Types of discrimination, detection, justification and response
Any person and citizen in their everyday lives may become a victim of discrimination and intolerance based on their adherence to a particular religion or belief. As a result, that person or citizen is unlawfully restricted his/her civil, cultural, economic, political and social rights. Discrimination and intolerance is the violation of the right to freedom of religion or other belief. One should note the following issues on this topic. This is the imperfection of laws in the Kyrgyz Republic (KR) in combating discrimination and intolerance. Thus, the legislation does not have the definition of discrimination and intolerance, coercion and incitement to discrimination. These definitions are yet to be developed at both scientific doctrine and judicial practice levels. Mechanisms to protect and restore the violated rights of a victim are poorly developed. It lacks the scheme for proving the fact of discrimination, who is entitled with the obligation to prove the absence / existence of discrimination - either the victim or the state body, or organ of local self-governance (OLSG) and their officials. Discrimination and intolerance are not reviewed as separate violation of human rights. The Law enforcement agencies, prosecutors and courts do not apply or refer to the provisions of the Constitution of the Kyrgyz Republic and international acts on countering discrimination and intolerance. The statistics on complaints reviewed and cases related to discrimination and intolerance is not gathered.
- 1. Legal framework for countering disckrimination and intolerance:
- 1.1. The Constitution.
- 1.2. The Law “On freedom of religion and religious organizations in the Kyrgyz Republic”.
- 1.3. Labour Code.
- 1.4. Children's Code.
- 1.5. Civil Code.
- 1.6. The Criminal Code.
- 1.7. The Code of Offenses of the Kyrgyz Republic.
- 2. Concept, types and forms of discrimination and intolerance:
- 2.1. The concept of discrimination and intolerance.
- 2.2. Types of discrimination and intolerance.
- 2.3. Forms of discrimination and intolerance.
- 3. Mechanism of protection against discrimination:
- 3.2. Prosecution authorities.
- 3.3. Civil proceedings.
- 3.4. Administrative court proceedings.
- 3.5. Criminal proceedings.
- 4. Responding to discrimination and intolerance:
1. Legal framework for countering disckrimination and intolerance:
International and national human rights standards stipulate that the State, its bodies and officials are prohibited from discriminating against people on the grounds of religion or other beliefs.
By virtue of this prohibition, the State, represented by its bodies and officials, shall have the following obligations:
- the state is obliged to refrain from discrimination and intolerance based on one’s religion or belief (obligation to respect);
- the state must prevent discrimination and intolerance in society (obligation to protect);
- the state must take all necessary measures to ensure in practice that everyone within its territory is able to enjoy all human rights without any discrimination and intolerance (obligation to implement).
Here are examples of some national acts that provide a legal framework in the Kyrgyz Republic to counter discrimination and intolerance on the ground of religion and beliefs.
1.1. The Constitution.
The Constitution shall have supreme legal force and direct effect in the Kyrgyz Republic. Constitutional laws, laws and other regulatory legal acts shall be adopted on the basis of the Constitution.
International treaties that have entered into force in the manner prescribed by law, to which the Kyrgyz Republic is a party, as well as generally recognised principles and norms of international law, shall be an integral part of the legal system of the Kyrgyz Republic. At the same time, the procedure and conditions for the application of international treaties and generally recognised principles and norms of international law shall be determined by laws (Article 6).
For the protection of rights against discrimination and intolerance, it is recommended to be guided by the following provisions of the Constitution:
- human rights and freedoms belong to the highest values of the Kyrgyz Republic;
- human rights and freedoms shall be directly applicable and shall determine the meaning and content of the activities of all state bodies, local self-government bodies and their officials;
- the rights and freedoms of a person and a citizen may be restricted by the Constitution and laws in order to protect national security, public order, the health and morals of the population, to protect the rights and freedoms of other persons, taking into account the specifics of military or other state services; at the same time, the restrictions imposed must be proportionate to the stated goals;
- the law may not impose restrictions on human rights and freedoms for other purposes and to a greater extent than those provided for in the Constitution;
- the human rights and freedoms established by the Constitution shall not be subject to any restrictions;
- The guarantees of prohibition established by the Constitution shall not be subject to any restrictions;
- adoption of secondary regulatory legal acts restricting the rights and freedoms of a person and a citizen shall be prohibited (Article 23);
- no one shall be subject to discrimination on the grounds of gender, race, language, disability, ethnicity, religion, age, political or other opinion, education, origin, property or other status, or other circumstances;
- persons who have committed discrimination shall be held liable in accordance with the law;
- special measures established by law and aimed at ensuring equal opportunities for various social groups in accordance with international commitments shall not constitute discrimination;
- everyone shall be equal before the law and the courts;
- men and women shall have equal rights and freedoms and equal opportunities for their pursuit (Article 24);
- every child shall have the right to a standard of living necessary for his/her physical, mental, spiritual, moral and social development based on the principle of ensuring the best interests of the child (Article 27);
- everyone shall have the right to privacy, protection of honour and dignity (Article 29);
- everyone shall have the right to freedom of movement, choice of place of stay and residence within the territory of the Kyrgyz Republic (Article 31);
- everyone shall have the right to freedom of thought and opinion, freedom of expression, freedom of speech and press;
- no one may be forced to express or refute their opinions;
- it is prohibited to promote national, racial, religious hatred, gender and other social superiority, calling for discrimination, hostility or violence (Article 32);
- everyone shall be guaranteed freedom of conscience and religion (Article 34);
- citizens of the Kyrgyz Republic shall have equal rights and equal opportunities when entering the state civil and municipal service, and to be promoted in the manner prescribed by law (Article 37);
- citizens of the Kyrgyz Republic who have other citizenship shall not be entitled to hold political and special state positions, as well as other state posts, if this restriction is established by law (Article 38);
- foreign citizens and stateless persons shall have the same rights and obligations as citizens of the Kyrgyz Republic, except for cases established by laws or international treaties that have entered into force in accordance with the procedure established by law, to which the Kyrgyz Republic is a party (Article 52);
- court proceedings shall be conducted on the basis of the equality of rights and the adversarial principle (Article 100).
