The proposed Code has started being considered by the Legislative and Judicial-Legal Committee of the Majilis, the lower house of
It is also unknown whether Parliament will ask for a legal opinion on the text from the Organisation for Security and Co-operation in Europe (OSCE), to help the text comply with the international human rights standards
Punishments now being handed down
The proposed new Code includes articles which are either identical to, or slightly altered from, articles in the current Code regularly used to punish people peacefully exercising their internationally recognised right to freedom of religion or belief.
The text of the current Article 374-1 of the Code («leadership or participation in the activity of an unregistered social or religious organisation» ) remains unchanged (see below). Zhanna-Tereza Raudovich, a Baptist from Kyzylorda Region, was fined 100 times the minimum monthly wage on 20 January under this Article for hosting a Sunday service in her home.
The text of the current Article 375 of the Code («violation of the Religion Law» ) has been slightly altered to modify some punishments but not the «offence» (see below). Another Baptist, Dmitry Leven from Akmola Region, faces deportation after being found guilty of preaching at a worship service in September 2009, when he was a German citizen. He was punished under Part 3 of this Article («carrying out missionary activity without local registration» ), which prescribes a fine and deportation for foreigners or people without citizenship found guilty under this Article (see F18News 8 February 2010 http://www.forum18.org/Archive.php?article_id=1405).
Government approves proposed Code
The proposed new version of the Code was approved by the Government in a decree of 30 September 2009 and sent to Parliament by Prime Minister Karim Masimov. Parliament initially refused to accept the text as not all the required documents were present (see F18News 5 November 2009 http://www.forum18.org/Archive.php?article_id=1372).
However, the Government added the extra documents and returned it unchanged to Parliament, where it was registered on 21 November 2009, according to the parliamentary website. It was then assigned to the Legislative Committee, which has already distributed the text to other Majilis Committees for their assessments. «The Committees have been given no deadlines to produce their assessments by,» one parliamentary aide told Forum 18 on 8 February. Once the assessments are produced, the proposed new Code will be considered by Temirbulatov’s working group before going for its first reading.
The parliamentary website adds that assessments of the new Code are to be prepared by 30 October 2010.
Proposed new Code recycles current punishments
The Government’s approved text of the proposed new Code, seen by Forum 18, leaves Article 374-1 unchanged, moving it to a new Article 451. The new Article 452 – which is set to replace Article 375 – removes several provisions of the original Article, but much of it remains in tact, including punishment for religious activity without state registration. In several places, new minimum penalties have been introduced alongside maximum penalties.
In addition, the new Code has made a small but potentially significant change of wording to Article 404 (which would replace Article
What the concept of «religious superiority» means – along with the related concepts in the Article – is not defined in the proposed Code.
The new Article 404 would punish those who publish material in the media «directed at inciting social, racial, national, religious, class and clan superiority» , as well as war, the violent overthrow of the constitutional order and breaking up the territorial integrity of the country. Part 1 of the new Article 405 would punish those who produce, import, store or distribute media or other publications advocating such views.
What does «superiority» mean?
Although a ban on advocating «war, social, racial, national, religious, class and clan superiority» is in Article 20 of Kazakhstan’s current 1995 Constitution, the current Administrative Code only punishes incitement to «religious hatred» or «religious conflict» . These concepts are also undefined.
The 1999 Media Law banned the use of the media for any advocacy of «war, social, racial, national, religious, class and clan superiority» . Such advocacy was among the reasons given in Article 13 allowing a media outlet to be banned in court. The Law was amended in 2001 to introduce in Article
It remains unclear – if the Majilis endorses the proposed new punishments in the new Administrative Code – whether individuals who argue that their faith is true and others are false would be subject to punishment under these Articles.
The internationally recognised right to freedom of religion or belief includes the right to criticise any or all religious or non-religious beliefs, and to share with others views on the superiority of a particular religious or non-religious belief over other religious or non-religious beliefs. As General Comment 22 on Article 18 («The right to freedom of thought, conscience and religion» ) of the International Covenant on Civil and Political Rights (ICCPR) states, this freedom: «encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others» . The ICCPR has been signed and ratified by
Criminal Code use of «superiority»
Article 164 Part 1 of the Criminal Code is extraordinarily wide-ranging and criminalises: «Deliberate actions aimed at the incitement of social, national, clan, racial, or religious enmity or antagonism, or at offence to the national honour and dignity, or religious feelings of citizens, as well as propaganda of exclusiveness, superiority, or inferiority of citizens based on their attitude towards religion, or their genetic or racial belonging, if these acts are committed publicly or with the use of the mass information media.»
