Types of discrimination, its identification, justification and response
Any person and citizen in their everyday lives may become a victim of discrimination and intolerance based on their adherence to a particular religion or belief. As a result, that person or citizen is unlawfully restricted his/her civil, cultural, economic, political and social rights. Discrimination and intolerance is the violation of the right to freedom of religion or other belief. One should note the following issues on this topic. This is the imperfection of laws in the Kyrgyz Republic (KR) in combating discrimination and intolerance. Thus, the legislation does not have the definition of discrimination and intolerance, coercion and incitement to discrimination. These definitions are yet to be developed at both scientific doctrine and judicial practice levels. Mechanisms to protect and restore the violated rights of a victim are poorly developed. It lacks the scheme for proving the fact of discrimination, who is entitled with the obligation to prove the absence / existence of discrimination - either the victim or the state body, or organ of local self-governance (OLSG) and their officials. Discrimination and intolerance are not reviewed as separate violation of human rights. The Law enforcement agencies, prosecutors and courts do not apply or refer to the provisions of the Constitution of the Kyrgyz Republic and international acts on countering discrimination and intolerance. The statistics on complaints reviewed and cases related to discrimination and intolerance is not gathered.
- 1. Legal grounds for countering discrimination and intolerance:
- 2. Concept, types and forms of discrimination and intolerance
- 3. Mechanisms of protection against discrimination
- 4. Responding to discrimination and intolerance
1. Legal grounds for countering discrimination and intolerance:
International and national human rights standards provide that the State, its bodies and officials are prohibited to discriminate against people based on religion and other beliefs.
By virtue of this prohibition, the State, represented by its bodies and officials, is entrusted with following obligations:
- the State shall refrain from discrimination against and intolerance based on adherence to a particular religion or belief (duty to comply);
- the State shall prevent discrimination and intolerance in society (duty to protect);
- the State must take all necessary measures to ensure in practice that every person on its territory can enjoy all human rights without discrimination or intolerance of any kind (duty to implement).
Let us give examples of some national acts that create a legal ground to combat discrimination and intolerance based on religion and beliefs in the Kyrgyz Republic.
The Constitution has supreme legal force and direct application in the Kyrgyz Republic. Constitutional laws, laws and other regulatory legal acts are adopted based on the Constitution. International treaties that have entered into force in accordance with the law, to which the Kyrgyz Republic is a party, as well as generally recognized principles and norms of international law, are an integral part of the legal system of the Kyrgyz Republic.
- Laws (Article 6) determine procedures and conditions to apply international treaties and generally recognized principles and norms of international law.
- Human rights and freedoms are inalienable and belong to every person from birth.
- Human rights and freedoms belong to the superior values of the Kyrgyz Republic.
- Human rights and freedoms are applicable directly and determine the meaning and content of activities by all state bodies, organs of local self-governance (OLSG) and their officials.
- The Kyrgyz Republic respects and guarantees human rights and freedom to all persons within its territory and under its jurisdiction.
- No one can be discriminated against based on sex, race, language, disability, ethnicity, religion, age, political or other opinion, education, origin, property or other status, or other circumstances.
- Special measures established by law and pursuing equal opportunities to various social groups in accordance with international obligations shall not be considered as discrimination.
- Everyone shall be equal before the law and the courts in the Kyrgyz Republic.
- Men and women shall have the equal rights and freedoms, equal opportunities for their realization in the Kyrgyz Republic.
- The principles of the best interests of the child is in effect in the Kyrgyz Republic (Article 16).
- Foreign nationals and stateless persons shall enjoy the same rights and have equal responsibilities with citizens of the Kyrgyz Republic, except as otherwise provided for in legislation or in international agreements to which Kyrgyzstan is a party (Article 19).
- Everyone shall have the right to freedom and privacy. Everyone shall have the right to privacy of family life and protection of honour and dignity (Articles 24 and 29).
- Everyone shall have the right to freedom of thought and opinion and to freedom of expression of his/her opinion, freedom of speech and press freedom. No one can be forced to express his/her opinion or to refuse it.
- Propaganda of national, ethnic, racial, religious hatred, gender and other social superiority that calls for discrimination, hostility or violence shall be prohibited (Article 31).
- Everyone shall be guaranteed freedom of conscience and religion.
- Everyone shall have the right to embrace, individually or in association with others, any religion or embrace none.
- Everyone shall have the right to freely choose and have religious and other beliefs.
