Appeal of the prohibition to publish and distribute the religious materials

The Constitution of the Kyrgyz Republic guarantees freedom of conscience and religion, including the right to freedom of expression, freedom of speech and press, to freely seek, receive, transmit, produce and disseminate information by any legal means (Articles 31-33). At the same time, the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic” as of 2008 includes several provisions that govern the issues of publication, acquisition and distribution of religious materials.

Requirements of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic” in regards the production and distribution of religious materials

Thus, according to part 1 Article 22 of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic”, religious organizations shall have the right to produce, acquire, store and export from the Kyrgyz Republic, import into the Kyrgyz Republic and distribute religious literature, other printed, audio and video materials (hereinafter - religious materials), as well as other religious artefacts and objects in the manner prescribed by law. Now therefore, this provision contains a reference norm on procedures for the implementation of these rights. This norm is the Law of the Kyrgyz Republic “On Publishing Business”, according to Article 4 of which, freedom of publishing in the Kyrgyz Republic means the full creative independence of all its actors, and is designed to ensure the right of citizens to information and use the benefits of culture, freedom of thought, conscience, religion, beliefs, freedom of expression, scientific, technical and artistic creativity. Publishing houses, printing enterprises and organizations for distribution (distributors) of printed materials are founded based on various forms of ownership in accordance with the legislation of the Kyrgyz Republic (Article 7). The founders of publishing houses, printing enterprises and organizations for distribution of printed materials are individual citizens, organizations and other citizen groups, public and administrative authorities (Article 8). Based on above norms, religious organizations, like other public organizations, therefore shall have the right to establish publishing houses, printing enterprises and distribution organizations.

Further, the law establishes requirements for the publication of religious materials. Part 4 Article 22 of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic” determines that religious organizations must indicate their full name and confessional identity when performing their activities, and part 5 Article 22 of same Law establishes that other printed, audio and video materials produced by religious organizations must be marked with their full name and confessional identity. According to the Law of the Kyrgyz Republic “On Publishing”, the printed matter must include imprints in accordance with the requirements of Article 12.

In addition, the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic” establishes a special order for the distribution of religious materials. According to part 6 Article 22 of the Law, the distribution of religious literature, audio, video and other materials of religious content may be carried out by religious organizations on the basis of their ownership rights, and at premises allocate in manner prescribed for these purposes by local state administrations. Part 7 Article 22 of the Law establishes that citizens and religious organizations shall have the right to acquire and use religious literature in any language of their choice, as well as other objects and materials of religious nature only in places of worship and specialized stores. Part 2 Article 21 of the Law determines that persons in nursing homes, places of pre-trial detention and prisons may have, receive, acquire and use unforbidden religious literature and objects of worship, if this does not harm their health, does not infringe on the right and the legitimate interests of others.

In this regard, according to the above norms, the distribution of religious materials, firstly, may only be performed by religious organizations registered in the manner established by the legislation of the Kyrgyz Republic. Secondly, religious materials may only be distributed in the following locations:

  • At religious sites / places of worship (mosques, synagogues, church buildings, prayer houses) and adjacent territories that are owned by religious organizations;
  • In buildings of religious educational institutions;
  • In territories allocated in the permitted manner by local state administrations for these purposes. These include nursing homes, places of pre-trial detention and prisons based on appropriate consent granted by administrations of these institutions;
  • In “specialized stores”. However, we need to clarify in this part that there are no corresponding provisions on specialized bookstores for the sale of religious literature and practically, religious literature can be purchased in any bookstores.

It should be noted about prohibitive provisions of the law. Thus, the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic” prohibits the distribution of religious materials in public places (on streets, boulevards), including door-to-door visits to apartments, child care facilities, schools and higher educational institutions, wherein no any sanctions are legally provided for the violation of that prohibition (part 6 of article 22).

It also prohibits importing, manufacturing, storing, transporting and distributing religious and other materials that call for a change in the constitutional order, religious intolerance and societal moral principles (part 2 Article 22). According to part 3 Article 22 of the said law, the State body for religious affairs shall have the right to assign the expert review of religious materials, and the state religious expert review upon receipt of religious literature in libraries is of mandatory. However, subsequent procedures and methodology of the state religious expert review is not defined by the existing law. In addition, religious organizations registered in the manner established by the legislation of the Kyrgyz Republic shall have the right provide clarifications subject to presence of elements of religious extremism in print media, film, audio and video products and other materials at the request by State authorities and local self-government organs (part 3 Article 22).

