Response to restrictions and prohibition of missionary activities

According to the Law of the Kyrgyz Republic “On freedom of religion and religious organizations” of 2008, missionary work is a religious activity. However, there are contradictions and unclear rules in the Law that establish the rules regarding the delivery of missionary activity, which pose significant challenges in understanding and contesting the restrictions and prohibitions of missionary activity.

1. Requirements of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations of the Kyrgyz Republic” for missionary activities

 On the one hand, the provisions of this Law determine that missionary work is a part of religious activity, and “missionary activity” refers to activities aimed at spreading someone's religion. Any illegal missionary activity is prohibited, and those persons responsible for violating this rule are liable under the law. However, the Law does not provide an explanation of what is meant by “illegal” missionary activity and what requirements are established for missionary activity to be “legal”.

On the other hand, article 12 of the Law establishes that missionary activity on the territory of the Kyrgyz Republic is allowed by a missionary representing a registered religious organization, having an invitation and appropriate direction, where “missionary” means a foreign citizen arriving in the Kyrgyz Republic for the purpose of religious activity. At the same time, the Law does not clarify whether this provision is a restriction on the implementation of missionary activities by citizens of the Kyrgyz Republic.

Further, it was found that the missionary (foreign citizen) must undergo registration with the state agency for religious affairs, which procedure is determined by article 12. Based on the results of registration, the missionary is issued a certificate of registration for a period of not more than one year. After this period, the missionary must undergo re-registration process based on the same rules at the State agency for religious affairs. It is important that missionary cannot stay for more than three years on the territory of the Kyrgyz Republic, while the grounds for prohibiting a missionary from staying for more than three years are not specified by law.

A missionary may be denied registration if his activities pose a threat to public safety and order, inter-ethnic and interfaith harmony, health and morality of the population. When taking decision on refusal in registration, the missionary is notified in writing on that, indicating the grounds for refusal. This decision may be appealed in court.

In this case, the discussion is about a missionary as foreign citizen, and as for the citizens of Kyrgyzstan who want to exercise their right to spread their religion, the Law, as noted above, only establishes a ban on any illegal missionary activity.

Therefore, an attempt was made to distinguish between these two issues: the first is the refusal by the State agency for religion in registering a missionary as foreign citizen who arrive in the country for the purpose of religious activity; and the second is the prosecution of persons (citizens, foreign citizens) for “illegal missionary activity”.

2. Appealing against the decision of State agency on refusal to missionary in registration

As already noted, according to the provisions of the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic”, missionary is a foreign citizen arriving in the Kyrgyz Republic for the purpose of religious activity. In order to carry out missionary activity, the missionary must be a representative from registered religious organization, have an invitation and an appropriate direction, and must also register with the state agency for religious affairs. Without one of the above, a missionary cannot carry out missionary activity.

The State Agency for Religious Affairs may refuse to register if its activity poses a threat to public safety and order, interethnic and interfaith harmony, health and morality of the population. The decision on refusal in registration to missionary is provided in writing, indicating the grounds for refusal. Such decision may be appealed in the court.

Decisions of the state agency for religious affairs are appealed in administrative (pre-trial) procedure in accordance with the Law of the Kyrgyz Republic “On basis of administrative activities and administrative procedures” (hereinafter - APC), and subsequently in the court. The pre-trial stage in appealing the administrative acts is currently mandatory; judicial contestation of such acts is possible only after observing this order. Failure to comply with the pre-trial appeal procedures may result in a refusal to accept the claim (Art. 113 of the APC) or return of the claim by the court (Art. 115 of the APC).

The contradictions between Article 12 of the Law of the Kyrgyz Republic “On freedom of religion and religious organizations”, which provides for a judicial procedure for appealing against the decision of the state agency for religious affairs and the Law of the Kyrgyz Republic “On the basis of administrative activity and administrative procedures”, which establishes mandatory pre-trial appeal of such decision, where decision is made in favour of the latter by virtue of part 3 of Article 32 of the Law of the Kyrgyz Republic “On regulatory legal acts of the Kyrgyz Republic”, as special act that regulate the procedures to appeal the administrative acts.

2.1. Administrative appeal of State agency for religious affairs decision

Since the State agency for religious affairs does not have a superior body, an administrative complaint may be filed under administrative procedures with the State agency for religious affairs itself. The purpose of such complaint is to draw attention of the state agency to violations committed by itself and to enable it to eliminate them without recourse to the court.

Administrative complaint may be filed within thirty business days from the date of delivery of the administrative act. The missed deadline for appeal may be reinstated by the State religious affairs agency at the request of applicant.

