Appeal mechanisms against refusal to register religious organisations

The existing Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations” as of 2008 establishes stringent requirements for registration of religious organisations, and bans any activity without such registration. The term “registration” shall mean “registration” with state agency for religious affairs followed by issuing certificate on registration of religious organisation. The availability of registration certificate enables the religious organisations to undergo state registration with justice agency as legal entity.

1. Requirements provided in the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations of the Kyrgyz Republic” for religious organisations

In accordance with article 8 of this Law, the religious organisation shall mean a voluntary association of citizens of the Kyrgyz Republic registered in accordance with the law and formed to conduct joint confession of faith, worship, customs and rituals, religious education and upbringing of their followers (religious societies, centers, religious educational institutions, mosques, churches, synagogues, prayer houses, monasteries and others). However, this norm is limited to defining the concepts and indicia of those organisations.

This norm prohibits any activity and functioning of religious organisations without its registration with state agency for religious affairs. The reasons for registration are the acquisition by religious organisation of the right to carry out religious activities. Thus, the registration of religious organisations is inherently permissive in nature.

The establishment of religious organisation has mandatory requirements such as the existence of at least 200 initiators who have reached full age, permanently reside in the territory of the Kyrgyz Republic and have the Kyrgyz Republic citizenship. This norm causes difficulties for the realisation of the right to freedom of religion by persons who don’t have Kyrgyz citizenship, such as foreign citizens, stateless persons and persons applying for citizenship. The norm does provide a definition for the term “permanently residing in the territory of the Kyrgyz Republic”. The mandatory requirements to have at least 200 initiators may considerably restrict the rights of religious minorities, which number does not meet the established threshold.

For registration of religious organisation, in accordance with article 10 of the law, the founders shall submit constituent documents to the state agency for religious affairs to verify their compliance with current legislation. The registration of religious organisations shall be performed no later than 30 days from the date of submitting an application; however, the state agency for religious affairs has the right to request additional information and receive opinion letters from relevant government bodies, and forward the constituent documents for religious expertise. In this case, the consideration of application shall be extended for another month. However, this norm and other provisions of the law do not respond to the question about justifications and consequences of refusal to register the religious organisation, and the right to appeal such refusal. The indicated gap in legal regulation may give rise to an arbitrary approach in resolving the issue on granting or refusal to register religious organisation.

It is noteworthy that the articles 11-13 of the Law also determines the procedures and conditions for the registration of missions of foreign religious organisations, by missionaries, and religious educational institutions, and establishes the basis for refusal to register missions and missionaries.

Failure of religious organisations to register with state agency for religious affairs entails liability and punishment in accordance with article 92 of the Code of the Kyrgyz Republic on Offences for violation of the law on religious organisations subject to failure of religious association leaders to register. It should be noted that the state agency for religious affairs is authorised to examine this violation. However, this norm does not specify what kind of registration is talked about: registration or state registration, therefore, it could be widely interpreted by applying it to both types of registration. Religious association leader becomes subject of responsibility for failure to register, which in its turn is quite controversial one, due to the fact that prior to establishing a legal entity, there is a lack of indicia for organisational structure and unity.

2. Appeal against the decision of state agency on refusal to register the religious organisation

As noted above, the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations of the Kyrgyz Republic” does not provide specific grounds for refusal to register the religious organisation. The only norm is the general requirements set forth in paragraph 3 of article 9 that charter document of religious organisation and other necessary documents may not contain the norms contradicting the Constitution and existing legislation of the Kyrgyz Republic, but their content and consequences for religious organisation are not defined. The question remains unclear, if religious organisation can re-apply to the state agency for religious affairs after eliminating the reasons that served as grounds for cancellation of registration.

Practically, the state agency for religious affairs in its refusal to consider the constituent documents designed for registration does not provide the justification, motives, factual and legal circumstances for making such decision. Although the state agency for religious affairs highlights that refusal does not prevent to re-apply on this issue, however, some religious organisations are not able to get registered for several years. There are also cases where religious communities complained about the refusal to register a religious organisation due to differentiated treatment based on their religion.

The decision made by the state agency for religious affairs on refusal to register religious organisation shall be appealed through administrative (pre-trial) procedures in accordance with the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures”, and subsequently in court. Pre-trial stage to appeal the administrative acts is now mandatory; judicial contestation of such acts may be done only after complying with this order. Failure to comply with pre-trial appeal procedure may result in refusal to accept the claim (article 113 of APC) or return of the claim by the court (article 115 of APC).