- No one can be forced to express or renounce his/her religious and other beliefs (Article 32).
- Citizens shall have equal rights and equal opportunities when entering into the state and municipal service and promotion in office in the manner prescribed by law (Article 52).
Legal proceedings shall be carried out based on the principle of adversariality and equality of the parties (Article 99).
1.2. The Law “On freedom of religion and religious organizations in the Kyrgyz Republic”
Article 4 of this Law contains the following provisions:
- Citizens of the Kyrgyz Republic are equal before the law in all areas of civil, political, economic, social and cultural life, regardless of their attitude to religion and religious or atheistic beliefs. A citizen’s attitude towards religion shall not be indicated in official documents.
- Any coercion shall be prohibited when a citizen defines his/her attitude to religion, to embrace a religion or embrace none, participate or do not to participate in worship services, religious rituals and ceremonies, and in teaching religion.
- Any restrictions on the right or privileged treatment of a citizen depending on his/her relation to a religion, equally inciting enmity and hatred, or deliberately insulting the feelings of citizens with regard to their attitude to religion, desecrating objects of worship venerated by one religion or another entail responsibility in accordance with the legislation of the Kyrgyz Republic.
- The Constitution of the Kyrgyz Republic enables legal restrictions to be placed on human and civil rights in order to ensure the rights and freedoms of others, public security and order, territorial integrity and protection of constitutional order. Wherein, the essence of constitutional freedoms and rights may not be affected.
- The activities of religious organizations shall not infringe on human rights and dignity, promote social and gender discrimination.
- The law establishes that the state policy in the field of freedom of religion is based on the principles (among others) of equality of all religions and religious organizations before the law (Article 5).
- The State promotes the establishment of relations of mutual tolerance and respect between citizens embracing a religion and embracing none, between religious organizations of different faiths, and between their followers, prohibits religious radicalism and extremism, and actions aimed at opposing and exacerbating relations, inciting religious hatred.
- The State shall not interfere the activities of religious organizations, if it does not contradict the legislation, not allow the establishment of any advantages or restriction of one religion or belief in relation to others, and not finance the activities of religious organizations and activities to promote atheism.
1.3. Labour Code
The main principles for legal regulation of labour relations and other relations that are directly linked hereto shall establish the prohibition of forced labour and labour discrimination in the field of labour relations (Article 2).
The Code prohibits the discrimination in the sphere of labour (Article 9), which means that:
- everyone shall have equal opportunities to exercise their labour rights and freedoms;
- no one can be limited in labour rights and freedoms or receive any advantages in their implementation depending on their attitude to religion, beliefs, affiliation or non-membership in public associations, and on other circumstances not related to the employee's business qualities and results of his/her labour;
- unequal payment for equal work shall be prohibited.
According to the Labour Code, distinctions, exceptions, preferences and restrictions, which are deemed to be inherent requirements of a given job established by law or stem from the State’s special concern for persons requiring enhanced social and legal protection do not constitute discrimination.
Persons who believe that they have been subjected to discrimination against at work shall have the right to appeal to the courts with appropriate petition for restoration of violated rights, compensation for material damage and compensation for moral damage.
According to Article 61 of the Labour Code, individual conditions of an employment contract are invalidated if recognized as discriminatory.
Individual labour disputes shall be reviewed directly in courts as per claims filed by employees who believe that they have been subjected to discrimination against (Article 421).
1.4. Children's Code
The Code determines that the main principles of protecting the rights and interests of children are:
- recognition of the priority of the children rights and interests to the best interests of the child;
- inadmissibility of discrimination against children based on religion, and on any other grounds (Article 4).
The best interests of the child is defined in the Code (including) as inadmissibility of discrimination based on religion or other beliefs, or any other circumstances (Article 5).
1.5. Civil Code
Civil legislation is based on the acknowledgment of the equality, autonomy of will and property autonomy of the parties involved in relations that it regulates, inviolability of property, freedom of contract, inadmissibility of arbitrary interference in private matters, the need for unfettered realization of civil rights, guarantees of restoring violated rights and judicial protection of rights (Article 2).
The Civil Code does not have the term “discrimination” and “intolerance”, excluding the part 5 of Article 1103-1, which states that the corporate name of a legal entity shall not include the elements of discrimination based on sex, race, language, disability, ethnicity, religion, age, political or other beliefs, education, origin, property or other status, including incorrect and obscene words.
