Kazakhstan liable for restricting freedom of religion

01.04.2015

The Human Rights Committee held that Kazakhstan violated its obligations under the International Covenant on Civil and Political Rights and is liable for restricting freedom of religion. 

Leven v. Kazakhstan (2131/2012)

Summary

In October 2014, the Human Rights Committee was asked to consider whether Kazakhstan had violated its obligations under the International Covenant on Civil and Political Rights in connection with the fining of an individual and the cancellation of their residency permit due to their involvement in a religious organisation.

The communication was submitted by a German citizen, born and resident in Kazakhstan, under the Optional Protocol to the Covenant.

Background

The author, Mr Viktor Leven, had been a member of the Evangelist Christian Baptist Church in Kazakhstan since childhood. Of German ethnicity, the author was born in Kazakhstan, living there until 1992 when he moved to Germany where he subsequently received German citizenship. In 2000, the author returned to Kazakhstan together with his wife, with the intention of residing there permanently. The couple had seven children, born between 2001 and 2011. After the author’s return, he attended the same Evangelist Christian Baptist Church that he had attended before his departure for Germany. In 2003, the author received a permanent residence permit as a foreign citizen residing in Kazakhstan.

In 2009, the author applied for Kazakh citizenship, and on 3 December 2009 he received permission for release from German citizenship with a view to obtaining Kazakh citizenship. On 14 October 2009, while he was waiting for his application for citizenship to be approved, the author was convicted by Esil District Court of conducting missionary activity without the required registration. He was sentenced to a fine of 6,480 tenge and expulsion from Kazakhstan. The Court ruled that since the author was a German citizen his repeated participation in services in the Evangelist Christian Baptist Church constituted missionary activity under the Kazakh Law on Freedom of Religion and Religious Unions.

The author appealed his conviction, claiming that he had not been conducting missionary activity but simply participating in the church services, and that even if he had wanted to register as a foreign missionary that would have been impossible, as he had no accreditation from any church or organization outside of Kazakhstan. On 2 November 2009, Akmolin Regional Court overturned the first instance decision, stating that the author’s activities did not correspond to the definition of missionary activity under the Law on Freedom of Religion and Religious Unions.

On 6 November 2009, the District Prosecutor’s Office filed a request for a supervisory review of the decision by the Regional Court. However, on 26 November 2009, the Supervisory Plenum of Akmolin Regional Court revoked the Court’s decision and confirmed the author’s conviction. On 14 December 2009, the author attempted to overturn the decision by filing an application for supervisory review with the General Prosecutor’s Office. On 26 January 2010, the author’s application was rejected. In the meantime, the author’s permanent residence permit had expired. At the time of submission, the author was under threat of immediate deportation.

On 19 January 2012, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that he was the victim of violations by Kazakhstan of his rights to: (i) freedom from discrimination, (ii) freedom of thought, conscience and religion, and (iii) equality before the law (under articles 2(1), 18 and 26 of the Covenant respectively).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee noted the author’s claim under article 2(1) of the Covenant and recalled its jurisprudence that the provisions of article 2 lay down only general obligations for State parties. Accordingly, the provisions of article 2(1) “to respect and to ensure… the rights recognized in the present Covenant” did not afford any separate individual right that could be invoked in a communication under the Optional Protocol. The Committee therefore considered that the author’s claims under article 2(1) were inadmissible under article 3 of the Optional Protocol for incompatibility with the provisions of the Covenant. The Committee found the author’s claims under articles 18 and 26 of the Covenant to be admissible.

On the merits, the Committee noted that the author had been convicted for conducting missionary activity while not registered as a foreign missionary and that the offending activity had consisted of preaching and praying and conducting meetings with the followers of his church. Recalling its General Comment No. 22, the Committee considered that such activities formed part of the author’s right to manifest his beliefs and that the sentence to a fine and deportation, as well as the resulting loss of his residence permit, constituted limitations of that right. The Committee then addressed the question of whether such limitations were “necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others”, within the meaning of article 18(3) of the Covenant. The Committee again recalled its General Comment No. 22, in which it stated that article 18(3) was to be interpreted strictly, and that limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are founded.

The Committee noted that Kazakhstan had not advanced any argument as to why it was necessary for the purposes of article 18(3) for the author to first register as a foreign missionary before participating in worship at his church. Indeed, Kazakhstan had not sought to justify the infringement of the author’s rights, aside from citing a provision of the domestic law. The Committee reiterated that article 18(1) of the Covenant protected the right of all members of a religious congregation to manifest their religion in community with others, in worship, observance, practice and teaching. The Committee also noted that the author’s church had existed in Kazakhstan since he was a child and that he had participated in its religious activities both before and after he had obtained German citizenship. The Committee concluded that the punishment imposed on the author amounted to a limitation of the author’s right to manifest his religion under article 18(1) and that the limitation had not been shown to serve any legitimate purpose under article 18(3).

In the light of the above, the Committee concluded that Kazakhstan had violated the author’s rights under article 18 of the Covenant. Having found a violation of article 18, the Committee did consider it necessary to consider the author’s claims under article 26.

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Kazakhstan was under an obligation to provide the author with an effective remedy, including review of his conviction and of the cancellation of his residence permit. The Committee found that Kazakhstan was also under an obligation to prevent similar violations in the future.

Kazakhstan must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.