Commentary to Article 490 (section 1) of the Code of the Republic of Kazakhstan on Administrative Offences
Article 490 of the Code of the Republic of Kazakhstan on Administrative Offences dated 5 July 2014 (the “CAO”) stipulates liability for violating the legislation on religious activity and religious associations. Below is a commentary to section 1 of that Article.
Section 1. Violating the requirements established by the legislation of the Republic of Kazakhstan to:
1) conducting religious rituals, ceremonies and/or congregations;
2) carrying out charitable activity;
3) import, production, issue, publication and/or dissemination of religious literature and other materials of religious nature, religious artifacts;
4) building religious buildings (structures), conversion (changing functional purpose) of buildings (structures) into religious buildings (structures).
The object of an offence stipulated by section 1 of Article 490 is the prescribed procedure for carrying out certain types of religious and related activity. The main normative act that governs religious activity in Kazakhstan is the Law of the Republic of Kazakhstan dated 11 October 2011 “On the Religious Activity and Religious Associations” (the “Law on Religious Activity”).
The actus reus consists of carrying out the following acts:
- holding religious rituals, ceremonies and/or congregations in violation of the legislative requirements of the Republic of Kazakhstan (sub-section 1, section 1).
The Law on Religious Activity contains certain requirements to holding religious functions. Mainly, they concern the places where such functions are to be held.
Under section 2, Article 7, worship services, religious rituals, ceremonies and/or congregations may be freely conducted (carried out) in religious buildings (structures) and adjacent territory, at places of worship, at religious associations’ establishments and premises, cemeteries and crematoria, dwellings, public catering points if necessary, provided that the rights and law-protected interests of neighbours are respected. The requirement to respecting the rights and interests of those residing nearby applies to any places or structures referred to in section 2, Article 7.
In each particular case, an analysis must be carried out to ascertain how exactly the lack of respect to rights and interests of neighbours was manifested, whether those rights and interests were indeed violated, and if the violation was indeed caused by the actions of those participating in the worship services, rituals, ceremonies or congregations. An assessment must also be done to ascertain if the person whose rights and interests were allegedly violated was indeed acting in good faith and did not misuse his/her rights, and whether the goal was indeed to protect the rights and interests of those neighbours, and not to obstruct a lawful religious activity. Otherwise, even a slightest degree of discomfort, a single-occurrence inconvenience, domestic issues or conflicts or disagreement with a religion, might result in an unlawful, unsubstantiated and unfair judgment by a court.
In Kazakhstan’s law practice, one question that has been consistently raised is whether it is appropriate and legal to hold religious functions in apartments or other inhabited dwellings. The Law on Religious Activity is unequivocal that yes this is possible, provided however that the rights and interests of neighbours are respected—a notion that has been supported by court rulings.
Section 4, Article 7 of the Law on Religious Activity permits religious rituals, ceremonies or congregations to be held at:
- specially purposed establishments that ensure temporary isolation from general public;
- penitentiary establishments;
- healthcare establishments that provide medical assistance in a stationary setting;
- nursing homes for elderly and disabled.
The rituals, ceremonies or congregations at those organizations are conducted on the basis of:
- the requests made by the persons held at those organizations or their relatives;
- ritual necessity;
- religious rituals, ceremonies, congregations being conducted by the priests representing the registered religious associations;
- uninhibited activity of those organizations;
- respect of the rights and law-protected interests of other citizens.
Under section 3, Article 7 of the Law on Religious Activity, no worship services, religious rituals, ceremonies and/or congregations may be conducted in the territory and on the premises of:
1) government agencies, organizations.
In this case it should be kept in mind that, first of all, it concerns government organizations. Second of all, following the spirit of the Law on Religious Activity, religious functions may be held even on the premises that are managed by a government body or government organization (e.g. a canteen at a ministry building, a cemetery etc.), provided that the rights and interests of those living nearby are respected (section 2, Article 7), or at government organizations (e.g. penitentiaries, healthcare offices, social security establishments) provided the aforesaid conditions are met (section 4, Article 7) when necessary and subject to the rights and interests of neighbours being respected;
2) the Armed Forces, other troops and military formations, judicial and law enforcement agencies, other services involved in public safety, protection of public life and health;
3) educational organizations, except for spiritual (religious) educational organizations. This applies to both state-owned and privately run organizations.
Aside from that, section 7 of Article 5 of the Law on Religious Activity stipulates that the local executive bodies must give their consent to the locations of the premises on which the religious functions are to be conducted beyond the boundaries of religious buildings (structures).
