Protection of persons from forcing to adhere to their religious convictions or change to other beliefs
- 1. Response to coercion to change one’s religion
- 2. Response to administrative acts, actions and inactions of administrative bodies
- 3. Contesting the provisions of a law or any other regulatory legal act that violates the constitutional right of every person to freedom of conscience and religion, to profess individually or collectively any religion or not to profess any religion, and freely to choose and possess religious and other convictions
This section is dedicated to mechanisms on how to protect from forcing to adhere to certain religion or coercion to change one’s religion.
People may be exposed to policies and practices that aimed to coerce believers or unbelievers to change their religion or convictions, or be coerced into such belief, including by limiting access to education, health care, or employment based on religious grounds. For instance, any person may be presented with a challenge that he or she would be granted a job on condition that they accept certain conviction or belief, or be restricted in accessing to healthcare system if he or she abandons or refuses to accept religion or belief. Public education, which includes instruction in the area of particular religion or belief, can also be regarded as indirect coercion, unless there are non-discriminatory exceptions and alternative options that take into account the willingness of parents or guardians, if information or knowledge included into the school program transferred in a way far from objectivity, criticism and pluralism without enabling students to develop their critical thinking, especially with regard to religion in peaceful environment free from any proselytism.
On the other hand, there is a need to differentiate actions aimed at changing religious beliefs, which represent the expression of religious or other (non-religious) beliefs, and such activity is protected.
In this regard, we propose to consider mechanisms and tools for responding to cases of coercion without the use of physical violence or the threat of its use. This paragraph describes three cases: 1) when individuals are subject to force to change their religion on the part of other believers; 2) when authorities make decisions that create conditions aimed at forcing a person to change his/her religion; 3) when provisions of law or other normative legal act violate the constitutional rights of everyone to freedom of conscience and religion, including to freely choose and have religious and other beliefs, and atheistic ones.
It is noteworthy that protection mechanisms of individuals from violence or the threat of its use were described in Article 3 “Responding to violence or threats of violence” and, accordingly, in case of violence or the threat of its use, please refer to that paragraph.
1. Response to coercion to change one’s religion
The Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic” prohibits forcing a citizen to define his or her attitude to religion, to profess or not profess a religion, to participate or not to participate in acts of worship, religious rites and ceremonies; or to receive religious instruction (part 3 Article 4).
The part 4 Article 5 of the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic” prohibits persistent acts aimed at conversation of believers from one religion to another (proselytism). Wherein, the Law does not explore the concept “perseverance”, which allows any subjective interpretations and gives space for abuse in determining the legitimacy or illegality of proselytism, as the exactly “persistent” actions to convert to another religion should entail responsibility.
In explanatory dictionaries of the Russian language of Ozhegov and Ushakov, the word “persistent” means “stubborn”, “consistent” and “firm in doing something”. The interpretation does not provide unambiguous understanding of persistent actions as well, which would be defined as prohibited proselytism, if they aimed at converting believers from one religion to another.
A law-maker is required to review the appropriateness and relevance of the word “persistent” in constructing the discussed norm of the law. After all, perseverance, stubbornness, consistency and firmness are indispensable conditions to achieve the success in pursuit of converting the followers from one creed into their religion. At the same time, even most pronounced persistent, stubborn and consistent actions, moreover, if they do not have the slightest hint to violence and the threat of its use may not be characterized as coercion.
It is noteworthy to draw attention to another point that confirms the errors in formulating the norms of the current Law “On freedom of religion and religious organizations in the Kyrgyz Republic”, namely, these is notion and content of part 4 Article 5 of the Law in the Russian and Kyrgyz texts. Thus, while in the Russian text the law specifically prohibits any persistent actions aimed at converting believers from one religion to another, wherein in the Kyrgyz text there is no emphasis or even mention of the word “persistent”. In other words, if someone follows the Kyrgyz text of the Law, it prohibits any forms of religious proselytism.