3. Appeal under an administrative procedure

In accordance with the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures” as of 2015, citizens shall have the right to appeal administrative acts, actions (inaction) of an administrative body through administrative (pre-trial) procedures to protect their rights. Petitioner can be an individual or legal entity, and international organisation, if required by law and international treaty signed by the Kyrgyz Republic.

3.1 Administrative procedure and administrative complaint

The administrative procedure consists of stages: procedure initiation, consideration and completion. The administrative procedure is initiated on the grounds of administrative complaint submitted by claimant against the adopted administrative act issued by administrative body and / or official filed through administrative (pre-trial) procedures.

Administrative body is the executive branch authority and executive body of local self-government, and specially established bodies duly authorised by law with powers to permanently or temporarily carry out administrative procedures. For example, the state agency for religious affairs in Kyrgyzstan is the State Commission for Religious Affairs under the President of the Kyrgyz Republic, which is not an executive power authority, but constantly implements administrative procedures, therefore its acts may also be appealed.

“Administrative act” should be read as an act of administrative body (resolution, decision, order, etc.) that affects the rights and freedoms, and interests of individuals and legal entities. Article 2, paragraph 4 of the Law lists out the relations with state bodies which the Law does not apply to, and, accordingly, the administrative complaint as well.

When filing administrative complaint, the requirements to submit administrative complaint must be taken into account, according to which the complaint should contain:

  1. Name of administrative body to which the complaint is filed (in our case, complaints shall be submitted to the State Commission for Religious Affairs under the President of the Kyrgyz Republic, since it does not have a higher authority);
  2. Surname, name and patronymic of an individual submitting the complaint, his/her address;
  3. subject of complaint (annulment of decision made by the State Commission for Religious Affairs under the President of the Kyrgyz Republic on refusal to register religious organisation (please indicate the name);
  4. Requirements of the person filing the complaint (annulment of decision of the State Commission for Religious Affairs under the President of the Kyrgyz Republic on refusal to register religious organisation (please indicate the name);
  5. List of documents attached to the complaint (it is advisable to attach the complaint with appealed decision of the state agency for religious affairs, application for registration and list of documents submitted for registration);
  6. Date, month and year of filing the complaint;
  7. Signature of a person filing the complaint.

Sine qua non to apply rigorous preparations in regards the complaint, its content and justification which will impact its resolution. Therefore, the complaint must contain the necessary information that proves that the decision taken by state agency for religious affairs affects the rights and interests of citizens.

3.2 Where and in what time frame an administrative complaint is filed

The complaint against administrative acts may be filed: a) to administrative authority that adopted the appealed administrative act; b) to a higher administrative authority. Before filing a complaint with higher authority, it should be determined to which agency they report directly or which structure includes that administrative body. Since the state agency for religious affairs does not have superior body, then the administrative complaint may be filed through administrative procedures with the state agency for religious affairs itself. The aim to appeal the decision of the body issued it is to give a possibility to cancel the decision independently, without involving the court, and thereby to recognise and eliminate errors in its activities.

Administrative complaint may be filed within thirty business days from the date of receiving the administrative act. In case of failure to meet the deadlines for appealing for a good cause, an application shall be filed to restore the missed deadlines for appealing, which may be submitted within thirty business days from the day when the grounds for a good cause became ceased. Administrative complaint shall be filed simultaneously with the application.

The complaint may be delivered by claimant directly to the administrative authority or to an official who will consider the complaint. In this case, there is a need to try to obtain confirmation of receipt of complaint (mark (seal) on receipt). The complaint may also be sent by registered mail with delivery confirmation.

3.3 Administrative complaint consideration procedure and decision making

Administrative procedure shall be instituted on the day of registration of complaint with the administrative authority. In case the complaint was filed in violation of specified requirements under law, the complaint shall be left without action. In this case, the administrative authority shall immediately indicate the deficiencies and provide the person who filed the complaint with opportunity to eliminate them within the aggregate term for appeal. In case, the deficiencies indicated by administrative authority are not eliminated, the complaint shall be declared inadmissible and dismissed.

The maximum term for considering the administrative complaint is thirty business days, unless otherwise provided by another law. The calculation of the term shall begin on the day of registering the complaint with the administrative authority. Article 43 of the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures” provides for the circumstances to extend the terms of administrative procedure.

The law establishes that participants in administrative procedure shall be the applicant, interested parties, administrative authority and the official person from administrative authority. At the same time, participants of procedure shall have the right to participate in person, through a legal or authorised representative, or together with them. Other persons involved in administrative procedure shall be the witnesses, experts, translators, and other persons who contribute to deal with an administrative case justly and resolve it.

