Askar kyzy v Arziev and Duishenbaev, Decision, Decision No 06-р, ILDC 3202 (KG 2020), 30th September 2020, Kyrgyzstan

F1  According to Article 7 of the Constitution, 2010 (Kyrgyzstan), Kyrgyzstan was a secular state and no religion could be established as a public or mandatory one. Compared to other Central Asian states, Kyrgyzstan was less repressive. Though there were a few areas of concern, generally religious minorities broadly enjoyed human rights guarantees of freedom of religion and non-discrimination on the grounds of religion in the country (United Nations Special Rapporteur on Minority Issues, Fernand De Varennes, Visit to Kyrgyzstan, 6–17 December 2019, Office of the United Nations High Commissioner for Human Rights, 17 December 2019). The population of Kyrgyzstan was predominantly Muslim: over eighty per cent of whom were Sunni Muslim; 15% were Christian; and the remaining 5% were Shi’a Muslim, Protestant, Catholic, Jewish, Buddhist, Baha’I, and New Religious movements, or people not affiliated with any religion. See Kyrgyzstan, US Commission on International Religious Freedom, Annual Report 2017, 2017.

F2  Article 32 of the Constitution guaranteed everyone freedom of conscience and belief. Article 20 of the Constitution stated that freedom of choice and having religious and other beliefs was not to be subject to limitations.

F3  Askar-kyzy Zhanar was an evangelical Christian. The religious organization to which she belonged was planning to establish a religious institution in Kyrgyzstan to provide spiritual education to the members of their religious community and planned to invite foreign missionaries with theological degrees in the field to Kyrgyzstan.

F4  To fulfil its plan, the organization had to meet the requirements established in Article 12(3)(4) of the Law on Freedom of Religion and Religious Organizations in the Kyrgyz Republic, 2012 (Kyrgyzstan) (‘2012 Law’). According to the regulations established therein, to register with the state body on religious affairs the missionaries had to file an application that included a list of members. The list had to be notary-certified and the members on the list had to be approved by local keneshs/local administrative bodies. The application also had to include the list of the Constituent Council, the people who had invited the missionaries to Kyrgyzstan, the initiators of the creation of a religious organization and mission, and a list of people according to the charter of the organization responsible for the activities of the organization before the law.

F5  Article 13(2.4) of the 2012 Law set out the same regulations for the establishment and registration of a religious educational institution.

F6  The Bishkek City kenesh/local administrative body refused to approve the list of the initiators, citing the lack of an approval mechanism.

F7  On 27 July 2012, the Inter-District Court of Bishkek city dismissed the claim.

F8  The Constitutional Chamber (‘Chamber’) of the Supreme Court of Kyrgyzstan, in its Decision on the Constitutionality of Article 8(2)(3) and Article 10(2)(3) of the Law of the Kyrgyz Republic on Freedom of Religion and Religious Organizations in the Kyrgyz Republic, 2012 (Kyrgyzstan) submitted by the religious centre of Jehovah’s Witness in the Kyrgyz Republic, Decision, Decision No 45-р‎, 4 September 2014 (‘4 September 2014 decision’), had struck down as unconstitutional the provisions of the 2012 Law that required the approval of local keneshs/local administrative bodies of the list of citizens, the list of the Constituent Council, and the initiators of the creation of a religious organization and mission. The Chamber held that the provisions contradicted Articles 20(2) and 35 of the Constitution, 2010 (Kyrgyzstan) (‘2010 Constitution’). However, the same requirements contained in Articles 12 and 13 of the 2012 Law were not considered.

F9  Askar-kyzy Zhanar brought an application relating to Articles 12(3)(4) and 13(2.4) of the 2012 Law. She contended that to obtain the approval of local keneshs/local administrative bodies of the list of members, religious institutions had to go through a procedure that had not been defined in law.

F10  Askar-kyzy Zhanar further argued that in Kyrgyzstan foreign citizens and stateless persons enjoyed the same rights as citizens; this in effect meant that the legal norms in question abridged the rights of missionaries on freedom of religion and freedom of association and limited the rights of the citizens of Kyrgyzstan to obtain a religious education.

F11  On 17 April 2019, by a decision of the judicial bench of the Chamber, Askar-kyzy Zhanar’s application relating to Articles 12(3)(4) and 13(2.4) of the 2012 Law was accepted for examination. The rest of the claims were not accepted because she did not present sufficient legal arguments to substantiate them.