There were attempts to clarify the provisions of the law and eliminate identified imperfections through adopting the draft law “On amendments to the Law of the Kyrgyz Republic” “On freedom of religion and religious organizations in the Kyrgyz Republic” initiated by the Government and adopted by the Jogorku Kenesh on its first reading on September 25, 2019. The draft law includes the new concept - “unlawful proselytism”, which is understood as actions aimed at converting believers from a religion into one’s creed through the use of psychological and physical influences, threats, and violence.
As already noted, actions aimed at changing religious beliefs represent the expression of religious or other (non-religious) beliefs, and such activities have to be protected.
This freedom must be protected regardless of the content of views, the nature of expressing these views and whether the interference stems from an individual or the State. However, such activity is not unlimited, and imposed restrictions must pursue legitimate goals, including the right to have or maintain religious or other beliefs without being subjected to coercion, and may not be introduced for purely religious or ideological purposes.
Recognition of any act or action (attempt) as unacceptably coercive will depend on characteristics of its source, object, place where such activity is conducted, and the nature of this action. In each case, a combination of specific circumstances is of great importance.
Example: The group of residents from village X through the use of various non-violent means has been influencing the citizen N. for a long time, abusing his credulity and naivety, who was the adherent to evangelical Christianity, made N. to attend the mosque along with entire male population of the village.
In deciding if the given example establishes the methods and ways of influencing citizen N., proselytism in a form in which it prohibits according to part 4 Article 5 of the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic”, it is important to indicate the number of circumstances in addition to specifying and assessing the nature of actions in which the ways and methods of influencing citizen N. were expressed.
It is important to have circumstances in which the person can make free and informed choice regarding religious beliefs. For example, did N. have an opportunity to evade actions aimed at changing his religious beliefs, whether N. was free to express his views and preferences, or whether he was persecuted after expressing his views or refusing actions aimed at changing his religious beliefs?
Any methods of influencing believers or members of religious organizations that are aimed at forcing any person to adhere to certain religion or change their religion, that do not comply with modern principles of protecting human rights shall entail legal liability.
In particular, such actions may be qualified as crime under Article 196 of the Criminal Code of the Kyrgyz Republic, which establishes criminal liability and punishment for organizing or leading the groups which activities are conducted under the guise of preaching religious teachings and performing religious rites, and entail significant harm to citizens' rights or linked to incitement to refuse compliance with public activities or fulfilment of civic duties, and equally involvement of minors into this group and active participation in such groups, and systematic propaganda of activities of such groups.
As consequence of a crime committed, significant harm should be understood as violation of constitutional civil and human rights and freedoms according to Appendix 1 to the Criminal Code of the Kyrgyz Republic.
Therefore, acts characterized as “unlawful proselytism”, which result in violation of everyone’s constitutional right to freedom of conscience and religion, to individually or jointly profess or not to profess any religion, to freely choose and have religious and other beliefs, shall form the objective side of corpus delicti provided for in Article 196 of the Criminal Code, when proved to be committed by a group created under the false pretext of preaching religious creeds and performing religious rites.
The subjects of this crime are not only members of the group, that is, persons who in any way (through systematic participation, etc.) became its members and formed its composition, but also include other persons, who support its illegal goals or specific actions and directly and actively participate in its activities. Individuals not acting as members of the group and not directly participating in its unlawful and other activities, but who in any way assisted such group or its representatives (one-time financing, pre-promised concealment, etc.) shall be responsible for abetting that crime.
Organizing and leading the group and active participation in its activities and systematic propaganda of such group activities shall be punished with imprisonment for up to 2 years 6 months.
The commented Article does not criminalize the group organizers and members for committing acts that constitute independent corpus delicti, therefore, in these cases, their actions are qualified for the totality of the crimes committed.
Persons exposed to such groups are entitled to submit a claim to internal affairs body at the place of crime committed, which, in accordance with the jurisdiction established by Article 153 of the Criminal Procedure Code, shall be authorized to conduct pre-trial criminal proceedings on crimes against civil and other human rights which include the organization of illegal religious group.
The complaint must be accepted by internal affairs body and registered in the Unified Register of Crimes and Misdemeanours. The claimant must be issued a document in a form of notification coupon that confirms the receipt and registration of the claim on crime in information log. It indicates the person who received the claim, the time of its registration and registration number (with compulsory indication of QR code). The notification coupon enables to track the progress in considering one’s compliant in the future.
