International law and its connection with national legislation

Legally binding international agreements ratified by the Kyrgyz Republic and commonly accepted principles and standards of international law are an integral part of the Kyrgyz legislation (Art. 12 Part 3 of the Constitution). International agreements on human rights and freedoms are to be ratified by the Kyrgyz Parliament in the form of a law signed by the President. (Art. 11 Para. 9 Item 1 and Art. 13 Item 1 of the Law “On International Treaties of the Kyrgyz Republic” as of June 27, 2002)

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International law and its connection with national legislation

Legally binding international agreements ratified by the Kyrgyz Republic and commonly accepted principles and standards of international law are an integral part of the Kyrgyz legislation (Art. 12 Part 3 of the Constitution). International agreements on human rights and freedoms are to be ratified by the Kyrgyz Parliament in the form of a law signed by the President. (Art. 11 Para. 9 Item 1 and Art. 13 Item 1 of the Law “On International Treaties of the Kyrgyz Republic” as of June 27, 2002)

To eliminate all discrepancies between the standards of international agreements and national legislation, appropriate public bodies prepare draft government regulations to be reviewed either by the President or the Government. (Art. 18 of the Law)  Accepting an agreement requiring constitutional revisions becomes possible only after appropriate amendments are made in the Constitution. (Art. 19 of the Law)

FREEDOM OF ASSEMBLY

Legal framework

Kyrgyz citizen have a right to assemble peacefully and to hold meetings, marches, demonstrations, and pickets without weapons upon prior notification of local executive authorities or local self-governance bodies. (Art. 16 Part 14 of the Constitution)  In 2002 Kyrgyzstan adopted the Law “On Citizens’ Right to Assemble Peacefully and without Weapons and to Hold Free Meetings and Demonstrations.”  According to the law, in order to assemble demonstrators required a permission, which could be granted by local public administration or self-governance offices.

Dealing with the matter of peaceable assemblies, the new Constitution amended in 2003 demands that local public administration offices or self-governance bodies be notified prior to the meeting.  Having reviewed a number of petitions, the Constitutional Court repealed those articles of the Law that demanded notifications prior to the assembly (Decision of the Constitutional Court as of October 14, 2004). Consequently, this has also repealed any reason for prohibiting assemblies, notification requirements, and requirements for authority decisions.

Preventing the mass actions the Government initiated a draft law on amendments to the law on assemblies (Decree of the Kyrgyz Government No.851 dated November 23, 2004).  The Bishkek City Council (Kenesh) of Deputies adopted a new decree titled On the Public and Political Situation in the City of Bishkek (approved by the Bishkek City Council of Deputies on January 22, 2005).  Exceeding its authority under the law the Council set up requirements for notification including the term of preliminary submission. It was also recommended to limit conducting assemblies within a small square located far off the administrative buildings.  Catching at an excuse of protection of human rights the decree prescribed to reinforce the steps to secure the public order, traffic regulations as well as to ban the assemblies in case of inobservance of [non-existent] order of conduction of public events.

Yet a Regulation on organizing and holding assemblies, meetings, marches, and demonstrations in Bishkek adopted by the Bishkek Municipality is still effective in the capital. (Resolution 30 as amended on April 21, 2000) Inconsistent with the Constitution and the Law, this regulation demands that a written request be submitted to the district public administration office.  This request should have a letter enclosed therewith ensuring the payment for untoward service and work relating to assemblies, meetings, marches, or demonstrations performed by the municipal and district authorities (Clause 7 Para. 3 of the Regulation ).

Types of assemblies defined and protected in domestic law

The Law talks about different types of public activities, including campaigns, assemblies, meetings, demonstrations, manifestations, marches, pickets, and hunger strikes. (Art. 2 of the Law) Manifestations, marches, and pickets pertain to demonstrations that can be held in other forms.  Definitions of various types of assemblies do not contain any distinctive features which would allow to distinguish them between one another.  Generally, all types of assemblies are defined as a campaign held by a person or a group in order to discuss some issues of public interest, to draw attention, and to express your opinion, dissent, or support of other people.

The Law also talks about sports and other spectacular public activities that – along with other assemblies – may not be held during the state of emergency or martial law.  The Law says nothing about meetings held by workers or staff members, trade unions, and organizations inside their facilities or elsewhere if coordinated with the owner of a place.  Likewise, the Law does not cover those activities that are provided for by the national legislation, without enumerating such activities.

