Protection of persons against coercion to adhere to or change their religious beliefs
This section focuses on mechanisms of protection against coercion to adhere to a particular religion or coercion to change one's religion. People may be subject to policies and practices that aim to coerce believers or non-believers to change their religion or convictions, or are expressed in such coercion, including by limiting access to education, health care or employment on religious grounds. For example, any person may be presented with a challenge that s/he would be employed on the condition that s/he accepts a particular faith or belief, or be restricted in accessing the healthcare system if s/he abandons or refuses to accept a religion or belief. Public education that includes instruction in a 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 wishes of parents or guardians, if the information or knowledge included in the school curriculum is conveyed in a way that is far from objectivity, criticism and pluralism, without enabling students to develop their critical thinking, especially with regard to relation in a calm environment free from any proselytism. On the other hand, there is a need to distinguish between activities that are also aimed at changing religious beliefs, but which represent the expression by a person(s) of their religious or other (non-religious) beliefs, and such activities are protected. In this context, we proposed to consider cases of coercion without the use of physical violence or the threat of such violence, mechanisms and tools to respond to them. This article describes three cases: 1) when individuals are coerced to change their religion on the part of other believers; 2) when the authorities take decisions that are directly aimed at or create conditions for coercing a person to change his/her religion; 3) when provisions of a law or other regulatory legal act violate the constitutional right of everyone to freedom of conscience and religion, including the freedom to choose and practice religious and other beliefs, including atheistic beliefs. Mechanisms for protecting individuals from violence or the threat of violence on religious grounds were described in Article 3 “Responding to violence or threats of violence” and, respectively, in cases where coercion to adhere to or change religious beliefs is accompanied by the use or threat of violence, one should be guided by the recommendations set out in this section.
- 1. Responding to coercion to change one's religion
- 2. Response to administrative acts, actions and inactions of administrative bodies
- 2.1. Administrative appeal
- 2.2. Judicial contestation
- 3. Contesting the provision of a law or other regulatory legal act that violates the constitutional right of everyone to freedom of conscience and religion, to profess individually or collectively with others any religion or not to profess any religion, to freely choose and have religious and other beliefs
1. Responding 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 any coercion in determining a citizen’s attitude to religion, in professing or not professing a religion, in participating or not participating in worship, religious rites and ceremonies, as well as in teaching religion (paragraph 3 of Article 4).
Pursuant to paragraph 4 of Article 5 of the Law “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic”, persistent actions aimed at converting believers of one denomination to another (proselytism) shall be prohibited. The law does not explore the concept of “persistence”, which allows for any subjective interpretation and leaves room for abuse in determining the legitimacy or illegality of proselytism, since only “persistent” actions to convert to another faith should entail liability.
In the explanatory dictionaries of the Russian language by Ozhegov and Ushakov, the word “persistent” means “pertinacious”, “consistent” and “firm in doing something”. The lexical meaning of the word in explanatory dictionaries also does not make it possible to unambiguously understand which “persistent” actions aimed at converting believers of one denomination to another should be qualified as prohibited proselytism.
The legislator is required to review the appropriateness and relevance of using the word “persistent” when drafting the provision of the law in question. And here is why. After all, persistence, perseverance, consistency and firmness are, undoubtedly, indispensable conditions for achieving success in an effort to convert followers of other faiths to their religion. Nevertheless, even the most pronounced persistent, pertinacious and consistent actions, especially if they do not have a hint of violence and the threat of violence, may not be characterized as coercion.
It is noteworthy to draw attention to the meaning and content of paragraph 4 of Article 5 of the Law in the Russian and Kyrgyz texts. While the Russian text of this provision establishes a ban with an emphasis on “persistent” actions aimed at converting believers of one religion to another, wherein the Kyrgyz text does not even mention the word “persistent”. In other words, if we follow the Kyrgyz text of the law, any actions aimed at converting believers of one religion to another (meaning, any form of religious proselytism) shall be prohibited. This is fundamentally incorrect, since, as noted, actions that are aimed at changing the religious beliefs of others represent the expression by a person(persons) of their religious or other (non-religious) beliefs and falls within the scope of the freedom to carry out such activities.