H1  The Constitution declared that Kyrgyzstan was a secular state in which no religion could be established as public or mandatory. Religion and all other cults were separate from the state (Articles 1(2) and 7(1) and 7(2) of the Constitution). However, separation of religion from the state did not presuppose complete elimination of religion from public life; it provided for the possibility of their tolerant co-existence and was one of the signs of a truly democratic state. The principle of secularism contributed to separation of the state and religious organizations while maintaining the state as the main form of public and political organization of power. This was reflected in Article 7 of the Constitution. (paragraph 1)

H2  Freedom of religion was one of the meaningful and fundamental values. It played one of the most important roles in the spiritual and moral self-determination of individuals. The right had been established as one of the primary personal rights. It guaranteed the freedom to have or to adopt any religion or belief, freedom of consciousness, either individually or in a community, or not to have any religion, and to freely choose to have and to spread religious and other beliefs (Articles 32(1), 32(2), and 32(3) of the Constitution). (paragraph 2)

H3  The right to freedom of thought, conscience, and religion was recognized in international legal instruments which were an integral part of the legal system of Kyrgyzstan. Article 18 of the International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976 (‘ICCPR’) established that the right to freedom of conscience and religion included the freedom to have or to adopt a religion or belief, and freedom, either individually or in community with others and in public or private, to manifest religion or belief through worship, observance, practice, and teaching. (paragraph 3)

H4  In its 4 September 2014 decision, the Chamber had established that the right to freedom of religion presupposed the right to have, change, express, and disseminate religious beliefs, to act on those beliefs, and to participate in religious cults, rituals, and practices not prohibited by law. Freedom of religion had two aspects: the private and the public. The private aspect concerned one’s right to choose a particular religion. The public aspect was about the individual or communal manifestation of religion in worship, observance, practice, and teaching. (paragraph 4)

H5  Exercise of the right had to be manifested externally through freedom of association. The importance of its role in public life obliged Kyrgyzstan to create conditions for everyone to practice their beliefs and religion without arbitrary and unjustified interference in the affairs of religious organizations. (paragraph 5)

H6  The right to freedom of religion imposed an obligation upon Kyrgyzstan to create the necessary legal environment that eliminated any impediments to the exercise of citizens’ rights to adopt and have religious beliefs, because the right in question was not subject to any sort of limitations (Article 20(5)(5) of the Constitution). (paragraph 6)

H7  Interactions between religion and the state based on democratic principles presupposed recognition and guaranteed freedom of conscience and religion. To achieve this the state had to formulate policies in the field to create the required legal mechanisms that would create the necessary guarantees and limitations. (paragraph 7)

H8  The purpose of the state policy was to create an optimal model for state and confessional cooperation based on principles of secularism. Effective state regulation of religious and social institutions was necessary for the security of citizens and the state, the establishment of inter-confessional peace and tolerance, and to counter religious radicalism and extremism based on the principles of human rights and freedom of religion. (paragraph 8)

H9  The mechanism for that aim was the 2012 Law. The 2012 Law was adopted to guarantee to each human being the right to freedom of religion established by the Constitution and international treaties. (paragraph 9)

H10  Articles 12 and 13 of the 2012 Law established rules for the registration of foreign citizens (missionaries) who came to Kyrgyzstan to engage in religious activities and establish religious institutions. (paragraph 10)

H11  The constitutionally challenged part of the norm—the requirements to obtain approval from local keneshs/local administrative bodies of the list of citizens, the list of the Constituent Council for registration of an invited missionary, and the registration of a religious educational institution—was unjustified and did not have any regulatory meaning. The requirements created impediments to the exercise of the rights of citizens to freedom of religion: they limited the right to freedom of association necessary for religious events. (paragraph 11)

H12  The part of the norm that required notary certification and approval of the list of citizens, the list of the Constituent Council, and the initiators of the creation of a religious organization by local keneshs/local administrative bodies was unconstitutional and contradicted the right to have freedom of religion free from limitations (Articles 20(5)(5), 32(1), 32(2), and 32(3) of the Constitution). (paragraph 12)

H13  However, the registration requirement per se was constitutional. The purpose of registration was necessary to formulate unified state policy to prevent dissemination of ideologically destructive religious organizations and beliefs—those that had the potential to destabilize public order on a religious basis. (paragraph 13)

H14  While the state was constitutionally separated from religion, legal regulation of religious institutions was one of the key forms of interaction between the state and confessions of faith. Because of its fundamental importance, it was necessary to have a rigid regulation in place to oversee religious organizations and their practices. This sort of regulation was necessary because matters of freedom of religion and the work of religious organizations were complicated. State bodies and local administrative bodies had to solve them through qualified and legally viable means to protect persons from all sorts of ideological coercion that affected other rights and freedoms, the formation of civil societies, and the rule of law in general. The creation of necessary conditions for the self-expression of each person through spiritual means was an important element of democracy and the constitutional order of the country. (paragraph 14)

H15  The registration requirement was there for both the citizens of Kyrgyzstan and foreign nationals. (paragraph 15)

H16  The unconstitutionality of the norm on the registration requirement that related to the rights and obligations of foreign nationals had not been substantiated. (paragraph 16)

A1  Kyrgyzstan did not have a well-established legal doctrine that defined the relationship between domestic and international law. The fundamental principle was established in Article 6(3) of the Constitution, which provided a guiding principle on the role of international law in the domestic legal system of Kyrgyzstan. It read: ‘[i]nternational treaties that per established rules entered into force, to which Kyrgyzstan subscribed, and universally recognized principles and norms of international law are a constituent part of the legal system of the Kyrgyz Republic.’ There is an argument that that the legal force of a treaty in the domestic legal system of Kyrgyzstan depends on the type of a legislative act that the government used to express its consent to be bound (Musabekova Ch A, ‘International Law in the Domestic Legal System of the Kyrgyz Republic’ (2012) Vestnik KRSU 12, 36). The peculiarities and differences between types of legislative acts are not as important, for the purposes of this analysis, as the fact that Kyrgyz courts must factor treaties to which Kyrgyzstan has subscribed into their legal analysis of the issues presented (‘On Judicial Decisions’, Decree of the Supreme Court Plenum of the Kyrgyz Republic, N16, 12 June 2020).