The investigator is obliged to recognize the person as victim from the moment of receiving the claim on offence committed and make decision thereto. From that time, the rights and obligations arise in regards the victim as set forth in Article 41 of the CPC. In order to strengthen and expand the possibilities on protecting his/her legitimate interests, the victim may have a lawyer to participate in the case and another person authorized by virtue of the law to represent his/her legitimate interests in criminal proceedings. The victim’s representative shall have the same procedural rights and obligations as victim, where the lawyer also enjoys the same rights provided for in Article 25 of the Law “On Bar and Advocacy of the Kyrgyz Republic”.
Should there be any indication about the threat of unlawful influence on a victim, his/her close relatives and spouse through the use of violence or another act prohibited by criminal legislation, that person must immediately submit a claim to investigator on taking security measures. The procedures to ensure the personal safety of victims who participate in criminal proceedings, and their close relatives and spouse (spouses) shall be determined by the law “On protection of the rights of participants in criminal proceedings”.
Regardless of security measures taken, an authorized official from pre-trial proceedings body, having reasonable grounds, are obliged to initiate pre-trial proceedings in connection with the threat to the victim.
In the frame of effective and full realisation of the right to participate in criminal prosecution against the accused person, the victim and his/her representative mat submit evidences, petitions and challenges, participate in investigative actions conducted at their request, be familiarised with the records of investigative actions conducted with the participation of victims, receive their copies and comment them, get acquainted with all the case materials at the end of pretrial proceedings, as well as to receive their copies, participate in the court, attend in judicial debates, appear for the prosecution, get acquainted with records of trial and comment them, appeal the court decisions, be informed about complaints and representations brought in the case, file objections, participate in judicial consideration of complaints and representations.
The investigator, prosecutor and courts, in accordance with Article 13 of the CPC, are required to ensure the protection of victim’s rights and create conditions for their execution, and take timely measures to satisfy his/her legal requirements.
The victim and his/her representative are entitled to appeal any actions (inactions) and decisions of investigator, prosecutor and courts, in case these actions (inactions) or decisions affect their interests. Complaints are submitted to that state body or official authorized by law to consider complaints and make decisions, including to prosecutor or the courts.
Thus, you may appeal against refusal to accept and register the claim on crime or misdemeanour committed, against refusal to be recognized as victim and take security measures, and against objection, red tapes in investigation of criminal case or misdemeanour case, and other wrongful and illegal actions taken by body of pre-trial proceedings.
The rules, terms and procedures to appeal the claims submitted by victim against the actions and decisions of state bodies and officials involved in criminal proceedings shall be determined by Chapter 16 of the CPC. The procedure for appealing the court decisions on appeal shall be established by Chapter 46 of the CPC, and appealing court decisions in cassation by Chapter 51 of the CPC.
Practicing jurists and advocates when receiving victims affected by “illegal proselytism” without the use of physical violence or the threat of its use, they must adopt all legal means and methods of protecting the victim and facilitate the investigation of such cases, ensure inevitability of punishment for those perpetrators, restore the violated rights of the victim, and compensate him/her pecuniary damage and non-pecuniary damage.
2. Response to administrative acts, actions and inactions of administrative bodies
Sometimes, there are cases when actions (inactions) or decisions made by state executive authorities, executive body of local self-governments, or specially set up agency duly authorised with law to constantly or temporarily execute the administrative procedures, create conditions that are aimed at forcing the person to change his/her religion. For example, the administration of state-owned enterprise that possesses sports gym had issued an order banning access to the pool in a Muslim “burkini” bathing suit, or the municipality decided not to allocate land for the burial of Asians professing Christian faith within existing local “Muslim” cemeteries, despite the fact that the deceased were the indigenous village inhabitants, and according to legislation they had the right to be buried in municipal cemeteries.
In this case, the existing mechanisms provide the actions below.
2.1. Administrative appeal
Administrative acts, actions and inactions of administrative bodies that resulted in or may lead to coercion to change one’s religion shall be appealed in an administrative (pre-trial) manner according to Chapter 10 of the Law of the Kyrgyz Republic “On basics of administrative activities and administrative procedures” as of 31 July 2015 No.210 (hereinafter referred to as the Law on administrative procedures), and subsequently in a judicial proceeding.