Furthermore, it is established that the import, manufacture, purchase, transportation, transfer, storage and distribution of materials containing the ideas of religious extremism, separatism and fundamentalism will entail liability in accordance with the legislation of the Kyrgyz Republic (part 8 Article 22), and control is executed by authorized State bodies for religious affairs, national security and internal affairs (part 9 Article 22). It Is noteworthy that the law does not explore the content of such concepts as “religious extremism”, “religious separatism”, “religious fundamentalism”, “ideas of religious extremism, separatism and fundamentalism”, despite the use of these terms in the text.

Thus, there are a number of requirements set by law for the publication and distribution of religious materials which violation may impose prohibition for their release and distribution by the State body for religious affairs. Should ideas of religious extremism, separatism and fundamentalism are suspected in these materials, that case will be referred for resolution to other relevant bodies. However, this case will be discussed in more detail in another article. In our case, we reviewed the appeal mechanisms in regards the decisions made by the State body for religious affairs to ban the publication and dissemination of religious materials.

Appeal of a decision of the State body on prohibition to publish and distribute religious materials

As noted above, the law establishes that produced religious materials must have labels indicating the full name and confessional identity and imprints. Religious materials may only be distributed at premises/places set forth by law. The State body for religious affairs is entitled to assign the religious expert review of the content of religious materials. In cases when a religious organization breaches the legislation requirements of the Kyrgyz Republic or when a religious organization performs activities that contradict to its Charter (Policy), the State body for affairs religious has the right to issue the written warning indicating the nature of the breach and terms for its remedy that total at least one month period. The warning may be appealed to a higher authority or court (part 6 paragraph 6 Article 26). 

Furthermore, Article 27 of the law establishes that a written warning is to be sent to the steering body of a religious organization during a three-day period. In case of failure to remedy violations within three month period or have reoccurred within a year, the State body for religious affairs has the right to appeal to the court to liquidate the religious organization. Wherein, the State body for religious affairs has the right to take decision to suspend activities of religious organization before delivery of judgment. It should be noted that the Law in paragraph 5 part 6 Article 26 provides for different periods to remedy the violations committed - at least 1 month, which is not consistent with this Article that establishes a period of 3 months.

The religious organization, in case of suspension of its activity is not entitled to  perform religious and other activities, act as the founder of mass media organization and other legal entities, transfer funds from a current bank (settlement) account to other persons except in cases of payments to the budget, state extra-budgetary funds and other obligatory payments and settlements against the previously concluded civil and labor contracts, compensation for damage caused by actions of religious organization (Article 28). 

Thus, in the event of suspending the activities of a religious organization, it withholds not only religious activities, but also covers all its other activities, including to act as legal entity.

The decision of the State body for religious affairs is appealed in an administrative (pre-trial) order in accordance with the Law of the Kyrgyz Republic “On Basics of Administrative Activities and Administrative Procedures”, and subsequently in court. The pre-trial stage of appealing the administrative acts is currently mandatory; judicial contestation of such acts is possible only after complying with this order. Failure to comply with the pre-trial appeal procedures may result in a refusal to accept the claim (Article 113 of the Administrative Procedure Code of the Kyrgyz Republic) or return the claim by court (Article 115 of the Administrative Procedure Code of the Kyrgyz Republic).

1. Appeal under administrative procedures

In accordance with the Law of the Kyrgyz Republic “On the Basics of Administrative Activities and Administrative Procedures” as of 2015, the citizens have the right to appeal administrative acts, actions (inactions) of administrative body through administrative (pre-trial) order to protect their rights. The complainants may be an individual or legal entity, and an international organization, if required by law and international treaties which the Kyrgyz Republic became a member.

1.1. Where and in which timeframe an administrative complaint is filed:

Since the State body for religious affairs has no superior body, the administrative complaint against an administrative act may only be filed to the State body for religious affairs. The purpose of such complaint is to point the attention of the State body to breaches it has committed and to enable the Body to remedy these breaches without court accounting. An administrative complaint may be filed within 30 working days from the date of handing over the administrative act. The failed deadline for an appeal may be restored by the State body for religious affairs upon applicant’s request.

