Responding to violation of internment right of deceased person

In Kyrgyzstan, each person shall have the right to internment (burial) after death in compliance with customs and traditions, religious and spiritual rites. In practice, there are possible cases when this right is violated. For example, the head of Ayil Okmotu (municipality) or village residents prohibit the deceased to be buried at local cemetery based on religious grounds. What is the responsibility of those who prevent the internment of deceased person? How to respond to violations of internment right?

There were cases in Kyrgyzstan when local residents were preventing the relatives of deceased to bury the body at local cemetery by stressing that local cemetery is a “Muslim” one. Such cases were often accompanied by violence against relatives of a deceased and demand for renunciation of religious beliefs, and in several cases the deceased body was excavated and reburied in other places not intended for burial.

Presently, the situation is exacerbated by the fact that there are no special law regulating the deceased internment and procedures determining the appeal and restoration of violated internment rights. The Law “On internment and funeral business”, adopted by Jogorku Kenesh (National Parliament) of the Kyrgyz Republic on 10 December 2015, after considering the objection made by the President of the Kyrgyz Republic to the Law, was rejected by Jogorku Kenesh of the Kyrgyz Republic with its Resolution as of 5 February 2020 No. 3527-VI “On the objection of the President of the Kyrgyz Republic to the Law of the Kyrgyz Republic “On internment and funeral business”.

In developing this section and due to lack of special regulatory legal act, we attempted to present existing and valid mechanisms for protecting the internment right of deceased. The above mechanisms can be applied depending on the facts and cases associated with the presence of certain actions, violence, prohibition and denial of internment right.

1. Legislative regulation of issue related to burial of deceased persons

To protect the violated rights, it should be assumed that the internment right of a deceased is linked with the constitutional right to freedom and personal inviolability (part 1 Article 24), the right to privacy, the protection of honour and dignity (part 1 Article 29), the right to freedom of conscience and religion, accordingly, no one can be forced to express their religious or other beliefs or to deny them (part 1 and part 4 Article 32).

These rights are guaranteed by the Constitution of the Kyrgyz Republic and derived from relevant generally recognized principles and norms of international law, which, according to the Constitution of the Kyrgyz Republic, shall be an integral part of the legal system of our country (part 3 Article 6).

Therefore, no one may be subject to discrimination based on religious belief and conviction. Since the human rights and freedoms are among the supreme values ​​in the Kyrgyz Republic, they function directly and determine the definition and content of activities of all state bodies, local self-governments and their officials. The Kyrgyz Republic respects and guarantees the human rights and freedoms that all persons within its territory and under its jurisdiction (Article 16).

In addition, all cases must be directly examined by executive authorities and courts on the basis of constitutional norms, since the Constitution has the supreme legal force and direct effect in the Kyrgyz Republic (part 1 Article 6).

Article 4 of the Law of the Kyrgyz Republic “On Freedom of religion and religious organizations of the Kyrgyz Republic” contains the following provisions relevant to the topic.

Thus, everyone is guaranteed the right to freedom of religion and atheistic belief in the Kyrgyz Republic. Citizens of the Kyrgyz Republic are equal before the law in all areas of civil, political, economic, social and cultural life, regardless of their relationship to religion and religious or atheistic beliefs.

Foreign citizens and stateless persons legally located in the territory of the Kyrgyz Republic shall enjoy the right to freedom of religion on an equal basis with citizens of the Kyrgyz Republic.

Any coercion is prohibited when a citizen determines his/her attitude to religion, how to embrace religion or embrace none, participate or not to participate in divine services, religious rites and ceremonies, and to learn religion.

Restricting the rights or establishing any advantages for citizens depending on their attitude to religion, and kindling hostility and hatred, or deliberately offending the feelings of citizens in connection with their attitude to religion, desecrating the objects of worship revered in any religion shall entail responsibility in accordance with the legislation of the Kyrgyz Republic.

The activities of religious organizations must not infringe on the rights and dignity of an individual and propagate social and gender discrimination.

