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Document Information:
- Year: 2009
- Country: Kyrgyzstan
- Language: English
- Document Type: Publication
- Topic:
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Analysis
of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
March 10, 2009
On February 18, 2009 parliamentarians Iskhak Masaliev, Arapbai Tolonov and Nurgazy Aidarov
submitted to the Parliament of the Kyrgyz Republic (“Jogorku Kenesh”) a proposed draft Law “On
amendments to several legislative acts of the Kyrgyz Republic” (further “Draft Law”). The main
purpose of the Draft Law is to introduce amendments to the Law of the Kyrgyz Republic “On
noncommercial organizations” (further, “NCO Law”). This Analysis presents commentaries on
provisions of the Draft Law which are certain to considerably restrict Kyrgyz and foreign non-
commercial organizations (NCOs and FNCOs, respectively) from conducting activities in
Kyrgyzstan.
Kyrgyzstan has established a reputation for being one of the more progressive countries in Central
Asia, and indeed the NIS, in terms of protecting fundamental human rights and freedoms and
creating a legal framework where civil society can work together with the government with its basic
mission to improve living conditions for the Kyrgyz people. Unfortunately, many provisions in the
Draft Law would undermine and reverse this effort, not only by stifling the development of civil
society organizations but also by impairing Kyrgyzstan’s ability to attract foreign investment,
receive humanitarian aid and profit from the wisdom of its people that are essential to maintaining
Kyrgyzstan’s good standing in the world as a democratic country.
The Draft Law contains serious shortcomings that contradict fundamental democratic principles of
human rights and equality. Many of the provisions of the Draft Law contradict the provisions of the
International Covenant on Civil and Political Rights (ICCPR), to which the Kyrgyz Republic has
been a party since 1994. Other provisions are vague and/or contradict other existing legislation in
the Kyrgyz Republic.
If adopted in its present version, the Draft Law will have a profoundly negative impact on all
NCOs—not only advocacy groups, but also humanitarian and social services organizations. The
Draft Law would grant enormous discretion to mid-level Government officials to monitor, control,
penalize and liquidate NCOs and initiative groups without appropriate oversight and review. The
Draft Law creates barriers and restrictions to the operation of NCOs that have no parallel in the
regulation of commercial organizations. ICNL understands the need for Kyrgyzstan—indeed, any
government—to act to prevent threats to its national security and sovereignty, but by focusing on
NCOs we submit that the identity of any perceived threat is being blurred and misfocused. The
Draft Law also creates additional barriers for FNCOs that, if adopted, would likely result in a
withdrawal of international aid at a time when, given the global economic downturn, it is arguably
most needed.
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
The key issues to be addressed in this Analysis include:
1. Expanded government supervisory powers, which would include:
o new burdensome reporting requirements on NCOs
o the power to examine resolutions of the organization’s governing body
o the power to send representatives to an organization’s events
o discretionary power to determine whether activities are legal
o discretionary power to prohibit financing of local NCOs by branches and
representative offices of FNCOs
o discretionary power to suspend or terminate the activity of NCO or liquidate
NCO.
2. Prohibition on participation of NCOs in “political activity”, per se participation in public
life.
3. Broad grounds for rejection of registration of a branch or representative office of a FNCO.
4. Possible limitations on creation and participation in informal associations.
5. Restriction and possible prohibition for foreigners to be founders and members of NCOs
6. Additional limitations on the types of persons who can be founders and members of
NCOs.
7. Requirement that FNCOs purchase and maintain insurance.
This analysis will demonstrate why the above provisions are problematic for both the Kyrgyz
Government and NCOs.
1. Expanded Government Supervisory Powers
The Draft Law would add significant new administrative and discretionary powers to the Ministry of
Justice and its subordinate offices to examine NCO activity, attend NCO events, including internal
meetings, conduct audits and request internal reports and documents (article 1.10 of the Draft Law).
The Draft Law also grants the Ministry of Justice the administrative power, without prior court
approval, to suspend the activity of an NCO and even cancel its registration in the event of repeated
perceived violations of law or actions inconsistent with the statutory goals of the organization
(article 1.10 of the Draft Law).