1.6. Criminal Code
The Criminal Code incorporates the principle of equality of citizens before the law (Article 4): persons who have committed acts provided for by the Code shall be equal before the law and be subjected to criminal liability regardless of gender, race, language, disability, ethnicity, religion, age, political or other beliefs, education, origin, property or other status, including other circumstances that may serve as grounds for discrimination.
The Criminal Code does not have the terms “discrimination” and “intolerance”.
According to Article 75 of the Code, at assignment of punishment for commissioning the crime motivated by religious hatred (discord) shall be recognized as having an aggravating effect.
According to part 2 Article 130 of the Code, murder committed based on religious hatred (discord) shall be punished by imprisonment of category VI or life imprisonment with a fine of category VI.
According to Article 138 of the Code, infliction of grievous bodily harm in the form of bodily injury, dangerous to life at the time of infliction; or harm to health, resulting in loss of vision, speech, hearing or any organ or loss of its functions, mental illness or other health disorder associated with persistent disability of at least one third or with a knowingly complete loss of professional ability to work, interruption of pregnancy or permanent disfigurement of person shall be punished by imprisonment of category III.
The same act, committed based on religious hatred (discord) shall be punished by imprisonment of category III with a fine of category III.
Acts provided for in parts 1 and 2 of this Article, committed cumulatively by two or more aggravating circumstances provided for in part 2 of this Article shall be punished by imprisonment of category IV with a fine of category IV.
Under Article 185 of the Code, violation of human equality, namely, direct or indirect restriction of rights or establishment of direct or indirect privileges depending on religion or other beliefs, causing significant harm through negligence shall be punished by correctional labour of category IV or with a fine of category V, or imprisonment of category I for up to two years with or without deprivation of the right to hold certain positions or engage in certain activities.
The same act, which through negligence caused serious harm to health, shall be punishable by a fine of category VI or imprisonment of category II with or without deprivation of the right to hold certain positions or perform certain activities for a period of up to two years.
According to Article 313 of the Code, acts aimed at inciting religious hatred (discord), including propaganda of exclusivity, superiority or inferiority of citizens based on their attitude to religion, committed in public or using the media, and through the Internet shall be punished by imprisonment of category III.
The same acts committed:
1) with the use of violence, not dangerous to life and health, or the threat of its use;
2) by a group of persons by prior conspiracy shall be punished by imprisonment of category IV.
According to Article 314 of the Code, creating and managing an extremist organization, which activities are associated with incitement of religious hatred (discord), propaganda of exclusivity, superiority or inferiority of citizens based on their attitude to religion shall be punished by imprisonment of category II for up to two years with deprivation of the right to hold certain positions or perform certain activities.
In addition, the Code contains special elements of crimes: Article 381 “Crimes against humanity”, Article 383 “Genocide”, Article 386 “Apartheid”.
1.7. Code of misdemeanour
Article 4 of the Code contains the principle of equality before the law: persons who have committed acts stipulated by the Code are equal before the law and are subject to criminal liability regardless of gender, race, language, disability, ethnicity, religion, age, political or other beliefs, education, origin, property or other status, including other circumstances.
The code does not have the terms “discrimination” and “intolerance”.
According to Article 53 of the Code, commission of misdemeanour based on religious hatred (discord) shall be considered as an aggravating circumstance in misdemeanour.
Article 84 of the Code has a special norm: obstruction to exercise the right to freedom of conscience and religion, that is, illegal obstruction of activities of religious organizations or the performance of religious rituals shall entail punishment in the form of category I fine.
1.8. Code of violations
Article 8 of the Code contains the principle of equality before the law, individuals who committed a violation shall be equal before the law and be subjected to prosecution regardless of gender, race, language, disability, ethnicity, religion, political or other beliefs, education, origin, property or other situation, including other circumstances.
The provisions of the Code, which establish different types and fine amount for individuals and legal entities, do not violate the principle of equality before the law.
The code does not have the terms “discrimination” and “intolerance”.
The Code does not recognize the commission of a violation based religious hatred (discord) as an aggravating circumstance for violation.
2. Concept, types and forms of discrimination and intolerance
The Constitution and other laws contain provisions prohibiting discrimination and intolerance. However, there are no definitions of the concept of discrimination and intolerance, including their types and forms, which are referred to in generally accepted international practices.
2.1. The concept of discrimination and intolerance
Discrimination and intolerance are the two related concepts. However, the legislation of the Kyrgyz Republic lacks legal definition of the terms discrimination and intolerance.