1.2. The Law “On freedom of religion and religious organizations in the Kyrgyz Republic”.
Article 4 of this Law contains the following provisions:
- Citizens of the Kyrgyz Republic are equal before the law in all areas of civil, political, economic, social and cultural life, regardless of their attitude to religion and religious or atheistic beliefs. A citizen’s attitude towards religion shall not be indicated in official documents.
- Any coercion shall be prohibited when a citizen defines his/her attitude to religion, to embrace a religion or embrace none, participate or do not to participate in worship services, religious rituals and ceremonies, and in teaching religion.
- Any restrictions on the right or privileged treatment of a citizen depending on his/her relation to a religion, equally inciting enmity and hatred, or deliberately insulting the feelings of citizens with regard to their attitude to religion, desecrating objects of worship venerated by one religion or another entail responsibility in accordance with the legislation of the Kyrgyz Republic.
- The Constitution of the Kyrgyz Republic enables legal restrictions to be placed on human and civil rights in order to ensure the rights and freedoms of others, public security and order, territorial integrity and protection of constitutional order. Wherein, the essence of constitutional freedoms and rights may not be affected.
- The activities of religious organizations shall not infringe on human rights and dignity, promote social and gender discrimination.
- The law establishes that the state policy in the field of freedom of religion is based on the principles (among others) of equality of all religions and religious organizations before the law (Article 5).
- The State promotes the establishment of relations of mutual tolerance and respect between citizens embracing a religion and embracing none, between religious organizations of different faiths, and between their followers, prohibits religious radicalism and extremism, and actions aimed at opposing and exacerbating relations, inciting religious hatred.
- The State shall not interfere the activities of religious organizations, if it does not contradict the legislation, not allow the establishment of any advantages or restriction of one religion or belief in relation to others, and not finance the activities of religious organizations and activities to promote atheism.
1.3. Labour Code.
The main principles for legal regulation of labour relations and other relations that are directly linked hereto shall establish the prohibition of forced labour and labour discrimination in the field of labour relations (Article 2).
The Code prohibits the discrimination in the sphere of labour (Article 9), which means that:
- everyone shall have equal opportunities to exercise their labour rights and freedoms;
- no one can be limited in labour rights and freedoms or receive any advantages in their implementation depending on their attitude to religion, beliefs, affiliation or non-membership in public associations, and on other circumstances not related to the employee's business qualities and results of his/her labour;
- unequal payment for equal work shall be prohibited.
According to the Labour Code, distinctions, exceptions, preferences and restrictions, which are deemed to be inherent requirements of a given job established by law or stem from the State’s special concern for persons requiring enhanced social and legal protection do not constitute discrimination.
Persons who believe that they have been subjected to discrimination against at work shall have the right to appeal to the courts with appropriate petition for restoration of violated rights, compensation for material damage and compensation for moral damage.
According to Article 61 of the Labour Code, individual conditions of an employment contract are invalidated if recognized as discriminatory.
Individual labour disputes shall be reviewed directly in courts as per claims filed by employees who believe that they have been subjected to discrimination against (Article 421).
1.4. Children's Code.
The Code determines that the main principles of protecting the rights and interests of children are:
- recognition of the priority of the children rights and interests to the best interests of the child;
- inadmissibility of discrimination against children based on religion, and on any other grounds (Article 4).
The best interests of the child is defined in the Code (including) as inadmissibility of discrimination based on religion or other beliefs, or any other circumstances (Article 5).
1.5. Civil Code.
Civil legislation is based on the acknowledgment of the equality, autonomy of will and property autonomy of the parties involved in relations that it regulates, inviolability of property, freedom of contract, inadmissibility of arbitrary interference in private matters, the need for unfettered realization of civil rights, guarantees of restoring violated rights and judicial protection of rights (Article 2).
