Kazakhstan

Preliminary Comments on the Draft Law
“On Amendments to Some Legislative Acts of the Republic of Kazakhstan on National Security Issues”

For the sections of the comments hereafter that relate to the freedom of religion or belief, this report has been prepared on the basis of comments provided by the OSCE ODIHR’s Panel of Experts on Freedom of Religion or Belief. For the sections of the comments that relate to political parties, this report has been prepared on the basis of comments provided by Jeremy McBride (Reader in International Human Rights Law, University of Birmingham, Co-founder and Deputy Chair of Interights).

2. The Draft was submitted to the Mazhilis for consideration on 24 February 2005.

6. The Draft is mostly about restricting human rights and fundamental freedoms protected under the Constitution of Kazakhstan /Full Text of the 1995 Constitution of Kazakhstan in Russian and English available at http://www.legislationline.org/view.php?document=62097./ which is permissible under both international and Kazakhstani law provided the restrictions are necessary in a democratic society, pursue a legitimate goal, are proportionate to that goal and respond to a pressing public or social need. Furthermore, “national security” may be invoked to justify such restrictions, but only when they are taken to protect “the existence of the nation or its territorial integrity or political independence against force or threat of force” / United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985), Principle VI. For more details, see note 7./ The draft however does not provide and does not attempt to provide any justification in support of the restrictive measures considered. It contains a series of amendments in respect of which it is reasonable to assert that their impact would either exceed what is permissible under international human rights protection systems or be open to abuses when enforced. The envisaged measures are often out of proportion with the aim pursued by the Draft. These shortcomings primarily stems from the vagueness of the definitional language used in the envisaged amendments.

1. It is recommended that the Draft include and/or refer to a definition of “national security” interests and set out the purpose and scope of the Draft. [see para 12] The Draft should demonstrate that the limitations envisaged respond to a pressing public or social need and are necessary to protect the existence of the nation or its territorial integrity or political independence against force of threat of threat of force.
2. The provision banning the operation of informal groups curtails the right to freedom of association and needs to be reconsidered. [see para 16]
3. It is recommended that the draft provisions requiring that the associations with foreign funding sources present reports to the tax bodies on the use of the funds received be reconsidered. [see para 21]
4. It is recommended that the requirement of personal presence at the constituent conference of the political party be deleted from the Draft.[see para 27]
5. It is recommended that the provisions requiring structural units of political parties to be registered be repealed. [see para 31]
6. It is recommended that suspension of political party activities be made clearly a measure that is exceptional and not an automatic consequence of the violations cited. It is further recommended that a possibility be afforded to political parties to take corrective action and therefore reduce the term of suspension.[see para 36]
7. It is recommended that the provisions that allow for the prohibition of political parties for reasons other than unconstitutionality be repealed. [see para 37]
8. It is recommended that the power to prohibit activities of a political party be deleted from Article 374, para 6, of the Administrative Code. [see para 41]
9. It is recommended that Articles 337 of the Criminal Code and 374, para 4, of the Administrative Code be amended to make provisions for proportionate penalties. [see para 42]
10. It is recommended that Article 374, para 6, of the Administrative Code be amended to include reasonable steps defense. [see para 42]
11. It is recommended that the provision for confiscation in Article 2, para 2, of the Law on Political Parties be made proportionate. [see para 44]
12. It is recommended that the Law on Political Parties specify the deadline for publishing financial statement. [see para 45]
13. It is recommended that the possibility of suspension of activities for non-publication of the annual financial statement required under the amendment introduced in Article 18 of the Law on Political Parties be reconsidered. It is recommended that political parties be afforded the possibility to take corrective action and thus avoid suspension or reduce its term [see para 46]
14. It is recommended that the provision, which contains a prohibition on facilitating the nomination and election of candidates, etc to be introduced at Article 102, para 3, of the Administrative Code be repealed. [see para 47]
15. With regard to content restrictions on the publication or broadcasting of materials in mass media, it is recommended that the law be brought in line with the three-pronged test provided for by the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. [see para 49]
16. It is recommended that the law narrowly define the instances of speech which do not enjoy the level of protection afforded to free speech. Moreover when penalizing hate speech, the law should make the applicability of the offense limited to the instances which constitute incitement to discrimination, hostility or violence. [see para 50]
17. It is recommended that the provisions concerning the prohibition of the disclosure of information classified as state secret contain reference to relevant legislative acts. [see para 51]
18. It is advisable that the draft amendments be reviewed to clearly delineate what constitutes “justification of terrorism,” as well as to make (a) intent and (b) real and clear danger of commission of a terrorist offense the necessary preconditions for the applicability of the offense of “justification of terrorism.” [see para 57]
19. It is recommended that the draft be amended to include a range of graduated sanctions for unlawful conduct listed in Article 13, and to make it clear that closure of mass media can only be the measure of last resort. [see para 61]
20. The law should define narrowly the unlawful conduct which may justify the imposition of sanctions on the media outlet. [see para 62]
21. It is recommended that the law adopt a higher standard by making the court the only body authorized to order any interference with freedom of opinion and expression. This can be done by expedient or simplified court procedure. [see para 64]
22. It is recommended that the draft be amended to specify the scope of terrorist and “extremist” financing, as well as to ensure that the offense only apply when committed willfully, and with the intention or in the knowledge of the alleged offender that the funds will be used for terrorist or “extremist” activities or by terrorist or “extremist” organizations. [see para 70]