This freedom must be protected regardless of the content of the views, the nature of the expression of these views and whether the interference stems from an individual or the State. However, such activity is not unlimited, and the restrictions imposed must pursue legitimate goals, including the right to practice or maintain religious or other beliefs without being subjected to coercion, and may not be imposed for purely religious or ideological purposes.
The recognition of any act or action (attempt) as unacceptably coercive will depend on the specifics of its source, object, place where such activity takes place, and the very nature of this action. In each case, a combination of specific circumstances is of great importance.
A group of residents from village M., taking advantage of the credulity and naivety of citizen N., who adhered to evangelical Christianity, through the use of various non-violent means to influence him over a long period of time, succeeded in getting N. to come to the mosque and pray together with all the men of the village.
In deciding whether the given example establishes the ways and means of influencing citizen N. proselytism in the form in which it is prohibited by Article 5 (4) of the Law “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic”, in addition to specifying and assessing the nature of the very actions, in which the methods and means of influencing citizen N. were expressed, it is important to establish the circumstances that could have influenced the ability or inability of making a free and informed choice regarding religious beliefs. For example, whether N. had the opportunity to avoid actions aimed at changing his religious beliefs, whether N. was free to express his views and preferences, 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 a person to adhere to a particular religion or change their religion, which do not comply with modern principles of human rights protection, shall entail liability established by law.
Under certain circumstances, such actions can be qualified as a crime under Article 200 of the Criminal Code of the Kyrgyz Republic (hereinafter - the CC), which establishes criminal liability for organising or leading a group whose activities are carried out under the guise of preaching religious beliefs and performing religious rites, if it involves infliction of significant harm to the rights of citizens. According to Annex 1 to the CC of the Kyrgyz Republic, significant harm to human rights, as a consequence of a crime committed, shall mean a violation of the constitutional rights and freedoms of a person and a citizen.
Therefore, acts characterized as “unlawful proselytism”, which result in violation of the constitutional right of everyone to freedom of conscience and religion, to individually or collectively with others profess any religion or not to profess any religion, to freely choose and have religious and other beliefs, shall constitute the objective aspect of the corpus delicti referred to in Article 200 of the CC, when proven to be committed by a group established under the fraudulent pretext of preaching religious beliefs 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.) become its members and form its composition, but also include other persons who support the illegal goals or specific actions of this group and directly and actively participate in its activities. Individuals who do not act as members of the group and who do not directly participate in its unlawful and other activities, but who in any way assisted such a group or its representatives (by one-time financing, a previously promised harbouring, etc.), shall be liable for aiding and abetting this crime.
Organisation and leading a group, as well as active participation in its activities and the systematic promotion of the activities of such a group shall be punishable by imprisonment for a term of up to five years.
This article does not provide for criminal liability of the organizers and members of the group for committing acts that constitute separate offences, and therefore, in these cases, their actions are qualified for multiple offences.
Persons affected by such a group are entitled to lodge a complaint with the internal affairs body at the place of the crime, which, in accordance with the investigative jurisdiction established by Article 159 of the Criminal Procedure Code (hereinafter – the CPC), shall be authorised to conduct pre-trial criminal proceedings on crimes against civil and other human rights, which include the organization of illegal religious group.
A complaint must be accepted by the internal affairs body and registered in the Unified Register of Crimes. An applicant must be issued a notification slip - a document confirming the registration in the register log of the information about complaints received on crimes, with an indication of the person who received the complaint, the time of its registration and the registration number (it must have a QR code on it), which can be used by the applicant at any time in the future to check the status of his/her complaint in online mode. By scanning the QR code with a mobile device, s/he will get the latest information about the complaint.
The investigator shall recognise a person as a victim from the moment of receipt of a report of the crime, and shall issues a ruling thereon. From that moment on, s/he shall have the rights and obligations of the victim referred to in Article 40 of the CPC. In order to strengthen and expand the possibilities of protecting his/her legitimate interests, the victim may have a defence lawyer to participate in the case or another person authorized by law to represent his/her legitimate interests in the criminal proceedings. The representative of the victim shall have the same procedural rights and obligations as the victim, and a defence lawyer shall also enjoy the rights provided for in Article 25 of the Law “On the Bar Association of the Kyrgyz Republic and Defence Lawyer’s Activity”.