In accordance with legislation, religious organizations, missions and their representatives shall be held liable for carrying out activities prohibited by the legislation of the Kyrgyz Republic.

Part 1 Article 5 establishes that:

  • the Kyrgyz Republic is a secular state where religious organizations and religious worshipers shall be prohibited to interfere into the activities of State authorities and local self-governments;
  • no religion may not be established as State or mandatory;
  • doctrines of religious organizations may not be established as mandatory for citizens;
  • all religions and religious organizations shall be equal before the law;
  • relations between the State and religious organizations shall be regulated by law, taking into account their influence in forming spiritual, cultural, state and national traditions.

The State promotes mutual tolerance and respect among the citizens, between organizations embracing a religion or embracing none and between religious organizations and those of their members having a different faith; prohibits the manifestation of religious or other radicalism or extremism, and of any actions seeking to polarize and degrade relations and to kindle hostility among religious organizations.

Attempts by religious organizations and religious workers to exert any pressure on state bodies, local self-governments and their officials that violate the norms of the current legislation of the Kyrgyz Republic shall entail liability established by law.

Besides, the Law establishes that violation of the law on religious freedom and religious organizations entails liability in accordance with the legislation of the Kyrgyz Republic. Officials, citizens of the Kyrgyz Republic, other persons responsible for violating the law on religious freedom and religious organizations shall be held liable in accordance with the legislation of the Kyrgyz Republic (Article 29).

According to paragraph 8 part 1 Article 18 of the Law of the Kyrgyz Republic “On local self-government”, the functioning of cemeteries and provision of funeral services are issues of local importance and managed by local self-governments.

The executive bodies of local self-government are city halls and Ayil okmotu. Respectively, officials are the Mayor and head of Ayil okmotu.

The mayor is an elected official of the city, who acts as the head of executive body of local government in the city.

Acts signed by City Mayor may be cancelled by Mayor or invalidated in accordance with the laws of the Kyrgyz Republic.

The rules to organize the activities by city hall in implementing its powers as stipulated by law and the basic requirements for the organization of work with documents and documentation procedures at Mayor’s Administration shall be established by the rules of the city hall.

The head of Ayil okmotu is an elected official - the head of executive branch at local self-government in Ayil aimak (lowest administrative level in rural area).

Acts signed by the head of Ayil okmotu may be cancelled by the head of Ayil okmotu or invalidated in the manner prescribed by laws of the Kyrgyz Republic.

The rules to organize activities in Ayil okmotu to implement its powers stipulated by legislation in the field of regulating the activities of local self-governments and the basic requirements to organize the work with documents and document procedures Ayil okmotu administration shall be established by the Ayil okmotu regulations.

Aiyl bashchysy (Head of municipality) is an appointed official who performs the functions delegated by Ayil okmotu thorough its decision.

Aiyl bashchysy is appointed head of executive branch of local self-government through the consent of residents during the gathering represented by relevant territory and acts as municipal employee.

Aiyl bashchysy is an appointed official who performs the functions delegated by Ayil okmotu decision.

Decisions of executive branches of local self-government, kurultay (people’s meetings), gatherings of citizens, bodies of territorial public self-government shall not contradict the laws of the Kyrgyz Republic.

2. Appellation to prosecution authorities

In case of violation of internment right, citizens shall have the right to file a complaint with the prosecution authorities in accordance with the Law “On prosecutor’s office of the Kyrgyz Republic”, since the subject of supervision of prosecutor’s bodies shall be (Article 31, 33):

- compliance with the Constitution of the Kyrgyz Republic;

- accurate and uniform implementation of laws and other normative legal acts by local authorities, their officials;

- observance of human and civil rights and freedoms.

The powers of prosecutor (part 1 Article 34) shall be as follows:

1) to consider and verify applications, complaints and other reports of violation of human and civil rights and freedoms;

2) to provide clarifications to citizens on procedures for protecting their rights and freedoms;

3) to take measures to prevent and suppress violations of human and civil rights and freedoms and to hold accountable those who violate the law, and to compensate for the damage/injury caused;

4) to use the powers provided for in Article 32 of the Law.