/This recommendation needs to be seen against the backdrop of the OSCE ODIHR Comments “On Counteractive Measures Against Extremist Activities” and “On Amendments to Several Legislative Acts with regard to Counteractive Measures against Extremist Activities” [for exact reference, see note 1, page 4] /

23. It is recommended that the provisions concerning liability for participants in unlawful assemblies be reconsidered. In case the legislator opts for not abolishing liability for participants, the legislation of public assemblies needs to be amended to include a clear and unambiguous definition of a participant of a public assembly, as well as the provisions on liability need to be reviewed to ensure that the participants benefit from the “reasonable excuse” defense. [see para 75]
24. It is recommended that the requirement of mandatory registration for religious groups be repealed. [see para 84]
25. It is recommended that the amendments concerning the regulation of missionary activities be repealed. [see para 97]
26. It is recommended that the provisions concerning the religious instruction of a child be repealed altogether or, alternatively, detailed by providing exact criteria of assessing damage and including references to the relevant legislation. [see para 106]
27. It is recommended that the provisions concerning suspension, reorganization, and dissolution of religious associations be reconsidered. [see para 110]
28. It is recommended that offenders sentenced for “crimes containing extremism features” be not included in the list specifying categories of offenders subject to post-release supervision. [see para 114]
29. It is recommended that the legislator consider providing for supervised parole in the case of crimes committed as part of an organized criminal group. [see para 116]
30. It is recommended that the existing classification between general and special “operative-investigative” measures be reconsidered in the light of internationally recognized standards (particularly those referred to under note 80 of these Comments) so that all measures that constitute a serious interference with the respect for private life, including the protection of personal data, be subject to prior prosecutorial authorization. [see para 119]
31. It is recommended that the sentence “which violate the inviolability of private life, secrecy of letter exchange, telephone conversations, telegraph messages and postal parcels, as well as the right to inviolability of housing” be deleted. [see para 121]

12. The Draft does not provide or refer to a definition of the “national security” interests which it purports to strengthen. Whereas the Draft may be viewed as essentially expanding the scope of permissible human rights restrictions on the ground of national security, the lack of definition runs against the requirements of legality, certainty and foreseability in the application of the law. Typically, the national security concept can be broadly defined as a system of views on ensuring the security of the individual, society and the state from external and internal threats in all spheres of life in a given state. From a human rights perspective, it is noteworthy that the definition of the term “national security” often begins with “freedom from danger, risk, etc” and this emphasis is somehow reflected in the universal recognition of a right to security, which goes hand in hand with the right to freedom. Clearly, the appropriate function of “security” is as the means to another quality – freedom, no less – and not as an end in itself. In this regard, the notion of “national security” must be interpreted restrictively and all limitations clauses based on that notion need to be seen in the light and context of the particular right or freedom at issue. Most importantly, “national security” may be invoked to justify such limitations “only when they are taken to protect the existence of the national or its territorial integrity or political independence against force or threat of force” /United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985), Principle VI, para 29. The “Siracusa Principles” were adopted in May 1984 by a group of international human rights experts convened by the International Commission of Jurists, the International Association of Penal Law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human rights, and the International Institute of Higher Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative source of interpretation of the ICCPR with regard to limitations clauses and issues of derogation in a public emergency./