Should there be a threat of unlawful influence on the victim, his/her close relatives, spouse through the use of violence or another act prohibited by criminal law, that person should immediately appeal for security measures to the investigator. In order to ensure the safety of the victim, his/her close relatives, spouse, the measures provided for in Article 77 of the CPC, as well as other measures provided for in Article 6 of the Law “On the Protection of the Rights of Participants in Criminal Proceedings” may be taken.
Irrespective of the adoption of security measures, an authorised official of the body of pre-trial proceedings shall, if there are grounds for this, initiate pre-trial proceedings in response to a detected threat against the victim.
Registration of a report of violence or the threat of violence constitutes grounds for initiating pre-trial criminal proceedings. The victim and his/her representative can present evidence, submit motions and challenges, participate in investigative actions carried out at his/her request, get acquainted with the protocols of investigative actions carried out with the participation of the victim, receive their copies and submit comments thereon, get acquainted with all materials of the case and receive copies thereof, participate in court, speak in court pleadings, support the prosecution, get acquainted with a transcript of the court hearing and submit comments thereon, appeal court decisions, be informed of the complaints and submissions lodged on the case and file objections against them, participate in judicial consideration of complaints and submissions.
The investigator, prosecutor, court, in accordance with Article 13 of the CPC, shall ensure the protection of the rights of the victim and create conditions for their implementation and take timely measures to satisfy his/her legal claims.
The victim and his/her representative shall have the right to appeal against any actions (inactions) and decisions of the investigator, the prosecutor and the court, if these actions (inaction) or decision affect their interests. Complaints may be submitted to the state body or official authorised by law to consider and make decisions on such complaints, or to the prosecutor or to the court.
Thus, complaints may be submitted against a refusal to accept and register a report of a crime, a refusal to be recognized as a victim and take security measures, for recusal, red tape in the investigation of a criminal or an offence case, and other unlawful and illegal actions of the body of pre-trial proceedings.
Chapter 16 of the CPC establishes the rules for the submission, time limits and procedure for consideration of complaints of the victim against the actions and decisions of state bodies and officials conducting criminal proceedings. The procedure for appealing against court decisions on appeal is determined by Chapter 46 of the CPC, appealing against court decisions in cassation – by Chapter 51 of the CPC.
When legal practitioners and defence lawyers are approached by persons affected by “illegal proselytism” without the use or threat of physical violence, they must take all legal means and methods to protect the victim and contribute to the more effective investigation of such cases, ensuring the inevitability of punishment of perpetrators, restoration of violated rights of the victim, compensation for material damage and moral harm caused to the victim.
2. Response to administrative acts, actions and inactions of administrative bodies
Sometimes, there are cases when actions (inaction) or decisions made by a state executive authority, an executive body of local self-governments, or a specially created body empowered by law to permanently or temporarily carry out administrative procedures, are directly aimed at or create conditions for coercing a person to change his/her religion. For example, the administration of a state-owned enterprise that owns a sports complex issued an order banning access to a swimming 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 inhabitants of the villages, and according to the law they had the right to be buried in municipal cemeteries.
In this case, the existing mechanisms involve the following actions.
2.1. Administrative appeal
Administrative acts, actions and inactions of administrative bodies that have resulted or may lead to coercion to change one’s religion shall be appealed in administrative (pre-trial) proceedings in accordance with Chapter 10 of the Law of the Kyrgyz Republic “On the Basics of Administrative Activities and Administrative Procedures” as of July 31, 2015. No. 210 (hereinafter - the Law on Administrative Procedures), and subsequently – through court proceedings.
Who may file an administrative complaint?
In accordance with Article 61 of the Law on Administrative Procedures, an applicant and a person concerned shall have the right to appeal against administrative acts, actions or inactions of an administrative body.
According to paragraph 13 of Article 4 of the Law, a person concern shall mean an individual in relation to whom an administrative body has adopted an administrative act on its own initiative, and the person whose right or legally protected interest may be affected as a result of adopting an administrative act.
