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
- 2. Appealing against the decision of State agency on refusal to missionary in registration
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 define that missionary activity is a part of religious activity, and “missionary activity” refers to activities aimed at spreading one’s religion. Any illegal missionary activity shall be prohibited, and those found guilty of violating this rule shall be held liable in accordance with the legislation. However, the Law does not clarify what is meant by “illegal” missionary activity and what requirements are established for missionary activity to be considered as “legal”.
On the other hand, Article 12 of the Law establishes that missionary activity in the territory of the Kyrgyz Republic may be carried out by a missionary representing a registered religious organisation who has an invitation and an appropriate referral, while a “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 not a restriction on the implementation of missionary activities by citizens of the Kyrgyz Republic.
Further, it states that a missionary (a foreign citizen) must undergo accounting registration with the state body in charge of religious affairs, the procedure for which is defined in Article 12 of the Law. Based on the results of accounting registration, the missionary is issued a certificate of registration for a period not exceeding one year. After the expiry of the specified period, the missionary shall be subject to re-registration in the state body in charge of religious affairs according to the same rules. It is worth noting that a missionary may not stay on the territory of the Kyrgyz Republic for more than three years, while the Law does not specify the grounds for a ban on a missionary's stay for more than three years.
A missionary may be refused registration if his/her activity poses a threat to public safety and order, interethnic and inter-confessional harmony, health and morals of the population. When a decision to refuse registration is made, the missionary shall be notified in writing, which shall specify the grounds for the refusal. This decision may be appealed in court.
Now let us consider what the Law says with regard to Kyrgyz citizens who wish to exercise their right to missionary activity. The Law, as noted above, establishes only a ban on any illegal missionary activity, however, unlike foreign missionaries, it does not impose a requirement for citizens of the Kyrgyz Republic to register with the state body in charge of religious affairs.
As mentioned above, missionary activity is a religious activity. And according to Article 8 (2) of the Law, a person implementing activities on behalf of an unregistered religious organisation shall be held liable in accordance with the legislation of the Kyrgyz Republic. However, to date, there is no such liability in the current Codes.
The only provision that can be applied in this case is Article 142 (4) of the Code of Offenses of the Kyrgyz Republic (hereinafter – the CoO) - “the implementation of religious activities without accounting registration with the authorised state body in charge of religious affairs”. But it should be remembered that this provision can be applied only to religious organisations, missions, missionaries, religious educational institutions and religious facilities. Since, in accordance with the Law, compulsory accounting registration shall be applied to:
- religious organisations (Article 10),
- religious facilities (Article 10),
- missions (representative offices) of foreign religious organisations (Article 11),
- foreign citizens (missionaries) arriving in the Kyrgyz Republic for the purpose of religious activities (Article 12),
- religious educational institutions (RUI) (Article 13).
Therefore, if a citizen of the Kyrgyz Republic does not carry out missionary activities on behalf of the above organisations, the liability established by Article 142 (4) of the CoO cannot be applied.
Thus, when initiating proceedings and considering a case of an offense in accordance with Article 142 (4) of the CoO, the following shall be ascertained:
- Whether the person acted on behalf of a religious organisation, mission that has undergone accounting registration with the state body in charge of religious affairs?
- Or was this person a foreign citizen who arrived in the Kyrgyz Republic for the purpose of religious activities without due registration with the state body in charge of religious affairs?
Further, an attempt has been made to distinguish between two issues: first, the refusal by the state body in charge of religious affairs to register a missionary as a foreign citizen arriving in the country for the purpose of religious activity; and second, - bringing persons (citizens, foreign citizens) to liability for “the implementation of religious activities without accounting registration with the authorised state body in charge of religious affairs”.
2. Appealing against the decision of State agency on refusal to missionary in registration
Article 142 (4) of the CoO establishes liability for the implementation of religious activities without accounting registration with the authorised state body in charge of religious affairs, and the punishment in the form of a fine of 75 calculation indices for individuals, and 230 calculation indices for legal entities.