An application or complaint shall be submitted to district (city) prosecutor’s office at the place where the violation of internment right occurred or at the place where the criminal offense or misdemeanour took place. It should be noted that prosecution authorities shall not consider the anonymous appeals.

The appeals received by prosecution authorities shall be examined in the manner and terms prescribed by law. The response to appeal must be motivated. In case of appeal refusal, the applicant must be explained the procedures for appealing the decision, and the right to appeal to the court (Article 6).

It is prohibited to forward the appeal to an agency or official whose decisions or actions may be appealed.

The decision taken by district (city) prosecutor may be appealed to a higher prosecutor (regional prosecutor and the Prosecutor General). At the same time, filing a complaint to a higher prosecutor shall not impede the person from applying for protection of his rights to court.

3. Appellation to courts

3.1. Protection mechanisms under the Civil Code of the Kyrgyz Republic

Losses caused to relatives of a deceased or his close persons, or to religious organization as a result of illegal actions (inactions) by state bodies, local self-government bodies or officials from these bodies, including the issuance of an act of state body that does not comply with the legislation, shall be subject to compensation by State, and local self-government bodies in cases provided for by law (Article 15).

For example, losses may be the expenses that relatives of a deceased or his close persons incurred or will have to incur to restore the violated internment right (real damage): transportation of body of a deceased to another cemetery, expenses related to reburial and costs to appeal to the prosecutor, etc.

According to Article 18 of the Code, at the request of interested persons, it shall be provided the protection of honour, dignity and business reputation of a citizen after his/her death. It grants the heir the right to file a lawsuit to the court to protect the honour and dignity, recognition of widespread information related to religion or religious conviction of a deceased as untrue and defaming his/her honour and dignity, and to demand their refutation.

It should be borne in mind that legislation does not contain the definitions of concepts “honour”, ​​“dignity” or “business reputation”, since they are moral and ethical categories. At the same time, they are simultaneously recognized as personal non-property rights and are independent objects of judicial protection.

It is also noteworthy that when resolving disputes on the protection of honour, dignity and business reputation, a balance must be ensured between the right of citizens to protect honour, dignity and business reputation, on the one hand, and other rights and freedoms guaranteed by the Constitution, for example, freedom of thought, speech, the right to freely seek, receive, transmit, produce and disseminate information in any legal way.

A claim to protect the honour, dignity and business reputation of a deceased shall be addressed to district court (district court in the city and city court). If information defaming the honour, dignity or business reputation of a citizen is disseminated in the media, it must be refuted in the same media, including the Internet. The refutation procedures in other cases shall be established by the court.

To file the claims to protect the honour, dignity and business reputation of a deceased, it is recommended to familiarize with the Resolution of the Plenum of the Supreme Court of the Kyrgyz Republic “On judicial practice for the resolution of disputes to protect honour, dignity, and business reputation” No. 4 as of 13 February 2015.

3.2. Protection mechanisms under the Civil Procedure Code of the Kyrgyz Republic

According to Article 4 of the Code, any interested person shall have the right, in the manner prescribed by law, to apply to the court to protect his violated or contested rights, freedoms and interests protected by law. For instance, heirs, relatives, close persons of a deceased shall have the right to file a claim to recover the expenses that they incurred or will have to incur in order to restore the violated internment right, including claims for compensation for property damage and (or) moral damage caused by criminal act and (or) misdemeanour if they are not reimbursed voluntarily.

Under these cases, the legislation does not provide mandatory pre-trial procedures for settlement; thus, such cases can be referred to the court without mandatory pre-trial procedure.

The above claims shall be the subject to jurisdiction of district court (district court in a city and city court) (part 1 Article 28).

The lawsuit shall be filed in court at the place of residence, location of defendant, for example, at location of convicted person, the head of Ayil okmotu, the ritual agency (part 1 Article 30).

The lawsuit is filed in a court at the place of residence, location of the defendant, for example, the convicted person, the head of Ayil okmotu, the ritual agency (part 1 of article 30).