Isolated threats to law and order are not sufficient per se to justify such measures /Id. 7. Principle VI, para 30/. In light of these considerations, it is recommended that the Draft include and/or refer to a definition of ‘national security’ interests and set out the purpose and scope of the Draft. These insertions would provide guidance on interpretation of the Draft. It would be sufficient though to include a reference to other relevant legislation, if any, on the matter. The Draft should demonstrate that the limitations envisaged respond to a pressing public or social need and are necessary to protect the existence of the nation or its territorial integrity or political independence against force of threat of threat of force.

13. The Draft under consideration bans informal associations from operating in the territory of the Republic of Kazakhstan. /Id. 7. Principle VI, para 30/

14. It is a well-recognized principle that freedom of association includes the right to associate informally and that no one can be required to join an association. The Fundamental Principles on the Status of Non-Governmental Organizations in Europe (hereinafter referred to as the Fundamental Principles) provide that “NGOs can be either informal bodies, or organizations which have legal personality.” /Fundamental Principles on the Status of Non-Governmental Organizations in Europe, Council of Europe, para 5 [full text in English and Russian available at http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Civil_society/, last visited on 10 March 2005]. It is worth mentioning that the Fundamental Principles, although not legally binding in general and with regard to the Republic of Kazakhstan in particular, still provide a valuable source of guidance in this regard as they allow to interpret the provisions of relevant binding international instruments./ Acquisition of legal status should not be a prerequisite for the exercise of rights to association. / As well as the rights to expression and peaceful assembly./ The fact that non-governmental organizations may be formed as legal entities does not mean that individuals are required to form legal entities in order to exercise their freedom of association.

4.2.2 Responsibility for non-commercial associations

17. The Draft supplements the Law on Non-Commercial Organizations by a provision that “non-commercial organization carrying out its activities at the expenses of finances provided on gratuitous basis by foreign governments, international and foreign organizations, foreign citizens, stateless person shall provide report to tax bodies on the using such finances according to the legislation of the Republic of Kazakhstan.”/Draft amendments to the Law of the Republic of Kazakhstan on Non-Commercial Organizations, Article 41, para 2./

4.3.1 Establishment of political parties

26. The insertion of the specification that the lists of both the initiative groups of citizens for the creation of a political party and the party’s members to be submitted to the registration agency must be in both paper and electronic form / Id., Articles 6, para 2, and , para 4./does not as such seem problematic, although it would be desirable that the electronic version be in a format that cannot be altered so that its integrity is at least as secure as a paper version. However, there might be grounds for concern as to whether there are adequate of controls on further disclosure of these lists – submission is needed once citizenship is accepted as a condition for formation of a political party - since the risk of this occurring might discourage persons from providing support for the formation of a political party and thus be an effective limit on freedom of association. /Thus in Appl No 28910/95, National Association of Teachers in Further and Higher Education v United Kingdom, 93 DR 63 (1998) the European Commission “accepted that there might be specific circumstances in which a legal requirement of an association to reveal the names of its members to a third party could give rise to an unjustified interference with the rights under Article 11 or other provisions of the Convention” (p 71)/ Onward transmission of an electronic document is particularly easy and it would be clarify the extent to which the disclosure of information received by registration agency is regulated.