The objective side of the offense under this article is the implementation of religious activities without accounting registration with the authorised state body in charge of religious affairs. The subject of the offense will be individuals and legal entities - religious organisations, religious facilities, missions (representative offices) of foreign religious organisations, religious educational institutions, foreign citizens (missionaries) arriving in the Kyrgyz Republic for the purpose of religious activities, as well as persons implementing religious activities on behalf of these organisations.
- Initiation of proceedings
Cases of offenses referred to in Article 142 (4) of the CoO should be considered and sanctioned by the authorised body in charge of religious affairs, in our case, the State Commission for Religious Affairs (hereinafter - the SCRA).
Moreover, according to the article of the CoO, the supervision over compliance with laws and other regulatory legal acts by bodies and their officials conducting offence proceedings shall be carried out by the prosecutor, who can also initiate offence proceedings, participate in the consideration of an offence case, request officials to eliminate violations of the law, as well as cancel illegal and unreasonable decisions of an official of the authorised body and appeal against court decisions.
The grounds for initiating offense proceedings referred to in Article 142 (4) of the CoO are as follows:
1) direct discovery of sufficient data indicating the occurrence of an offense;
2) materials received from law enforcement or other state authorities, local self-government bodies containing data evidencing the occurrence of an offense;
3) reports and statements of individuals and legal entities, as well as reports in other sources of information (including in the media and the Internet), including video or photo materials containing data evidencing the occurrence of an offense.
The participants in the proceedings an offense shall be:
1) a person involved in committing an offense;
2) victim - an individual or legal entity who/that has suffered physical, property or moral damage or damage to business reputation due to an offense;
3) witness - a person who may be aware of any circumstances to be established in respect of this fact;
4) expert - a person who has special expert knowledge in the field of science and technology, who is disinterested in the outcome of the case and has been proposed by the parties to the proceedings on the offense;
5) specialist - any person who is disinterested in the outcome of the case and has the special knowledge necessary to assist in the discovery, securing and seizure of evidence, as well as in the use of technical means;
7) legal representative - a person who protects the rights and legitimate interests of an individual who is the subject of offense proceedings, or a victim, who is a child or a person deprived of the ability to independently exercise his/her rights due to his/her physical or mental condition.
A legal representative of a legal entity is a person who protects the rights and legitimate interests of a legal entity that is the subject of an offence proceedings or a victim of an offence.
8) defence counsel - a person who provides legal assistance to a person held liable for an offense, as well as his/her legal representative.
Representative - a person who provides legal assistance to the victim. A defence lawyer or other person shall be allowed to participate in offence proceedings as a defence counsel or a representative.
Not later than 48 hours from the moment the report on the offense has been drawn up, officials of the SCRA, the prosecutor shall enter the relevant information into the Automated Information System (AIS) of the Unified Register of Offenses (URO). Further findings relating to the offense shall be entered into the AIS URO immediately. The concealment of an offense from being registered or failure to enter the relevant information into the AIS URO shall entail liability established by law.
- Procedural registration
When an offense is committed, the SCRA or the prosecutor shall draw up a report on the offense on paper or in electronic form, certified by the official’s electronic signature.
Prior to drawing up a report on the offense, an official shall explain to the person held liable for an offense his/her right to:
1) use the assistance of a representative;
2) give or refuse to give an explanation and answer a question;
3) file a complaint with the court against the decision of the authorised body.
Only after explaining the rights to the person held liable, the official shall proceed to draw up a report on the offense on paper in 2 copies, one of which shall be handed over against a receipt to the person charged with an offence.
The report on the offence shall specify:
1) the date, time and place of its drawing up;
2) position, surname, name, patronymic of the person who drew up the report;
3) information on the person charged with the offense;
4) the place, date, time of the offence and circumstances evidencing the commission of the offense;
5) an article of the Code of Offences stipulating liability for an offense;
6) information on witnesses and victims, if any;
7) an explanation of the person charged with the offense;
8) other information necessary for resolving the case of an offence.
The report shall be signed by the person who drew it up and the person held liable. If witnesses and victims are present, the report shall also be signed by these persons. The report shall be drawn up in two copies, one of which shall be handed over against a receipt to the person charged with an offence.