Claims against a defendant whose place of residence or location is unknown, or who has no place of residence in the Kyrgyz Republic may be filed at the place of location of his property in the Kyrgyz Republic or at the last known place of residence or location (part 1 Article 31).

3.3. Protection mechanisms under the Criminal Code of the Kyrgyz Republic

Violation of internment right may serve as basis for criminal liability of persons involved.

Therefore, the violation of equal rights for persons, namely, direct or indirect restriction of internment right, depending on religion, religious or other beliefs of a person and causing negligent significant or serious harm, is a crime according to Article 185 of the Criminal Code.

The terms “Significant harm” and “Serious harm” in relation to Article 185 shall be understood in the following meaning:

Significant harm has the following consequences in cases where they are not indicated as a sign of corpus delicti provided for by the Criminal Code:

1) causing less serious harm to the health of two or more persons;

2) violation of constitutional human and civil rights and freedoms;

4) causing significant material (property) damage;

7) other consequences that clearly indicate the significance of the harm caused, if they are not specified as serious or especially serious harm in the law.

Serious harm has the following consequences in cases where they are not indicated as a sign of corpus delicti provided for by the Criminal Code:

1) causing serious harm to the health of one person and two or more persons;

5) causing major or especially major damage.

Deliberate actions that grossly violate public order and norms of generally accepted behavior, associated with violence or the threat of its use, or the commission of obscene actions, characterized by cynicism and committed with particular impudence, that is, coupled with the destruction or damage of other person’s property, or accompanied by use of violence that does not endanger life and health, or the threat of its use shall be considered as hooliganism, which is a crime in accordance with Article 185 of the Criminal Code.

Hooliganism may also be committed:

1) by a group of persons or a group of persons acting by prior conspiracy;

2) through the use or attempt to use firearms, gas-traumatic weapons, knives, brass knuckles and other cold weapons or other items specially adapted for causing harm to health;

3) with obstructing the officer or another person acting as law enforcement officer.

Calls for active disobedience to legitimate demands of representative of authority and mass riots, and calls for violence against citizens shall entail criminal liability in accordance with part 3 Article 264 of the Criminal Code.

Actions aimed at inciting racial, ethnic, national, religious or inter-regional hatred (discord), humiliation of national dignity, and propaganda of exclusivity, superiority or inferiority of citizens based on their attitude to religion, national or racial affiliation, committed publicly or using mass media, as well as through the Internet shall be a crime under Article 313 of the Criminal Code.

Causing serious bodily harm, including through negligence, or causing less serious bodily harm shall be the crimes according to Articles 138, 139 and 142 of the Criminal Code respectively.

The use of life-threatening violence shall be a crime under Article 145 of the Criminal Code.

Use of violence that does not endanger life and health in relation to representative of authority or his husband (wife), close relatives in connection with the performance by representative of authority of his official duties. In addition, the use of violence that does not endanger life and health, or the threat of violence that endanger life and health, in regards to persons above, shall be a crime according to Article 355 of the Criminal Code.

Coercion of a person to admit any action or to refrain from admitting any action, coupled with the use of violence that does not endanger life or health, or with the threat of violence that endanger human life and health, shall be a crime according to Article 362 of the Criminal Code.

Regard is to be had to that criminal liability under Articles 138, 139, 185 shall be incurred by person at the time of commission of the crime, had attained 14 years of age. Under remaining articles set forth in this section, a person who, at the time of commission of the crime, had attained 16 years of age shall be subjected to criminal liability.

3.4. Protection mechanisms under the Code of Misdemeanour of the Kyrgyz Republic

A person who, at the time of commission of the misdemeanour had attained 16 years of age shall be subjected to committing a misdemeanour.

Misdemeanour against individual civil and socio-economic rights shall be considered as an obstruction to exercise the right to freedom of conscience and religion. For example, during burial there may be unlawful actions that hinder the performance of religious rites next to grave. Such actions are considered as misdemeanours under Article 84 of the Code.