The requirements for premises are set forth in the Instructions on determining the location of special stationary premises for dissemination of religious literature and other information materials of religious nature, religious artifacts, as well as premises for holding religious functions beyond the boundaries of religious buildings (structures), as approved by Order of the Minister for Religious Affairs and Civil Society of the Republic of Kazakhstan No. 89 dated 9 June 2017 (the “Instructions No. 89”). The consent procedures are stipulated by the Rules of Provision of a Public Service “Issuance of a resolution approving the location of the premises to hold religious functions outside the boundaries of religious buildings (structures)” as approved by Order of the Minister of Information and Social Development of the Republic of Kazakhstan No. 97 dated 31 March 2020 (the “Order No. 97”).
It should be noted that apart from the religious buildings those procedures are not applicable to functions that are held on the premises that are owned by the religious associations by virtue of section 1, Article 7 (unimpeded holding of worship services, rituals, ceremonies, congregations on the premises of religious associations), and to other premises referred to (or implied) in Article 7.
The issue of having to obtain a permit arises mainly when the believers and religious associations use premises (that they do not own) under a rent contract or other basis (e.g. under a free use contract). In judicial practice, there are arguments that a religious association’s holding worship services on a rented premise on a continuous basis suggests that such premise should be recognized as a religious one (the religious association’s premise). Consequently, no consent to use the location of such a premise is required in such cases.
The Law on Religious Activity also contains a provision stating that in other cases (i.e. those that are not stipulated by Article 7) religious functions should be conducted in a procedure set forth by the legislation of the Republic of Kazakhstan (section 2, Article 7).
Such a procedure is contained in the Law of the Republic of Kazakhstan dated 25 May 2020 “On the Procedure for Arranging and Holding Peaceful Assembly in the Republic of Kazakhstan.” Therefore, if a religious association is holding any public events (marches, demonstrations) in public places (parks, squares, streets) in violation of the Law, that will give rise to responsibility under Article 488 of the CAO.
- carrying out charitable activity in violation of the legislation of the Republic of Kazakhstan (sub-section 2, section 1).
Charity is a very important component of activity of the overwhelming majority of religious associations. The legislation of Kazakhstan provides religious associations with the opportunity to engage in charitable activity. Under section 1, Article 10 of the Law on Religious Activity, religious associations have the right to engage in charitable activity and set up charitable organizations.
At the same time, when carrying out a charitable activity it is prohibited to use a material dependence (need) of the citizens of the Republic of Kazakhstan, foreigners and stateless persons in order to involve them in a religious activity (section 2, Article 10 of the Law on Religious Activity).
- import, production, issue, publications and/or dissemination of religious literature and other materials of religious nature, religious artifacts, in violation of the legislation of the Republic of Kazakhstan (sub-section 3, section 1).
Religious literature covers various printed materials that are used in worship services and religious ceremonies, religious education and upbringing: Quran, Bible, Torah, hymns, works of religious scholars, etc.
Other materials of religious nature include periodicals (newspapers, journals), calendars, posters, reference books, etc.
Religious-purpose objects are any objects, items and attributes that are necessary for conducting worship services, religious rituals and ceremonies, and those that contain the elements of religious symbols (section 1, Article 9 of the Law on Religious Activity). Those include religious clothing, icons, crosses, furniture items used in religious functions, etc.
The Law on Religious Activity stipulates the following requirements for handling religious literature, other materials of religious nature (the “religious literature”) and religious artifacts:
- import into the Republic of Kazakhstan of religious literature is only permitted by the duly registered religious associations after a positive conclusion of a religious expert review. Exemptions include import of religious literature that is intended for personal use, one copy of each title (section 3, Article 9). This requirement does not apply to religious-purpose objects;
- production, issue and dissemination of religious literature are permitted on the basis of a positive conclusion of a religious expert review (section 3-1, Article 9). The religious literature that is being issued and/or disseminated by a religious association must contain the full name of the religious association (section 4, Article 9). That means a Kazakhstan-based religious association, which issues or disseminates any relevant literature and materials. This requirement does not apply to religious-purpose objects;
- dissemination of religious literature, religious-purpose objects is only permitted within the religious buildings (structures), spiritual (religious) educational organizations, and on stationary premises that are specifically designated by local executive authorities in the oblasts, cities of republican significance, and the capital. Requirements for the stationary premises are contained in Instructions No. 89. The permit itself (essentially, a permit for distribution/dissemination) is issued in accordance with the Rules for Provision of the Public Service “Issuance of a resolution approving the location of the specially-designated stationary premises for dissemination of information materials of religious nature, religious objects” as approved by Order No. 97.
- construction of religious buildings (structures), repurposing (changing the functional purpose) of buildings (structures) into religious buildings (structures) in violation of the legislation of the Republic of Kazakhstan (sub-section 4, section 1).