Who may file an administrative complaint?
In accordance with the Article 61 of the Law on administrative procedures, the claimant and the person concerned shall be entitled to appeal against administrative acts, action or inaction of an administrative authority.
According to part 13 Article 4 of the Law on administrative procedures, person concerned shall mean an individual in relation to whom the administrative body adopted an administrative act at its own initiative, and the person whose law-protected rights or interests may be affected as a result of adopting the administrative act.
Where administrative complaint is filed to?
As a general rule, judicial examination of public law dispute is not possible without prior administrative appeal. Hence, the acts and actions (inactions) of administrative bodies must be appealed in administrative (pre-trial) manner, and only in case of dissatisfaction with the complaint handling in an administrative manner, a person shall have the right to appeal to court. Failure to comply with pretrial proceedings in resolving the dispute may result in court’s refusal to accept the administrative claim or return the claim in accordance with the Article 113 and Article 115 of the APC.
The Law on administrative procedures (Article 62) establishes the procedures for pre-trial appeal against administrative acts or actions (inactions) of administrative bodies.
According to this procedure, if an administrative act is appealed, the complaint shall be submitted to administrative authority that issued the appealed act or to a higher administrative authority.
When it comes to appealing against an action (inaction) of administrative body, the complaint shall be submitted only to a higher administrative authority or higher official. In the absence of higher administrative authority or higher official, the action (inaction) of administrative authority is appealed in judicial proceeding.
Thus, before filing a complaint, firstly, it is necessary to determine the subject of appeal (decision, action or inaction), and secondly, which administrative agency it directly reports to or which agency structure it is integrated into. In case of difficulties in establishing a higher administrative authority or official, someone should seek legal counselling from justice authorities in accordance with the Law of the Kyrgyz Republic “On state-guaranteed free legal aid” dated December 16, 2016 No. 201.
Administrative complaint deadlines
In accordance with part 1 Article 63 of the Law on administrative procedures, an administrative complaint may be filed within thirty business days from the date of handing the administrative act or from the day the administrative authority takes the action. As a general rule, a 30-day period has also been established for appealing against the omissions of administrative body.
The terms of appeal should be treated with utmost care, and in case of failure, restoration is permitted only for a good cause (illness, long trip, etc.).
Requirements for the preparation and execution of administrative complaint
The Law on administrative procedures by Article 64 sets the requirements for administrative complaint. In accordance with these requirements, the complaint shall contain:
- Name of administrative body to which the complaint is filed;
- Surname, name and patronymic of individual submitting the complaint and his/her address;
- Subject of complaint: first of all, the complaint determines what is being appealed against: administrative act, action or inaction of administrative body or official. This should be indicated in the title of complaint. For example, an administrative complaint in regards to any administrative act or action, or inaction;
- Relief sought: the main purpose of complaint is to protect the violated rights, freedoms and legitimate interests. Therefore, the complaint should clearly indicate the requests of person submitting it, that is, what exactly claimant is seeking for from administrative bodies or officials, for instance, repeal or amend an administrative act, issue a new administrative act, recognize the action as unlawful and terminate it, oblige to perform any action, remove the obstacles to enjoy the rights, etc.;
- List of documents attached to the complaint: all documents related to the merits of the case and the subject of complaint must be attached to the claim. The completeness, objectivity and effectiveness of examining the complaint will depend on this. Documents may include copies, scanned, electronic documents, and photo and video materials.
- Date, month and year of complaint: indication of this data is important in order to resolve possible disputes in connection with the deadlines for submitting and examining the complaint, and to establish actual deadlines for issuing acts or taking actions;
- Signature of claimant
In case of non-compliance with these requirements, the claim will have no progress. The administrative authority immediately indicates the deficiencies and provides the person who filed the complaint with the opportunity to address them within the general time limit for appeal. In case of failure to eliminate the deficiencies indicated by administrative body, the complaint is declared inadmissible and remains unsatisfied.