According to Article 64 of the Law “On the basis of administrative activities and administrative procedures”, a complaint must contain:

  1. name of administrative body to which the complaint is filed against (in our case, the State Commission for Religious Affairs of the Kyrgyz Republic)
  2. surname, name and patronymic of person filing the complaint, and his address;
  3. last name, first name and patronymic of person filing the complaint on behalf of the legal entity, his official capacity and location of the legal entity;
  4. subject of complaint (in our case, this is the reversal of decision of the State Commission for Religious Affairs of the Kyrgyz Republic on refusal in registration (need to indicate the date and number of decision);
  5. requirements of person filing the complaint (in our case, the applicant demands to cancel the decision of the State Commission for Religious Affairs of the Kyrgyz Republic (need to indicate the date and number of decision) that rejects the application for registration)
  6. list of documents attached to the complaint (it is rational to attach the decision itself and the documents which applicant submitted for the registration of the missionary);
  7. date, month and year of filing the complaint;
  8. signature of the person filing the complaint;
  9. the signature of the person filing the complaint on behalf of the legal entity, and the seal of the legal entity.

The maximum term for an administrative procedure is thirty business days from the date of registration of application with State agency for religious affairs. After having considered the administrative complaint against the decision of the State agency for religious affairs, the latter has the right to satisfy the complaint in whole or in part by cancelling the administrative act or declaring it null and void, or adopting the new administrative act or dismissing the complaint and upholding administrative act.

If the applicant does not agree with the decision made by the state agency for religious affairs on his complaint, he shall have the right to challenge it in court under administrative proceedings in accordance with the Administrative Procedure Code of the Kyrgyz Republic of 2017. Administrative proceedings are the legal proceedings arising upon the initiative of citizens in connection with the violation of the subjective public rights of individuals or legal entities by administrative body and its officials.

1.2. Administrative proceedings and administrative claim

Administrative cases are handled within administrative proceedings on the following:

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

However, the following cases are not handled under administrative court proceedings:

  1. on invalidation of resolutions of State bodies and officials authorized to review the cases of 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 proceedings;
  3. on decisions, actions (inactions) of bailiffs in execution enforcement documents.

The parties to the administrative process are the administrative plaintiff and the administrative defendant. Administrative plaintiff is a natural person or legal entity who filed a lawsuit in defense of his rights, freedoms or legitimate interests, or a person in whose interests an administrative lawsuit was filed by prosecutor or another person lodged with powers by law. The administrative defendant is an administrative authority against which the lawsuit was filed. The parties shall have the right to have their representatives, who may be the representatives by office, by law, lawyers, and also other persons acting on the basis of a power of attorney.

According to Article 5 of the Administrative Procedure Code of the Kyrgyz Republic, foreign persons, stateless persons and foreign legal entities enjoy the same right to judicial protection in the Kyrgyz Republic as citizens and legal entities of the Kyrgyz Republic. Thus, the missionary will act as the administrative plaintiff, since the act of the state agency for religious affairs violated his individual rights. Religious organizations that have sent and invited a missionary to the Kyrgyz Republic have the right to act as third parties on the side of plaintiff (Article 32 of the APC).

It is noteworthy that administrative proceedings are handled in State (Kyrgyz) or Official (Russian) language. If missionary does not speak the language of proceedings held, he is guaranteed the right to familiarize himself with all the materials of the case, give explanations, make statements and submit petitions in his native language, and use the services of an interpreter (sign language interpreter) in the manner established by the Administrative Procedure Code. Moreover, it is necessary that the plaintiff submits documents to the court in a foreign language by attaching the certified translated version in State or Official language.

1.3. Where and what terms for filing an administrative claim

Administrative cases are heard at first instance by inter-district courts at the location of defendants, respectively, the administrative claim is referred to that court, i.e. to the Bishkek inter-district court. An administrative claim is filed in the form of written statement of claim, which indicates:

  1. the name of the court in which the lawsuit is filed (Inter-district court of Bishkek);
  2. the last name, first name (name) of plaintiff, mailing address, phone numbers, as well as bank details and email address, if any;
  3. the name, last name and first name of defendant, his/her official capacity and place of work of an official, postal address, phone numbers, as well as bank details and email address;
  4. the name of the appealed act and the body or official who adopted the act (in this case, the decision of the State Commission for Religious Affairs of the Kyrgyz Republic on rejection in registration of a missionary);
  5. the date of adoption of the act appealed and commission of action appealed;
  6. information on appealing the act in pre-trial procedure of dispute resolution;
  7. facts and requirements of the plaintiff in relation to the appealed act;
  8. list of attached documents and materials.