The remaining parts of this Article specify punishments for this offence. No definitions are offered for the concepts criminalised by Article 164.
This Article was used to convict a Protestant preacher, Sarybai Tanabaev, who was given a two-year suspended sentence in June
It was also used to prosecute Elizaveta Drenicheva, a Russian working as a missionary for the
Long-standing concerns over continuing penalties
Human rights defenders and religious believers have long complained to Forum 18 of the penalties for religious activity in the current Administrative Code and the proposed continuation of them in the new Code, calling for them to be abolished (see F18News 8 October 2009 http://www.forum18.org/Archive.php?article_id=1360).
Expressing concern is Yuri Rudenko, who in January 2009 became the third unregistered Council of Churches Baptist pastor to be jailed for three days for refusing to pay fines for unregistered worship imposed under the Code of Administrative Offences (see F18News 3 February 2009 http://www.forum18.org/Archive.php?article_id=1248).
Asked about the proposed new Code on 8 February, Rudenko told Forum 18 from Taldykurgan [Taldyqorghan]: «What we want is simple: to be left alone to pray to God and to speak to others of God without any obstruction. We don’t want any privileges or any discrimination. But at present we’re treated like law-breakers.» He said that in the 1990s they could worship in
Human rights defenders are also worried. «There are many concerns we have about the proposed new Code – and not only about the punishments for religious activity,» Vera Tkachenko, head of the Legal Policy Research Centre in Almaty, told Forum 18 on 2 February. «The Code is being prepared in some secrecy and there is no open discussion of it.»
«The law is the law»
Ten members of a Baptist congregation in Oral (
An official from the Syrym District Prosecutor’s Office, who would not give his name, refused to discuss the case with Forum 18 on 8 February.
Agzhal Kuzhakhmetov from the local Justice Department, who was also involved in the case, insisted to Forum 18 on 9 February that police detained the Baptists after receiving reports from local people that they were sharing their beliefs. Asked why the authorities detained people for this reason, he responded: «I’m not against people sharing their faith – I’m a religious person myself. But the law is the law. The Religion Law bans missionary activity and distributing religious books. What’s more, they must be registered.»
Kuzakhmetov told Forum 18 that one of the Baptists, Sergei Krasnov, had come to take back the confiscated books the previous day. Baptists confirmed this to Forum 18.
In similar instances between August and October 2009, members of the same group were detained and had literature confiscated during trips to the District to share their faith. Four were fined under Article 374-1 of the Administrative Code, the text of which remains unchanged in the proposed new Code (see F18News 26 October 2009 http://www.forum18.org/Archive.php?article_id=1367).
Muslim denied visa and registration
Meanwhile, Pakistani citizen Tahir Hayat has failed in his attempt to have his visa and registration as a missionary on behalf of the Ahmadi Muslim community in South Kazakhstan Region renewed for another year, the Ahmadi community complained to Forum 18 from Almaty on 8 February. He has been working in
Hayat lodged his application with the Internal Policy Department of the Regional Akimat (administration) on 21 October 2009. However, in a response two days later, seen by Forum 18, Tazagul Aydarova, deputy head of the Department, merely listed the documents required for annual registration of a foreign missionary without explaining why she was not processing Hayat’s application.
On 26 January Hayat again lodged his documents for registration. The Ahmadi community also wrote protests to Ardak Doszhan, the head of the Justice Ministry’s Religious Affairs Committee in Astana, and other state bodies.
«Both departments send us to each other»
Asked on 8 February about the refusal to grant Hayat’s one year missionary registration, Aydarova of the West Kazakhstan Internal Policy Department insisted that Forum 18 was «not properly informed» about the case. She said that on 4 February his missionary registration had been extended «as long as his visa is valid». «So he can continue to conduct his activity until then», she added, before saying she had to end the call because of a meeting.
However, the Ahmadi community told Forum 18 that registration was extended only until 27 February. «This is the problem. The Migration Police says that a permit is needed from the Akimat to extend the visa, while the Akimat says a visa is needed to extend the permit.» Both his visa and registration now expire on the same day. «Both departments send us to each other and no one wants to resolve this problem», the Ahmadis complained.
The Ahmadi community told Forum 18 this is the first time one of their foreign missionaries has been denied registration and a visa to work in
Forum 18 News Service
Published on February 10, 2010