Therefore, let us look through the publications and various dictionaries, where we can find many different definitions of discrimination and intolerance. Summarizing their content, the following features can be distinguished.
Discrimination (from Latin discrīminātio – “isolation”, “distinction”) is a term denoting a negative or prejudicial attitude towards a person or citizen, or deprivation (restriction) of his/her certain rights (belittling, deprivation of equality) based on a sign existence - religious and other beliefs.
Intolerance is a term denoting an inability or unwillingness to tolerate the religion or beliefs of someone, motivated by someone's personal religious beliefs or practices, or intolerance of other religious beliefs or practices as such. Religious intolerance occurs when an individual or group of individuals refuses to tolerate practices, individuals, or beliefs based on religion.
Religious intolerance is often confused with xenophobia and other forms of discrimination. This is sometimes used to justify discrimination.
Discrimination and intolerance are often based or justified by prejudice and stereotypes about people and social groups.
Stereotype is a common belief or opinion about a particular group of people.
Prejudice is a judgment, usually negative, that we make about a person or other people without really knowing them.
2.2. Types of discrimination and intolerance
Direct discrimination is easy to detect and prove, since some rules, criteria or procedures established by someone are characterized by someone’s intention to directly discriminate against a specific person or group of people. Moreover, these rules, criteria or procedures are not objectively justified by existence of lawful purpose, and the means to achieve this purpose are not necessary and proportionate.
Indirect discrimination takes place when seemingly neutral rules, criteria or procedures de facto place an individual or group of individuals at a disadvantage compared to others in a similar situation.
Moreover, these rules, criteria or procedures are not objectively justified by existence of lawful purpose, and the means to achieve this purpose are not necessary and proportionate.
Indirect discrimination is more common in practice and more difficult to prove than direct discrimination. Both direct and indirect discrimination are prohibited according to human rights tools.
In practice, discrimination occurs on several grounds at once, for example, based on religion and nationality, age, gender, social status. This is multiple discrimination.
Thus, the rights to freedom of religion or belief of some groups of people are more violated: women, ethnic minorities, LGBT community, migrants, and refugees.
The concept of multiple discrimination has yet to be applied as a legal category in legislation. There are several types of multiple discrimination:
- Compound discrimination is characterized by overlapping and intensification of discrimination on various grounds: for example, discrimination based on religion and discrimination based on sex and age.
- Intersectoral discrimination is the discrimination on one ground is a condition or prerequisite for discrimination on another ground. For example, discrimination based on religion and other beliefs is inextricably linked to ethnic discrimination.
- Cases when grounds of discrimination take place and interact with each other at the same time are also called intersecting forms of discrimination.
International and national standards recognize it as non-discriminatory when restrictions of rights or unequal treatment is objectively justified by existence of lawful purposes, wherein means chosen to achieve this purpose are necessary and proportionate.
Thus, according to the Constitution, special measures established by law and aimed at ensuring equal opportunities for various social groups in line with international obligations are not considered as discrimination (part 2 Article 16).
Therefore, granting certain preferential rights or privileges to previously disadvantaged vulnerable groups of society to achieve equality in positions, educational levels, incomes for representatives of different genders, races, ethnic groups, confessions, sexual orientations, etc., is positive discrimination (“positive”, positive measures of equalization, positive actions or “affirmative actions”).
However, the issue of fairness, legality and appropriateness of positive discrimination has yet to be fully studied.
Opponents of positive discrimination consider it as a form of reverse discrimination, through which one cannot address the inequality challenges. For example, there is an opinion according to which positive discrimination creates even more inequality, devalues the achievements of minorities, makes some social groups consider themselves disadvantaged, even if they are not.
Some critics are convinced that positive discrimination devalues the actual achievements of people who were selected (hired) based on their adherence to a particular social group, rather than their qualifications, which shows the irrationality of positive discrimination, such as any other form of discrimination.
2.3. Forms of discrimination and intolerance
Here are some examples of forms of discrimination and intolerance.
Xenophobia is a prejudice associated with the misconception that people from other countries, groups, cultures, or those who speak other languages pose a threat, whether they embrace a religion or embrace none.
Xenophobia is closely related to racism: the more “different” the other person is, the stronger fear and negative feelings tend to be among other part of people. Xenophobia is one of the most common forms and grounds for discrimination.
For instance, the forms of xenophobia are:
- Islamophobia is a collective definition for various forms of negative reaction in the world to Islam, and to related social phenomena.
- Christianophobia is the discrimination and intolerance against individuals or all Christians, Christian religion or Christian rites.