The Civil Code does not have the term “discrimination” and “intolerance”, excluding the part 5 of Article 1103-1, which states that the corporate name of a legal entity shall not include the elements of discrimination based on sex, race, language, disability, ethnicity, religion, age, political or other beliefs, education, origin, property or other status, including incorrect and obscene words.
1.6. The Criminal Code.
The Criminal Code has established the principle of equality of citizens before the law (Article 4): persons who have committed acts provided for in the Code shall be equal before the law and shall be subject to criminal liability regardless of gender, race, language, disability, ethnicity, religion, age, political or other opinion, education, origin, property or other status, or other circumstances that may constitute grounds for discrimination.
The Criminal Code does not mention the terms “discrimination” and “intolerance”.
According to paragraph 2 of part one of Article 74 of the Code, when imposing punishment, the commission of a crime on the grounds of religious hatred (enmity) shall be recognised as an aggravating circumstance.
According to paragraph 11 of part two of Article 122 of the Code, a murder committed on the grounds of religious hatred (enmity) shall be punishable by imprisonment for a term of twelve to fifteen years with or without confiscation of property, or life imprisonment with or without confiscation of property.
According to Article 189 of the Code, violation of the equality of rights of a person, namely, direct or indirect restriction of rights or the establishment of direct or indirect privileges based on gender, race, nationality, language, disability, ethnicity, religion, age, political or other opinion, education, origin, property or other status, which, through negligence, caused significant harm, shall be punishable by correctional labour of two months to one year, or a fine of 200 to 500 calculation indices, or imprisonment for a term of up to two years, with or without deprivation of the right to hold certain positions or engage in certain activities for up to two years.
The same act, which, through negligence, caused serious harm, shall be punishable by a fine of 500 to 1000 calculation indices or imprisonment for a term of two to five years, with or without deprivation of the right to hold certain positions or engage in certain activities for up to two years.
According to Article 130 of the Code, infliction of serious harm to health in the form of a bodily injury that endangers life at the time of infliction; or infliction of harm to health, resulting in loss of vision, speech, hearing or any organ or loss of functions of an organ, mental illness or other health disorder, combined with permanent disability at least one third, or with a knowingly complete loss of professional capacity to work, or indelible disfigurement of a person, - shall be punishable by imprisonment for a term of five to seven years.
The same act, committed on the grounds of racial, ethnic, national, religious and inter-regional hatred (enmity), shall be punishable by imprisonment for a term of six to eight years.
Acts provided for in paragraphs 1 and 2 of Article 130 of the Code: resulting in the death of a person by negligence, including as a result of suicide, or the death of two or more persons (particularly serious harm); committed in the aggregate of two or more aggravating circumstances referred to in paragraph 2 of the Article; committed by an organised group; committed as part of a criminal community, shall be punishable by imprisonment for a term of eight to twelve years.
According to Article 330 of the Code, actions aimed at inciting racial, ethnic, national, religious or interregional hatred (enmity), humiliating national dignity, or propagating the exclusivity, superiority or inferiority of citizens on the grounds of their attitude to religion, their national or racial origin, committed publicly or with the use of the mass media or the Internet, shall be punishable by a fine of 1000 to 2000 calculation indices or imprisonment for up to five years.
The same acts committed: with the use or threat of violence that does not endanger life and health; with the use of one’s official position; by a group of persons; by a group of persons by prior conspiracy; by an organised group; as part of a criminal community, shall be punishable by imprisonment for a term of five to seven years.
According to Article 331 of the Code, the establishment or management of an extremist organisation, whose activities are associated with the incitement of national, ethnic, racial, religious or interregional hatred (enmity), humiliation of national dignity, propaganda of exclusivity, superiority or inferiority of citizens on the grounds of their attitude to religion, national or racial origin, place of residence, - shall be punishable by imprisonment for up to five years, with deprivation of the right to hold certain positions or engage in certain activities for up to two years.
1.7. The Code of Offenses of the Kyrgyz Republic.
Article 8 of the Code contains the principle of equality before the law: individuals who have committed an offense shall be equal before the law and shall be held liable regardless of gender, race, language, disability, ethnicity, religion, political or other opinion, education, origin, property or other status, or other circumstances.
The Code establishes different types and amounts of penalties for individuals and legal entities. However, this shall not constitute a violation of the principle of equality before the law.
The code does not mention the terms “discrimination” and “intolerance”.
The Code does not recognise as an aggravating circumstance the commission of an offence on the grounds of religious hatred (enmity).
These offences include obstruction of the right to freedom of conscience and religion:
- Unlawful obstruction of the activities of religious organisations or the performance of religious rites, - shall be punishable by a fine of 100 calculation indices for individuals, and 280 calculation indices for legal entities;
- The same act committed by an official of state authorities or local self-government bodies, - shall be punishable by a fine of 150 calculation indices for officials.