· New burdensome reports required for NCOs. The Draft Law increases the reporting burden on
organizations by among other things requiring them to report on all funds received from foreign
sources and how these are allocated or used. In addition to currently required reports to tax
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
authorities, NCOs will be required to submit the following reports (article 1.12 of the Draft
Law):
o Information about their activities to the bodies of justice and statistics according to
established procedure ( i.e., the Draft Law grants to the Ministry of Justice and the
Republican Statistics Agency the authority to establish their own procedures to request
any information as they wish).
o Annual reports to tax authorities regarding the structure of revenue, as well as
information on the value and content of the NCO’s assets no later than a month following
after a reporting period, according to established procedure.
o Monetary and non-monetary assets received by NCOs and branches and representative
offices of FNCOs from international organizations and foreign states shall be accounted
for separately from other revenues, and information about such assets shall be provided
to the “designated government body in the area of finance”. The later requirement is
especially troubling for several reasons: (1) as it requires disclosure of the source of all
contributions to an NCO, it violates the right of an individual and business donors to
remain anonymous (for example, a person with acquired immunodeficiency syndrome
(AIDS) has a rightful wish not to advertise his contribution to the NCO on AIDS control)
and could potentially cripple anonymous charitable contributions; (2) it will prevent
NCOs from holding public fundraising campaigns with multiple small contributions
(e.g., charity boxes in grocery shops, or charitable contributions via text-messaging (cell
phones – one of the most advanced and effective means to make charitable contributions
in the world); (3) as is the case with other new reports required by the Draft Law, it is
troubling that some unknown “designated government body in the area of finance” will
have the power to establish any requirements to please itself, without any legal
boundaries or guidelines, potentially choking off all foreign aid to NCOs, including
humanitarian assistance, if reporting requirements appear to be too burdensome.
o Additional special requirements are imposed on representative offices and affiliates of
FNCOs. The later are required to provide information on their activities, public-benefit
programs, social services contracting, amounts and sources of financing of their
activities, property, expenditures, number and identification of their employees and
volunteers. This information shall also be available to the Ministry of Justice. The
details for reporting requirements are to be established by the Government of the Kyrgyz
Republic.
A regulation that addresses these issues might ameliorate some of the burden of complying with the
requirement imposed on both the government and the NGO community. One of the principal
concerns with respect to the Draft Law is that it vests the government with authority to collect
information that does not appear to be tied to any specific regulatory goal articulated in this or other
laws. For example, it is certainly reasonable, when an organization receives income tax exemptions
or other tax benefits for the state to seek reporting on information relating to the use of these
benefits. Similarly, where the state has provided funding to an organization through grants or
contracts, it will necessarily seek reporting to ensure that the funds it has provided are used
appropriately and in accordance with the purpose for which they were provided.
By contrast, the Draft Law requires that organizations provide information on all funding received
from foreign and international sources. The Draft Law does not attempt to tie this requirement to a
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
particular regulatory purpose, and does not give any indication how the regulatory authorities may
interpret or use the information. For example, suppose that upon review, the registration authority
determines that an NCO is receiving grant funds from the Eurasia Foundation. Is it permitted to
give warnings or otherwise question the NCO regarding its source of funding, and if so, on what
authority, given that there is nothing illegal or improper about the funding source on its face?
The new reporting requirements in the Draft Law are likely to have unintended consequences. We
can look for precedents at similar reporting requirements introduced by the 2006 NGO Law in
Russia1
. During the first two years of implementation of the Russian NGO law, the government
authority in charge of enforcing and reviewing such reports failed to implement the new reporting
requirements in a useful manner. Even though the efforts to enforce the Russian NGO law were
accompanied by a substantial increase in the staff of the Ministry of Justice, which required new
budget expenditures, the additional staff was unable to digest the “tsunami” of information received
from NCOs or to enforce the submission of all these reports by thousands of NCOs. At the same
time, many NCOs failed to submit reports for a variety of reasons, including because they never
received information about new requirements and lacked the capacity to prepare such reports2
. In
recognition of these facts, the Russian Ministry of Justice has now prepared a set of revisions
substantially simplifying the reporting requirements enforced in 2006.
· The power to examine resolutions of the organization’s governing body
.
The Draft law gives
the registration authority the ability to demand documents dealing with the details of an
organization’s governance, including day-to-day policy decisions, supervision of the
organization’s management, and oversight of its finances.