Where is an administrative complaint filed to?
As a general rule, judicial review of a public law dispute is impossible without prior administrative appeal. Hence, the acts, actions (inactions) of administrative bodies must be appealed in the administrative (pre-trial) proceedings, and only in case of dissatisfaction with the complaint handing in the administrative proceedings, a person shall have the right to appeal to court. Failure to comply with the pre-trial proceedings for dispute resolution may result in court’s refusal to accept an administrative claim or the return of a claim in accordance with Article 113 and Article 115 of the Administrative Procedure Code of the Kyrgyz Republic as of January 25, 2017 No. 13 (hereinafter – the APC).
The Law on Administrative Procedures (Article 62) establishes the procedure for pre-trial appeal against administrative acts or actions (inactions) of administrative bodies. According to this procedure, if an administrative act is contested, the complaint shall be submitted to the administrative body that issued the contested act or to a superior administrative body. When it comes to appealing against an action (inaction) of an administrative body, the complaint shall be submitted only to a superior administrative body or a higher-ranking official. In the absence of a superior administrative body or a higher-ranking official, the action (inaction) of the administrative body shall be appealed through court proceedings.
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 is directly subordinated to or which agency structure it is integrated into. In case of difficulty in establishing a superior administrative body or a higher-ranking official, legal advice should be sought in accordance with Article 12 of the Law of the Kyrgyz Republic “On Free Legal Aid” as of August 10, 2022 No. 91.
Deadlines for filing an administrative complaint
In accordance with paragraph 1 of Article 63 of the Law on Administrative Procedures, an administrative complaint may be filed within thirty working days from the date of delivery of the administrative act or from the date an action has been taken by an administrative body. As a general rule, a 30-day period has also been established for appealing against the inactions of an administrative body. The deadlines for filing an appeal should be treated with due care, since if they are missed, their restoration is permitted only for good reasons (illness, long business trip, etc.).
Requirements for the preparation and filing an administrative complaint
Article 64 of the Law on Administrative Procedures establishes the requirements for administrative complaints. In accordance with these requirements, the complaint shall contain:
- name of the administrative body to which the complaint is filed;
- surname, first name, patronymic of an individual who files the complaint and his/her address;
- subject matter of the complaint
(first of all, the complaint determines what exactly is being appealed: an administrative act, an action or inaction of an administrative body or official. This should be indicated in the title of the complaint. For example, an administrative complaint against a particular administrative act or action, or inaction);
- the claim of the person filing the complainant
(the main purpose of the complaint is to protect violated rights, freedoms and legitimate interests. Therefore, the complaint must clearly state the claims of the person, what exactly the applicant is seeking from administrative bodies or officials, for example, repeal or amend an administrative act; issue a new administrative act, recognise the action as unlawful and terminate it, oblige to perform a particular action, remove an obstacle to exercise one’s rights, etc.);
- list of documents attached to the complaint
(All documents related to the circumstances of the case and the subject matter of the complaint must be attached to the complaint. This will determine the completeness, objectivity and effectiveness of the consideration of the complaint. Documents may include copies, including scanned copies, electronic documents, photo and video materials).
- date, month and year of filing the complaint
(indication of these data is important in order to resolve possible disputes related to the deadlines for filing and considering a complaint, to establish the actual deadlines for issuing acts or taking actions)
- signature of the person who files the complaint
In case of non-compliance with these requirements, the complaint will have no progress. The administrative body shall immediately indicate the deficiencies and provide the person who filed the complaint with the opportunity to eliminate 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
An administrative complaint may be filed in the following ways:
- handed directly to an administrative body or official who will consider the complaint;
At the same time, you should try to get confirmation of the receipt of the complaint (receipt mark, stamp on the copy of the appeal).
- sent by registered mail with acknowledgment of receipt.
In addition, in order to file an administrative complaint, you can use the portal of electronic appeals of citizens to the state bodies of the Kyrgyz Republic “kattar.kg”, which was created in 2014 to improve communications between citizens and state bodies and centralised reception of appeals, which, after being received on the portal, are sent to relevant state bodies.
