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Dear President Bakiev,  

I am writing to welcome yesterday's statement by your secretariat recommending that parliament postpone its hearing of draft amendments to laws regulating nongovernmental organizations (NGOs) and to urge you to ensure that any new law or regulation on NGOs conforms with the Kyrgyz Republic's international human rights obligations on freedom of association.  

Article 22 of the International Covenant on Civil and Political Rights (ICCPR), to which Kyrgyzstan is a party, states that everyone has the right to freedom of association. The only permissible restrictions to this right are those that are "prescribed by law and are necessary in a democratic society in the interests of 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."

Any state has the right to regulate, and even set restrictions on, NGOs, but it can do so only in pursuit of a legitimate aim, if it is considered necessary in a democratic society, and then in a manner which is non-discriminatory and proportionate to the aim being pursued. Any restrictions must also be sufficiently clear so that those subject to them can reasonably know how to comply.

We hope you will ensure that forthcoming draft amendments do not include provisions currently in the draft amendments, submitted to the parliament on February 18, 2009, that do not meet these tests. As drafted, the proposed amendments-- to the 2000 law "On noncommercial organizations" and the 1996 law "On state registration of legal entities"-- would unreasonably restrict freedom of expression and association enshrined in the Constitution of the Kyrgyz Republic and in international law. They would also create onerous administrative and financial obstacles hindering the free operation of local and foreign non-governmental organizations (NGOs), primarily by granting state officials excessive powers to interfere in the founding and operation of local and foreign NGOs. These include provisions that would:  

  • Allow the Ministry of Justice to reject registration applications of foreign NGOs if the organization's goals and activities "are a threat to the sovereignty, political independence, territorial integrity, national unity and originality, cultural heritage and national interest of the Kyrgyz Republic" (article 9-1). This broad and vague provision conflicts with international standards and opens the door for arbitrary interpretation.
  • Impose onerous reporting requirements on NGOs, especially relating to any foreign sources of funding to an as yet unspecified "authorized state body in the area of finance" (article 17-2). In addition "NGOs annually must inform the public via the media about their activities, programs for public benefit [obshchestvenno poleznykh] and government contracts [sotsialny zakaz] they have implemented, amount and sources of funding, property, expenses, staff, and gratuitous work" (article 17-3). This was one of several provisions of the draft amendments that, according to the International Center for Not-For -Profit Law-an expert organization that promotes a legal environment conducive to civil society and public accountability-would create a regulatory regime harsher for NGOs than for commercial organizations. For example, repeated failure to submit tax returns under the Kyrgyz tax code is punishable by fines levied against a commercial legal entity or its management, while the same failure by an NGO might result in a liquidation proceeding.
  • Forbid NGOs to engage in "political activities and activities related to the election process or referendums" (article 4). This overly broad restriction is at variance with democratic standards. While many countries reasonably restrict direct support for political candidates by NGOs, such partisan involvement differs from other election-related activities, such as election monitoring or awareness raising campaigns for young voters, or simple awareness raising of social justice issues relevant to an electoral process, all of which are nonpartisan activities and promote public participation and government accountability; they should not be subjected to the same restrictions as partisan activities.
  • Allow state officials to conduct intrusive inspections of NGOs on an annual basis and to participate in all events and meetings of an NGO (article 15-1).
  • Empower the Ministry of Justice to issue warnings to NGOs "if they violate the laws of the Kyrgyz Republic" or "are at variance with the organizations' goals and tasks" (article 15-3) and to temporarily suspend the activity of an NGO "until the violation is eliminated" (article 15-4). This would give the Ministry of Justice discretionary authority to determine what is lawful and also to temporarily close an NGO. Although the draft amendments provide a mechanism for appealing such warnings and suspension, they would nonetheless end up forcing NGOs to spend overwhelming time and resources on their own defense rather than on substantive work.
  • Authorize the Ministry of Justice to petition a court for dissolution of an organization that has "repeatedly violated the laws of the Kyrgyz Republic or the goals and tasks from its statue" (article 15-5). This provision contradicts international best practices that set out in national legislation graduated sanctions for NGO infractions that would precede dissolution.
  • Taken together, these proposed amendments would create burdensome bureaucratic requirements for NGOs, narrow the space for civil society, and undermine NGOs' ability to facilitate checks on government conduct.  The burdens would be acutely felt by smaller NGOs, which would have fewer resources to fulfill this and other reporting requirements and therefore fewer resources to focus on substantive work. When viewed in the context of a worsening climate for human rights that has developed in Kyrgyzstan, the proposed amendments seem intended to stifle Kyrgyzstan's vibrant civil society. As your secretariat's statement rightly pointed out, this would "damage Kyrgyzstan's image as a country that respects democratic standards."

***

Human Rights Watch is especially concerned about the draft amendments as they followed a number of setbacks in human rights in the past year.  In 2008, local and international human rights NGOs, including Citizens against Corruption, Kylym Shamy, Labrys, Mir-Svet-Kultura, and the Norwegian Helsinki Committee have been targeted for harassing police inspections and searches of their offices.

In August 2008 amendments to the 2002 law on freedom of assembly essentially established a licensing regime for public assemblies and limit possibilities for timely and spontaneous protests. The amended law requires assembly organizers to notify local authorities 12 days in advance of any planned event, regardless of the size, does not enumerate grounds for "reasonable disagreement" by the authorities, and allows provincial governors excessive powers to interfere with the planning of public assemblies.  The amendments appear to run afoul of a July 2008 Constitutional Court ruling restating that any licensing regime for public assemblies is unconstitutional.

Kyrgyzstan has a lively media community, but there were notable setbacks in 2008. Amendments to the press law adopted in June 2008 empower the president to appoint the executive director of state-run television and radio, reversing previous initiatives to turn them into public broadcasters. Two opposition newspapers, Alibi and De Facto faced lawsuits and finally stopped publishing in 2008.

Human Rights Watch calls upon you to reject any arbitrary limitations on the work of independent civil society groups and instead empower NGOs to enhance the prominent and constructive role they have played in Kyrgyz public life. We urge you to ensure that any new law or regulation on NGOs conforms with the Kyrgyz Republic's international human rights obligations on freedom of association.  We also urge you to encourage the parliament to send any future draft amendments on the NGO law to the ODIHR and the Council of Europe's Venice Commission for review and comments and to include these comments in the review of the current legislation. We also hope you will ensure, as your statement indicated, that Kyrgyz NGOs have the opportunity to provide input to the draft amendments and that their recommendations will be given due consideration.

I thank you for your attention to the concerns in this letter.

Sincerely,                      

Holly Cartner

Executive Director

Europe and Central Asia Division

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