JOINT OPEN LETTER - THE OBSERVATORY
Mr. Nursultan Nazarbayev Abishevich
President of the Republic of Kazakhstan
Mr. Sultanov Kuanysh Sultanovich
Chairman of the Human Rights Commission under
the President of Kazakhstan
Astana-Geneva-Paris, November 24, 2015
Re: Call to the President of the Republic of Kazakhstan not to sign
into law the bill “On introducing changes and additions in some
legislative acts of Republic of Kazakhstan regarding activities of the
non-governmental organisations”
The Observatory for the Protection of Human Rights Defenders, a joint
programme of the International Federation for Human Rights (FIDH) and the
World Organisation Against Torture (OMCT), together with the Kazakhstan
International Bureau for Human Rights and Rule of Law (KIBHR) and the
International Legal Initiative Public Foundation would like to call upon you
not to sign the draft law “On introducing changes and additions in
some legislative acts of Republic of Kazakhstan regarding activities of the
non-governmental organisations" adopted by the Senate on November 5,
2015, and now awaiting your promulgation.
The new bill aims at improving the institutional framework in charge of
providing financial aid to civil society organisations (hereafter - CSOs).
However, if implemented, the law would severely and unduly restrict the
right to freedom of association and undermine Kazakhstan’s
international human rights obligations.
Such concerns were raised on September 25, 2015, when more than 90
Kazakhstani CSOs appealed on to you to guarantee that the draft law be
revised and brought in line with national and international human rights
standards. In addition, more than 600 local CSOs have raised concerns over
the conformity of the bill with the right to freedom of association.
The UN Special Rapporteur on the rights to freedom of peaceful assembly
and association, the UN Office of the High Commissioner for Human Rights as
well as the OSCE Representative on Freedom of the Media expressed their
concern about the restrictive nature of the bill severely violating the
freedom and independence of associations.
The Observatory shares the concerns expressed by the international
community and local CSOs and would like to draw your attention to the
following:
1. The bill assigns a so-called “authorized body” – up
to now, the Ministry of Culture and Sports has been acting as the
“authorised body” - the power to fix rules on grant-making,
control and monitor the implementation of grants, potentially including
grants allocated by entities other than the State of Kazakhstan. Indeed, the
vague wording of the bill allows for various interpretations of its
provisions and increased state control over non-state grants.
2. The bill provides that the Ministry of Culture and Sports shall be
responsible for setting up a database on which CSOs would be required to
post information regarding their founders, funding sources and expenditures.
Failure to register or to provide information within a given time frame as
well as the provision of “incorrect information” is subject to
warning, a fine of 160 EUR or the suspension of the CSO for up to three
months for repeated infringements. As a consequence, the Ministry of Culture
and Sports may decide under its own authority to suspend a CSO for failing
to comply with requirements related to the database. Furthermore, under
legislation already in force, the failure by a suspended CSO to redress a
violation may lead to its liquidation.
Local civil society organisations questioned the added value of the
database pointing to the already extensive information that CSOs are
required under laws in force to provide to the Ministry of Justice and the
tax authorities. We therefore consider that the set-up of the new database
contradicts the requirements provided in the OSCE and Venice Commission
Guidelines on Freedom of Association stipulating that associations cannot be
subject to a stricter control compared to private businesses . It is also a
violation of the Constitution of Kazakhstan which protects the associations
from discriminatory and unjustified supervision.
3. The bill also provides a list of the types of activities eligible for a
grant. Such list differs from the one provided for in the Law "On
non-commercial organisations". Hence the bill contains conflicting
notions of what activity might be eligible for receiving a grant and
contradicts the existing legal legislation generating more legal
uncertainty.
4. The bill provides for the set-up of a new grant-making body - the
Operator - responsible to allocate and oversee the implementation of
governmental and non-governmental grants. Unfortunately, the bill fails to
specify how this body would function, such as its composition,
accountability and the decision-making process within the Operator,
etc.
5. The bill is unclear as to whether grants awarded by international
organisations, diplomatic missions or international not-for-profit
organizations will fall under the competence of the Operator. Item 5 of
Article 6-1 of the bill provides that grants regulated under the Tax Code
will fall outside of the scope of its provisions. However, only 15
international organisations are listed in the Tax Code.
6. The bill also provides for the extension of the scope of the Law
“On state social service procurement” regulating relations
between the state and CSOs receiving funds from the State to provide social
services. If the amendments in question are adopted, the afore-mentioned law
could also regulate the provision of any grants and awards to CSOs, whether
private, public, international, foreign or domestic. The vagueness of the
provisions allow for such interpretation. Hence the Law “On state
social service procurement” could also regulate relations that it was
not initially supposed to deal with. This would create more legal
uncertainty as the latter relations are also regulated by a number of
existing legislations.
If adopted, the bill will obstruct the functioning of non-governmental
organisations in the country by introducing vague notions subject to
discretionary interpretation. The bill also includes many contradictory
provisions and new legal terms thereby adding unnecessary confusion and
uncertainty into the legal framework governing CSOs. Finally, the bill
unnecessarily imposes additional regulation and control over CSOs by the
Ministry of Culture and Sports in addition to the existing accountability
mechanisms enforced by the Ministry of Justice and the relevant tax
authorities. Proposals submitted by local civil society organisations to
improve the bill, to clarify its legal terminology and to bring it in line
with existing regulations and Kazakhstan's international human rights
obligations were disregarded by the Parliament.
We therefore urge the you not to sign the above-mentioned legislative
initiative into law as it is likely to significantly restrict the space of
human rights organisations.
We call on you to ensure that all human rights defenders can pursue their
legitimate work without any further hindrances and sincerely hope that you
will take these elements into account.
Yours sincerely,
Gerald STABEROCK
Karim
LAHIDJI
OMCT Secretary General
FIDH
President
Roza AKYLBEKOVA
Aina SHORMANBAYEVA
KIBHR
President
International Legal Initiative Public Foundation