There is a liability for petty hooliganism, that is, deliberate actions that grossly violate public order or generally accepted behaviour, associated with violence or the threat of its use, and destruction or damage to property (Article 119).

Misdemeanours directed against health shall be beatings on the body or other violent actions that led to physical harm (Article 65), caused minor injury to individual health that did not result in short-term health disorder or resulted in short-term health disorder, or minor permanent disability (Article 66).

Removing a body from burial place (exhumation of corpse) without an investigator’s order or court order shall not be legal. Therefore, such action may be considered despoliation of the dead. According to the Code, this is a misdemeanour against public morality (Article 131).

In this case, the circumstances aggravating the punishment for above misdemeanours shall be recognized as the commission of misdemeanour by a group of persons or a group of persons by prior conspiracy and the commission of misdemeanour based on religious or inter-regional hatred (discord).

Proceedings in above cases on misdemeanour shall be conducted by an authorized official from body of inquiry - the internal affairs body (Article 37 СРС). The competence of inquiry body is defined in the second part of the same article.

The competence and powers of an authorized official from inquiry body and the head of inquiry body are specified in Articles 38-40 of the Criminal Procedure Code.

Other issues of criminal proceedings on misdemeanour cases shall be conducted in accordance with the requirements of Criminal Procedure Code (see next Section).

3.5. Protection mechanisms under the Criminal Procedure Code of the Kyrgyz Republic

The criminal proceedings from the moment of statement and report on crime and (or) misdemeanour registration in the Unified Register of Crimes and Misdemeanours (ERPP) until the submission of case materials by prosecutor to the court for their consideration on the merits shall constitute the pre-trial proceedings.

Pre-trial criminal proceedings shall be carried out in the form of investigation (Article 148).

Pre-trial proceedings shall commence from the moment the report is entered into the Unified Register of Crimes and Misdemeanours, which is an electronic database containing information about the start of pre-trial proceedings, legal proceedings, progress in relation to criminal and (or) misdemeanour case, applicants and participants in criminal proceedings. ERPP automatically registers the data entry date and assigns the number of criminal or misdemeanour case.

An authorized official of inquiry body, investigator and prosecutor shall be obliged to enter the relevant information into the ERPP without any delay, no later than 24 hours from the moment of:

- receiving a statement and report on crime or misdemeanour, or

- direct detection of circumstances that indicate the commission of crime and misdemeanour;

- receiving the severed materials of criminal cases and misdemeanour cases;

- receiving materials of pre-trial proceeding from a foreign state.

Bodies executing pre-trial proceedings shall be obliged to accept and register the statement and report on any committed or intended crimes and (or) committed misdemeanours.

The claimants shall be cautioned about liability for knowingly false denunciation; this is noted in statement or report, which is certified as correct by their signature.

The claimant shall be issued a document on registering the accepted statement or report on crime and (or) misdemeanour indicating the person who accepted the statement or report, the time of its registration and registration number in the ERPP.

The claimant shall be informed on the start of pre-trial proceedings under criminal or misdemeanour case, from whom the statement or report on crime or misdemeanour was received.

Pre-trial criminal proceedings shall be carried out in accordance with specific investigative jurisdiction. The following investigative jurisdictions are established in accordance with Article 153 of the Criminal Procedure Code:

- investigators of internal affairs bodies shall conduct pre-trial proceedings in criminal cases on crimes against health (Articles 138-142, 145), crimes against civil and other human rights (Articles 185) and crimes against governance system (Articles 355, 362);

- investigators of national security bodies and internal affairs bodies shall conduct pre-trial criminal proceedings on crimes against public order (Article 264), crimes against constitutional order and state security (Article 313).

With the totality of crimes related to the jurisdiction of different bodies, the investigative jurisdiction shall be determined by degree of criminal act.

The criminal case under different investigative jurisdiction shall be conducted by investigator from the body that initiated the pre-trial proceedings.