Also, violation of the legislation on freedom of religion and religious organizations:
- Violation of the norms regulating the procedure for the provision of religious education, - shall be punishable by a fine of 55 calculation indices for individuals, and 170 calculation indices for legal entities;
- Interference of religious organisations or their representatives in the activities of state authorities, local self-government bodies and their officials, - shall be punishable by a fine of 55 calculation indices for individuals, and 170 calculation indices for legal entities;
- Dissemination of literature, printed, audio and video materials of a religious nature in public places, as well as by visiting residential premises, state or municipal institutions, - shall be punishable by a fine of 55 calculation indices for individuals, and 170 calculation indices for legal entities;
- Performance of religious activities without accounting registration with the authorised state body in charge of religious affairs, - shall be punishable by a fine of 75 calculation indices for individuals, and 230 calculation indices for legal entities.
2. Concept, types and forms of discrimination and intolerance:
The Constitution and other laws contain provisions prohibiting discrimination and intolerance. However, there are no definitions of the concept of discrimination and intolerance, including their types and forms, which are referred to in generally accepted international practices.
2.1. The concept of discrimination and intolerance.
Discrimination and intolerance are the two related concepts. However, the legislation of the Kyrgyz Republic lacks legal definition of the terms discrimination and intolerance.
Therefore, let us look through the publications and various dictionaries, where we can find many different definitions of discrimination and intolerance. Summarizing their content, the following features can be distinguished.
Discrimination (from Latin discrīminātio – “isolation”, “distinction”) is a term denoting a negative or prejudicial attitude towards a person or citizen, or deprivation (restriction) of his/her certain rights (belittling, deprivation of equality) based on a sign existence - religious and other beliefs.
Intolerance is a term denoting an inability or unwillingness to tolerate the religion or beliefs of someone, motivated by someone's personal religious beliefs or practices, or intolerance of other religious beliefs or practices as such. Religious intolerance occurs when an individual or group of individuals refuses to tolerate practices, individuals, or beliefs based on religion.
Religious intolerance is often confused with xenophobia and other forms of discrimination. This is sometimes used to justify discrimination.
Discrimination and intolerance are often based or justified by prejudice and stereotypes about people and social groups.
Stereotype is a common belief or opinion about a particular group of people.
Prejudice is a judgment, usually negative, that we make about a person or other people without really knowing them.
2.2. Types of discrimination and intolerance.
Direct discrimination is easy to detect and prove, since some rules, criteria or procedures established by someone are characterized by someone’s intention to directly discriminate against a specific person or group of people. Moreover, these rules, criteria or procedures are not objectively justified by existence of lawful purpose, and the means to achieve this purpose are not necessary and proportionate.
Indirect discrimination takes place when seemingly neutral rules, criteria or procedures de facto place an individual or group of individuals at a disadvantage compared to others in a similar situation.
Moreover, these rules, criteria or procedures are not objectively justified by existence of lawful purpose, and the means to achieve this purpose are not necessary and proportionate.
Indirect discrimination is more common in practice and more difficult to prove than direct discrimination. Both direct and indirect discrimination are prohibited according to human rights tools.
In practice, discrimination occurs on several grounds at once, for example, based on religion and nationality, age, gender, social status. This is multiple discrimination.
Thus, the rights to freedom of religion or belief of some groups of people are more violated: women, ethnic minorities, LGBT community, migrants, and refugees.
The concept of multiple discrimination has yet to be applied as a legal category in legislation. There are several types of multiple discrimination:
- Compound discrimination is characterized by overlapping and intensification of discrimination on various grounds: for example, discrimination based on religion and discrimination based on sex and age.
- Intersectoral discrimination is the discrimination on one ground is a condition or prerequisite for discrimination on another ground. For example, discrimination based on religion and other beliefs is inextricably linked to ethnic discrimination.
- Cases when grounds of discrimination take place and interact with each other at the same time are also called intersecting forms of discrimination.
International and national standards recognize it as non-discriminatory when restrictions of rights or unequal treatment is objectively justified by existence of lawful purposes, wherein means chosen to achieve this purpose are necessary and proportionate.
Thus, according to the Constitution, special measures established by law and aimed at ensuring equal opportunities for various social groups in line with international obligations are not considered as discrimination (part 2 Article 16).
Therefore, granting certain preferential rights or privileges to previously disadvantaged vulnerable groups of society to achieve equality in positions, educational levels, incomes for representatives of different genders, races, ethnic groups, confessions, sexual orientations, etc., is positive discrimination (“positive”, positive measures of equalization, positive actions or “affirmative actions”).
However, the issue of fairness, legality and appropriateness of positive discrimination has yet to be fully studied.
Opponents of positive discrimination consider it as a form of reverse discrimination, through which one cannot address the inequality challenges. For example, there is an opinion according to which positive discrimination creates even more inequality, devalues the achievements of minorities, makes some social groups consider themselves disadvantaged, even if they are not.
Some critics are convinced that positive discrimination devalues the actual achievements of people who were selected (hired) based on their adherence to a particular social group, rather than their qualifications, which shows the irrationality of positive discrimination, such as any other form of discrimination.