· The power to send representatives to an organization’s events. The Draft Law allows the
government to send a representative to all of an organization’s events, without restriction. Thus,
government representatives can attend strategy meetings of advocacy groups, board meetings,
and other meetings that are strictly internal to the organization. This power will have a chilling
event on the ability of organizations to hold events, and on the willingness of members, service
recipients, and other people to attend. This provision is inconsistent with Article 17 of the
ICCPR, according to which “1. No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation. 2. Everyone has the right to the protection of the law against such interference or
attacks.” Guarantees of people’s basic rights are applicable to NCO, as it was repeatedly
emphasized in the decisions of UN Committee on human rights.
· Broad discretionary power to determine whether activities are legal. The proposed
amendments would give the Ministry of Justice plenary control over the activity of NCOs. This
includes the right to determine that certain activities or expenses of an NCO did not correspond
to the statutory goals of the NCO or were exceeded. For example, if an NCO stated in its by-
laws that it will carry out educational activities, but failed to mention that it might also help
orphans, helping orphans would be considered contradictory to the by-laws, and might be a
reason for liquidation of an NCO.
1
The Federal Law of the Russian Federation # 18-FZ
On Introducing Amendments to Certain Legislative Acts of the
Russian Federation
came into effect on January 17, 2006.
2
Analysis of the Impact of Recent Regulatory Reforms on Non-commercial Organizations and Public Associations in
Russia, by ICNL, December 2007. (Available at www.icnl.org , or, upon request, in English and in Russian).
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
According to international common practices, NCOs shall have a broad legal capacity to carry
on any activities, not contradicting the law, similar to businesses. The only legitimate limitation
is that the primary purpose of its activities shall not be the distribution of profit. Additional
limitations can be imposed only on those few NCOs who are receiving substantial tax or other
government benefits, but not on all NCOs. As long as an NCO’s activities are legal, it is the
NCO’s internal business how closely it follows its own by-laws, and certainly not the authority
of the government to second-guess those determinations. These proposed provisions of the
Draft Law are in violation of international obligations of Kyrgyzstan, including article 17 of
ICCPR.
· Discretionary authority to prohibit financing of local NCOs by branches and representative
offices of FNCOs. The Draft Law permits authorities to prohibit branches and representative
offices of FNCOs from financing certain citizens and organizations “with the goal of protecting
the bases of constitutional system, public morality, health, the rights and legal interests of other
persons, ensuring the country’s defense and security of the state” (article 1.12 of the Draft
Law). In this case, the Ministry of Justice has a right to send branch and representative office of
FNCO in written form an order on the prohibition of transfer of money resources and other
property to certain categories of recipients.
As is the case with other new powers discussed in
the Analysis, the Draft Law grants unlimited powers to the Ministry of Justice by its own
discretion to decide on the termination of financing of NCO, as the Draft Law has no any criteria
of assessing the activity of NCO.
· Discretionary power to suspend or terminate the activity of NCO or liquidate NCO. The Draft
Law grants the power to the Ministry of Justice prior to court’s approval, to suspend the activity
of NCO, thus in fact to terminate the activity and liquidate any NCO. The NCO law determines
variety of grounds to terminate the activity or liquidate an NCO:
o In case of violation of the legislation of the Kyrgyz Republic or actions by an NCO,
or branch or representative office of an FNCO actions inconsistent with its statutory
goals and tasks, the Ministry of Justice has a right to send to the NCO or branch or
representative office of an FNCO a written warning indicating the purported violation
and terms for its elimination, which must be within one month or less, at the
discretion of the Ministry. A warning made by the Ministry of Justice can be
appealed judicially (article 1.10 of the Draft Law). If the violation is not eliminated
within the term established by the Ministry of Justice, the latter can suspend the
activity of the NCO for a term until the violations are eliminated. Any violation, even
a failure to submit the report in a timely fashion, or non-submission to the Ministry of
Justice of requested information, can lead to a warning, and theoretically to
suspension of the activity of the NCO. The Draft Law specifies only the maximum
term for elimination of violations (one month), while leaving open the minimum
term, i.e. it can be several hours, or other term during which it will be a fortiori
impossible to eliminate a violation, if the Ministry of Justice wishes so. If the NCO is
unable to eliminate a violation in a timely fashion, then the Ministry of Justice may
suspend its activity until the violations are eliminated. Immediate elimination of a
violation does not necessarily cancel suspension of activity, until the Ministry of
Justice recognizes the fact of elimination.