Oftentimes, people in Bishkek hold various mass activities, such as holidays, performances, religious rituals, funerals, mourning assemblies, etc.  The Law does not mention such activities, but they fall into the definition of a “campaign,” which is defined as an activity with some certain purpose.  In other words, the Law does not distinguish between peaceable assemblies and other public activities as a special form of expression.

Possible limitations/restrictions/conditions, including requirements for notification

The Constitution and other laws impose limitations in exercising civil rights and freedoms in order to respect the rights and freedoms of other persons, to maintain public security, order, and territorial integrity, and to protect the constitutional regime.  At the same time, the essence of constitutional rights and freedoms may not be damaged. (Art. 17 Part 2 of the Constitution)  The Constitution does not define concrete conditions and the range of restrictions of each particular right and freedom.  According to the International Covenant on Civil and Political Rights, limitations upon the right to peaceful assemblies are to be imposed in compliance with the law and are necessary in a democratic society in the interests of state and public security, order, health protection, and population’s morality or protecting the right and freedoms of other people. (The Kyrgyz Republic ratified the Covenant on January 7, 1995)

The Constitution says that exercising the rights and freedoms by one person must not violate the rights and freedoms of people. (Art. 16 Part 21 of the Constitution) In particular, any campaign that may sparkle social, racial, interethnic, and religious hatred and enmity is forbidden.  It is not allowed to propagate social, racial, ethnic, religious, or language supremacy. (Art. 16 Part 9 Para. 3 of the Constitution)  Likewise, it is not allowed to use human rights and freedoms to change the constitutional regime by violence, to sparkle racial, interethnic, social, or religious hatred, and to propagate violence and war. (Art. 16 Part 22 of the Constitution)

The Law “On Citizens’ Right to Assemble Peacefully and without Weapons and to Hold Free Meetings and Demonstrations” repeats the Constitution in talking about limitations in exercising your rights and freedoms imposed by the Constitution and other laws in order to respect the rights and freedoms of other people, to maintain public security, and to protect the constitutional regime. (Art. 2 Para. 2 of the Law)

Ensured by the Constitution, the right to peaceful assemblies is conditioned by prior notification of local executive authorities or self-governance bodies. (Art. 16 Part 14 of the Constitution)  At the same time, the Law stipulates that the citizenry have a right to assemble peacefully and without weapons and to hold meetings and demonstrations without notifying the appropriate authorities.  Such is the procedure for conducting various activities at the territories of common use or other open space under public or state ownership, without violating the rights and freedoms of other people, or if coordinated with the owner of closed facilities, or at some other territory owned by natural and juridical persons. (Art. 3 of the Law) Significant violations of other people’s rights who do not participate in the event take place when they are not able to exercise their legal rights elsewhere at some other time or by other means. (Art. 2 Para. 11 of the Law)

Despite the provisions of the Law on assemblies the local self-government set a 10-day term for preliminary notification on the assemblies.  The notification has to provide the title or names of organizer(s) of assembly, legal entities or individuals, address, place of work or study, route, date and time of the event, approximate number of participants (Item 3 of the Decree of the Bishkek City Council of Deputies dated January 11, 2005).

Meeting and demonstrations, as well as sports and other spectacular mass events may not be held during the state of emergency or martial law. (Art. 4 of the Law)  According to the Constitution, state of emergency may be announced only in case of natural calamities, a direct menace to the constitutional regime, mass riots connected with violence and threats to human life, and other circumstances and within time stipulated by the constitutional law. (Art. 10 Part 1 of the Constitution)  The Constitutional Law of the Kyrgyz Republic “On Emergencies” (adopted in October 24, 1998) says that depending on circumstances the authorities may also take such an emergency measure as banning all meetings, marches, demonstrations, and pickets as well as sports and other spectacular mass activities. (Art. 22 Part 6 of the Law)

Place, route and time of assemblies

Since the Constitutional Court repealed Articles 5, 6 and 7 of the Law “On Citizens’ Right to Assemble Peacefully and without Weapons and to Hold Free Meetings and Demonstrations,” the time and route of assemblies is, at the present time, not legally regulated.  The repealed articles stipulated that a written request should have mentioned the date, time, and place of an assembly, as well as the number of participants and their route. (Art. 6 Part 2 Item 2 of the Law) The Bishkek Council’s Decree recommends conducting assemblies on the small square before the monument of Maksim Gorky (Item 4 of the Decree) located far off the administrative buildings and it limits regulations of the Law.