Ways to file an administrative complaint
Administrative claim may be filed in the following ways:
- Handed directly to an administrative body or official who will consider the claim;
At the same time, someone should attempt to receive the confirmation on receiving the complaint (return of service, stamp on appeal copy) sent by registered mail with delivery confirmation.
In addition, to submit an administrative claim, someone may use the functions of web-based portal “kattar.kg”, which was created in 2014 to improve communication between citizens and state bodies and centralized reception of applications/complaints that after being received on the portal, these application are sent to relevant in line state bodies.
However, regardless of complaint filing methods, someone has to make sure that administrative complaint is registered with administrative authority, as administrative procedures will be instituted from that day.
Administrative complaint examination
Administrative claim is examined subject to legality of appealed act, and in case of executing discretionary powers it is considered from expediency point of view.
When considering an administrative complaint, the administrative authority is guided by both the existing and additional evidence provided under the case.
Decision on the merits of an administrative complaint
Having examined an administrative claim against administrative act, the administrative authority that has adopted this administrative act shall have the right to:
- satisfy the claim in whole or in part by cancelling the administrative act or declaring it null or void, or adopting the new administrative act;
- dismiss the claim and uphold the administrative act.
Having considered an administrative claim against action taken by administrative body or official, a higher administrative authority or official shall have the right to:
- satisfy the claim in whole or in part, having recognized the appealed action in whole or in part as unlawful and terminating this action if it continued at the time of the acceptance of a claim;
- dismiss the claim with the justification that the action was legal.
Having considered an administrative claim on omission of administrative body or official, a higher administrative authority or official shall have the right to:
- satisfy the claim in whole or in part and execute the required action, respectively, in whole or in part, if higher administrative authority or official is entitled to perform the required action;
- satisfy the claim in whole or in part and oblige the lower administrative body or official to execute the appealed action;
- dismiss the claim if the inaction was legal.
The decision on administrative complaint shall be sent to parties involved or handed to them against receipt within three business days from the date of adoption.
2.2. Judicial contestation
Procedures to contest in administrative acts, actions and inactions of administrative bodies that led or may lead to coercion to change their religion is determined by the Constitution, Administrative Procedure Code (hereinafter - APC), and the Law “On the Supreme Court of the Kyrgyz Republic and local courts” as of July 18, 2003 No.153, and other laws adopted on their basis and international agreements to which Kyrgyzstan is a party and which have entered into force.
The procedures for filing an administrative claim
Administrative claim shall mean the procedural document filed by an actor of public relations in defence of his/her violated or disputed rights, freedoms or interests protected by law arising from administrative-legal (public-law) relations.
A person contesting the administrative act or actions shall have the right to appeal to inter-district court in Oblast or city of Bishkek at the defendant's location with an administrative claim, which may include the demand on:
- Invalidation of administrative act or actions of defendant in whole or in part;
- Responsibility of defendant not to accept an administrative act that encumber the plaintiff, or not to commit another action by administrative body;
- Responsibility of defendant to adopt an administrative act or perform certain actions;
- Invalidation of normative legal act issued by defendant;
- Invalidation of defendant’s administrative act that had expired.
The claim shall be filed with the court within three months when the decision of administrative body on administrative claim enters into force that considered in accordance with the legislation on administrative procedures.
Administrative claim requirements
Administrative claim shall be filed in a form of written statement of claim and, in accordance with Article 111 of the APC, and it must indicate:
- The name of court which the claim is filed to;
- The last name and name (business name) of plaintiff, mailing address, phone numbers, and bank details and email address, if any;
- Defendant’s name, last name and first name, position and work place of an official, mailing address, phone numbers, and bank details and email address, if any;
- The name of the act appealed and body or official which/who adopted the act;
- The description of the appealed action (inaction) of administrative body or official;
- Appealed act adoption date and implementation of the action appealed;
- Information on appealing against the act and action (inaction) in a pre-trial procedure for dispute resolution;
- Facts and requirements of the plaintiff in relation to the appealed act and action (inaction);
- The list of documents and materials attached thereto.