o “Repeated violation of statutory goals and tasks, the legislation of the Kyrgyz
Republic, a failure on the part of NCO, branch or representative office of FNCO to
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
provide information required in a timely fashion are grounds to cancel the
registration of the NCO and bring a claim in court requesting a ruling that the NCO,
branch or representative office of FNCO be liquidated.” This is an unprecedented
provision, which does not appear in the legislation of any country. It is amazing both
from the perspective of civil law and the principle of rule of law. To cancel the
registration of an NCO means that organization never existed. All obligations in the
name of the organization are invalid, and rights of all persons who made dealings
with the NCO are violated (for instance, a lease contract). Moreover, if the Ministry
of Justice cancels the registration prior to court proceedings, then it is impossible to
liquidate the entity, as the respondent – NCO as a legal entity—has ceased to exist.
In case of any repeated violation the organization can be judicially liquidated by the initiative of
the Ministry of Justice. Liquidation of an NCO is like a death sentence for an individual, the
most severe punishment that should be enforced only in exceptional cases. Only the most
egregious violations of the legislation should lead to the application of such a severe sanction.
By comparison, repeated failures to submit tax returns under the Kyrgyz Tax Code are
punishable by fines, not by shooting an individual, or liquidation of taxpayer that is a legal
entity. The enforcement of this provision in practice, for instance, the forced liquidation of an
NCO that fails to submit a required report more than once, will undoubtedly be considered a
violation of human rights and the international obligations of Kyrgyzstan according to ICCPR.
The Criminal Code and Code on Administrative Responsibility have already established
responsibility and sanctions against persons who commit offences and crimes. Persons who
commit these offences shall be liable irrespective whether they are working in a NCO,
government service, in business, or do not work at all. There are no legal grounds to single out
special responsibility for NCOs, as this responsibility applies to all legal entities.
2. Prohibition on participation of NCOs in “political activity”.
The Draft Law prohibits NCO from participating in “political activity and activity in the processes
of nationwide referendum” (article 1.3 of the Draft Law).
The Draft Law defines “political activity
and activity in the processes of nationwide referendum” overly broad:
“Political activity – activity of political parties, created for implementation of political will
of certain part of the population and setting as its major task participation in the
administration of state affairs only in the forms, provided for by the Constitution of the
Kyrgyz Republic and the Law of the Kyrgyz Republic “On political parties”, as well as
through introduction of proposals to the state bodies on improvement of the system of
administration of state and public affaires.
Activity in the processes of nationwide referendum – is an activity related to the
participation in referendums and elections to the extent and in the forms, established by the
legislation on elections and referendums in the Kyrgyz Republic.”
In all countries of the world with established democratic traditions, NCOs have a right to carry out a
wide range of activities relating to public policy formation, including activities directed to promote
legislative reforms, to oppose state policy on different issues, to participate as observers during
elections or to assist the state in development of the policy in certain areas.
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
Certain limitations have a place in relation to a few types of organizations (for instance, political
parties) and in relation to certain kinds of activities of NCOs (for instance, financial support of
political parties and candidates of election campaigns to the state bodies). As a rule “support of
political parties and candidates of election campaigns to the state bodies” is best interpreted as the
prohibition only on providing material support (for instance, transfer of money resources, assistance
in collection of means, assistance in posting agitation posters, granting office, automobiles, other
equipment, regular and active participation in agitation campaigns etc.). It is a basic democratic
principle, however, that NCOs, along with ordinary citizens, have a right to praise, or criticize state
officials or candidates to elected state offices.
The policy of granting these rights to NCOs in the Kyrgyz Republic was arrived at through a
democratic process, complying with international best practice: the state does not hinder NCOs to
carry out various activities, but rather promotes such activity and cooperates with them. One recent
example can be the regular public messages of the President of the Kyrgyz Republic addressed to
political parties and civil society organizations to make constructive proposals on improvement of
the nation’s life, practice of creation of public councils under different ministries and bodies of local
self-administration (which are composed of representatives of NCO), inclusion of the
representatives of NCO into different working groups on development of draft laws and policy-
making etc.