The administrative claim must be attached with:

  1. appealed act or its copy;
  2. decision of an administrative authority, taken in regards the administrative complaint under pre-trial procedure of dispute resolution;
  3. evidences serving as the grounds for claim;
  4. documents that demonstrate the payment of state duty, except in cases where the plaintiff is exempted from paying it by law;
  5. notification of delivery or other documents that confirm the forwarding the copies of administrative claim and its attached documents to other participants of the administrative process, which lack among other participants of the administrative process;
  6. written petitions, if any;
  7. certified translations of documents in a foreign language into State or Official language in the prescribed manner.

If plaintiff has no capacity to independently provide evidences, he has the right to indicate the reasons for impossibility of providing such evidence and petition for their demand in the lawsuit. If a claim is filed by representative, for example, by lawyer, then his name and surname, mailing address, as well as phone numbers and email address, if any, must be indicated, with attached power of attorney or other document confirming the representative’s power. The statement of claim must be signed by the applicant or his representative, indicating the date of its signing. Article 109 of the Code of Administrative Procedure also establishes the types of administrative claims and claims for them.

It should be noted that the grounds provided in the decision of the state agency for religious affairs to refuse the missionary in registration must be legal and justified. The mere indication of grounds for refusal, even if provided for by law, is not sufficient. It is necessary to provide clear arguments for the existence of such threat. Therefore, when preparing an administrative claim, the administrative plaintiff or his representative must pay attention to these grounds and their justification. It must be borne in mind that the burden of proving the legality and validity of decision and action (inaction), appealed in court, rests with the defendant, in our case, this is the state agency for religious affairs, which took such decision.

The lawsuit shall be filed with the court within three months from the date the administrative decision in regards the administrative complaint entered into force in accordance with the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures”. The Code of Administrative Procedure Article 110 also provides the deadlines for certain types of lawsuit.

1.4. Procedures for handling the administrative case and making decisions

In order to strengthen the stage for the preparation of case for trial, the Administrative Procedure Code introduces the institution of preliminary court hearing, in which the trial participants undertake to submit their objections, petitions and evidences in a timely manner before the case is scheduled for trial. The participants shall be notified of the day, time and place of preliminary hearings. The failure to appear of persons participating in the trial shall not impede the consideration of questions on the preparation of case in preliminary court session. Based on preliminary hearings, a decision is made to end the preparatory proceedings and to assign the case for judicial examination.

Direct consideration of administrative case is performed in period for up to two months from the date of adoption of decision to end the preparatory proceedings and to assign the case for judicial examination. However, the code and laws may establish other periods for the consideration and resolution of certain categories of administrative cases.

In considering administrative cases, the burden of prove the lawfulness and validity of decision appealed in court rests with the defendant who took the decision.

Based on hearing outcomes, the court may satisfy the claim in whole or in part or refuse to satisfy it in whole or in part. The decision is announced at hearings, and a copy of reasoned decision shall be handed to participants against receipt directly in court. Process participants who were not present at the time of announcing the decision, the copy of the reasoned decision shall be forwarded by registered letter with delivery confirmation within three days from the date of its announcement.

2. Appeal against the decision in the case related to violation for “illegal missionary activity”:

As previously stated, any illegal missionary activity is prohibited in the Kyrgyz Republic, and those responsible for violating this rule shall be liable under the law. However, the law does not specify what constitutes illegal missionary activity.

In practice, two categories of people are involved in “illegal missionary activity”: the first category are missionaries (foreign citizens) who carry out religious activities without registering with the state agency for religious affairs, and the second ones are citizens of the Kyrgyz Republic who carry out missionary activities (for example, those who practice “Da'wat”).

Both categories of persons are prosecuted under part 2 of Article 92 of the Code of the Kyrgyz Republic on offences for breaching the law on religious organizations in terms of violating the rules to organize and hold religious gatherings, processions or other religious ceremonies established by law, which is subject to a penalty under the category 4 (for individuals - 75 indicators (this is 7,500 Soms), for legal entities - 230 calculated indicators (this is 23,000 Soms). The authorized body entitled to consider the cases of violation is the state agency for religious affairs, i.e. the State Commission for Religious Affairs.

 

2.1. Violation proceedings and participation of lawyer

A violation case shall be proceed when the authorized body detects the sufficient data that indicate the existence of violation event, followed by an execution of proces-verbal in hard copies or electronic form certified by an electronic signature may be used. The content requirements in regards the proces-verbal are established by Article 309 of the Code of the Kyrgyz Republic on offences.

To provide the legal aid to a person held liable for violation, it allows having a lawyer as advocate or representative. The lawyer's credentials are certified by warrant. The powers of another person providing legal assistance are certified by power of attorney executed in accordance with the law of the Kyrgyz Republic. The defense lawyer and representative shall be allowed to participate in case hearing from the moment the proces-verbal on violation is executed.