The following must be attached to the administrative claim:
- The appealed act or its copy;
- The decision of an administrative body taken on administrative complaint in a pre-trial dispute resolution procedure;
- The evidences serving as justification of claim;
- The document on payment of state duty, except in cases where the plaintiff is exempted from paying it by law;
- Return of service or other documents that confirm the sending of administrative claim copies to other participants of the administrative process and attached documents thereto, which lack among other participants in administrative process;
- Written petitions, if any;
- Certified translations of documents from foreign language into state or official languages in the manner prescribed by procedures.
To clarify the possibility to settle the dispute before trial proceedings and ensure comprehensive and objective resolution of the case, a preliminary hearing is held in the manner prescribed by Article 125 of the APC.
Administrative case is considered and resolved within two months from the date of adopting the decision on completion of the preparatory proceedings and on scheduling the case for trial.
Judicial examination of administrative case is held as court session by summoning the participants in the process. The plaintiff may resist motions to examine the case under simplified (written) procedure, namely, without having oral hearing in the manner prescribed by Article 131 of the APC.
As part of administrative process, the administrative plaintiff may use the full scope of rights provided for in Article 36 of the APC, including to:
- Get familiarized with case materials, abbreviate and make their copies;
- Provide evidences and participate in their examination;
- Ask questions to other participants, witnesses, experts and specialists in the process;
- Submit petitions, give oral and written explanations to the court;
- Bring arguments on all issues arising during the trial;
- Resist motions and arguments made by other participants in the process;
- Appeal against judicial acts;
- Use other procedural rights granted by this Code.
In accordance with Article 29 of the APC, the administrative plaintiff shall be entitled to perform procedural actions in court in person or through one or more representatives. The representative, as provided for in Article 31 of the APC, shall have the right to commit all procedural actions on behalf of the person represented. The powers of representatives, except for legal representatives, are expressed in the power of attorney, and the lawyer is to be certified by warrant order.
The claim may be satisfies in whole or in part by court decision, or it may be denied in whole or in part. The decision is announced at the hearing, and the copy of justified decision is handed to participants against receipt directly in court. Trial participants who were not present during the announcement of the decision, the copy of justified decision shall be sent by registered letter with delivery confirmation within three days from the date of its announcement.
Where violations of the law during court session are established, the court may issue a private ruling and forward it to relevant state bodies, local self-governments, legal entities and (or) their officials, which/who must report on measures taken by them within one month from the date of receiving the copy of that private ruling.
If plaintiff is not satisfied with the decision made by the court of first instance, he/she shall have the right to appeal the decision to judicial panels for administrative and economic cases of Oblast courts and Bishkek city court in accordance with Chapter 24 of the APC, and to the Supreme Court of the Kyrgyz Republic in cassation order, in accordance with the rules established by Chapter 26 of the APC.
3. Contesting the provisions of a law or any other regulatory legal act that violates the constitutional right of every person to freedom of conscience and religion, to profess individually or collectively any religion or not to profess any religion, and freely to choose and possess religious and other convictions
In accordance with part 7 Article 97 of the Constitution of the Kyrgyz Republic, everyone shall have the right to contest the constitutionality of the law and other regulatory legal act if he/she believes that they violate their rights and freedoms recognized by the Constitution.
If the applicable laws or other regulatory legal acts include provisions that discriminate or impose conditions that coerce any person to change their religious beliefs, he/she shall be entitled to apply with the petition to the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic (hereinafter referred to as the Constitutional Chamber) demanding to verify conformity of the law or other regulatory legal act as a whole or in separate part of the Constitution and recognition as unconstitutional in case of conflict with the Basic Law.
The term “laws” is understood as constitutional laws as well. The Constitutional Chamber examines only regulatory legal acts of the President, Government, the Jogorku Kenesh, the National Bank, the Central Election Committee and Referenda, and representative bodies of local self-governments. Acts of non-normative nature (individual legal acts) shall not be subject to constitutional review in the Constitutional Chamber.
Verifying the constitutionality of contested normative legal acts, the Constitutional Chamber establishes that they consistent with the Constitution:
- in terms of content;
- in the form of regulatory legal act;
- according to procedures for adoption, signing, publication and enforcement.