Racism is prejudice that has morphed into ideology and feeds hatred, incitement and violence.
Racism refers to discrimination or abusive behaviour against people because of their perceived inferiority. There is a belief that there are races of people that can be distinguished based on their physical differences, or “superiority of their race” who are entitled to exercise power over those who are considered “inferior”.
However, scientific research shows that all people belong to the same human beings, and therefore it makes no sense to talk about “races”.
The influence of racism persists and takes the different forms, such as cultural racism or ethnocentrism, the belief that one's own culture or beliefs are superior, or that other beliefs, cultures, traditions, customs and history are incompatible with theirs.
Religious discrimination and intolerance are often associated with xenophobia and racism, and tend to cause multiple discrimination.
Anti-Semitism can be defined as “hostility towards Jews as a religious or minority group that is often followed by social, economic and political discrimination”.
Religious intolerance manifests itself among adherents of one religion.
Religious intolerance manifests itself between one religion and another religion.
Militant atheism or theism:
Intolerance towards freely choosing and practicing other religions or adhering to other beliefs.
Intolerance to issues of separation of religion from the State, non-interference of religion into politics, law, legislation, culture, education, assertion of true freedom of conscience and independent value of secular life.
3. Mechanisms of protection against discrimination
3.1. Ombudsman (in Kyrgyz - Akyikatchy)
Parliamentary control over the compliance with constitutional human and civil rights and freedoms in the Kyrgyz Republic and within its jurisdiction is performed on a permanent basis by the Ombudsman (Akyikatchy) of the Kyrgyz Republic.
In accordance with paragraph 6 Article 3 of the Law of the Kyrgyz Republic “On the Ombudsman (Akyikatchy) of the Kyrgyz Republic”, the purpose of the Ombudsman (Akyikatchy) control over the compliance with constitutional human and civil rights and freedoms is to prevent any forms of discrimination in exercising human rights and freedoms by a person. The procedures for reviewing submissions and complaints is set forth in Article 10 of the Law of the Kyrgyz Republic “On the Ombudsman (Akyikatchy) of the Kyrgyz Republic”.
The Ombudsman (Akyikatchy) reviews:
- Submissions and complaints from citizens of the Kyrgyz Republic;
- Submissions and complaints from foreigners and stateless persons or their representatives;
- Submissions and complaints from NGOs;
- Information received based on requests from MPs;
- Information received based on their own initiative.
- Decisions or actions (inactions) of state bodies and OLSGs, government and non-government organizations, institutions, enterprises, officials and civil servants;
- Decisions or actions (inactions) that violate human and civil rights and freedoms established by legislation, international treaties and agreements to which the Kyrgyz Republic is a party.
One can apply to the Ombudsman (Akyikatchy) Office submitting a request and complaint in Bishkek at the address: the Kyrgyz Republic, Bishkek City, Tynystanov Street, 120. Phone: +996 (312) 66-32-80. Email: firstname.lastname@example.org
Or by appealing to his/her authorized representatives in each Oblast.
One can find more detailed information on Ombudsman (Akyikatchy) and his/her Office at: https://ombudsman.kg/index.php?lang=ru
3.2. Procuratorial authorities
The General Prosecutor's Office supervises accuracy and uniformity of laws.
In accordance with paragraph 1 Article 2 of the Law “On the General Prosecutor's Office of the Kyrgyz Republic”, the Prosecutor's Office is a state body designed to ensure the rule of law, unity and strengthening of the rule of law, and the law-protected interests of individuals, society and the state.
Subject of supervision:
- Observance of the Constitution, accurate and uniform implementation of laws by executive authorities, OLSGs, other state bodies, which list is determined by the constitutional Law “On certain powers of the General Prosecutor's office established by the Constitution of the Kyrgyz Republic” and their officials;
- Accurate and uniform execution of laws during operative-investigative activities, legality of acts and actions (inactions) of bodies and officials authorized to perform operative-investigative activities;
- Legality of acts and activities performed by investigation and inquiry bodies, compliance with procedures established by law for resolving statements and reports on committed crimes, misdemeanours and investigations;
- Observance of laws in implementing court decisions in criminal cases, and applying coercive measures related to the restriction of personal freedom of citizens.
Complaints to courts:
The prosecutor has the right to submit a claim to the courts in defence of the rights, freedoms and legally protected interests of persons or general public, and to intervene in cases pending in court, if it necessitates the protection of rights, freedoms and legally protected interests of citizens, state or public interests.
