12
June
2023
We,
the undersigned human rights groups, call on the members of
parliament in Kyrgyzstan to reject the dangerous and ill-conceived
draft law on non-commercial organisations, which is currently under
consideration in parliament. This draft law, which draws heavily on
corresponding Russian legislation and is primarily aimed at
stigmatising and restricting the activities of foreign-funded
organisations, poses a direct and serious threat to Kyrgyzstan’s
vibrant civil society, in particular human rights defenders and their
organisations. If adopted, the draft law risks reversing previous
achievements with respect to civil society development in the country
and eroding the crucial role played by nongovernmental groups in
promoting human rights, assisting those in need and implementing
other activities in support of the public good. We urge Kyrgyzstan’s
international partners to speak out against this repressive
legislative initiative, making it clear that its adoption would be at
odds with Kyrgyzstan’s international human rights commitments and
would negatively affect mutual cooperation and assistance programmes.
A
set of amendments to existing legislation regulating non-commercial
organisations was
officially
submitted
to
Kyrgyzstan’s parliament by a group of 33 members of the law-making
body on 19 May 2023. This legislative initiative is an updated
version of a draft law first put
forward by one of the parliamentary deputies in November 2022.
Most of the proposed provisions are identical to those of the draft
‘’foreign agents’’ law, which was
initiated
by
members of Kyrgyzstan’s parliament in 2013, but eventually voted
down by the law-making body in 2016. This time, however, given the
wide support for the re-initiated draft law in parliament, civil
society representatives fear that there is a serious risk that it
will be adopted, possibly even through an expedited procedure. The
consideration of the draft law has already begun in parliament and it
might be voted on already this month. The law will enter into force
if passed by parliament in three readings and thereafter signed by
the president.
While
the current draft law does not use the term "foreign agents",
it proposes introducing another stigmatising label for non-profit
groups that receive financial assistance from foreign governments,
international and foreign organisations, foreign citizens or other
foreign sources. Should the draft law be passed, such groups would be
required to register as "performing the function of a foreign
representative" if they are considered to engage in "political
activities", a term that is broadly defined as including activities
to "influence decision-making of state bodies" with the aim
of "changing public policies pursued by these
bodies",
as well as activities to "shape public opinion" for similar
purposes. If a group fails to register, the Ministry of Justice could
suspend its activities for up to six months without a court decision.
At
the same time, the draft law introduces new burdensome reporting
obligations for organisations registered as "foreign
representatives" and allows the Ministry of Justice to conduct
both planned and unplanned inspections of their activities, e.g., on
the basis of unspecified information indicating that they have
violated national legislation.
If
adopted, the draft law would enable the authorities to arbitrarily
discredit and obstruct the work of foreign-funded civil society
organisations. Because of the vague and ambiguous language used,
virtually any activities carried out by human rights organisations
and other nongovernmental groups could be construed as "political
activities". For example, civil society initiatives to promote
awareness on issues of public interest, advocate for improved
protection of the rights of vulnerable groups of the population or
demand action to address social or environmental problems could be
deemed to fall within the scope of the law. As a result, hundreds of
human rights organisations and other groups could be faced with the
difficult choice of either having to register as "foreign
representatives" or ceasing their operations to avoid the
restrictions and reputational damage that this status would entail.
We
are concerned that the draft law is based on the faulty premise that
human rights and other nonprofit groups seeking to influence public
decision-making and public opinion on issues of concern to them and
their target communities are engaged in undesirable "political
meddling". In reality, such activities are a core function of
civil society organisations. It is also disturbing that the draft law
equates the receipt of foreign funding with representing foreign
interests and treats foreign funding of non-profit organisations as a
potential security threat for this reason. This is a serious
misperception. Human rights and other nongovernmental organisations
make independent decisions about their operations, irrespective of
their sources of funding, and carry out activities based on the needs
of their target communities.
The
ability to seek and receive resources from both domestic and foreign
sources is an integral and vital part of the right to freedom of
association, as
emphasised
by
the United Nations Special Rapporteur on the Rights to Freedom
of Peaceful Assembly and of Association. Currently
most human rights and other nongovernmental groups in Kyrgyzstan
depend on foreign funding due to the lack of national funding
opportunities. All nonprofit organisations, including foreign-funded
ones are already subjected to extensive state oversight and regularly
report about their activities and finances to different state bodies.
As pointed out by civil society representatives state bodies and
commercial organisations are also large recipients of foreign
assistance in Kyrgyzstan - a fact not considered problematic by
decision-makers.
As
the draft law is largely copied from the original 2012 Russian
"foreign agents" law, law-makers should take note of
developments in Russia in the past decade, which provide an alarming
example of the devastating impact of this type of legislation. Since
that law was first adopted, the Russian authorities have
systematically used it to discredit, harass and silence
nongovernmental groups as part of an ever-widening crackdown on civil
society in which hundreds of human rights and other groups have been
designated as ‘’foreign agents’’ and dozens have been forced
to close down. The Russian law has been gradually
expanded
to
apply not only to nongovernmental organisations, but also to media,
and individual human rights defenders, lawyers and journalists
accused of carrying out "political activities" with foreign
funding, thereby rendering it a tool for suppressing any public
criticism of state policies and social problems.