Another positive example is provided in provisions of the new Tax Code of the Kyrgyz Republic,
where definitions of the notions “charitable organizations” and “grant” were amended to make clear
that there is no prohibition on all “political activity”, but rather only a prohibition on “participation
in the support of political parties and candidates of election campaigns”. Here it is applied a clear
formulation of the prohibition, which has a narrow meaning and fully complies with international
law and international best practice.
The proposed amendments to the NCO Law would impose a total prohibition against NCOs
participating in political activity and activity in the processes of nationwide referendums. If the
given provision is adopted, NCO will be “prohibited from making proposals to state bodies on
improvement of the system of administration of state and public affairs and taking part in the
processes of nation wide referendums”
(i.e., during elections or referendums). At the same time the
legislation of the Kyrgyz Republic has no restrictive rule for commercial organizations. A question
arises: why is it bad that NCO will make proposals to state bodies on improvement of the system of
administration or will organize trainings for election observers before the elections or will observe
the election process as neutral independent organizations? The proposed amendments contradict
fundamental principles of democracy.
3. Broad grounds for rejection of registration of a branch or representative office of a FNCO.
While the current NCO Law already
provides for a sufficiently broad list of reasons for denial of
registration of NCOs, the Draft Law would expand the list of reasons for denials of registration of a
FNCO. The most serious ground for refusal in registration is when the Ministry of Justice is of
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
opinion that “goals and tasks of creation of the branch or representative office of a FNCO create a
threat to the sovereignty, political independence, territorial integrity, national unity and originality,
cultural heritage and national interest of the Kyrgyz Republic” (article 1.8 of the Draft Law).
This provision would give the discretionary power to the Ministry of Justice to assess intentions, not
actions, based on mere suspicion or conjecture. This approach is very subjective and will be a huge
burden as for FNCOs that are seeking to be registered, as well as to the Ministry of Justice itself.
The Ministry of Justice has available to it only those documents submitted for registration.
Certainly, none of the FNCOs will voluntarily confess and show in documents submitted for
registration that it is going to carry out illegal activity. Under such situation, the Ministry of Justice
will find it safer not to register at all, because ‘who knows the intentions of these foreigners’, and
the responsibility is imposed on an officer of the Ministry of Justice. It is the prerogative of law-
enforcement authorities, not of a registering body, to find out and punish illegal activity.
4. Possible limitations on creation and participation in informal associations.
The Draft Law eliminates provisions stating that individuals and legal entities have the right to
create non-registered (informal) NCO, (article 1.2 and 1.5 of the Draft Law). On its own, the
amendment does not prohibit informal groups and associations. The right to freedom of association
is a fundamental human right which cannot be granted or taken away. In compliance with article 13
of the Constitution of the Kyrgyz Republic (article 13): “1. The main freedoms and rights of man
belong to everybody from birth. The freedoms and rights of a man are considered to be in effect
legally. They are recognized as absolute and inalienable, and define the essence and content of
the activity of the legislative and executive branch, as well as local administration bodies, and
are protected by law and court.”
Correspondingly, many countries do not have specific statutory language relating to informal (non-
registered) NCOs, but permit them unconditionally within their constitutional and international
obligations to guarantee the freedom of association. We hope that Kyrgyzstan respects its own
Constitution and international obligations on human rights. Nevertheless the deliberate elimination
of the provision stating the right to create non-registered organizations definitely raises anxiety in
the light of undemocratic amendments to the NCO Law, proposed in the Draft Law. We hope that
absence of a provision on non-registered organizations will not lead to unconstitutional repressions
in relation to informal groups.
5. Restriction and possible prohibition for foreigners to be founders and members of NCOs.
The Draft Law requires foreign citizens and stateless citizens to be physically present within the
Kyrgyz Republic in order to be founders or members of NCOs (article 1.6 of the Draft Law).
This
requirement raises a number of troubling questions. Kyrgyzstan has an obligation under the ICCPR,
article 22, according to which:
“1. Everyone shall have the right to freedom of association with others, including the right
to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the interests of
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
national security or public safety, public order (ordre public), the protection of public health
or morals or the protection of the rights and freedoms of others.”
This kind of limitation for foreigners is proposed to be introduced only in case of creation of NCOs,
not of commercial organizations. This approach openly discriminates not only against foreigners
compared with Kyrgyz citizens, but also against NCOs compared with commercial entities, and is in
contradiction to the norms of international law, as well as international best practices. In the
majority of developed countries, including the Group of Eight nations, the system permits foreigners
to be founders and members of NCOs irrespective of a place of location.