The constitutional process is strictly regulated by the Constitutional Law “On the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic” as of June 13, 2011 No.37 (hereinafter referred to as the Constitutional Law) and the Rules of Procedure of the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic, approved by the Decision of the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic on October 9, 2017 No. 12-P.
As mentioned above, if any individual (individuals) considers that laws and other regulatory legal acts violate his/her rights and freedoms recognized by the Constitution, in particular, right of every person to freedom of conscience and religion, to profess individually or collectively any religion or not to profess any religion, and freely to choose and possess religious and other convictions provided for in Article 32 of the Constitution of the Kyrgyz Republic, he/she have the right to petition the Constitutional Chamber.
General requirements for an appeal (motion)
The motion to the Constitutional Chamber shall be filed in writing and signed by an authorized person(s). The motion and materials attached thereto may be filed in State or Official language.
The motion must indicate:
- The name of the Constitutional Chamber;
- The name, address and other necessary data concerning the filing person. It is necessary to indicate the surname, name and patronymic; address and other information about claimant, for example, phone numbers, email, etc. If we talk about the collective appeal of citizens, then it has to indicate complete information for each of the citizens.
- The name, address and other information about representative of person applying for his/her powers. In accordance with the Constitutional Law, the person (party) applying for may handle his/her case in person or through representatives, which number cannot exceed more than three. The powers of representatives are drawn up in the manner prescribed by the Civil Code of the Kyrgyz Republic.
- The name, address of state body and official who signed or issued the normative legal act, which constitutionality shall be subject to verification;
- The norms of the Constitution and constitutional law granting the right to appeal to the Constitutional Chamber. The motion should refer to part 4 of the Constitution of the Kyrgyz Republic, Articles 20-23 of the Constitutional Law.
- The circumstances on which the party justifies his/her demand and evidences that confirm the facts stated by the party. These circumstances and evidences are given in case of application or possible application of the appealed law in resolving the specific case. In addition to documents listed in Article 26 of the Constitutional Law, the copy of an official document that confirm such application or possibility of application shall be attached to the appeal. A copy of such document shall be issued to the applicant upon his/her request by an official or body examining the case.
- The exact name, number, date of adoption, sources of publication and other details of the contested normative act. This information may be obtained in official printed media which publishes the law: “The Bulletin of the Jogorku Kenesh of the Kyrgyz Republic”, the newspaper “Erkin Too” and the Centralized Databank of Legal Information of the Kyrgyz Republic on the website of the Ministry of Justice of the Kyrgyz Republic (cbd.minjust.gov.kg).
- Specific grounds to consider the appeal set as forth in the Constitutional Law. According to the second paragraph of Article 24 of the said Law, the basis to consider the case is the revealed uncertainty, including the issue if the law or other regulatory legal act complies with the Constitution.
- The status of applicant on issues posed by him/her and his/her provided legal justification with reference to relevant norms of the Constitution. In this part of appeal, much attention is be paid to how the law or other regulatory legal acts (or its separate norm) contradict the Constitution, violate the constitutional human rights and freedoms; which norms of the Constitution and constitutional human rights are violated by this Law (indicate the numbers of articles in the Constitution of the Kyrgyz Republic) and how it is expressed. It is not sufficient when the appeal simply indicates the norms of the Constitution. One has to provide arguments in favour of unconstitutionality of the norm contested. In other words, it is necessary to clearly state the applicant’s position in his/her demand in regards the issue posed and make comprehensive and compelling legal justifications with reference to relevant norms of the Constitution.
- The demand filed in connection with representation, petition and request to the Constitutional Chamber. It is necessary to indicate which specific article of the law or other regulatory legal acts (which part, paragraph or separate sentences in specific paragraph of Article of the law) the claimant requests to recognize as not consistent and contradicting the Constitution, but natural persons and legal entities – as violating their rights and freedoms.
- The list of attached documents. The appeal must be attached with the copies of regulatory legal act, which constitutionality is contested in whole or in part by appealing party, and the power of attorney or other document that prove the authority of representative. If necessary, the appeal may be attached with the list of persons to be summoned to the Constitutional Chamber hearing, including their addresses, other documents and materials. The motion must be registered on the day of filing to the Constitutional Chamber.