According to Article 64 of the Law “On the Basics of Administrative Activities and Administrative Procedures”, a complaint must contain:

  1. legal name of administrative body to which the complaint is filed to (in our case, this the State Commission for Religious Affairs of the Kyrgyz Republic);
  2. the surname, name and patronymic of an individual submitting the complaint, and his address;
  3. last name, first name and patronymic of a person filing the complaint on behalf of the legal entity, his official capacity and location of the legal entity;
  4. subject of complaint (need to indicate the date and number of the appealed decision);
  5. claim of the person filing the complaint;
  6. a list of documents attached to the complaint (it is advisable to attach the decision itself and relevant documents);
  7. date, month and year of filing the complaint;
  8. signature of the person filing the complaint;
  9. signature of the person filing the complaint on behalf of the legal entity, and the private seal.

1.2. Procedures for considering an administrative complaint and decision-making:

The administrative procedure is instituted on the day of registering the complaint with the administrative body. In case, the complaint was filed in violation of the requirements specified by law, the complaint shall be taken no actions. In such case, the administrative body shall immediately indicate the deficiencies and provide the person who filed the complaint with the opportunity to remedy them within overall timeframe for an appeal. In case of failure to remedy the deficiencies indicated by an administrative body, the complaint is declared inadmissible and left without satisfaction.

The Law of the Kyrgyz Republic “On the Basics of Administrative Activities and Administrative Procedures” establishes that parties to administrative procedures shall be the applicant, interested parties, administrative body and an administrative body official. Concurrently, parties to procedures shall have the right to participate in person, through a legal or authorized representative, or together with them. Other persons involved in administrative procedures are the witnesses, experts and translators, as well as other persons who can contribute to appropriate consideration and resolution of an administrative case.

The final stage of reviewing the administrative complaint is the adoption of decision (administrative act), which must contain the rationale, motives, factual and legal circumstances for relevant decision - making (Article 50 of the Law). The decisions on administrative complaint must be handed over or submitted by administrative body to all parties to the procedure within three working days from the date of its adoption. The decision shall enter into force on the day of its delivery to a person concerned.

Maximum term of an administrative procedure equals to 30 business days from the day when application is registered with the state body for religious affairs. Having considered an administrative complaint against the decision made by the State body for religious affairs, the latter shall have the right to satisfy the complaint in whole or in part by overturning the administrative act or declaring it null or void, or by adopting the new administrative act or dismissing the complaint and upholding the administrative act.

2. Appeal in administrative proceedings

If claimant is against the decision of the State body for religious affairs in relation to his/her complaint, he/she shall have the right to challenge it in court under administrative proceedings in accordance with the Administrative Procedure Code of the Kyrgyz Republic as of 2017. Administrative legal proceedings are the legal proceedings arising upon initiative of citizens in connection with the violation of subjective public rights of individuals or legal entities by the administrative body and its officials.

2.1. Administrative proceedings and administrative action:

The following administrative cases are reviewed under administrative procedures:

  1. on invalidation of an administrative act or action of an administrative body in whole or in part;
  2. on obligations of administrative body not to adopt an administrative act burdening the plaintiff, or not to commit another action;
  3. on obligation of administrative body to adopt an administrative act or to perform certain actions;
  4. on invalidation of subordinate regulatory legal act of administrative body or local self-government representative body;
  5. on recognition as per se illegal the invalid administrative act of an administrative body.

 

However, the following cases shall not be considered under administrative proceedings:

  1. on invalidation of decisions made by state bodies and officials authorized to review the cases concerning administrative offenses (misdemeanours) in whole or in part;
  2. on actions (inactions) of law enforcement agencies arising from legal relations in the field of criminal procedures;
  3. on decisions and actions (inactions) of bailiffs when executing enforcement documents.

 

The parties to administrative process shall be the administrative plaintiff and administrative defendant. An administrative plaintiff is a natural or legal person, who has filed a lawsuit in defense of his/her rights, freedoms or legitimate interests, or a person in whose interests an administrative lawsuit filed by prosecutor or another legally authorized person. The administrative defendant is the administrative authority against which the lawsuit is filed. The parties shall have the right to have their representatives, who may be ex officio representatives, representatives by law and lawyers, as well as other persons acting on the basis of power of attorney.