However, regardless of complaint filing method, you should make sure that an administrative complaint was registered with the administrative body, as this is the date when the administrative procedure is initiated.
Consideration of an administrative complaint
An administrative complaint is considered from the perspective of the legitimacy of the contested act, and in case of exercising discretionary powers it is also considered from the perspective of its expediency. When considering an administrative complaint, the administrative body shall be guided by both the existing and additional evidence presented under the case.
Making a decision on the merits of an administrative complaint
Having considered an administrative complaint against an administrative act, the administrative body that has adopted this administrative act shall have the right to:
1) satisfy the complaint in whole or in part by cancelling the administrative act or declaring it null and void, or by adopting a new administrative act;
2) dismiss the complaint and uphold the administrative act.
Having considered an administrative complaint against an action taken by an administrative body or an official, a superior administrative body or a higher-ranking official shall have the right to:
1) satisfy the complaint in whole or in part, having recognised the contested action in whole or in part as unlawful and terminating this action if it continued at the time the acceptance of a complaint;
2) dismiss the complaint with the justification that the action was lawful.
Having considered an administrative complaint against an inaction of an administrative body or official, a superior administrative body or a higher-ranking official shall have the right to:
1) satisfy the complaint in whole or in part and perform the required action in whole or in part, respectively, if a superior administrative body or a higher-ranking official is entitled to perform the required action;
2) satisfy the complaint in whole or in part and oblige the subordinate administrative body or official to perform the contested action;
3) dismiss the complaint if the inaction was lawful.
The decision on an administrative complaint shall be sent to the persons concerned or handed over to them against receipt within three working days from the date of adoption.
2.2. Judicial contestation
The procedure for judicial contestation of administrative acts, actions and inactions of administrative bodies that led or may lead to coercion to change one’s religion is determined by the Constitution, the constitutional law “On the Supreme Court of the Kyrgyz Republic and local courts” as of November 15, 2021 No. 134, the Administrative Procedure Code and other laws adopted on their basis and international treaties that have entered into force in accordance with the procedure established by law, to which the Kyrgyz Republic is a party.
Procedure for filing an administrative claim
An administrative claim shall mean a procedural document filed with a court by an actor of public legal relations for the protection of his/her violated or disputed rights, freedoms or legally protected interests arising from administrative and legal (public-law) relations.
A person contesting an administrative act or actions shall have the right to appeal to inter-district court of the region or the city of Bishkek at the defendant’s location with an administrative claim, which may include a claim on:
- invalidation of an administrative act or action of the defendant in whole or in part;
- obligation of the defendant not to accept an administrative act that encumber the claimant, or not to perform other actions by administrative body;
- obligation of the defendant to adopt an administrative act or perform certain actions;
- invalidation of a secondary regulatory legal act issued by defendant;
- invalidation of the defendant's administrative act that has become invalid.
The claim shall be filed with the court within three months from the date of entry into force of the administrative body’s decision on an administrative complaint, considered in accordance with the legislation on administrative procedures.
Requirements for an administrative claim
An administrative claim shall be filed in the form of a written statement of claim and, in accordance with Article 111 of the APC, it shall specify:
1) the name of the court where the claim is filed;
2) surname, first name (business name) of the claimant, postal address, telephone numbers, as well as bank details and e-mail address, if any;
3) name of the defendant, surname, first name, position and place of service of the official, postal address, telephone numbers, as well as bank details and e-mail address, if any;
4) the title of the contested act and the name of body or official that/who adopted the act;
5) description of the contested action (inaction) of the administrative body or official;
6) date of adoption of the contested act, performance of the contested action;
7) information on the appeal against the act, action (inaction) in the pre-trial proceedings;
8) the facts and claims of the claimant regarding the contested act, action (inaction);
9) the list of attached documents and materials.
The following must be attached to an administrative claim:
1) the contested act or its copy;
2) the decision of the administrative body, adopted on the administrative complaint in the pre-trial proceedings;
3) evidence in support of the claim;
4) a document confirming the payment of the state fee, except for cases when the claimant is exempt from paying it by law;
5) a notice of delivery or other documents confirming that other participants in the administrative proceeding have been sent copies of the administrative claim and the documents attached thereto, which lack among other participants in the administrative proceedings;
6) written motion, if any;
7) duly certified translations of documents from a foreign language into the state or official language.