2.3. Forms of discrimination and intolerance.
Here are some examples of forms of discrimination and intolerance.
Xenophobia is a prejudice associated with the misconception that people from other countries, groups, cultures, or those who speak other languages pose a threat, whether they embrace a religion or embrace none.
Xenophobia is closely related to racism: the more “different” the other person is, the stronger fear and negative feelings tend to be among other part of people. Xenophobia is one of the most common forms and grounds for discrimination.
For instance, the forms of xenophobia are:
- Islamophobia is a collective definition for various forms of negative reaction in the world to Islam, and to related social phenomena.
- Christianophobia is the discrimination and intolerance against individuals or all Christians, Christian religion or Christian rites.
Racism is prejudice that has morphed into ideology and feeds hatred, incitement and violence.
Racism refers to discrimination or abusive behaviour against people because of their perceived inferiority. There is a belief that there are races of people that can be distinguished based on their physical differences, or “superiority of their race” who are entitled to exercise power over those who are considered “inferior”.
However, scientific research shows that all people belong to the same human beings, and therefore it makes no sense to talk about “races”.
The influence of racism persists and takes the different forms, such as cultural racism or ethnocentrism, the belief that one's own culture or beliefs are superior, or that other beliefs, cultures, traditions, customs and history are incompatible with theirs.
Religious discrimination and intolerance are often associated with xenophobia and racism, and tend to cause multiple discrimination.
Anti-Semitism can be defined as “hostility towards Jews as a religious or minority group that is often followed by social, economic and political discrimination”.
Religious intolerance manifests itself among adherents of one religion.
Religious intolerance manifests itself between one religion and another religion.
Militant atheism or theism:
Intolerance towards freely choosing and practicing other religions or adhering to other beliefs.
Intolerance to issues of separation of religion from the State, non-interference of religion into politics, law, legislation, culture, education, assertion of true freedom of conscience and independent value of secular life.
3. Mechanism of protection against discrimination:
3.1. The Ombudsperson (Akyikatchy).
Parliamentary monitoring the observance of constitutional rights and freedoms of a person and a citizen on the territory of the Kyrgyz Republic and within its jurisdiction shall be exercised on a permanent basis by the Ombudsperson (Akyikatchy) of the Kyrgyz Republic.
According to Article 3 (6) of the Law of the KR “On the Ombudsperson (Akyikatchy) of the Kyrgyz Republic”, the purpose of the Ombudsperson’s (Akyikatchy) monitoring the observance of constitutional rights and freedoms of a person and citizen is aimed at preventing any form of discrimination in the exercise of a person’s rights and freedoms. The procedure for handling applications and complaints is set out in Article 10 of the Law of the KR “On the Ombudsperson (Akyikatchy) of the Kyrgyz Republic”.
The Ombudsperson (Akyikatchy) shall consider:
- applications and complaints of the citizens of the Kyrgyz Republic;
- applications and complaints of foreign citizens and stateless persons or their representatives;
- applications and complaints of non-governmental organisations;
- information obtained from the appeals of the parliamentarians of the Jogorku Kenesh;
- information obtained on the Ombudsperson’s own initiative.
Subject of consideration:
- decisions or actions (inactions) of state bodies and local self-government bodies, state and non-state organisations, institutions, enterprises, officials and civil servants;
- decisions or actions (inactions) that violate the rights and freedoms of a person and a citizen established by law, international treaties and agreements to which the Kyrgyz Republic is a party.
Application and complaint can be submitted to the Ombudsperson (Akyikatchy) at the following address: 120, Tynystanov St., Bishkek, Kyrgyz Republic. Tel.: +996 (312) 66-32-80. Email - firstname.lastname@example.org
Or to his/her authorised representatives in each region.
For more details on the activities of the Ombudsperson (Akyikatchy) and his/her Administration, please visit the website at: https://ombudsman.kg/index.php?lang=en.
3.2. Prosecution authorities.
3.2. Prosecution authorities.
The Prosecutor’s Office shall supervise the precise and uniform implementation of laws.
Pursuant to Article 2 (1) of the Constitutional Law “On the Prosecutor's Office of the Kyrgyz Republic”, the Prosecutor's Office is a state body responsible for ensuring the rule of law, the unity and strengthening of legality, as well as the protection of legally protected interests of the individual, society and the State.