33. The Draft allows to suspend the political party activities “by the court decision for the period of three to six months or by the Prosecutor till the court decision is made” on the following grounds:

2) systematic performance of the activity that contradicts the charter of the political party;

3) public call and statements of the heads of the political party aimed at the violent change of the constitutional order of the Republic of Kazakhstan, violation of the integrity of the Republic of Kazakhstan and its sovereignty, seizure or holding of the power, undermining of the state security, the creation of illegal paramilitary formations, and also rousing the social, national, racial, religious, class or generic discord;

4) discrepancy in the number of party members with the requirement set forth in paragraph 6 of Article 10 of the present Law /Law on Political Parties, Article 13./

1) pursuant to the resolution of its supreme body;

2) pursuant to the proposal of not less than fifty one percent of its members that represent not less than a half of regions;

3) pursuant to a decision of the court. /Id., Article 14./

38. The issue of prohibition of political parties as a particularly far-reaching measure merits special attention. For example, reliance on “systematic performance of the activity that contradicts the charter of the political party” could well be problematic in most circumstances as it gives scope for the authorities to determine the legitimacy of a party’s political choices when that should be essentially one for its membership and organizational structure. Although not binding for Kazakhstan in any respect, the Venice Commission Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures

47. The prohibition on facilitating the nomination and election of candidates, etc to be introduced at Article 102, para 3, of the Administrative Code is a restriction on the freedom of expression and association under Articles 19 and 22 of the ICCPR of foreigners and stateless persons. Although the rights protected under Article 25 of the ICCPR are citizen’s rights exclusively, they need to be considered in the broader context of the rights to freedom of association and expression, which do not contain any such restriction. Article 25 can not be construed as limiting the political participation of foreigners and stateless persons at the expenses of their rights to freedom of association and expression. This would actually be in contradiction with Article 5, para 1 of the Covenant, which stipulates that “nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”./In this regard, it is significant to note that the Document of the Copenhagen Meeting of the Conference on the HumanDimension of the CSCE (29 June 1990) refers to “citizens” in respect of the right to seek political or public office (para 7.5), but to “individuals and groups” in respect of the right to establish, in full freedom, their own political parties or other political organizations (para 7.6)./

The right to participate in public affairs has broader connotations and may be exercised through the rights of freedom of expression and association. Additionally, the vagueness of the term “facilitate” in this particular instance may open the door to abusive and arbitrary enforcement. There is too much imprecision in the term “activities that facilitate”; expressing views of a general character but of direct and legitimate concern to the foreigner outside an election context could still facilitate any of the objectives listed without this being the aim of the foreigner or stateless person concerned. Also, the penalty of deportation in the circumstances of a particular case could well be disproportionate as well a potential interference with the person’s family contrary to Article 17 of the ICCPR. Finally, the prohibition considered is even less justified in the case of local elections, a distinction which is actually not made in the Draft. General Comment 25 makes it clear that the rights under Article 25 may be exercised by foreigners and stateless persons in case of local elections /General Comment 25, 12 July 1996, CCPR, Fifty Seventh Session, 1996, Para 3: “State reports should indicate whether any groups, such as permanent residents, enjoy these rights on a limited basis, for example, by having the right to vote in local elections or to hold particular public service positions”/ and the right to political participation for foreigners and stateless persons under certain conditions has now risen to the level of an internationally well recognized standard /See International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Article 42, para 3; Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level, Article 6(1), which “grant[s] to every foreign resident the right to vote and to stand for election in local authority elections, provided that he fulfils the same legal requirements as apply to nationals and furthermore has been a lawful and habitual resident in the State concerned for the 5 years preceding the elections”./ , which has an increasingly stronger normative impact on the legislator across the OSCE region and beyond. It is recommended that the provision, which contains a prohibition on facilitating the nomination and election of candidates, etc to be introduced at Article 102, para 3, of the Administrative Code be repealed.