A prosecutor only at the request of an affected person may submit claims in defence of the rights, freedoms and legally protected interests of a citizen, if that citizen (due to health, age and other reasons) is not capable to appeal to the courts for valid reasons.
The prosecutor regardless of the request made by the person concerned may submit a claim in defence of interests of incapacitated citizens and minors.
In cases of rejecting the acts of prosecutor's response or failure to review them within the time limit established by law, the prosecutor has the right to apply to the courts with a lawsuit:
- On invalidation of acts of state bodies and officials;
- On elimination of violations of the law.
Representation by the prosecutor against judicial acts:
If judicial acts are unjustified or do not meet the requirements of the law, the prosecutor has the right to:
- submit a representation to the court in the manner prescribed by procedural legislation;
- or make a representation to a higher prosecutor.
The prosecutor, regardless of participation in trial, has the right, within the limits of his/her competence, to request the courts to provide materials on any case or category of cases on which judicial acts have come into legal force except in cases of private prosecution.
Supervision over the application of laws when fulfilling international legal cooperation:
Procuratorial authorities exercise supervision over the application of international treaties on the provision of legal assistance that have entered into force in accordance with the law, to which the Kyrgyz Republic is a party.
The Prosecutor General or his/her deputies, within the limits of their authority and in the manner prescribed by the Criminal Procedure Code of the Kyrgyz Republic and international treaties, make decisions on:
- Extradition of persons;
- Provision of mutual legal assistance in criminal matters;
- Implementation of criminal prosecution;
- Transfer of persons sentenced to imprisonment for further serving their sentence;
- Transit transportation of persons through the territory of the Kyrgyz Republic.
Appealing against the actions of the prosecutor and acts of prosecutor's response:
The actions taken by prosecutor and acts of prosecutor's response may be appealed against to a higher prosecutor or in court. An appeal against the requirements and acts of prosecutor's response does not have suspensive effect on their execution.
Any court or a higher prosecutor may suspend their execution prior to making a decision on appeal against actions or acts of prosecutor's response.
The higher prosecutor may revoke the act of the prosecutor's response made by the lower prosecutor, upon request of citizens and (or) legal entities, or on his/her own initiative.
One can contact the General Prosecutor's Office in Bishkek at the address: the Kyrgyz Republic, PO Box 720040 Bishkek City, A.Toktonalieva Str. 139. Phone: +996 312 54 24 63. Email: email@example.com
Or to the Military Prosecutor's Office, prosecutor's offices in Oblasts, in cities of Bishkek and Osh, district (city) and related specialized prosecutor's offices, Military Prosecutor's Offices of garrisons.
One can find more detailed information on Procuratorial authorities on website: https://www.prokuror.kg/
3.3. Civil proceedings
According to the Civil Procedure Code, the purpose of civil proceedings is to protect violated or disputed rights, freedoms and legally protected interests of citizens and legal entities, regardless of their form of ownership (Article 3).
The procedure for civil proceedings established by law must:
- ensure correct and timely consideration and resolution of civil cases;
- ensure the passing of legal judicial acts and their execution;
- contribute to strengthening the rule of law, law and order and preventing offenses.
In the manner prescribed by law, any interested person has the right to apply to the courts seeking for protection of his/her violated or disputed rights, freedoms and interests protected by law.
Jurisdiction of civil cases to courts - the courts consider all cases in civil proceedings except for cases referred to constitutional and administrative proceedings.
Competence of civil cases to courts – accountable to district courts (city district court and city court) has jurisdiction over all civil cases, except for cases within the jurisdiction of an administrative court.
The claim is filed in court at the place of residence of the defendant. A claim against legal entity is filed at the location of the legal entity or at the location of its property.
Exceptions are the cases where plaintiff may select jurisdiction, and cases of exclusive jurisdiction, jurisdiction of several related cases and contractual jurisdiction (Articles 31-34 of the Civil Procedure Code).
3.4. Administrative proceedings
According to the Administrative Procedure Code, the objective of administrative proceedings is to protect:
- rights, freedoms and interests of individuals;
- rights and interests of legal entities;
in the field of administrative-legal (public-law) relations from violations by administrative authorities and their officials through fair, impartial and timely consideration of administrative cases.
Any interested person has the right, in accordance with the procedure established by law, to apply to the courts seeking for protection of his/her violated or disputed rights, freedoms or interests protected by law.