Subject of supervision:
- supervision over the precise and uniform implementation of laws and other regulatory legal acts of the Kyrgyz Republic by state authorities (except for the activities of the Central Commission for Elections and Referenda of the Kyrgyz Republic in the field of preparation and conduct of elections and referenda, Akyikatchy (Ombudsperson) of the Kyrgyz Republic in the field of monitoring the observance of the constitutional rights and freedoms of a person and a citizen), by local self-government bodies, state and municipal institutions and organisations whose activities are financed from the state and local budgets, state and municipal institutions and enterprises operating on the principles of full cost accounting and self-financing, as well as other legal entities with the state share of participation (hereinafter – the entities);
- supervision over the observance of laws and other regulatory legal acts by bodies engaged in investigation and operational-search activities;
- supervision over legality in the field of state legal statistics and accounting;
- supervision over the observance of laws and other regulatory legal acts in the enforcement of court decisions in criminal cases, as well as in the application of coercive measures related to the restriction of personal freedom of citizens;
- representation of the interests of a citizen or the state in cases specified by law;
- maintenance of public prosecution in court;
- implementation of criminal prosecution;
- exercising other powers provided for in this constitutional Law and other laws of the Kyrgyz Republic.
Acts of prosecutorial response:
When exercising his/her powers, a prosecutor shall apply the following acts of prosecutorial response: a protest, a submission, an order, a warning, a ruling, an instruction, a claim to the court and a submission of an appeal against a judicial act.
The act of the prosecutorial response is subject to registration with the prosecutorial authorities and, before being considered, it can be amended, supplemented, revoked by the prosecutor who submitted it or by a higher-ranking prosecutor.
Acts of the prosecutorial response and the legitimate claims of the prosecutor and the investigator of the prosecutorial authorities are binding on all state and local self-government bodies, organisations and their officials
Application to the judicial authorities:
A prosecutor shall have the right to apply to the court for the protection of the rights, freedoms and legally protected interests of persons or an indefinite number of persons, as well as to intervene in a case being considered in court, if the protection of the rights, freedoms and legally protected interests of citizens, state or public interests so requires.
A claim for the protection of the rights, freedoms and legally protected interests of a citizen may be filed by a prosecutor only at the request of the person concerned, if s/he cannot go to court for good reasons (due to health, age and other reasons).
A claim for the protection of the interests of citizens with disabilities or minors can be filed by a prosecutor, regardless of the request of the person concerned.
In cases of rejection of the acts of the prosecutorial response or failure to consider them within the time limit established by law, the prosecutor has the right to appeal to the court with a claim:
- on the invalidation of acts of bodies and officials;
- on the elimination of violations of the law.
Filing of submissions with regard to judicial acts by a prosecutor:
A prosecutor, within the limits of his/her competence, shall file a submission to the court with regard to an illegal and unfounded judicial act in the manner prescribed by the procedural legislation of the Kyrgyz Republic, or shall refer the submission to a higher-ranking prosecutor.
Supervision of the application of laws in the implementation of international legal cooperation:
The prosecution authorities shall supervise the application of international treaties on legal assistance that have entered into force in accordance with the procedure established by law, to which the Kyrgyz Republic is a party.
The Prosecutor General or his/her deputies, within the limits of authority and in accordance with the procedure established by the Criminal Procedure Code of the Kyrgyz Republic and international treaties, shall take decisions:
- on the extradition of persons;
- on the provision of mutual legal assistance in criminal cases;
- on the implementation of criminal prosecution;
- on the transfer of persons sentenced to imprisonment for further serving the sentence;
- on the transit transportation of persons through the territory of the Kyrgyz Republic.
Appealing against the prosecutor’s actions and acts of prosecutorial response:
The actions of the prosecutor and the acts of the prosecutorial response may be appealed to a higher-ranking prosecutor or to the court. An appeal against the claims and acts of the prosecutorial response shall not suspend their enforcement.
The court or a higher-ranking prosecutor may suspend their enforcement until a decision is taken on the appeal against the actions or acts of the prosecutorial response.
A higher-ranking prosecutor, at the request of citizens and (or) legal entities, or on his/her own initiative, may revoke the act of prosecutorial response of a subordinate prosecutor.
You can apply to the General Prosecutor's Office in Bishkek at the following address: 139, A. Toktonaliev St., Bishkek, 720040, Kyrgyz Republic. Tel. - +996 312 54 24 63. E-mail - email@example.com.
Or you can contact the military prosecutor's office, prosecutor's offices in regions, Bishkek and Osh cities, district (city) and equivalent specialised prosecutor's offices, military prosecutor's offices of garrisons.
For more details about the activities of the prosecution authorities, please visit the website at: https://www.prokuror.kg/
3.3. Civil proceedings.
According to the Civil Procedure Code, the purpose of civil proceedings is to protect the violated or disputed rights, freedoms and legally protected interests of citizens and legal entities, regardless of the form of ownership (Article 3).
The procedure for civil proceedings established by law must:
- ensure the correct and timely consideration and resolution of civil cases;
- ensure the issuance of lawful judicial acts and their enforcement;
- contribute to strengthening the rule of law, order and the prevention of offences.
Any interested person shall have the right to apply to the court for the protection of his/her violated or disputed rights, freedoms and legally protected interests in accordance with the procedure prescribed by law.
Subject-matter jurisdiction of civil cases - courts shall consider all cases in civil proceedings, except for cases referred to constitutional and administrative proceedings
Territorial jurisdiction of civil cases - a district court (a district court in a city, a city court) shall have jurisdiction over all civil cases, except for cases that fall under the jurisdiction of an administrative court.
