From the History of the Bureau: 2007 – Legal Assessment

HUMAN RIGHTS RESPONSE TO THE OBSCURANT GREETING

On February 9, 2007, the item GREETINGS FROM NINETEEN HUNDRED NOISY YEAR! was posted on our website, which talked about the unscheduled audit of the activities of the South Kazakhstan Regional Branch of KIBHR and the Adilet Human Rights Center, conducted in January of this year by the Department for Combating Economic and Corruption Crime for South Kazakhstan Region.

An anonymous letter (more precisely, it had a signature, but non-specific: “residents of the city of Shymkent”), in which the human rights activists were accused of having their activities financed “ by the USA, supposedly to help build a democratic society in the Republic of Kazakhstan”, served as the grounds for this audit. The adversative “supposedly” is substantiated in the letter by a mind-boggling ideological argument, according to which “we, citizens of the Republic of Kazakhstan, as true patriots of our country, know that the USA always pursues its dishonest interests in any country”.

After checking these accusations, not so much economic as openly political, the leadership of the South Kazakhstan DBEPK issued a resolution on refusal to initiate a criminal case. It would seem to be the fitting end – the sought after crown to an uninitiated case. However, the case was by no means private and not local to Shymkent, since such “audits on the roads”, meaning based on reports to the authorities, are a phenomenon that is far from isolated in the country. In this regard, the human rights activists are asking a number of questions of the national leadership of the South Kazakhstan auditing authorities.

We give the text of the appeal sent to the addressee on February 8 of this year.

To Sarybay KALMURZAYEV,
Chairman of the Agency for Combating Economic and Corruption Crimes,

from Evgeny ZHOVTIS,
Director of the Kazakhstan International Bureau for Human Rights and Rule of Law

APPEAL

The public association Kazakhstan International Bureau for Human Rights and Rule of Law is appealing to you with a request to assess the legality of the actions of the staff of the DBEKP for South Kazakhstan Region.

On January 9, 2007, Finance Police Major N. Bayzhan, an inspector of the Special Directorate of the DBEKP for South Kazakhstan Region arrived at the office of the director of the South Kazakhstan Branch of the public association Kazakhstan International Bureau for Human Rights and Rule of Law and served an order of January 12, 2007, on scheduling a document audit. The grounds for issuing the order was an anonymous letter received by the DBEKP for South Kazakhstan Region.

On January 12, 2007, a resolution was issued on refusal to initiate a criminal case.

1. According to the requirements of Article 4 of Republic of Kazakhstan Presidential Decree No., 2340 of June 19, 1995, “On the Procedure for Considering Appeals from Citizens”, having force of law, anonymous appeals in which a full name is not indicated, which have no signature or data about place of residence, work or study – are not subject to consideration. In violation of the law, the leadership of the DBEKP for South Kazakhstan Region accepted this appeal and registered it both in the incoming Documentation Log Book (No. D-1-149 of January 8, 2007) and in Statement Log Book (No. 17 of January 9, 2007). Inspector N. Bayzhan needed three days to clarify this and such an obvious circumstance, which is apparent from the resolution on the refusal to initiate a criminal case.

2. Finance Police Major N. Bayzhan, an inspector of the Special Directorate of the DBEKP for South Kazakhstan Region, having reviewed this anonymous appeal, issued an order to perform an audit “at the Bureau for Human Rights public association, headed by Rezeda Iskenderovna Glushchenko, on the question of financing and targeted use of monetary funds”.

A) Major N. Bayzhan thereby committed actions stipulated by Article 153 of the RK Code of Administrative Offenses, namely violation of the procedure for conducting audits, as well as unwarranted scheduling of audits and performing an audit without issuing a special act and registering it at the authorized body.

B) In accordance with Order No. 142 of the Chairman of the RK Finance Police Agency of November 20, 2002, “On Regulating Audit Actions, Registration of Orders and Conduct of Measures”, such actions are required to be done in accordance with the Rules “On the Procedure for Submitting and Registering Primary Accounting Documents of All Audits of the Activities of Economic Entities”, approved by Order No. 142 of the Republic of Kazakhstan Prosecutor General’s Office of April 25, 2002.

What is more, conducting measures with respect to business entities in the absence of reliable information about existing violations and also resulting in the infringement of their legal rights and interests entails strict disciplinary and other liability of officials of financial police authorities as specified by legislative acts. This provision, naturally, also pertains to other legal entities – subjects of civil and administrative legal relations.

C) Registration of acts on scheduling audits of the activities of an economic entity (hereinafter – act on scheduling an audit) is accomplished by the corresponding territorial bodies of the Committee for Legal Statistics and Special Records of the Prosecutor General’s Office of the Republic of Kazakhstan (hereinafter – authorized body). However Major N. Bayzhan did not do this, despite the fact that all state bodies accomplishing control and supervision functions with respect to economic entities are subjects of this record.

D) Furthermore, pursuant to the aforementioned Rules “On the Procedure for Submitting and Registering Primary Accounting Documents of All Audits of the Activities of Economic Entities”, approved by Order No. 27 of the General Prosecutor’s Office of the Republic of Kazakhstan of April 25, 2002, conducting an “audit on an appeal” is considered an unscheduled audit conducted on an appeal (statement, complaint, report), except for an anonymous one received at the controlling body regarding the activities of an economic entity. Thus, conducting an audit on an anonymous appeal is not provided for at all.

E) In violation of the requirements of these same Rules, the DBEKP for South Kazakhstan Region, after issuing the order scheduling the audit, did not compile a audit record card of the activities of economic entities, Form No. 1-P. The order scheduling the audit and the Form 1-P card were not submitted prior to starting the audit for registration at the authorized body for the location of the entity being audited or for the location of business activities. This is evidence by the lack of a stamp on registration of the audit schedule act on the order scheduling the audit itself.

F) In violation of paragraph 11 of the Rules, the order scheduling the audit lacks a registration number of the audit schedule act according to the log book of the DBEKP for South Kazakhstan Region, which indicates that it was not registered appropriately and incorrectly indicated that name of the entity to be audited. R.I. Glushchenko is director of the South Kazakhstan Branch of the public association KBIHR and not head of the Bureau for Human Rights, as indicated in the order scheduling the audit, which was established by Major N. Bayzhan three days later and reflected in the resolution on refusal to initiate a criminal case.

3. Pursuant to Article 185 of the RK Criminal Procedure Code and articles 3 and 9 of the RK Criminal Code, the decision to refuse to initiate a criminal case is made in the event of receiving a statement about a crime, i.e., about a publicly dangerous act, prohibited by the Criminal Code. However, the anonymous appeal does not contain any data indicating the signs of a crime. Especially since it does not contain “facts of illegal financing”, as is reflected in the resolution on refusing to initiate a criminal case. What is more, the refusal to initiate a criminal case does not indicate under what specific article of the RK Criminal Code it refused to initiate a criminal case.

In connection with the aforementioned, we are asking you to check the legality of such actions by the staff and leadership of the DBEKP for South Kazakhstan Region, and if the facts set forth in this appeal are confirmed, take the corresponding measures in accordance with the laws of the Republic of Kazakhstan on administrative offenses.

Attachments:

1. Copy of the anonymous appeal under the signature of “the residents of the city of Shymkent”.

2. Copy of the order scheduling the audit.

3. Copy of the resolution on refusal to initiate a criminal case.

(Article is on the KIBHR  website and at the internet portal KUB.kz on February 13, 2007

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