Foreign persons, stateless persons and foreign legal entities enjoy the same rights to judicial protection as citizens and legal entities of the Kyrgyz Republic.
Administrative claimant is an individual or legal entity who applied to the courts in defence of his/her rights, freedoms or legitimate interests, or a person in whose interests an administrative claim was filed by a prosecutor or other person authorized by law.
Administrative respondent is an administrative body against which a claim is brought before the court.
Jurisdiction - administrative cases are considered in administrative proceedings:
- on invalidation of an administrative act or action of administrative body in whole or in part;
- on obligation of administrative body not to adopt the administrative act burdening the plaintiff, or not to perform any other actions;
- on obligation of administrative body to adopt an administrative act or perform certain actions;
- on invalidation of a subordinate normative legal act of administrative body or local Kenesh (municipal council);
- recognise an administrative act of administrative body as unlawful.
The following cases are not reviewed in administrative proceedings:
- on invalidation of decisions made by state bodies and their officials authorized to consider the misdemeanour cases in whole or in part;
- on actions (inactions) of law enforcement agencies arising from legal relations in criminal proceedings;
- on decisions and actions (inactions) of bailiffs in the execution of court orders.
Competence - administrative cases are reviewed at the court of first instance at the location of defendants.
When appealing administrative acts and actions (inactions) of several defendants, an administrative claim is filed with the administrative court at the location of one of the defendants at the claimant’s discretion.
It is prohibited to combine several claims into one proceeding, which has to be considered in different legal proceedings.
3.5. Criminal proceedings
In accordance with the Criminal Procedure Code, justice is administered by courts in criminal cases and/or misdemeanour cases.
The objectives of criminal proceedings are:
- Protection of an individual, society and state from crimes and misdemeanours;
- Protection of an individual from illegal and unjustified accusations, convictions, restrictions on his/her rights and freedoms;
- Prompt and complete investigation of crimes and misdemeanours;
- Exposure and prosecution of persons who have committed crimes and misdemeanours;
- Fair trial and accurate application of criminal law;
- Immediate and complete rehabilitation in cases of unlawful accusation or conviction of an innocent person;
- Ensuring compensation for material damage and moral damage.
Victim is a natural or legal entity who has suffered physical, moral and (or) material damage as a result of crime or misdemeanour.
4. Responding to discrimination and intolerance
The below recommendations under this section are designed to help practicing lawyers and jurists defending the rights and legitimate interests of persons who have suffered from discrimination and intolerance in connection with their religion and beliefs (victims).
The recommendations are aimed at enhancing the role of a defence lawyer / jurist in facilitating the efficiency to document such cases and their due diligence, ensure the prosecution of perpetrators and restore the violated rights of a victim, and indemnify for material damage and compensate for moral damage.
When victim files a complaint:
- Effectuate and receive a power of attorney from a client to intervene into the case as a representative and certify the powers to represent the interests (see Annex No.1).
Defence lawyers should:
- Conclude an agreement with the victim to provide legal assistance - a civil contract must be made in a simple written form (see Annex No.2).
- Register the agreement in the document flow system of collegium, advocate’s bureau or lawyer’s office.
- Receive an order of assignment in the form approved by the Bar Association of the Kyrgyz Republic to intervene as a representative and certify the power to provide legal assistance (see Annex No.3).
- Effectuate and receive a power of attorney from a client in other cases.
- The defence lawyer may send requests in order to provide qualified legal assistance to a victim (see Annex No.4).
Interviewing the victim and collecting primary data:
When victim files a complaint, the defence lawyer / jurists should:
- listen to his/her explanations;
- get detailed information about what happened and receive other supporting documents;
- if necessary, ask clarifying questions;
- learn the received documents;
- define a list of actions to be performed in defence of interests and rights of the victim.
Identification of signs of discrimination and intolerance:
During analysis of the situation and documents submitted by a victim, the defence lawyer / jurists should:
Identify the signs of discrimination:
- negative or prejudiced attitude towards the victim;
- deprivation of victim's rights or restriction of certain rights as a result of decisions, actions (inactions) by a state body or a person;
- presence of prohibited ground (justification): religious and other beliefs of the victim;
- existence of a legal purpose for such treatment of the victim;
- lack of necessary and proportionate means to achieve this goal.
Handling the complaint:
Clarify the victim about his/her right to appeal to an administrative body, higher authority, law enforcement agencies, to court and to the Ombudsman (Akyikatchy) Office in connection with discrimination and intolerance, the goals and general rules of treatment, pre-trial proceedings and court proceedings.