The final stage for considering the administrative complaint shall be the adoption of decision (Administrative Act), which must contain the justification, motives, factual and legal circumstances to make the appropriate decision. Article 50 of the law establishes the requirements for a written administrative act.

Decision on administrative complaint must be handed or sent by administrative authority to all participants in the procedure within three business days from the date of its adoption. The decision shall enter into force on the day of its delivery to the person concerned.

4. Appeal within administrative proceedings

In case, the claimant disagrees with the decision of the state agency for religious affairs in regards of his / her complaint, he/she shall have the right to contest it in court through administrative proceedings in accordance with the Administrative Procedure Code of the Kyrgyz Republic as of 2017. Administrative proceedings are the legal proceedings arising on the initiative of citizens in connection with the violation of subjective public rights of individuals or legal entities by administrative authority and their officials.

4.1 Administrative proceedings and administrative claim

Administrative cases to invalidate administrative act shall be considered within administrative proceedings. The parties to administrative process shall be the administrative plaintiff and administrative defendant. Administrative plaintiff is a natural or legal person, 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 other person authorised by law. The administrative defendant is the administrative authority against which the lawsuit is brought. The parties shall have the right to have their representatives, which may be the representatives by office, by law, lawyers, and other persons acting on the basis of power of attorney.

4.2 Where and in what time frames the administrative claim is filed

Administrative cases are considered at the first instance by inter-district courts at the location of defendants, respectively, the administrative claim shall be sent to inter-district court of Bishkek.

Administrative claim shall be filed in the form of a written statement of claim, which indicates:

  1. Name of the court in which the lawsuit is filed (Inter-district court of Bishkek);
  2. Last name and name (name of organisation) of plaintiff, mailing address, phone numbers, and bank details and email address, if any;
  3. Name of the defendant, last name, first name, position and place of work of an official, postal address, phone numbers, and bank details and email address;
  4. Name of appealed act and the agency or an official who adopted this act (in this case, the decision of the State Commission for Religious Affairs of the Kyrgyz Republic on refusal to register religious organisation);
  5. Adoption date of the appealed act and commission of the appealed action;
  6. Information on the appeal of the act under pre-trial dispute resolution procedure;
  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 the following:

  1. The appealed act or its copy;
  2. Decision of an administrative authority, taken on in relation to administrative complaint under dispute resolution procedure;
  3. Evidences serving as the elements of the claim;
  4. Document on 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 confirming the forwarding of copies of the administrative claim and attached documents to other participants of administrative process, which lack among other participants of administrative process;
  6. Written petitions, if any;
  7. Certified translations of documents in a foreign language into the state or official language in the prescribed manner.

If the plaintiff has no capacity to independently provide evidences, he shall have the right to indicate the reasons for impossibility of providing such evidences and to move for their disclosure in the lawsuit. If representative files a claim for example, by lawyer, then the claim shall indicate his name and surname, mailing address, and phone numbers and email address, if any, and shall be attached with warrant, power of attorney or other documents confirming the representative’s authority. The statement of claim must be signed by claimant or his/her representative, indicating the date of signing. Article 109 of the Administrative Procedure Code also establishes the types of administrative claims and their claims under the lawsuit.

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

4.3 Procedure for considering administrative case and making decisions

To intensify the preparation of cases for trial, the Administrative Procedure Code introduces the institution of preliminary court session, in which the participants in the process shall undertake to submit their objections, petitions and evidences in a timely manner before the scheduling the hearings on a case. The parties shall be notified of the day, time and place of preliminary hearings. The failure to appear of parties participating in the case shall not impede the consideration of questions towards the case preparation in a preliminary court session. Based on representative court hearing, a decision shall be made to finalise the preparatory proceedings and to schedule the hearings on a case.

Direct consideration of an administrative case shall be carried out for up to two months from the date of adopting the decision on completion of preparatory proceedings and scheduling the hearings on a case. However, the code and laws may establish other periods for the consideration and resolution of certain categories of administrative cases.

When considering an administrative case, the burden to prove the lawfulness and validity of the decision appealed in court shall rest with defendant who adopted such act or allowed such or committed such action (inaction).

Based consideration results, the court may satisfy the claim in whole or in part or refuse to satisfy it in whole or in part. The decision shall be announced at the hearing, and the copy of reasoned decision be handed to participants against receipt directly in court. Participants of the process were not attending the announcement of decision, shall be sent a copy of the reasoned decision by registered letter with delivery confirmation within three days from the date of its announcement.