At the very least, this new provision is of a special concern as it will create many problems with its
implementation, and at worst it might result in complete prohibition for foreigners to participate in
NCOs, and severe penalties for Kyrgyz NCOs themselves. The issues with its implementation
include:
· Time frame for “physically present within the Kyrgyz Republic”. It is unclear whether the
requirement of physical presence in Kyrgyzstan only applies to the time frame of the
constituent meeting or the term during which the documents are being processed in the
registration agency or any other set period of time or the whole life span of the organization.
Would this imply that as soon as a foreign founder or organization member has left the
territory of Kyrgyzstan, the NCO in question will have to undergo a new registration or
terminate that person’s status of a founder, member or participant?
· Confirmation of “physical presence”. Will an NCO have to prove to government agencies
that all of its founders, members and participants are physical present in Kyrgyzstan (after
registration, in the process of organization’s activity)? Many public associations have
hundreds of members and will be incapable of confirming the legitimate nature of their
founders’, participants’ and members’ presence in the country.
· Sanctions for violation. In case of any violation of the legislation, an NCO can be liquidated.
If the Draft Law is adopted in the present version, all NCOs with foreign founders and
members can be liquidated or can be liquidated because they left the country or because
NCO is incapable to present to the Ministry of Justice the evidence that a foreigner on legal
grounds is physically present in Kyrgyzstan.
· Consequences for existing NCOs
.
Restrictions for foreigners are bound to create legal
uncertainty for a number of existing NCOs. It is unclear what to do if an NCO’s founders
once legally resided in Kyrgyzstan but then left the country or if an NCO was founded by the
Kyrgyz citizens who later on became foreign nationals.
· The new norm unjustifiably restricts the opportunity for former Kyrgyz citizens who are
residing abroad from participating in public life, and from carrying out charitable activity in
Kyrgyzstan.
The best international practice is a legislation that guarantees and ensures the right to association for
all people, regardless of their citizenship and place of residence.
6. Additional limitations on the types of persons who can be founders and members of NCOs.
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
The Draft Law also contains provisions that limit the rights of individuals and legal entities to be
founders and members of NCO. In paragraph 6 of the article 1 of the Draft Law it is proposed to
supplement the NCO Law with new article 6-1, part 3, as follows:
“3. The following categories of persons cannot be founder (sharer, member) of
noncommercial organization:
o foreign citizen or stateless person in cases and on the grounds provided for by article
7 of the Law of the Kyrgyz Republic “On external migration”;
o individual or legal entity, in cases and on the grounds, provided for by articles 9 and
10 of the Law of the Kyrgyz Republic “On resistance to extremist activity”;
o individual and legal entity, included into the list in compliance with subparagraph 2 of
paragraph 2 of the article 6 of the Law of the Kyrgyz Republic “On resistance to the
terrorism financing and legalization(laundering) of incomes, received by criminal
means”;
o person, kept in the places of imprisonment according to the court’s decision;
o on other grounds, provided for by the legislation of the Kyrgyz Republic.”.
Paragraph 1 of part 3 of the proposed article 6-1 would prohibit foreign citizens to be founders
(members) of NCO, on the grounds, provided for by article 7 of the Law of the Kyrgyz Republic
“On external migration”. As it was earlier mentioned, in compliance with intentional best practice,
the right to create NCO shall be granted irrespective of the place of residence or citizenship of an
individual. Due to this, application of article 7 of the Law of the Kyrgyz Republic “On external
migration” is not relevant, as this article is about rules of entry into Kyrgyz Republic and departure
from Kyrgyz Republic of foreign citizens. The grounds for entry into Kyrgyz Republic and
departure from Kyrgyz Republic are not an appropriate limitation on founders of both commercial
and noncommercial organizations.
Paragraph 2 of part 3 of proposed article 6-1 contains the prohibition for individuals and legal
entities to be founders (members) of NCO, on the grounds, provided for by article 9 and 10 of the
Law of the Kyrgyz Republic “On resistance to extremist activity”. Inclusion into the NCO Law of
the given provision also adds nothing to the current body of law and creates unnecessary confusion.
