules of government services, “Issuance of a resolution to repurpose (change of functional purpose) buildings (premises) into cult buildings (premises)” as approved by Order No.97 of 31 March 2020 of the Minister of Information and Social Development of the Republic of Kazakhstan.

The requirements and procedures applying to repurposing building into cult ones are identical for all religious associations, transparent, and fair. They do not impose insurmountable requirements on religious associations and are not discriminatory.”

Thus, it follows from the MISD’s response that when we speak of cult buildings (premises) then there is no requirement of maintaining a 300-meters distance. Such a requirement only concerns premises designated for religious events that are beyond the boundaries of cult buildings (premises), and for stationary premises designated for dissemination of religious literature and other informational materials of religious nature, as well as religious artefacts.

Finally, this question was posed: “Can we receive a comprehensive official clarification of the term “places of worship”?”

The MISD provided the following clarification: “The legislation does not provide a definition for the term, “places of worship.” At the same time, based on the provisions of clause 1 article 7 of the Law, places of worship should be understood as placed such as premises, natural objects, territories, that are used by the believers to express their respects and to hold religious rites, ceremonies and rituals.”

Such official responses from the authorized state body, the Ministry of Information and Social Development of the Republic of Kazakhstan, to the questions posed by the representatives of religious associations and lawyers, along with clarifications of the normative legal acts and law enforcement practice in respect of particular subjects or situations, make it possible to a certain degree to implement the principle of legal certainty and uniformed approach towards certain legislative provisions concerning religious activity and religious associations in the Republic of Kazakhstan.

Yevgeniy Zhovtis, Director, Kazakhstan International Bureau for Human Rights and the Rule of Law