Consideration of an administrative case
In order to clarify the possibility of settling the dispute prior to the court proceedings and to ensure a comprehensive and objective resolution of the case, a preliminary court hearing is held in the manner prescribed by Article 125 of the APC.
An administrative case is considered and resolved within two months from the date of adopting the ruling on the completion of the preparatory proceedings and on scheduling the case for trial.
Trial proceedings in an administrative case is held in a court session by summoning the participants in the proceedings. The claimant may file a motion for consideration of the case under a simplified (written) procedure, that is, without an oral hearing in the manner prescribed by Article 131 of the APC.
As part of the administrative proceedings, the administrative claimant may enjoy the full range of rights provided for in Article 36 of the APC, including the right to:
1) get acquainted with the materials of the case, make excerpts from them and make copies thereof;
2) submit recusals;
3) provide evidence and participate in their study;
4) ask questions to other participants in the proceedings, witnesses, experts and specialists;
5) submit motions, give oral and written explanations to the court;
6) present their arguments on all issues arising during the trial;
7) object to motions and arguments of other participants in the proceedings;
8) appeal against court decisions;
9) enjoy other procedural rights granted to them by this Code.
In accordance with Article 29 of the APC, the administrative claimant shall have the right 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 perform all procedural actions on behalf of the person represented. The powers of a representative, except for legal representatives, shall be expressed in a power of attorney, while the powers of a defence lawyer shall be certified by a warrant order.
A claim may be satisfied in whole or in part by a court decision, or its satisfaction may be denied in whole or in part. The decision shall be announced at the court hearing, and a copy of the reasoned decision shall be handed over to the participants against receipt directly in court. A copy of the reasoned decision shall be sent to trial participants who were not present at the announcement of the decision by registered mail with acknowledgement of receipt within three days from the date of its announcement.
If violations of the law are established during court hearing, the court may issue a special ruling and forward it to the relevant state bodies, local governments, legal entities and (or) their officials, which/who must report on the measures taken by them within one month from the date of receipt of a copy of that special ruling.
If a claimant is not satisfied with the decision made by the court of first instance, s/he shall have the right to appeal against the decision on appeal to judicial panels for administrative and economic cases of the regional courts and the Bishkek City Court in accordance with Chapter 24 of the APC, and to the Supreme Court of the Kyrgyz Republic in cassation, in accordance with the rules established by Chapter 26 of the APC.
3. Contesting the provision of a law or other regulatory legal act that violates the constitutional right of everyone to freedom of conscience and religion, to profess individually or collectively with others any religion or not to profess any religion, to freely choose and have religious and other beliefs
In accordance with paragraph 3 of Article 97 of the Constitution of the Kyrgyz Republic, everyone shall have the right to contest the constitutionality of a law and other regulatory legal act if s/he believes that they violate the rights and freedoms recognised by the Constitution.
If the current laws or other regulatory legal acts include provisions that discriminate or impose conditions that coerce a person to change his/her religious beliefs, s/he shall have the right to appeal to the Constitutional Court of the Kyrgyz Republic (hereinafter - the Constitutional Court) with a request to verify the conformity of the law or other regulatory legal the act in whole or in part with the Constitution and declare it unconstitutional in case of conflict with the Basic Law.
The term “laws” also refers to constitutional laws. The Constitutional Court reviews only regulatory legal acts issued by the President, the Cabinet of Ministers, the Jogorku Kenesh, the National Bank, the Central Commission for Elections and Referenda, and representative bodies of local self-governments. Non-regulatory acts (individual legal acts) shall not be subject to constitutional review by the Constitutional Court.
When reviewing the constitutionality of the contested regulatory legal act, the Constitutional Court shall ascertain its compliance with the Constitution in terms of:
1) the content of the provision;
2) the form of a regulatory legal act;
3) the procedure for adoption, signing, publication and entry into force.