Articles 9 and 10 of the Law of the Kyrgyz Republic “On resistance to extremist activity” contain
provisions for holding existing public and religious organization responsible for carrying out
extremist activity. The new article 6-2 proposed by the Draft Law lists grounds, prohibiting
individuals to be founders (members) of NCO, i.e., it regulates relations arising during the creation
of an NCO. As regards legal entities, the law prescribes rules for prohibiting the creation and
activity of public associations or religious organizations, other organizations, goals or action of
which are directed at carrying out extremist activity. Repetition of these provisions in the NCO Law
serves no useful purpose.
Paragraph 3 of the part 3 of proposed article 6-1 prohibits individuals and legal entities, included
into the list in compliance with subparagraph 2 of paragraph 2 of the article 6 of the Law of the
Kyrgyz Republic “On resistance to terrorism financing and legalization (laundering) of incomes,
received criminal means” from being founders or members of an NCO. Inclusion into the NCO
Law of the given provision makes no sense. The list referred to is a list of states, not the list of
citizens and legal entities.
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
Paragraph 4 of the part 3 of proposed article 6-1 prohibits from being a founder an individual, kept
in places of imprisonment according to the court’s decision. In international best practice the right
to association (union) with other persons is granted to every person without distinction of any kind,
such as race, color, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. Such international documents as ICCPR, UDHR and European
Convention for the Protection of Human Rights and Fundamental Freedoms do not deny so called
“convicted persons” the right to be founders or members of NCO.
7. Requirement that foreign-based NCOs purchase and maintain insurance.
In paragraph 7 of the article 1 of the Draft Law it is proposed to supplement article 9 of the NCO
Law with a new part 4, which imposes a new requirement that branch or representative office of
foreign noncommercial organization, registered on the territory of the Kyrgyz Republic, is subject to
insurance on the territory of the Kyrgyz Republic in the amount not less than one million soms
during the period of a month from the day of. A key question arises: insurance from what? From
fire in the office or from hijacking of automobile of the branch or from something else? The goals
and meaning of this sentence are not clear. Current NCO Law does not require insurance for local
NCOs. Adoption of this proposed provisions will impose unfair and discriminatory barriers for
foreign NCOs which carry out public benefit activities: to help needy and lonely people of advanced
age, homeless children who are left without parental custody, the disabled etc.
Conclusion
Analysis of the Draft Law shows that proposed amendments to the NCO Law are discriminative;
they limit the rights of NCOs, and individuals and legal entities who are founders and members of
NCOs.
The most troublesome aspects of the proposed amendments to the NCO Law are (1) prohibition
against NCOs to participate in political activity, (2) granting to the Ministry of Justice the overly
broad rights to control NCO, including to suspend their activity and cancel the registration without
court order, (3) broad grounds for rejection of registrations (4) limitations on the rights of people to
form organizations and operate informally without registration; and (5) creating confusion and
redundancy in the legal system by adopting redundant provisions and provisions in the NCO Law
that properly belong in other laws (Tax Code, Law on social services contracting, registration law,
etc).
The proposed amendments contradict the ICCPR, acceded by Kyrgyz Republic3
and other major
sources of international law4
. Even though drafters of the Draft Law refers to the fact that
amendments to the Law are being proposed in the interests of state or public safety, public order,
the protection of public health or morals of the population or the protection of the rights and
3
Kyrgyz Republic acceded to International Covenant on Civil and Political Rights (New York, 1966) on October 7,
1994.
4
Universal Declaration of Human Rights (article 20) (1948), European Convention for the Protection of Human Rights
and Fundamental Freedoms (article 11) (1950), as well as International Covenant on Civil and Political Rights (Article
22) (1966) contain almost the same provisions.
Analysis of proposed amendments to the Law of the Kyrgyz Republic
“On noncommercial organizations”
ICNL
freedoms of others, however, these amendments do not comply with international best practice and
principles of international law.
Adoption of proposed amendments will lead to inevitable applications to the UN Committee on
Human Rights, which will likely embarrass the Kyrgyz Republic before the world community. In a
worst-case scenario, the state will be perceived as having transformed into an undemocratic
country, resulting in refusals by international donors to lend external economic assistance, which is
granted only to the countries with democratic regimes.
ICNL is grateful for the given opportunity to express its commentaries on proposed amendments to
the Law of the Kyrgyz Republic “On noncommercial organizations” and hopes for further
cooperation.