Also, the canceled articles of the Law stipulated the place of an assembly, which should have been located at least 100 meters away from educational institutions, pre-school facilities, and hospitals.  Otherwise, such assemblies could have been denied. (Art. 5 Part 2 Item 4 of the Law)  The authorities could have also prohibited an assembly if that required closing up public transportation routes, or if its routes and schedule could not be changed. (Art. 5 Part 2 Item 3 of the Law)  The same applied to obstructing roads leading to apartment houses, places of work or study, and other public objects with no roundabout and detour roads. (Art. 5 Part 2 Item 2 of the Law)

Power to ban assemblies

Assemblies should be terminated on demand of local public authorities or self-governance bodies in case of the following:

- if either organizers or participants breach the Law regulating public assemblies;

- if there is an evident threat to people’s life, health, and security, or the property of natural and juridical persons;

- if demonstrators call for changing the constitutional regime by violent means.

In case demonstrators do not terminate their assembly on demand, a representative of local public administration or self-governance bodies and militia officers should take measures to terminate the event and to thoroughly document all violations. (Art. 8 Part 2 of the Law)

To terminate mass activities, the Law allows the use of force and specific measures in the following cases only (Art. 8 Part 3 of the Law):

- if demonstrators commit violence against the militia who are there to maintain order;

- to prevent demonstrators from disrupting public order or engaging in mass riots and other actions disrupting traffic, communication, and the work of organizations; to release occupied buildings, facilities, or constructions and seized transport vehicles and land.

Requirements for organizers, their rights and duties (including liability and penalties)

Those organizing assemblies, meetings, and demonstrations are people who represent political parties, or public, trade union and other organizations and citizens and act to prepare the abovementioned activities, directly guiding their participants. (Art. 2 Para. 13 of the Law)

The Constitution orders to notify local executive authorities or self-governance bodies prior to the event.  The Law on assemblies allows those organizing such events to notify, at their discretion, either local executive authorities or local self-governance bodies.  The Law does not stipulate any timeline for submitting such notifications and does not make any requirements regarding the form or content thereof.  In contrast to the whole country only organizers in the capital city of Bishkek have a 10-day term for preliminary notification on assemblies (Item 3 of the Decree).

Mass activities held in Bishkek under the auspices of public or local self-governance bodies are oftentimes connected with closing transport routs, including main streets with heavy traffic, fencing in a certain territories for people to walk, and posting militia officers.  The Law does not obligate the appropriate authorities to inform the public of such limitations in proper time.  There is no procedure that would render the status of organizers representing the authorities and others equal.

In case of some material or other damage occurring during public events, violators are held responsible in compliance with the law with indemnifying for the damage. (Art. 11 Part 2 of the Law)

The Kyrgyz Code “On Administrative Liability” (as amended on August 2, 2004) provides for liability for breaking the established order of organizing and holding assemblies, meetings, marches, and demonstrations. (Art. 392 of the Code) Those violating the law have to pay an administrative fine of ten to twenty minimum wages.  Since January 1, 1998, the minimum wage has been 100 soms. (President’s Edict 339 “On Minimum Wages and Payment Terms Regulation” as of December 24, 1997)  The organizers of assemblies in Bishkek are prosecuted mainly for the lack of the preliminarily submitted notifications on the assemblies or inobservance the traffic regulations.

Requirements for participants, their rights and duties (including liability and penalties)

Participants of assemblies, meetings, or demonstrations are people representing organizations and institutions regardless of their organization and legal form and type of ownership, as well as citizens taking part in a public event.  The Law also relegates people preparing and holding an assembly to its participants. (Art. 2 Para. 12 of the Law)

The Law does not enumerate the rights and duties of those participating in a public event.  Assembly participants are entitled to all rights and freedoms ensured by the Constitution and ratified by international agreements on human rights.   Assembly participants are not allowed to call for changing the constitutional regime by violent means, (Art. 8 Part 1 Item 3 of the Law) or to propagate and to sparkle racial, social, ethnic, and religious hatred and animosity, violence and war.(Art. 16 Part 9 Para. 3 and Art. 16 Part 22 of the Constitution)