48. The draft bans “the use of mass media to promote or advocate for the violent overthrow of the constitutional order, breach of the integrity of the Republic of Kazakhstan, subversion of national security, war, social, racial, ethnic, religious, class or clan superiority, cult of cruelty and violence, pornography, as well as disseminate information classified as state secret of the Republic of Kazakhstan or other protected data.” /Draft amendments to the Law on Mass Media, Article 2, para 3/. The draft also prohibits “disclosure of information classified as state secret or other protected data, advocacy or justification of terrorism or extremism, dissemination of information on technique or tactics of counterterrorist operations in the Republic of Kazakhstan, promoting narcotic drugs, psychotropic substances or their precursors, as well as promoting pornography.” Id., para 4. 

these restrictions must be construed strictly and be established convincingly. From the Johannesburg Principles /Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39 (1996) [full text available at http://www.article19.org/docimages/511.htm, last visited on 23 March 2005]; these Principles were adopted on 1 October 2005 by 37 international experts. They have been drafted with the purpose to inform the drafting and the implementation of security laws around the world. They are based on international and regional law and standards relating to the protection of human rights as well as evolving state practice (as reflected, inter alia, in judgments of national courts), and the general principles of law recognized by the community of nations./ that are internationally accepted and cited as the definitive standards for the protection of freedom of expression in the context of national security laws, it may be inferred that expression may be punished as a threat to national security

1. the expression is intended to incite imminent violence;
2. it is likely to incite such violence; and
3. there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence./ Id.; Principle 6/

However, it is a universally accepted principle that the more specific the legislation is, the more precise its language needs to be, and constitutional provisions, because of their general nature, do not have to maintain the same level of precision as the specific laws. /See European Court of Human Rights, Rekvйnyi v. Hungary, Judgment of the Court, 20 May 1999, para 34./

51. Third, to ensure specificity and clarity of the law in accordance with the principle of legality, it is recommended that the provisions concerning the prohibition of the disclosure of information classified as state secret contain reference to relevant legislative acts. This would help bring the law in question in compliance with the principle of narrow designation of security exemption, which requires that the state “designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest.” /Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Principle 12./

55. The draft European Convention on the Prevention of Terrorism is the first attempt to give shape to the emerging legal concept of “apologie.” Provisions of the draft Convention concerning “public provocation to commit a terrorist offence,” although not yet a source of law in the strict sense of the word, can still provide valuable guidance for the legislator. The draft Convention defines “public provocation to commit a terrorist offence” as “the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.” /Draft European Convention on the Prevention of Terrorism, Article 5, para 1 [full text of the draft Convention available at http://www.coe.int/T/E/Legal_affairs/Legal_co-operation/Fight_against_terrorism/CODEXTER%20_2004_%2027%20final-2.pdf, last visited on 23 March 2005]./ The draft makes it clear that “public provocation to commit a terrorist offense” shall be criminalized “when committed unlawfully and intentionally.” Id., para 2

56. It is obvious from the draft Convention provisions that the crime of “public provocation,” although not equated with direct incitement to commit an offense, nevertheless becomes applicable only when it contributes to the execution of the criminal act. Cp “causes a danger that one or more such offences may be committed.”

58. The draft amendments allow for the suspension of operations of print and broadcast media by a decision of the court or the prosecutor Id., Article 13, para 1 (“Publication (broadcasting) of mass media may be terminated by the decision by owner or the court. Publication (broadcasting) of mass media can be suspended by the decision by the owner, the court or the prosecutor. In the case of suspension by the prosecutor, the prosecutor shall lodge his/her petition for suspension with the court within three days.”) on the following grounds:

[…] disclosure of information classified as state secret of the Republic of Kazakhstan or other protected data, propaganda of or advocacy for the cult of cruelty and violence, social, racial, ethnic, religious, class or clan superiority, dissemination of information on technique or tactics of counterterrorist operations in the Republic of Kazakhstan, promoting narcotic drugs, psychotropic substances or their precursors, distribution of TV, radio or video production of pornographic or sexual-erotic character, violation of the provisions of Article 2, para 3, Article 3, Article 10, para 3(2), as well as repeat violation of the provisions of Article 14 para 3(1), Article 15 of the present Law within the one year. Id., Article 13, para 3.

[…] promotion of or advocacy for violent overthrow of the constitutional order, breach of the integrity of the Republic of Kazakhstan, subversion of national security, war, advocacy or justification of terrorism or extremism, as well as failure to eliminate the grounds for suspension of mass media. Id., para 4.