The filed petition shall be submitted to the panel of three judges of the Constitutional Chamber by the Constitutional Chamber Chairperson to make decision within thirty business days from the date of registering the issue on receipt of petition for initiating of proceedings. The Panel shall have the right to refuse accepting the motion for trial:
- if petition does not comply with the requirements of Constitutional Law by its form and content;
- if petition is filed from an improper person (party);
- if petition is submitted by representative of a party who has no authority to conduct the case in the Constitutional Chamber, or the representative is a person not provided for by the Constitutional Law;
- if the demand stated in the petition is not under the jurisdiction of the Constitutional Chamber;
- if constitutionality of the issue indicated in petition is verified by the Constitutional Chamber and there is an act that it remains valid.
The ruling to refuse accepting the petition for trial or to accept it may be appealed by parties to the Constitutional Chamber. The Constitutional Chamber adopts the separate resolution based on examination results of that issue.
Constitutional proceedings in the Kyrgyz Republic is free of charge, that is, the parties, including the petitioner shall not pay the state duties.
Stages of constitutional proceedings
Constitutional legal proceedings constitute a set of successively alternating stages:
- Making appeals (in our case, the appeal is submitted in the form of petition);
- Acceptance of appeals for trial;
- Preparation of the case for consideration;
- Consideration of the case at the Constitutional Chamber hearing;
- Adoption of acts;
- The proclamation, publication and entry into force of acts;
- Execution of acts.
Time period for consideration of petitions
The Constitutional Chamber shall consider the appeal accepted for trial and issues an act within five months from the date of its adoption for trial. This time period may be extended by one month by decision of the Chairman of the Constitutional Chamber.
In accordance with part 4 Article 32 of the Constitutional law, a person who filed a motion to the Constitutional Chamber and his/her representatives shall have the right to familiarize themselves with case materials, excerpt and make their copies; present evidences and prove those circumstances to which they refer to as grounds of their demands and objections; participate in considering the evidences; present arguments and considerations on all issues arising during the process and make closing speech. They also shall have the right to file petitions, provide oral and written explanations to judges, and express their opinion on stated representations and petitions.
The appealing party shall have the right to change the grounds or relief sought, increase or decrease their scope, and release the claim.
The parties shall have to exercise their rights in good faith. Providing deliberately false information to the court shall be regarded as contempt of the Constitutional Chamber and entail liability under the law.
Decisions of the Constitutional Chamber
The Constitutional Chamber recognizes laws and other normative legal acts as unconstitutional if they conflict with the Constitution.
The decisions of the Constitutional Chamber are final and not subject to appeal. Acts of the Constitutional Chamber are binding on all state bodies, local self-government bodies, officials, public associations, legal entities and individuals and subject to enforcement throughout the Republic.
The establishment of unconstitutionality of laws by the Constitutional Chamber and other normative legal acts or their provisions obliges the relevant state bodies and officials bring normative legal acts adopted on their basis, with the exception of judicial acts, into conformity with the Constitution and acts of the Constitutional Chamber. The Constitution norms and decisions made by the Constitutional Chamber shall be directly applied until they are brought into conformity or their repeal. Judicial acts based on the norms of laws and other normative acts recognized as unconstitutional are examined by the court that adopted the act, in each specific case related to the complaints filed by citizens whose rights and freedoms were affected.
Specific rulings of the Constitutional Chamber
Where violations in law during court session are detected, the Constitutional Chamber shall have the right to make the specific ruling and forward it to relevant state bodies, local self-governments, legal entities and (or) their officials, which/who must report on measures taken by them within one month from the moment of receiving the copy of specific ruling. In case of failure to report on measures taken, the responsible officials may be held liable in accordance with the law. At the same time, this circumstance shall not relieve relevant officials from the obligation to report on measures taken in regards the specific ruling of the Constitutional Chamber.
Coordinating the activities of client representatives
The role of coordinator is to know the features of constitutional court procedures where the interests of one person are protected or simply represented by several lawyers. Coordination of actions performed by representatives of a party at the constitutional court hearing is rather complicated and multifaceted activity that requires the defence lawyer to have not only thorough knowledge of substantive and procedural law, but it necessitates the certain organizational skills as well.