The constitutional proceedings are strictly regulated by the constitutional law “On the Constitutional Court of the Kyrgyz Republic” as of November 15, 2021 No. 133 (hereinafter - the Constitutional Law) and the Rules of Procedure of the Constitutional Court of the Kyrgyz Republic, approved by the Decision of the Constitutional Court of the Kyrgyz Republic as of February 18, 2022 No. 02-P.
As mentioned above, if an individual (individuals) considers that laws and other regulatory legal acts violate his/her rights and freedoms recognised by the Constitution, in particular, the right of everyone to freedom of conscience and religion, to profess individually or collectively with others any religion or not profess any religion, and to freely choose and have religious and other convictions, not be forced to express or refute his/her religious and other convictions, provided for in Article 34 of the Constitution of the Kyrgyz Republic, s/he shall have the right to appeal to the Constitutional Court with a motion.
General requirements for an appeal (motion)
A motion to the Constitutional Court shall be submitted in writing and signed by an authorized person(persons). A motion and the materials attached thereto may be submitted in the state or official language.
A motion must specify:
1) the name of the Constitutional Court;
2) the name, address and other necessary data concerning the applicant;
Surname, name, patronymic; address and other information about the applicant, for example, telephone number, e-mail, etc., must be indicated. If it is a collective appeal of citizens, full information on each of the citizens should be indicated.
3) the name, address and other information about a representative of the applicant and his/her powers;
In accordance with the Constitutional Law, an appealing person (party) may pursue his/her cases in person or through his/her representatives, which number cannot exceed more than three. The powers of representatives shall be documented in the manner prescribed by the Civil Code of the Kyrgyz Republic.
4) the name, address of state body, official that/who signed or issued the regulatory legal act, which constitutionality shall be subject to verification;
5) the provisions of the Constitution and constitutional law, granting the right to appeal to the Constitutional Court;
The motion should refer to paragraph 3 of Article 97 of the Constitution of the Kyrgyz Republic, Article 21 of the Constitutional Law.
6) the circumstances on which the party substantiate its claim and evidence that confirm the facts stated by the party;
These circumstances and evidence are given in the case of application or possible application of the contested law in resolving a particular case. In addition to the documents listed in Article 28 of the Constitutional Law, a copy of an official document confirming such application or the possible 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.
7) the exact name, number, date of adoption, sources of publication and other details of the contested regulatory act;
This information can be obtained in official printed media in which laws are published: “The Bulletin of the Jogorku Kenesh of the Kyrgyz Republic”, the newspaper “Erkin Too”, as well as the Centralised Data Bank of Legal Information of the Kyrgyz Republic on the website of the Ministry of Justice of the Kyrgyz Republic (cbd.minjust.gov.kg).
8) specific grounds, referred to in the Constitutional Law, for the consideration of an appeal;
According to the paragraph 2 of Article 26 of the said law, the grounds for the consideration of the case is the revealed uncertainty, including on the issue of whether the law or other regulatory legal act complies with the Constitution.
9) the applicant’s stance on the issue posed by him/her and the legal basis thereof with reference to the relevant provisions of the Constitution;
In this part of the appeal, particular attention should be paid to the way in which the law or other regulatory legal act (or its separate provision) contradicts the Constitution, violates the constitutional rights and freedoms of a person; which provision of the Constitution and constitutional human rights are violated by this law (numbers of the articles of the Constitution of the Kyrgyz Republic must be specified) and in what way it is expressed. It is not enough to simply refer to the provisions of the Constitution in the appeal, one must provide arguments in favour of the unconstitutionality of the contested provision. In other words, the appeal must clearly express the applicant’s stance on the issue posed by him/her, and provide a full and convincing legal justification thereof with reference to the relevant provisions of the Constitution.
10) a claim filed in connection with a submission, motion or request to the Constitutional Court;
It is necessary to specify which particular article of the law or other regulatory legal act (which paragraph, sub-paragraph or separate sentences in a particular paragraph of the Article of the law) the applicant requests to recognize as inconsistent, contrary to the Constitution, as well as individuals and legal entities as violating their rights and freedoms.
11) the list of attached documents.