69. Second, the issue of intent is very relevant in regard of terrorist and “extremist” financing. It is essential that the law make the offense applicable only when committed willfully and with the intention or in the knowledge that the funds provided or collected will be used to further a prohibited aim. This will help ensure compliance with the International Convention for the Suppression of the Financing of Terrorism, which makes it an offense to provide or collect funds “directly or indirectly, unlawfully and willfully … with the intention that they should be used or in the knowledge that they are to be used” in order to carry out the enumeratively listed acts. (Emphasis added.) International Convention for the Suppression of the Financing of Terrorism, Article 2 (“Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.” [Emphasis added.]) Full text of the Convention is available at http://www.un.org/law/cod/finterr.htm [last visited on 22 March 2005.]

71. The Draft seeks to introduce administrative liability for the “participation in illegal meeting, processions, pickets and demonstrations and other public events” Draft amendments to the Administrative Code, Article 373, para 1 (“Violation of legislation concerning the procedure for organizing and conducting peaceful assemblies, meetings, processions, pickets, and demonstrations, or any other public event, or impediment to organizing and holding those events, as well as participation in illegal meeting, processions, pickets and demonstrations and other public events unless they are identified as penal actions, shall entail a warning or a fine in the amount up to twenty monthly calculation indicators imposed on citizens and in the amount up to fifty monthly calculation indicators imposed on official persons.”)

4.7.1 Mandatory registration of religious associations

76. The Draft proposes to amend the Law on Religious Freedom and Religious Associations by providing that “activity of religious associations that are not registered in accordance with established procedure shall not be permitted.”/Draft amendments to the Law on Religious Freedom and Religious Associations, Article 4. The current legislation of the Republic of Kazakhstan does not provide for mandatory registration of religious groups./ It also proposes to supplement the Administrative Code by a provision establishing responsibility for supervision or participation in activity of non-registered religious associations, as well as financing their activity. Draft amendments to the Administrative Code of the Republic of Kazakhstan, Article 374-1

77. International standards guarantee the right of every person to freedom to profess one’s own religion or convictions, alone or in community with others, and do not connect group manifestation with registration. /See Universal Declaration of Human Rights, Article 18 (“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”) [full text in Russian and English available at http://www.unhchr.ch/udhr/index.htm, last visited on 5 April 2005]; ICCPR, Article 18 (“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”); Declaration on Elimination of All Forms of Intolerance Based on Religion or Belief, Article 1 (“1. Everyone shall have the right to freedom of thought, conscience and religion.  This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice. 3.   Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.”) [full text available at http://www.un.org/documents/ga/res/46/a46r131.htm, last visited on 5 April 2005]. Note that the international law expressly prohibits derogation from the freedom of thought, conscience and religion in time of public emergency (see International Covenant on Civil and Political Rights, Article 4, para 2).

78. For the purposes of this analysis it is important to first understand what the right to freedom of religion or belief specifically includes. First of all, freedom of religion or belief is geared to protect the absolute inviolability of the “forum internum,” i.e. the inner mind. Note that the international law expressly prohibits derogation from the freedom of thought, conscience and religion in time of public emergency (see International Covenant on Civil and Political Rights, Article 4, para 2).

It is only the external manifestations of a religion or belief (“forum externum”) that may be restricted, and only as far as prescribed by law and necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” International Covenant on Civil and Political Rights, Article 18, para 3.

79. Association with others for the purposes of professing a religion is clearly concerned with the manifestation of a religion. However, any state intervention seeking to impose limitations on such association must be proportionate and meet at least one of the above cited internationally permissible conditions for restriction, i.e. should be necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” It important, however, that, in contrast with other limitations clauses found in international treaties, national security is not listed as a permissible ground for imposing restrictions on the exercise of freedom of religion or belief.

4.7.2 Regulation of missionary activity

Citizens of the Republic of Kazakhstan, foreigners and persons that do not have citizenship (henceforth, a missionary), shall fulfil missionary activity on the territory of the Republic Kazakhstan after registration in an authorized agency.

Fulfilment of missionary activity without registration shall entail liability established by the laws of the Republic of Kazakhstan  Draft amendments to the Law on Religious Freedom and Religious Associations, Article 4-1.