A claim shall be filed with the court at the place of residence of the defendant. A claim against a legal entity shall be filed at the location of the legal entity or at the location of its property.
Exceptions are cases where territorial jurisdiction may be at the choice of the claimant, cases of exclusive jurisdiction, jurisdiction of several related cases and contractual jurisdiction (Articles 31-34 of the Civil Procedure Code).
3.4. Administrative court proceedings.
According to Article 4 of the Administrative Procedure Code (APC), the purpose of administrative court proceedings is to protect:
- the rights, freedoms and interests of individuals;
- the rights and interests of legal entities;
in the area of administrative and legal (public law) relations against violations by administrative bodies and their officials through fair, impartial and timely consideration of administrative cases.
Any interested person shall have the right to apply to the court for the protection of his/her violated or disputed rights, freedoms or legally protected interests in the manner prescribed by law.
Foreign persons, stateless persons and foreign legal entities shall enjoy the same right to judicial protection as citizens and legal entities of the Kyrgyz Republic (Article 5 of the APC).
An administrative claimant is an individual or legal entity who/that has applied to the court in defence of his/her/its rights, freedoms or legitimate interests, or a person in whose interests an administrative claim has been filed by a prosecutor or other person endowed with such authority by law.
An administrative defendant is an administrative body against which a claim is filed in court (Article 3 of the APC).
Subject-matter jurisdiction – the following administrative cases shall be considered under administrative court proceedings (Article 15 of the APC):
1) on declaring invalid an administrative act or action of an administrative body in whole or in part;
2) on the obligation of the administrative body not to adopt an administrative act that burdens the claimant, or not to act otherwise;
3) on the obligation of the administrative body to adopt an administrative act or perform certain actions;
4) on declaring invalid a subordinate regulatory legal act of an administrative body or local council;
5) on declaring null and void an invalid administrative act of an administrative body.
The following cases shall not be considered under administrative court proceedings:
1) on declaring invalid, in whole or in part, the decisions of state bodies and officials authorised to consider cases of administrative offenses (misdemeanours);
2) on actions (inactions) of law enforcement agencies arising from legal relations in the field of criminal proceedings;
3) on decisions, actions (inactions) of bailiffs when enforcing enforcement documents.
Territorial jurisdiction - administrative cases shall be considered in the courts of first instance at the location of the defendants.
When appealing against administrative acts, actions (inactions) of several defendants, an administrative claim shall be filed with the administrative court at the location of one of the defendants at the claimant’s choice.
Multiple claims, which must be considered under different court proceedings, may not be merged into one case.
3.5. Criminal proceedings.
In accordance with the Criminal Procedure Code (CPC), criminal justice is administered by the court. No one may be found guilty of committing a crime, or be subjected to criminal punishment other than by a court judgement (Article 8 of the CPC).
The objectives of criminal proceedings are as follows (Article 6 of the CPC):
- protection of the individual, society and the state against crimes and misdemeanours;
- protection of the individual against unlawful or unfounded accusations, convictions or restriction of his/her rights and freedoms;
- prompt and full investigation of crimes and misdemeanours;
- exposure and prosecution of perpetrators of crimes and misdemeanours;
- fair trial and proper application of the criminal law;
- immediate and complete rehabilitation in cases of unlawful accusation or conviction of an innocent person;
- ensuring compensation for material damage and moral injury.
A victim is an individual or legal entity who/that has suffered physical, moral harm and (or) material damage by a crime or misdemeanour (Article 40 of the CPC).
4. Responding to discrimination and intolerance:
The below recommendations under this section are designed to help practicing lawyers and jurists defending the rights and legitimate interests of persons who have suffered from discrimination and intolerance in connection with their religion and beliefs (victims).
The recommendations are aimed at enhancing the role of a defence lawyer / jurist in facilitating the efficiency to document such cases and their due diligence, ensure the prosecution of perpetrators and restore the violated rights of a victim, and indemnify for material damage and compensate for moral damage.
When victim files a complaint:
- Effectuate and receive a power of attorney from a client to intervene into the case as a representative and certify the powers to represent the interests (see Annex No.1).
Defence lawyers should:
- Conclude an agreement with the victim to provide legal assistance - a civil contract must be made in a simple written form (see Annex No.2).
- Register the agreement in the document flow system of collegium, advocate’s bureau or lawyer’s office.
- Receive an order of assignment in the form approved by the Bar Association of the Kyrgyz Republic to intervene as a representative and certify the power to provide legal assistance (see Annex No.3).
- Effectuate and receive a power of attorney from a client in other cases.
- The defence lawyer may send requests in order to provide qualified legal assistance to a victim (see Annex No.4).
Interviewing the victim and collecting primary data:
When victim files a complaint, the defence lawyer / jurists should:
- listen to his/her explanations;
- get detailed information about what happened and receive other supporting documents;
- if necessary, ask clarifying questions;
- learn the received documents;
- define a list of actions to be performed in defence of interests and rights of the victim.