The person charged with an offence shall have the right to refuse to sign the report and shall have the right to submit explanations and comments on the content of the report attached thereto, as well as state the reasons for his/her refusal to sign it.
- Consideration of the case
When preparing to consider a case of an offense, the SCRA shall ascertain the following circumstances:
1) whether the case falls within its competence to consider the case;
2) whether there are circumstances that exclude the possibility of considering the case by the SCRA;
3) whether the report on the offense was properly drawn up and other materials of the case were completed in a proper manner;
4) whether there are circumstances precluding the consideration of an offense referred to in Article 510 of the CoO;
5) whether the available materials are sufficient to consider the offence on the merits;
6) whether there are any motions or challenges.
When preparing to consider an offense case, the SCRA shall take the following decision:
1) on setting the time and place for the consideration of the case;
2) on summoning persons, requesting the necessary additional materials on the case, appointing an expert examination;
3) on postponing the consideration of the case;
4) on returning the report on the offense and other case materials to the authorised body, its representative or an official who has drawn up the report / ruling, in cases of drawing up the report and other case materials by unauthorised persons, incorrect drawing up of the report / issuing of a ruling and other case materials or incompleteness of the submitted materials, which cannot be filled in during the consideration of the case;
5) on referral, within 3 working days, of the report / ruling on the offense and other materials of the case to the appropriate jurisdiction, if the consideration of this case does not fall within its competence;
6) on challenging a judge, a representative of the authorised body in cases provided for by the CoO;
7) on the suspension of proceedings on an offense under the circumstances referred to in Article 510 of the CoO;
8) on the termination of proceedings under the circumstances referred to in Article 510 of the CoO.
The case of an offense shall be considered at the location of the SCRA, which shall inform the parties to the proceedings by means of notification (delivery of a notice, summons, telephone message, telegram, facsimile, e-mail, or using other means of communication, that allows to ascertain the fact of such notification) about the date and place of the case consideration, about particular procedural actions no later than 24 hours prior to the case consideration, and shall summon them to participate in the consideration of the offence case or in the implementation of other procedural actions.
The case of an offense shall be considered within 10 days from the date of receipt by the SCRA of the report on the offense/the prosecutor’s ruling to initiate a case on the offense and other materials of the case. The time limit for consideration of the case may be extended by no more than 10 days.
The SCRA, having considered the materials of the case on the offense, shall issue one of the following rulings:
1) on the imposition of a penalty;
2) on the termination of proceedings on the case;
3) on the accrual of penalties.
The ruling shall be announced immediately after the end of the consideration of the case, and shall be handed over within 3 days to the person in respect of whom it was issued, as well as to the victim, against a receipt, or sent by post or other means of communication to the address indicated by the person, and an entry of the way of delivery shall be made in the relevant file.
A ruling shall be issued on paper or in the form of an electronic document certified by an electronic signature, with the relevant information that shall be entered into the AIS URO. The ruling shall become enforceable after the expiry of the period for appeal (10 days), if it has not been appealed.
- Appeal against a ruling on a case of an offence
When appealing against a ruling of the SCRA on a case of an offense, the district (city) court shall apply the rules provided for in Chapter 56 of the CoO (Consideration of cases of offenses). The filing of an appeal shall suspend the enforcement of the ruling on the imposition of a penalty until the appeal is considered by the court.
The court shall take one of the following decisions:
1) leave the ruling on the case of the offense unchanged, and the appeal unsatisfied;
2) revoke the ruling on a case of an offence and terminate the proceedings thereon.
A copy of the court ruling shall be sent within 3 days to the person in respect of whom it was issued and to the victim.
Proceedings before the court of appeal shall be also conducted in accordance with the rules provided for in Chapter 56 of the CoO. The Court of Appeal shall take one of the following decisions:
1) leave the appeal unsatisfied;
2) revoke the ruling of the court of first instance and uphold the decision of the authorised body on the case of the offense;
3) revoke the ruling of the court of first instance and revoke the decision of the authorised body on the case of an offense and terminate the proceedings thereon.
Copies of the ruling of the court of appeal shall be sent to the relevant parties within 5 days.