United Nations Human Rights Council resolutions with respect to Kazakhstan under Article 18 of the International Covenant on Civil and Political Rights and their impact on the Kazakhstani legislation and law enforcement practice
Since 2009, the year the Kazakhstani citizens were finally able to have the right to lodge complaints with the UN Human Rights Council against violations of their rights, the believers have filed a few dozen complaints with this body. Two complaints have made it to the Committee’s considerations (i.e. resolutions whereunder the Council issues recommendations to the concerned state).
The first Considerations (2014), under clause 4 of article 5 of the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), were concerned with Communication No.2131/2012, authored by Viktor Leven.
Viktor Leven, a German citizen born on 11 March 1973 in Kazakhstan, was a parishioner at a Baptist church since he was a child. He lived in Kazakhstan until 1992, when he moved to Germany and acquired citizenship of that country. In 2000, he returned to Kazakhstan with his wife and seven children with an intent to obtain a permanent residency in Kazakhstan. After his return, Mr. Leven began to attend a Baptist church in the town of Yessil in Akmola oblast, the same church he used to be a parishioner at prior to his departure to Germany.
In 2003 he was granted a permanent resident status as a foreign citizen residing in Kazakhstan. In 2009, Mr. Leven filed an application for citizenship of Kazakhstan and was granted his request to withdraw from the German citizenship, which was a condition to obtaining Kazakhstan citizenship.
On 14 October 2009, Mr. Leven was held to an administrative liability by the Yessil district court for Akmola oblast for having committed an administrative offense stipulated by clause 3 of article 375 of the 2001 Kazakhstan Code of Administrative Offenses, namely for engaging in a missionary activity without registration, resulting in an administrative penalty and administrative deportation from Kazakhstan. An appeal court upheld the first instance court’s ruling. The General Prosecutor’s Office denied a petition to reverse the first and appeal court decisions on a cassation review. Mr. Leven’s permanent residency in Kazakhstan expired on 5 January 2010 and was taken away by the migration police in June that year. He was denied Kazakhstan citizenship.
Over the course of review of Mr. Leven’s complaint, the UN Human Rights Council (HRC) noted that engaging in a missionary activity (delivering sermons and prayers, holding meetings and religious rituals with parishioners) constitutes part of the right to express one’s beliefs. Subjecting one to a penalty and deportation, followed by a denial of citizenship, for such an activity, constitutes a breach of said right.
HRC also noted that the member state had failed to substantiate why, for the purposes of clause 3 of article 18 of the ICCPR, a believer should have registered as a missionary before he was able to read sermons or hold meetings with his fellow parishioners on the church premises.
Despite the explanation by the state that the requirement of mandatory registration of missionaries was stipulated in the 1992 Law on the Freedom of Religion and Religious Associations, which means it is a valid and legal requirement, HRC noted that the member state had failed to provide evidential support to a claim that such a restriction (i.e. advance registration prior to engaging in a missionary activity) serves any of the legal purposes listed in clause 3 of article 18 of the ICCPR. The member state had failed to demonstrate that such a drastic restriction of the right to practice religion is commensurate with any of the purposes it purports to achieve. Consequently, the restriction does not meet the requirements of clause 3 of article 18 of the ICCPR, therefore the HRC believes the applicant’s rights as stipulated by clause 1 of article 18 of the ICCPR have been violated.
In its resolution, HRC noted that the member state is obligated to provide Mr. Leven with effective legal remedies, including the overturning of his guilt verdict (read: court resolution) and a review of the denial of citizenship with a view to annulling it. Besides that, the member state is obligated to take measures to ensure similar violations will not occur in the future.
There is no information pointing at any review of the court rulings. In all likelihood, there have not been any reviews of the cases.
As for the measures the state must take to ensure similar violations do not occur in the future, they obviously must include a review of the relevant legal provisions. It should be noted that Mr. Leven was held responsible for a violation of a 1992 Law (the requirement of mandatory registration of missionaries), while a new Law on religion activity and religious associations was adopted in 2011. The new Law also contains a provision on mandatory registration of missionaries.
The only positive change in the 2011 version of the Law was that a new definition was given to missionary activity. In the previous Law, the definition was too broad and covered preaching and dissemination, by way of a religious and educational activity, of a religion that is not covered in the Charter of a religious association carrying out an activity in the Republic of Kazakhstan; in the new Law the definition has been narrowed to describe the activity of citizens of the Republic of Kazakhstan, foreigners, and stateless persons which is aimed at disseminating a religious belief within the territory of the Republic of Kazakhstan with the purpose of converting into a religion. However, the matter of the requirement of mandatory registration of missionaries not meeting Kazakhstan’s international obligations has never been resolved in principle.
The second Considerations (2019) concerned Communication No.2417/2014, authored by Sergey Geller.