Identification of signs of discrimination and intolerance:
During analysis of the situation and documents submitted by a victim, the defence lawyer / jurists should:
Identify the signs of discrimination:
- negative or prejudiced attitude towards the victim;
- deprivation of victim's rights or restriction of certain rights as a result of decisions, actions (inactions) by a state body or a person;
- presence of prohibited ground (justification): religious and other beliefs of the victim;
- existence of a legal purpose for such treatment of the victim;
- lack of necessary and proportionate means to achieve this goal.
Handling the complaint:
Clarify the victim about his/her right to appeal to an administrative body, higher authority, law enforcement agencies, to court and to the Ombudsman (Akyikatchy) Office in connection with discrimination and intolerance, the goals and general rules of treatment, pre-trial proceedings and court proceedings.
Help the victim if necessary to:
- draw up an appeal, complaint or statement;
- send a complaint to the location of the body competent to review such complaint, by post, courier or trough information and telecommunication network (Internet);
- or explain the victim how to reach and get the authority competent to review such complaint.
To a higher administrative body:
The general requirements for the complaint are contained in Articles 28 and 64 of the Law “On basic principles of administrative activities and administrative procedures”.
The complaint is to be submitted to administrative body in writing or orally. The oral statement is reflected in the minutes drafted by administrative body.
If laws require attaching the specific documents, then they must be attached to the complaint.
If administrative act provides for payment of a state duty or other obligatory fee according to law, in such case one must produce a document confirming its payment.
If complaint is filed through a representative, then a power of attorney issued in accordance with the procedure established by law must also be presented.
The claimant and person concerned have the right to appeal against administrative acts, actions or omissions of an administrative body to protect their rights.
An administrative act, action or inaction of an administrative body is appealed against in an administrative (pre-trial) procedure, and subsequently in a judicial procedure, except in cases provided for in Article 44 and Part 3 of Article 57 of the Law “On basic principles of administrative activities and administrative procedures”.
Administrative complaint against an administrative act may be filed with administrative body that adopted the contested administrative act, or to a higher administrative body (see Annex No.5).
In the absence of a higher administrative body or higher official, the action and inaction of administrative body shall be appealed against in court.
The general requirements for a complaint are contained in Article 64 of the “On basic principles of administrative activities and administrative procedures”.
Complaints to the Ombudsman (Akyikatchy):
Explain the victim about legal requirements for the form and content of complaint (see Annex No.6).
The complaint is submitted to the Ombudsman (Akyikatchy) in writing within a year from the date of establishing the violation of human and civil rights and freedoms. In the presence of exceptional circumstances, the Ombudsman (Akyikatchy) may extend that period, but not more than two years.
The Ombudsman (Akyikatchy) considers a complaint only if a claimant challenges the decision of a higher authority, administrative body or court that has entered into legal force, and when the complaint refers to a violation of human rights and freedoms when reviewing the case.
The complaint must be signed by a person effected and indicate the claimant’s surname, name, patronymic and address, and explanation of the essence of decisions or actions (inactions) that violated or violate, according to claimant, his/her rights and freedoms, and be complemented by copies of decisions taken at his/her request, if any.
The complaint is not subject to state fees.
The services provided by the Ombudsman (Akyikatchy) are free.
To Law Enforcement Agencies:
Explain the victim about legal requirements for the form and content of complaint.
- to the body of pre-trial proceedings in accordance with investigative jurisdiction as provided for in Article 153 of CPC and Article 503 of CPC; or
- to the court (in cases on private prosecution).
Explain the victim that complaint must be accepted by the body of pre-trial proceedings and be registered in Unified Register of Crimes and Misdemeanours. The claimant must be issued a document in the form of notification coupon. This is the document which confirms the registration of the accepted complaint or information on crime and (or) misdemeanour in logbook. It indicates the person who accepted the complaint or information, the time of its registration and registration number (with compulsory indication of QR code), based on which the author of the complaint and information may later track the progress of reviewing his/her complaint.
In case of violence or the threat of its use, it is necessary to take measures specified in Article “Responding to violence or threats of using violence” uploaded on this website.
An administrative claim may also be brought before the court by filling a form uploaded from the official website of relevant court on information and telecommunication network (Internet), which is signed digitally in the manner prescribed by the legislation of the Kyrgyz Republic.
General jurisdiction court:
The main requirements for the form and content of statements of claim in civil proceedings are in Article 134 of the Civil Procedure Code.
The statement of claim is submitted to the court in writing with typewritten text.
The complaint may contain any information relevant to the resolution of dispute and provide petitions of the plaintiff (see Annex No.10).
The documents specified in Article 135 of the Civil Procedure Code must be attached to the statement of claim.
A statement of claim may also be brought before the court by filling a form uploaded from the official website of relevant court on information and telecommunication network (Internet), which is signed digitally in the manner prescribed by the legislation of the Kyrgyz Republic.