According to Article 5 of the Administrative Procedure Code of the Kyrgyz Republic, foreign persons, stateless persons and foreign legal entities shall enjoy the same right to judicial protection in the Kyrgyz Republic as citizens and legal entities of the Kyrgyz Republic.

It is noteworthy that administrative proceedings are conducted in the State (Kyrgyz) or Official (Russian) languages. If a representative of religious organization does not speak the language in which the proceedings are conducted, he/she shall be granted the right to familiarize himself/herself with all case materials, give explanations, make statements and petitions in his/her native language, including to use the services of an interpreter (sign language interpreter) in the manner established by the Administrative Procedure Code. Wherein, it is necessary that the plaintiff has to submit the documents in a foreign language to the court with certified translations into the State or Official languages attached hereto.

 

2.2. Where and in which timeframe an administrative complaint is filed:

The lawsuit is filed with the court within three from the effective date of the decision made by administrative body concerning the administrative complaint reviewed in accordance with the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures”. The Article 110 of Administrative Procedure Code also establishes the deadlines for certain types of lawsuit.

Administrative cases are reviewed in first instance by the inter-district courts at defendant’s domicile. Administrative claims are to be filed in the form of written statement of claim, which indicates:

  1. the court name to which the lawsuit is filed to (in our case, this is the Bishkek Inter-District Court);
  2. the last name, first name (legal name) of plaintiff, mailing address, phone numbers, including bank details and email address, if any;
  3. the name of defendant, last name, first name, official capacity and place of work of an official, mailing address, phone numbers, including bank details and email address;
  4. the name of the appealed act and the body or official who adopted the act;
  5. the adoption date of the appealed act and the commission of the appealed action;
  6. information on the act appealed under pre-trial dispute resolution procedures;
  7. the facts and claims of plaintiff concerning the appealed act;
  8. the list of attached documents and materials.     

The administrative claim must be attached with the following:

  1. the appealed act or its copy;
  2. the decision of administrative body adopted in relation to administrative complaint in pre-trial dispute resolution procedure;
  3. evidences that serve as justification of a claim;
  4. a document confirming payment of State duty, except when plaintiff is exempted from paying it by law;
  5. notification of delivery or other documents confirming the submission of copies of administrative claim and attached documents hereto to other participants of administrative process, which lack among other participants of administrative process;
  6. written petitions, if any;
  7. certified in the prescribed manner translations of documents in a foreign language into the state or official language.

If the plaintiff may not independently provide evidences, he/she shall have the right to indicate the grounds for impossibility to provide such evidences in the lawsuit and to petition for their request. In case the claim is filed by representative, for example, by a lawyer, it shall indicate his surname, name, postal address, including the phone numbers and email address, if any. It must be attached with power of attorney or other document that confirm the authorities of a representative. The statement of claim must be signed by claimant or his/her representative by indicating the signature date. The APC Article 109 also establishes the types of administrative claims and their relief sought.

 

2.3. Procedures for reviewing administrative cases and decision - making:

 

To strengthen the preparatory phase of the cases for proceedings, the Administrative Procedure Code introduces the institution of preliminary court session, in which the parties to the process undertake an obligation to provide their objections, petitions and evidences in a timely manner before assignment of case for judicial examination. The parties shall be notified of the day, time and place of preliminary hearings. Absence of parties attending the case shall not impede the consideration of questions on preparation of the case during preliminary court session. A ruling is issued based on preliminary hearing outcomes to complete the preparatory proceedings and to assign the case for judicial examination. 

Direct review of an administrative case shall be conducted for up to two months from the date of adopting the ruling on completion of preparatory proceedings and on assignment of case for judicial examination. However, the codes and laws may establish other periods for the consideration and resolution of certain categories of administrative cases. When examining an administrative case, the burden of proving the legality and validity of the decision appealed in the court rests on the defendant who took such decision.

Based on review, the court may satisfy the claim in whole or in part or dismiss the claim in whole or in part. The decision shall be announced at the hearing, and the copy of the reasoned decision is handed to the parties against receipt directly in court. The copy of the reasoned decision shall be sent by registered letter with delivery confirmation within three days from the date of its pronouncement to parties who failed to attend the process during the pronouncement of the decision.