In
addition to creating a stigmatising regime for controlling
foreign-funded organisations, the draft law now under consideration
in Kyrgyzstan also provides for excessive, unjustified and
discriminatory restrictions on the operation of all non-profit
organisations. In particular, the draft law grants the Ministry of
Justice broad powers to oversee and interfere in the activities of
non-profit groups by requesting access to their internal documents,
sending representatives to attend their internal events and assessing
whether they
comply
with their own statutes. The Ministry would be able to issue written
warnings to non-profit organisations, ordering them to rectify
alleged violations and to de-register branches of foreign non-profit
organisations, which are deemed to have failed to provide required
information in a timely manner or to have acted contrary to stated
objectives.
The
draft law also foresees criminal liability for establishing, leading
and participating in a non-commercial organisation whose activities
are considered to "harm the health of citizens" or to
"impel citizens to refuse to fulfil civic obligations or to
commit other unlawful acts."
The
penalties for these vaguely worded offences would include large fines
or imprisonment for up to ten years –
an even stiffer penalty than the one foreseen in the article of the
Russian Criminal Code on which these provisions are based.
The
draft law falls seriously short of Kyrgyzstan’s international human
rights obligations, in particular the International Covenant on Civil
and Political Rights (ICCPR), article 22 of which protects the right
to freedom of association. Several independent legal analyses of the
draft law carried out by civil society organisations such as the
International
Center for Not-for-Profit Law (ICNL),
Adilet
Legal Clinic
and Bir
Duino Human Rights Movement
have
highlighted the inconsistency of the draft law with applicable human
rights standards. In an interim
opinion
published
in December 2022, the Office for Democratic Institutions and Human
Rights (ODIHR) of the Organisation for Security and Cooperation in
Europe (OSCE) concluded that the provisions of the draft law (which
at that time had been submitted for public discussion by one member
of parliament) do not comply with the right to freedom of
association. In particular, ODIHR stressed that the definition of
“foreign representatives” set out in the draft law does not meet
requirements of legal certainty and foreseeability and would allow
unfettered discretion on the part of the implementing authorities.
ODIHR also warned that the law could potentially not only stigmatise
but also trigger mistrust, fear and hostility against civil society
organisations.
When
reviewing Kyrgyzstan’s compliance with the ICCPR in October 2022,
the UN Human Rights Committee
criticised
the
earlier attempts of members of parliament to adopt ’’foreign
agents’’ style legislation and called on the authorities to
ensure that legislation governing nongovernmental groups "does
not lead in practice to undue control over or interference in the
activities of NGOs". As a state party to the ICCPR,
Kyrgyzstan is obliged to comply with the covenant and implement the
recommendations of the Human Rights Committee. In addition,
Kyrgyzstan is
required
to
effectively implement its commitments under the ICCPR as a
beneficiary of the Generalised Scheme of Preferences Plus (GSP+),
under which it enjoys generous trade preferences with the EU.
The
draft law further contradicts pledges made
by the government of Kyrgyzstan prior to its election as a member of
the UN Human Rights Council for the period 2023-2025. As part of its
membership bid, the government specifically undertook to enhance the
capacity of civil society in the country.
Our
concerns about the draft law initiated by members of parliament are
reinforced by the fact that it comes in the context of a
worsening
climate
for
free speech and civic engagement in Kyrgyzstan. Recent months have
seen several other legislative initiatives aimed at restricting the
exercise of fundamental freedoms and stepping up control over civil
society, including
another
draft law
on
non-commercial organisations elaborated by the presidential
administration in autumn 2022. Following widespread criticism, that
draft law is now being revised by a working group including both
government and civil society representatives but we fear that it
could also still result in excessive restrictions on the right to
freedom of association.
Against
this background, we call on the authorities of Kyrgyzstan to ensure
that any legislative initiatives affecting human rights and other
non-profit organisations fully correspond to
international
standards and are elaborated in close consultation with civil society
representatives and international experts. The draft law on
non-commercial organisations registered in parliament on 19 May 2023
has no place in a country aspiring to be part of the democratic
community and must be scrapped in its current format. We welcome the
fact that several members of parliament who were among the initiators
of the draft law have now
withdrawn
their
support for it and urge others to follow suit. The European Union,
its member states, the European Free Trade
Association (EFTA) countries and other international
partners of Kyrgyzstan should use all available avenues to voice
concerns about the flawed draft law and to insist that the
authorities of the country allow human rights defenders and their
organisations, as well as other nongovernmental groups to carry out
their legitimate and important work without undue interference or
harassment.
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