Help the victim if necessary to:
- draw up an appeal, complaint or statement;
- send a complaint to the location of the body competent to review such complaint, by post, courier or trough information and telecommunication network (Internet);
- or explain the victim how to reach and get the authority competent to review such complaint.
To a higher administrative body:
The general requirements for the complaint are contained in Articles 28 and 64 of the Law “On basic principles of administrative activities and administrative procedures”.
The complaint is to be submitted to administrative body in writing or orally. The oral statement is reflected in the minutes drafted by administrative body.
If laws require attaching the specific documents, then they must be attached to the complaint.
If administrative act provides for payment of a state duty or other obligatory fee according to law, in such case one must produce a document confirming its payment.
If complaint is filed through a representative, then a power of attorney issued in accordance with the procedure established by law must also be presented.
The claimant and person concerned have the right to appeal against administrative acts, actions or omissions of an administrative body to protect their rights.
An administrative act, action or inaction of an administrative body is appealed against in an administrative (pre-trial) procedure, and subsequently in a judicial procedure, except in cases provided for in Article 44 and Part 3 of Article 57 of the Law “On basic principles of administrative activities and administrative procedures”.
Administrative complaint against an administrative act may be filed with administrative body that adopted the contested administrative act, or to a higher administrative body (see Annex No.5).
In the absence of a higher administrative body or higher official, the action and inaction of administrative body shall be appealed against in court.
The general requirements for a complaint are contained in Article 64 of the “On basic principles of administrative activities and administrative procedures”.
Complaints to the Ombudsman (Akyikatchy):
Explain the victim about legal requirements for the form and content of complaint (see Annex No.6).
The complaint is submitted to the Ombudsman (Akyikatchy) in writing within a year from the date of establishing the violation of human and civil rights and freedoms. In the presence of exceptional circumstances, the Ombudsman (Akyikatchy) may extend that period, but not more than two years.
The Ombudsman (Akyikatchy) considers a complaint only if a claimant challenges the decision of a higher authority, administrative body or court that has entered into legal force, and when the complaint refers to a violation of human rights and freedoms when reviewing the case.
The complaint must be signed by a person effected and indicate the claimant’s surname, name, patronymic and address, and explanation of the essence of decisions or actions (inactions) that violated or violate, according to claimant, his/her rights and freedoms, and be complemented by copies of decisions taken at his/her request, if any.
The complaint is not subject to state fees.
The services provided by the Ombudsman (Akyikatchy) are free.
To Law Enforcement Agencies:
Explain the victim about legal requirements for the form and content of complaint.
Provide assistance to a victim in preparing a complaint and ensuring his/her referral to the body where crime or misdemeanour occurred (see Annex No.7 and No.8):
- to the body of pre-trial proceedings in accordance with investigative jurisdiction as provided for in Article 153 of CPC and Article 503 of CPC; or
- to the court (in cases on private prosecution).
Explain the victim that complaint must be accepted by the body of pre-trial proceedings and be registered in Unified Register of Crimes and Misdemeanours. The claimant must be issued a document in the form of notification coupon. This is the document which confirms the registration of the accepted complaint or information on crime and (or) misdemeanour in logbook. It indicates the person who accepted the complaint or information, the time of its registration and registration number (with compulsory indication of QR code), based on which the author of the complaint and information may later track the progress of reviewing his/her complaint.
In case of violence or the threat of its use, it is necessary to take measures specified in Article “Responding to violence or threats of using violence” uploaded on this website.
The basic requirements for the form and content of administrative claim in administrative proceedings are contained in Articles 109 and 111 of APC (see Annex No.9).
An administrative claim may also be brought before the court by filling a form uploaded from the official website of relevant court on information and telecommunication network (Internet), which is signed digitally in the manner prescribed by the legislation of the Kyrgyz Republic.
General jurisdiction court:
The main requirements for the form and content of statements of claim in civil proceedings are in Article 134 of the Civil Procedure Code.
The statement of claim is submitted to the court in writing with typewritten text.
The complaint may contain any information relevant to the resolution of dispute and provide petitions of the plaintiff (see Annex No.10).
The documents specified in Article 135 of the Civil Procedure Code must be attached to the statement of claim.
A statement of claim may also be brought before the court by filling a form uploaded from the official website of relevant court on information and telecommunication network (Internet), which is signed digitally in the manner prescribed by the legislation of the Kyrgyz Republic.