Investigators from national security bodies and internal affairs bodies shall not be permitted to conduct pre-trial proceedings on criminal cases not related to their investigative jurisdiction, unless otherwise provided for in cases under paragraph 3 part 2 Article 33 of the CPC, which indicates that during pre-trial proceedings the prosecutor is authorized in exceptional occasions to entrust and transfer criminal cases for investigation to an investigator or group of investigators, regardless of jurisdiction established. Exceptional cases shall be:

- biased inquiry of the case by investigator;

- exerting pressure on investigator by officials who supervise them in order to influence the decision making;

- social significance of the case;

- rational to investigate the case by agency that revealed the crime in the case.

Actions (inactions) and decisions of inquiry body, investigator, head of investigative unit, prosecutor and court may be appealed in the manner prescribed by the Code (Article 127).

Complaints shall be submitted to that state agency or official conducting criminal proceedings in a criminal or misdemeanour case, which according to law are authorized to consider complaints and make decisions on them.

Complaints may be oral and in written. Oral complaints shall be recorded in the protocol, which is signed by claimant and the official who accepted the complaint. Additional materials may be attached to the complaint.

The person who filed the complaint shall have the right to withdraw it. The suspect and accused shall have the right to withdraw the complaint of the defence counsel; the victim - private prosecutor shall have the right to withdraw the complaint of his/her representative, except for the legal representative. The withdrawal of complaint does not preclude its re-filing.

Filing a complaint shall not suspend the execution of the appealed action and execution of the appealed decision, unless otherwise investigator, prosecutor or judge finds it unnecessary (Article 128).

Complaints may be filed within 15 days from the moment of familiarization with the results of appealed actions.

Complaints against decisions made by investigation judge, prosecutor, investigator and authorized official of inquiry body, as well as sentences and court order shall be submitted within the time limits established by the Code (Article 129).

Orders and other decisions and actions (inactions) taken by prosecutor, investigator and authorized official inquiry body under the criminal or misdemeanour case may be appealed to the court at the place of pre-trial proceedings.

The investigation judge shall verify the legality and validity of orders, decisions and actions (inactions) taken by prosecutor, investigator and authorized official of inquiry body. The investigation judge shall make a decision no later than 3 days from the date of receiving the complaint at the hearing. The claimant and his/her defence counsel, legal representative or representative shall be invited to hearings in case they participate in the criminal and (or) misdemeanour case, and other persons whose interests are directly affected by the appealed actions (inactions) or decisions. Absence of persons duly notified of the time for complaint review and who do not insist on its consideration with their participation shall not serve as an obstacle to review the complaint by the court (Article 132).

Complaint (recommendation) against court sentence, ruling and order of the first and appeal instances shall be submitted in accordance with the rules of Chapter 46 of the Code.

Complaint (recommendation) to review the court decisions that have entered into legal force shall be submitted in accordance with the rules of Chapter 51 of the Code (Article 133).

3.6. Protection mechanisms under the Code of the Kyrgyz Republic on offences

According to Article 82 of the Code, disobedience to the lawful demand of an internal affairs officer responsible for protecting public order is a violation and serves as grounds for prosecution. For example, the community police officer is obliged to take measures to suppress illegal actions during the burial of a deceased. This can be the acts of hooliganism on the part of persons present during religious ceremony or during burial process, associated with violence or the threat of its use to relatives and close persons to a deceased; illegal calls to remove the body from burial place without an investigator’s order or court order.

Natural persons (a citizen, foreign person and stateless person), who, at the time of commissioning the offence, had attained 16 years of age shall bear responsibility for committing this offence.

Note 1 to Chapter 15 of the Code indicates that cases of offence provided for in Article 82 of the Code shall be examined by authorized body in the field of internal affairs, that is, the authorized units under the Ministry of Interior, which act in accordance with their competence (paragraph 1 part 3 Article 313).

The Ministry of Interior, by its decision, shall determine the list of officials empowered to draft reports on offences, impose penalties in cases provided for by the code, and establish commissions vested with the authority to consider cases of offences. Rules and procedures for a Commission, its quantitative and personal composition are approved by the Decision of the Ministry of Interior.