It is noteworthy that the analysis of violation cases that breach the law on religious organizations in terms of violating the rules to organize and hold the religious gatherings, processions or other religious ceremonies established by law, demonstrates that neither the Code of the Kyrgyz Republic on offences, nor the “Law of the Kyrgyz Republic on freedom of religion and religion organizations in the Kyrgyz Republic” have no definitions on what is meant by the term “religious gatherings, processions and other cult ceremonies ”. This gap makes it difficult to address such an important task as adequate qualification of actions taken by persons held liable under this Article. Article 21 of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic” provides the requirements to conduct religious rites, rituals and ceremonies, but not in relation to “religious gatherings, processions and other cult ceremonies”. Therefore, it is very important that the state agency for religious affairs, when examining a violation case, formularizes, what law regulates the rules for organizing and holding religious gatherings, processions and other religious ceremonies, and what the specific violation it consists of.

Another practice inherent in Kyrgyzstan is the prosecution under paragraph 2 Article 92 of the Code of the Kyrgyz Republic on offences committed by persons who had no permissions to practice this type of missionary activity as Daa’vat. The Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations” does not contain a norm governing the receipt of permission by citizens of the Kyrgyz Republic for missionary activity or Da'wat. In practice, these persons held liable for not having permission from such religious organization as the Spiritual Administration of Muslims of Kyrgyzstan. The procedures to obtain permission and to practice Da'wath are regulated by internal document (regulation) of that said religious organization. Therefore, it is paramount that the state agency for religious affairs, when examining violation cases, has to clarify this circumstance, and respond to the following questions:

  1. if laws define the notion of “Da’wat” and grounds when “Da’wat” becomes illegal;
  2. if the order approved by Mufti is a regulatory legal act in accordance with the Law of the Kyrgyz Republic “On regulatory legal acts of the Kyrgyz Republic”;
  3. if that order may impose any obligations for citizens;
  4. if employees of the state agency for religious affairs have the obligation to monitor the legal implementation of this order.

After having examined the case of violation, the state agency for religious affairs issues a ruling on violation case in hard copy or in the form of electronic document, certified by electronic signature. Content requirements in regards the ruling are enshrined in Article 329 of the Code. The Ruling of the state agency for religious affairs to impose sanctions may be appealed in court.

 

2.2. Appeal of a ruling on violation case with courts

The ruling on violation case may be appealed with the district (city) court. Complaint against a ruling on violation case must be filed within ten days from the date of delivering the copy of the Ruling or its receipt by mail. In case of failure to meet the specified period for a good cause, this period shall be restored by the court based on application submitted by person in respect of whom the ruling was made. The good causes for missing the deadlines may be the document that proves the illness of that person, that he was on business trip, due to natural disaster, etc.

Filing a complaint suspends the imposition of fine until the court reviews the complaint. The complaint against the decision in case of violation shall be considered by the court within fourteen days from the date of its receipt.

As noted above, in subparagraph 2.1., neither the Code of the Kyrgyz Republic on offences, nor the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic” defines the notion of “religious gatherings, processions and other religious ceremonies”, and on which grounds the person is held liable for violating the rules in organizing and holding such activities. Therefore, it is essential that courts, when considering the case of violation, shall determine which legislation establishes the rules for organizing and holding religious gatherings, processions and other religious ceremonies, and what does the specific violation consist of. If, however, persons are liable for the lack of permission from a religious organization to conduct missionary activities in the form of a Da'wat, then the court also has to clarify this circumstance and respond to the questions regarding the legal status of internal resolution document issued by religious organization and its binding power for citizens.

After having considered the complaint against the decision made by authorized body in the case of violation, the district (city) court judge shall take one of the following decisions:

  1. to uphold the decision on violation case and dismiss a complaint;
  2. to repeal the decision on violation case and terminate the proceedings on violation case.

Based on complaint handling the decision is made in the form of court ruling and immediately enters into legal force.

It is worth mentioning that part 3 of Article 333 of the Code of the Kyrgyz Republic on offences establishes that the district (city) court decision is final, which means it cannot be appealed. However, on September 11, 2019, this Article became the subject of review by the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic if it complies with paragraphs 3, 8 part 5 of Article 20, part 1 of Article 40 of the Constitution of the Kyrgyz Republic, where the contested Article of the Code was found contradicting with the indicated paragraphs of the provisions of the Constitution.

According to part 9 of Article 97 of the Constitution of the Kyrgyz Republic, the judgment of unconstitutionality of laws or their provisions by the Constitutional Chamber of the Supreme Court recalls their effect on the territory of the Kyrgyz Republic.

Nonetheless, at the time of preparing this section, the Code has yet to be amended in accordance with the Decision of the Constitutional Chamber of the Supreme Court. Therefore, what procedures for contesting the decisions of district (city) court exist are unknown yet.