Sergey Geller is the head of “The Society for Krishna Consciousness,” a religious association registered locally in the city of Kostanay. On 9 June 2013 he arranged a meeting of members of this association, which was followed by a religious ritual in the premise that was rented specifically for such purposes. The ceremony was interrupted by the police who informed those in attendance that they had received phone complaints.
On 2 October 2013, an inter-district specialized administrative court in the city of Kostanay ruled Mr. Geller had violated clause 1 of article 375 of the 2001 Code of Administrative Offenses, by holding a religious meeting not at the place of registration of the religious association and without advance notice to the regional office for religious affairs, despite the fact that no advance notice is required under the law. The court issued a fine and a three-month suspension of activity of the religious association.
An appeal court upheld the first instance judgment in the part relating to the fine, overturning the suspension. A cassation appeal was denied.
In its Considerations, HRC noted that by imposing a fine for arranging a religious meeting not at the place of registration of a religious association and without an advance notice to the regional office for religious affairs, the authorities had restricted Mr. Geller’s right to practice his beliefs in association with others.
The HRC also note that the member state had failed to provide any arguments why, for the purposes of clause 3 of article 18 of the ICCPR, the author had to provide an advance notice to the regional office for religious affairs in order to hold an internal meeting and a religious ceremony with the members of the same religious association. Besides, the member state had not tried to substantiate such a violation of Mr. Geller’s rights, except for providing a link to a legislative provision stating that a missionary activity must be carried out in accordance with the Kazakhstan law, failing again to specify which particular provisions of the law may have been violated.
The HRC also duly noted the argument that at the moment of the meeting there were no legislative provisions that would require the regional office for religious affairs to be notified of said religious activity which was conducted not at the place of registration of the religious association.
The HRC also concluded that the penalty constitutes a restriction of the right to practice a religion in community with others in accordance with clause 1 article 18 of the ICCPR; that this restriction was not based on the legislation in effect at the time; that it was not demonstrated that such restriction pursues any legitimate purpose as defined by clause 3 article 18 of the ICCPR; and that the member states had failed to demonstrate that such a broad restriction of the right to practice a religion is commensurate with any legitimate purpose which it purports to achieve.
Therefore, this restriction does not meet the requirements of clause 3 of article 18 of the ICCPR, prompting the HRC to conclude that Mr. Geller’s rights stipulated by clause 1 article 18 of the ICCPR had indeed been violated.
The HRC’s resolution specifies that the member state is obligated to provide the author with effective legal remedies. In particular, it is obligated to take the necessary measures to pay Mr. Geller an adequate compensation, including the full amount of his fine and all and any legal and other costs. The member state is also obligated to take all necessary measures to ensure similar violations do not occur in the future.
To date, no HRC’s recommendations in the part of compensation for the damage caused have been fulfilled.
As for the legislative changes, the requirement of getting the locations of premises for religious rituals outside of religious premises (buildings) approved with local executive bodies was initially part of the 2011 edition of the Law. However, at the time Mr. Geller was held liable no such mechanism of approvals existed. It was later that the Standards and Regulations for the provision of government services which defined the procedure for obtaining approvals, began to be adopted. Today, in order to hold a religious ceremony outside of the boundaries of religious building, an approval (resolution) must be obtained from the local executive bodies. Any similar case of holding a religious association liable for conducting a religious ceremony outside of the boundaries of a religious building carries a risk (if brought to the attention of the HRC) to be reviewed and deemed as a violation of clause 1 of article 18 of the ICCPR.
It should be noted that law enforcement practice has also experienced a certain measure of impact by the Communications that had been withdrawn from the HRC. For instance, after twenty-eight applications to HRC filed by the Jehovah’s Witnesses and relevant HRC communications with the member state, the Supreme Court had followed a protest from the General Prosecutor’s Office and reviewed nine cases involving administrative liability for violations of the religious law. In all of its resolutions, the Supreme Court made a reference to international legal provisions. In addition to that, an agreement was reached that the General Prosecutor’s Office would forward the Supreme Court’s resolutions to all of its territorial divisions accompanied with explanatory notes regarding the constitutional guarantees of missionary activity. After the agreement was reached, the HRC withdrew the applications.
This demonstrates that complaints to the HRC, however indirectly, do have an impact on the situation with religious freedom in Kazakhstan.
In general, the foregoing demonstrates that despite the problems with implementation of HRC recommendations, the applications filed with this body may have an impact on both the legislation and law enforcement practice in the sphere of freedom of thought, conscience, and religion.
 Statement by the European Association of Jehovah’s Christian Witnesses at OSCE Human Dimension Implementation Meeting, Warsaw 11–22 September 2017. https://www.osce.org/odihr/340961?download=true. As visited on 11 November 2020.