A2  The Chamber assessed the constitutionality of a rule from the legal perspective, without being bound by the arguments presented (‘On dismissal of the complaint raised by Dzhaloev Kanat Asankadyrovich on the reversal of the ruling of the panel of judges of Constitutional Chamber of the Supreme Court of the Kyrgyz Republic dated April 2, 2015 No. 16’, Ruling of the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic, No 4-p, 29 May 2015). This provided the Chamber with the power to decide the issue before it based on a legal rationale not argued by the parties, and to factor in rules of international law as it saw necessary. Within this optic the Chamber could reference the ICCPR to break down the right to freedom of religion to develop its analytical space. (paragraph 3)

A3  The Chamber distinguished between the private and public spheres of freedom of religion. (paragraph 4) However, it left unsaid certain important aspects of the distinction that bring into light the limitations inherent in this right. The Chamber plainly stated that the right to freedom of religion was not subject to any sort of limitation. That is indeed so regarding the private aspect of the right. In the private sphere no limitations are allowed, and that aspect of the right is non-derogable and absolute (M Nowak, UN Covenant on Civil and Political Rights (N P Engel Verlag 1993) 412 (‘Nowak’)). However, the Chamber did not say that the public aspect of the right was subject to limitations. Article 18(3) of the ICCPR provided for the permissibility of restrictions to freedom of religion in the public sphere subject to the grounds for limitations listed therein.

A4  The distinction between the private and the public aspects of the right has legal significance with respect to the permissibility of limitations imposed on the right (Nowak, 412). The distinction helps in understanding the anomaly of the limitations imposed on the non-derogable and absolute right of freedom of religion (Nowak, 408). The Chamber could have instrumentalized the distinction for a deeper analysis of the right and used it to substantiate its decision to recognize the requirement to register as a legitimate restriction on freedom of religion.

A5  The absence of a proper implementation of one’s right to freedom of religion is a prima facie legal barrier for the exercise of one’s right to freedom of religion. It may be concluded a priori without extensive comment that it is a violation of one’s right to freedom of religion because every individual must have the de facto possibility of joining a religious society or of leaving one (Nowak, 415). Insofar as the registration requirement did not impose that sort of barrier, the presumption is that it was a legitimate limitation on the freedom of religion, provided that registration was necessary for one or more of the enumerated purposes in Article 18(3) of the ICCPR. It was important for the registration requirement to qualify as one of the grounds listed under Article 18(3) because according to the United Nations Human Rights Committee, ‘paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security’ (General Comment No 22: Article 18 (Freedom of Thought, Conscience or Religion), UN Doc CCPR/C/21/Rev.1/Add.4, United Nations Human Rights Committee, 27 September 1993).

A6  The Chamber employed the criteria of necessity to maintain public order to evaluate the legitimacy of the limitations imposed by the registration requirement. (paragraph 13) However, the Chamber did not explicitly discuss the two other metrics usually employed to examine the legitimacy of restrictions imposed on rights in the context of the ICCPR: that the limitation had to be prescribed by law and have been designed to achieve one of the purposes listed under Article 18(3) of the ICCPR.

A7  The necessity test implied that the restriction imposed must be proportionate in severity to the purpose being sought (Nowak, 426). The part of the norm that required notary certification and approval of the list of citizens, the list of the Constituent Council, and the initiators of the creation of a religious organization by local keneshs/local administrative bodies did not carry any sort of meaningful regulatory purpose and hence was unnecessary. However, the requirement to register per se was necessary to provide an overview of the religious landscape in Kyrgyzstan to identify entities potentially dangerous to the public order.

A8  Registration per se is a neutral technique employed by states to exercise their public powers, such as applying and enforcing laws and pursing other public interests. For the right to freedom of religion, it is important to keep in mind that it ‘can never be rendered dependent on any specific acts of State approval or administrative registration’ (Report of the Special Rapporteur on freedom of religion or belief, UN Doc A/HRC/28/66/Add.1, UN Human Rights Council, 23 December 2014 (‘Bielefeldt’) {mentioned only in headnote}). The exercise of the right should not be dependent on an administrative act of the state. It ‘should be an offer by the State, not a mandatory legal requirement’ (Bielefeldt). This sort of perspective calls into question the legitimacy of the registration requirement. Most likely, whether it would be accepted as legitimate would depend on whether the domestic legislation on mandatory registration was justified by the need to protect public safety and order and if the means used were proportionate to the aims.