Sub-section 1 of Article 1 of the Law on Religious Activity defines a religious building (premise) as a place that is intended for worship, prayers and religious congregations, religious services (pilgrimage). Traditionally, a religious building is understood to be a purpose-built or refurbished building or premise the appearance of which alone makes it easily distinguishable from any other buildings (mosques, Orthodox cathedrals, Catholic churches, Lutheran Kirche, synagogues, etc.). According to the literal meaning of the Law on Religious Activity, other types of buildings and premises, i.e. those that are not exclusively intended for religious purposes, may also be considered religious; however sub-section 4, section 1, Article 490 of the CAO speaks of buildings (premises) that are specifically intended for religious purposes.
Religious buildings, just like any other types of buildings, are built in accordance with the legislative requirements of the Republic of Kazakhstan in the sphere of architecture, town planning and construction. Therefore, not meeting those requirements gives rise to responsibility stipulated by Chapter 20 of the CAO (administrative offences in the sphere of architecture, town-planning, construction activity and housing relationships).
However, in the construction of religious buildings, on top of general requirements there is also a requirement that involves obtaining a permit to build a religious building (premise) issued by a local executive body in the oblast, cities of Nur-Sultan, Almaty and Shymkent. Such authority of the local executive bodies is set out in section 8, Article 5 of the Law on Religious Activity, and the procedure for obtaining a permit is outlined in the Rules for Provision of the Public Service “Issuance of a resolution to build religious buildings (premises), determine their location” as approved by Order No. 97. If a religious building is built without such a permit, responsibility arises under sub-section 4, section 1, Article 490.
In accordance with sub-section 60, section 1 of the Law of the Republic of Kazakhstan dated 16 July 2001 “On the Architectural, Town-Planning and Construction Activity in the Republic of Kazakhstan,” a building has a functional purpose which determines how such building is used: as a dwelling or residence, as a production facility, or as a facility to locate and store valuables. If a building (premise) is not a religious one, then changing its functional purpose for religious one requires a resolution by the local executive body, cities of Nur-Sultan, Almaty and Shymkent (sub-section 8, Article 5 of the Law on Religious Activity). Such scenarios may occur, for instance, when a residential or office building is repurposed into a religious one.
The procedures for obtaining a resolution are stipulated in the Rules for Provision of the Public Service “Issuance of a resolution to repurpose (change functional designation) buildings (structures) into religious buildings (structures)” as approved by Order No. 97.
In doing so, violations of architectural, town-planning and construction requirements will give rise to responsibility under Chapter 20 of the CAO. Under sub-section 4, section 1, Article 490, responsibility arises only for repurposing (changing functional designation) a building into a religious one in the absence of a relevant permit from the local executive body.
In terms of the subject, an offence is characterized by intent.
In the case with violation of the rules of distribution of religious literature, religious objects, the presence of a certain purpose of disseminating a religion is assumed. Selling or otherwise disposing of literature, religious objects without such a purpose, under certain circumstances (e.g. financial hardship, relocation to a new address, donation to a library, gift, sale as a decoration) may testify to the absence of the subject part.
In the case of violation of requirements to charitable activity, another element of the subject part is the purpose: involving in a religious activity.
Subjects of an offence may include individuals or legal entities.
Violation of such section is punishable by a fine in the amount of fifty (50) times the monthly calculation index (for individuals) and 200 times the monthly calculation index (for legal entities) and suspension of activity for a term of three months. Materials from judicial practice show that, in the majority of cases, the judges normally apply suspension of activity as a punitive measure, citing the lack of alternatives. However, if using such sanctions, for instance, in respect of violations of holding religious events may be formally appropriate, in many other cases they simply make little sense (e.g. suspending a sale of religious literature as a penalty against the seller who does not have the relevant permit to sell such literature, or against the owner of a mall that has been found to have a functioning prayer room in it). It should also be noted that under section 3 of the Normative Resolution of the Supreme Court dated 6 October 2017 “On certain issues of application by the courts of the provisions of the Special Part of the Code of the Republic of Kazakhstan on Administrative Offences”) additional penalties, such as suspension or ban on activity or certain types of activity, must be applied in respect of the parties that actually possess a relevant permit for carrying out such an activity. Suspension of an activity must be applied with due account for the circumstances of the offence and the subject of liability.
The officials at the agencies of internal affairs, local executive bodies, cities of national significance, the capital, districts, and cities of oblast significance, are entitled to draw up the protocols of administrative offences as stipulated by section 1, Article 490.
Also, a prosecutor may issue a resolution initiating an administrative offence case under section 1, Article 490.
Administrative offence cases under section 1, Article 490, are considered by judges of specialized district courts or administrative courts, which have equal status.