Participants must not commit violence against militia officers who are there to maintain order, disrupt public order, engage in mass riots, commit actions disrupting traffic, communication, work of organizations and establishments, or seize buildings, constructions, transport vehicles or land. (Art. 8 Para. 3 of the Law)  Participants causing material or other damage are obligated to indemnify for it.  They are also held responsible in compliance with the law. (Art. 11 Part 2 of the Law)

The Law makes a distinction with regard to media representatives dispatched to public assemblies.  They have a right to use various technical means for recording and covering public activities.  In order to do that, they have to produce their official ID card. (Art. 9 of the Law)

State and police powers and responsibilities (including liability and penalties)

The Law does not directly impose certain obligations upon local public administration offices, local self-governance and law enforcement bodies.  Yet according to constitutional regulations, local public administration and self-governance bodies should receive notifications about public assemblies. (Art. 16 Part 14 of the Constitution)

The Law does not talk about information exchange about notifications between local public administration offices, local self-governance and law enforcement bodies in order to hold a peaceful public assembly and to protect its participants.  The law does not mention the obligations placed upon the appropriate authorities to prepare for and to act during public assemblies, except for dispersing an assembly, documenting violations, and using force and taking special measures.

The issue of informing the public of possible changes in transport routes and closing pedestrian areas during assemblies in proper time has not been solved yet.  There are no specific instructions for law enforcement agencies regarding their actions during public assemblies and interaction with local self-governance and public administration offices.

For preventing someone from holding or taking part in assemblies, meetings, demonstrations, marches, and pickets, or compelling them to do so using violence or threats, the Criminal Code provides for a fine of three to five hundred minimum wages, or up to three years in prison, with no right to hold certain positions or to be involved in certain activities up to three years, or without the latter. (Art. 163 Part 3 of the Code)

Likewise, the following articles of the Criminal Code are crucial for exercising the right to peaceful assembly:

- violating the equality of people’s rights, for instance, depending on their membership in some association – a fine of fifty minimum wages or up to two months in custody; (Art. 134 of the Code)

- refusing to provide a person with information – a fine of up to fifty minimum wages; (Art. 138 of the Code)

- abuse of power – a fine of one to two hundred minimum wages, or three to five years in prison with property expropriation or without the latter; (Art. 304 of the Code)

- exceeding authority – a fine of one to two hundred minimum wages, or depriving of the right to hold certain positions or to be involved in certain activities up to five years, or up to four years in prison. (Art. 305 of the Code)

If public officials violate the established order of organizing or holding assemblies, meetings, marches, and demonstrations, the Code “On Administrative Liability” (as amended on August 2, 2004) provides for a fine of twenty to fifty minimum wages (Art. 392 of the Code) According to administrative legislation, public officials are obligated to indemnify for the damage caused. (Art. 48 of the Code)

The Code on Administrative Liability contains a number of articles providing for liability for violations regarding the right to peaceful assemblies:

- If public officials illegally refuse to review requests they receive from citizens, they are imposed an administrative fine of ten to twenty minimum wages; (Art. 62 of the Code)

- Unjustified refusal to look through documents – an administrative fine of five to ten minimum wages; (Art. 63 of the Code)

- If public officials do not fulfill the requirements of Kyrgyz legislation, they are imposed a fine of fifty to one hundred minimum wages.  If such violations persist within a year, public officials are dismissed from their job. (Art. 400 of the Code)

The Law protects the rights of those who fall victim to crimes and abuse of power.  The state provides such victims with an access to justice and indemnification for the damage or harm caused. (Art. 85 Part 13 of the Constitution)

Rights of appeal

To bring a public official to justice for preventing someone from holding or taking part in an assembly, one should approach a prosecutor’s office located in a place where this crime was committed. (Art. 163 Part 3 of the Code) Imposing administrative penalties is the prerogative of district courts (Art. 508, Chapter 36 of the procedural part of the Code) on grounds of the prosecutor’s resolution initiating administrative proceedings and the minutes on administrative offence. Decisions on criminal and administrative cases made by courts of the first instance may be appealed in appeal courts.

Analysis provided by the OSCE/ODIHR expert Dmitry Kabak with assistance of the OSCE Center in Bishkek who completed the ODIHR Questionnaire.

Posted in April 2006

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