Commentary to Article 489 (part 9-11) of the Code of the Republic of Kazakhstan on Administrative Offences, as it pertains to the activity of religious associations

Article 489 of the Code of the Republic of Kazakhstan on Administrative Offences dated 5 July 2014 (the “CAO”) stipulates responsibility for violating the legislation of the Republic of Kazakhstan on public associations, and for managing or participating in public, religious associations that have not been duly registered under the legislation of the Republic of Kazakhstan, and for financing their activity.

Sections 1 through 8 of the Article do not concern religious associations. They are about the activity of public associations. It should be noted that in the previous version of the legislation, religious associations were recognized as a type of public associations. However, now public and religious associations represent different legal forms of organisation of non-commercial legal entities—therefore, the provisions that apply to public associations may not be applied to religious associations, and vice versa.

Sections 9 through 11 directly apply to religious associations.

Section 9. Managing public, religious associations that have not been duly registered under the legislation of the Republic of Kazakhstan or whose activity has been suspended or banned.

The object of the offence stipulated by section 9 is the established procedure for operation of a religious association.

The objective element of the offence is manifested in managing:

1. The activity of non-registered religious associations.

Under Article 3, section 11 of the Law of the Republic of Kazakhstan dated 11 October 2011 “On the Religious Activity and Religious Associations” (the “Law on Religious Activity”), non-registered religious associations may not carry out any activity.

The requirement that a religious association must be registered raises many questions, from many points of view: from compliance with international legal obligations to creating unjustified and asymmetric restrictions on the right to freedom of thought, conscience and religion, to the efficacy of such measures in the fight with structures that are actually socially dangerous, to the various issues when it comes to law enforcement practices. This is confirmed by various international legal documents and judgments and resolutions of courts and quasi-judicial bodies.

For instance, many documents of the Organization for Security and Cooperation in Europe (OSCE), in which Kazakhstan is a member state, state that the exercise of the freedom of religion or belief, whether alone or in community with others, whether in public or in private, is an inalienable human right. As such, it cannot be conditional upon the permission of the state.^[1] Notwithstanding the importance of legal personality for the enjoyment of the right to freedom of religion or belief, religious or belief communities or communities should not be obliged to seek legal personality if they do not wish to do so.^[2] Most of the OSCE participating States do not require religious associations to register, and only a few of them require registration as a condition for the religion to be “recognized.” In most cases, such registration requirements typical operate to penalize law-abiding groups and to drive others underground.^[3]

1. The religious associations whose activity has been suspended or banned.

This section is about religious associations that may become subject to a suspension or ban as a measure of administrative liability (Article 48 of the CAO) or injunctive relief in an administrative offence case (Article 801 of the CAO) when violations stipulated by Articles 489, 489-1 and 490 of the CAO have been committed.

A banned organization may be considered as being managed only while an injunctive relief is being applied, or during a period between the issuance of a court judgment banning the organization and registration of termination of the activity of the legal entity in question (Article 910, section 2 of the CAO). Upon completion of the liquidation procedures, the organization should be treated as liquidated rather than banned.

It should be noted that offences pertaining to the activity of religious associations that have been banned due to their terrorism or extremism links are stipulated by Article 405 of the Criminal Code of the Republic of Kazakhstan dated 3 July 2014 (the “Criminal Code”).

In terms of mental element of the offence, it is characterized by intent.

Subjects of an offence are individuals—heads of non-registered religious associations or religious associations whose activity has been suspended or banned.

Section 10. Participating in the activity of public, religious associations that have not been duly registered in the procedure established in the Republic of Kazakhstan or whose activity has been suspended or banned.

The object of an offence stipulated by section 10 is the established procedure of activity of religious associations.

The objective element of an offence is expressed in participating in the activity of:

- non-registered religious associations;

- religious associations whose activity has been suspended or banned.

The legislative requirement of mandatory registration of religious associations, the cases and the time periods when the activity of a religious association may be suspended or banned, have all been discussed in the commentary to section 9 of Article 489.

The offences pertaining to participation in the activity of religious associations that have been banned due to their links to terrorism or extremism are covered in Article 405 of the Criminal Code.

When qualifying the actions stipulated by section 10 of Article 489, one should keep in mind that a religious association, in order to be recognized as a subject of mandatory registration, should have a certain set of features. In particular, it must have a permanent composition in terms of its participants, its activity should be regular, it should self-identify as a separate structure with a name (e.g. a society, a brotherhood, a community, etc.), it should have people managing it, hierarchy, membership, and a system of internal regulations. The requirement of mandatory registration may not be applied to structures that are not organizationally formed, that are irregular, and that hold their meetings in an irregular fashion with an irregular composition of participants. Mandatory registration also may not be applied to the members of religious associations who gather together and carry out their actions not at the legal address of their association. Since local religious associations operate within the boundaries of a single Oblast, capital city, or a city of national significance, their members may be located and function at a significant distance from the association’s official whereabouts (registered address). However, they are still members of a registered legal entity.

In terms of mental element of the offence, it is characterized by intent.

The subject of the offence is individuals who participate in the activity of non-registered religious association or religious associations whose activity has been suspended or banned.

Section 11. Financing the activity of public, religious associations that have not been duly registered under the legislation of the Republic of Kazakhstan or whose activity has been suspended or banned.

The object of the offence stipulated by section 11 is the procedure for financing the activity of a religious association.

The objective element of the offence is expressed in financing the activity of:

- non-registered religious associations;

- religious associations whose activity has been suspended or banned.

The commented section contains a ban on financing of aforesaid associations. The Law on Religious Activity contains no such ban.

The legislative requirement of mandatory registration of religious associations, the cases and time periods when the activity of a religious association may be suspended or banned, have all been discussed in the commentary to section 9 of Article 489.

It should be noted that financing a terrorist or extremist activity (including financing of groups and legal entities) is punishable under Article 258 of the Criminal Code.

In terms of mental element of the offence, it is characterized by intent.

The subject of the offence is individuals who finance the activity of non-registered religious associations or religious associations whose activity has been suspended or banned.

The sanction under the said sections of Article 489 includes a fine:

- under section 9: in the amount of one hundred times the monthly calculation index;

- under section 10: in the amount of fifty times the monthly calculation index;

- under section 11: in the amount of two hundred times the monthly calculation index.

The authorized internal affairs officials are authorized to draw up protocols of administrative offences under sections 9 through 11 of Article 489.

In addition, a prosecutor may issue a resolution to initiate a case on an administrative offence under sections 9 through 11 of Article 489.

The cases on administrative offences under sections 9 through 11 of Article 489 are considered by the internal affairs bodies.

[1] Freedom of Religion or Belief and Security: Policy Guidance. -  OSCE ODIHR, 2019. pp. 14-15.

[2] Same publication, p. 37.

[3] Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities. Background Paper. –OSCE ODIHR, 2002. p.39.