A copy of the text of the regulatory legal act, the constitutionality of which in whole or in part is contested by appealing party, as well as a power of attorney or other document confirming the authority of the representative shall be attached to the appeal. Where necessary, the appeal may be accompanied by a list of persons to be summoned to the hearing of the Constitutional Court, their addresses, as well as other documents and materials.
A motion must be registered on the day it is received by the Constitutional Court.
A motion received by the Chairperson of the Constitutional Court shall be referred to a panel of three judges of the Constitutional Court, which shall make a decision within thirty working days from the date of registering the issue on the admissibility of the motion for proceeding. The Panel shall have the right to refuse accepting the motion for proceedings:
- if the motion does not comply with the requirements of the constitutional Law with regard to its form and content;
- if the motion is filed by an inappropriate body or person (actor);
- if the motion is filed by a representative of a party who does not have the authority to pursue the case in the Constitutional Court, or if the representative is a person not provided for by the Constitutional Law;
- if the claim stated in the motion does not fall within the jurisdiction of the Constitutional Court;
- if the constitutionality of the issue referred to in the motion has been previously examined and there is an act in force;
- if the repeatedly submitted motion does not contain new arguments and reasoning regarding the contested regulatory legal act.
The ruling on refusal to accept a motion for proceedings or on its acceptance may be appealed to the Constitutional Court within three months. The Constitutional Court shall issue a separate resolution based on examination results of that issue.
Constitutional court proceedings in the Kyrgyz Republic shall be carried out free of charge, that is, the parties, including the applicant, do not pay the state fee.
Stages of constitutional proceedings
Constitutional court proceedings consist of a set of successively alternating stages:
1) submission of appeals (in our case, the appeal is submitted in the form of a motion);
2) acceptance of appeals for proceedings;
3) preparation of the case for consideration;
4) consideration of the case at the Constitutional Court hearing;
5) adoption of acts;
6) proclamation, publication and entry into force of acts;
7) enforcement of acts.
Time limits for consideration of motions
The Constitutional Court shall consider the appeal accepted for proceedings and issue an act on it within five months from the date of its acceptance for proceedings.
In accordance with paragraph 4 of Article 34 of the Constitutional Law, a person who appealed to the Constitutional Court with a motion and his/her representatives shall have the right to get acquainted with the case file, make excerpts from them, make copies, present evidence, participate in the examination of evidence, present their arguments and considerations on all issues arising during the proceedings and make a closing statement. They also shall have the right to submit motions, provide oral and written explanations to the judges, and express their opinion on the submitted motions and submissions.
The appealing party shall have the right to change the grounds or subject of claims, to increase or decrease their amount, or to waive claims. The parties shall exercise their rights in good faith. Reporting of knowingly false information to the court shall be regarded as contempt of the Constitutional Court and shall entail liability under the law.
Decisions of the Constitutional Court
The Constitutional Court shall declare laws and other regulatory legal acts as unconstitutional if they contradict the Constitution.
The decision of the Constitutional Court shall be final and not subject to appeal. Acts of the Constitutional Court are binding for all state bodies, local self-government bodies, officials, public associations, legal entities and individuals and are enforceable throughout the country.
The establishment by the Constitutional Court of the unconstitutionality of laws and other regulatory legal acts or their provisions shall repeal them on the territory of the Kyrgyz Republic, as well as repeal other regulatory legal acts based on laws or their provisions declared unconstitutional, except for court decisions. Until they are brought into conformity or repealed, the Constitution and decisions of the Constitutional Court shall be directly applicable. Judicial acts based on the provisions of laws and other regulatory acts declared unconstitutional shall be reviewed by the court that adopted this act, on a case-by-case basis, upon complaints filed by citizens whose rights and freedoms have been affected.
Special rulings of the Constitutional Court
If violations of the law during court hearing, as well as cases of non-enforcement of acts of the Constitutional Court, are revealed, the court shall have the right to issue a special ruling and forward it to the relevant state bodies, local governments, legal entities and (or) their officials, which/who must report within one month on the measures taken by them.
In case of non-fulfilment of the requirements of the Constitutional Court, the responsible officials shall be held liable in accordance with the law. At the same time, this circumstance shall not exempt the relevant officials from the obligation to enforce a special ruling of the Constitutional Court.