Further, the draft Article 4-2 provides for the procedure of registration of missionaries. Id., Article 4-2 (“Registration of persons who fulfill missionary activity shall be executed by local executive offices.“Missionary activity” is defined by the Draft as “preaching and dissemination of any religion teaching and dogmas through religious and enlightenment activities.” Id., Article 1, para 1.The Draft also amends the Administrative Code by providing that “[f]ulfiling missionary activities by citizens, foreign citizens and stateless persons without registration shall entail a fine for citizens in the amount up to fifteen monthly rated indicators, for foreigners and stateless persons in the amount up to fifteen monthly rated indicators with administrative deportation from the Republic of Kazakhstan...” Draft amendments to the Administrative Code, Article 375, para 3.

88. Second, the Draft is problematic from the viewpoint of the freedom “to manifest … religion or belief in … teaching,” as guaranteed by the ICCPR /International Covenant on Civil and Political Rights, Article 18, para 1/. and further reaffirmed by the OSCE commitments /See Concluding Document of Vienna – The Third Follow-up Meeting, 15 January 1989, para 16.6 ([The participating States will] respect the right of everyone to give and receive religious education in the language of his choice, whether individually or in association with others.”)/

89. As already discussed in para 72 above, external manifestations of a religious belief such as religious teaching, as opposed to “forum internum,” may be restricted, however, the permissible grounds for such restriction are strictly limited. Restrictions may only be imposed “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” National security concerns may not be invoked as a ground to limit the exercise of the freedom of religion or belief.

which enshrines the right to “impart information and ideas of all kinds.” It is generally accepted that the mere fact that proselytism may annoy its intended targets is not sufficient to justify restrictions. However, it has been held that proselytism may be legitimately restricted as an invasion of privacy where the listeners are a “captive audience,” including cases where those proselytized are in a subordinate position to the one proselytizing. /See ECtHR, 24 February 1998, Larissis and Others v. Greece./ It is also compliant with the international law to limit the right to disseminate religious views where it is exercised with the involvement of material enticement, which has been widely regarded as a form of coercion and therefore considered to exceed the area of freedom of opinion and expression.

4.7.3 Religious education of children

98. The Draft recommends addition of the suggestion that “religious training of a child shall not damage the child's all-round development, physical or moral health.” /Draft amendments to the Law on Religious Freedom and Religious Associations, Article 5, para 2 (“Parents or custodians have a right to train their children according to their beliefs, but coercive involvement of children in religion is not allowed. Teaching of religious disciplines may be done on voluntary basis in non-government educational facilities. Religious training of a child shall not damage child’s all-round development, physical or moral health. ”)/

100. The international law does recognize the liberty of parents or legal guardians to ensure the religious education of their children. Thus, the International Covenant on Economic, Social and Cultural Rights (ICESCR) obliges the States Parties to “undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.” ICESCR, Article 13, para 3 [full text available at http://www.ohchr.org/english/law/cescr.htm, last visited on 5 April 2005]. The OSCE commitments, and the Vienna Concluding Document specifically, reaffirm the priority of respecting “the right of everyone to give and receive religious education” Concluding Document of Vienna – The Third Follow-up Meeting, 15 January 1989, para 16.6 ([The participating States will] respect the right of everyone to give and receive religious education in the language of his choice, whether individually or in association with others.”) and “the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions.” Id., para 16.7

further develops this concept by requiring the States Parties to “respect the right of the child to freedom of thought, conscience and religion,” Convention of the Rights of the Child, Article 14, para 1 [full text available at http://www.ohchr.org/english/law/crc.htm, last visited on 11 April 2005]. as well as to “respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.” Id., para 2.

Note one fundamental step forward made by the CRC in this regard – while making reference to the right of the parents or legal guardians to provide direction to the child, it makes the child the subject, rather than an object, of the right (“to provide direction to the child in the exercise of his or her right” – Emphasis added). Furthermore, the CRC notes that direction should be provided “in a manner consistent with the evolving capacities of the child.” As we can see, the provision, to some extent, interprets the principle of the “best interest of the child” I