On 9 October 2018, at 10 a.m. journalists took part in a press-breakfast organized by the Human Rights Movement “Bir Duino-Kyrgyzstan”. The employees and lawyers of Bir Duino informed the journalists and provided them with all the materials on the results of protection of the constitutional right of citizens to peaceful rallies and assemblies.
It is emphasized in the OSCE/ODIHR Guidelines on Freedom of Peaceful Assembly: “The protection of the freedom to peacefully assemble is crucial to creating a tolerant and pluralistic society in which groups with different beliefs, practices or policies can exist peacefully together”.
“Bir Duino-Kyrgyzstan” welcomes the decision of the Interdistrict Court of Bishkek, the decision of the Pervomaisky District Court, the Disciplinary Commission of the Bishkek Mayor’s Office, which defended the constitutional right of citizens to freedom of peaceful assembly, and intend, taking into account our case, to further execute their duties and responsibilities in the framework of legitimacy and obligations of Kyrgyzstan in accordance with national legislation and international obligations, contributing to protection of the right of citizens to freedom of peaceful assembly in Kyrgyzstan.
Restriction of the right of the HRM "Bir Duino-Kyrgyzstan" to peaceful rallies and assemblies
On 15 January 2018 the Public Association “Human Rights Movement “Bir Duino-Kyrgyzstan”” (hereinafter abbreviated to BDK) appealed to the Bishkek Mayor’s Office with a notification of the intention to hold a peaceful assembly - a peaceful march on 20 January, 2018 at 3 p.m. from the crossing of Chui ave. and Y. Abdrakhmanova str. (former Sovetskaya str.) to the Ala-Too square in honor of protection of women’s rights in Kyrgyzstan. The notification was sent to the lower instance - the Municipal Administration of the Mayor's Office of Bishkek in the Pervomaisky administrative district (hereinafter - the Administration).
However, the day before the event, on 19 January 2018, the Administration sent a letter informing on the following (we quote):
“… holding a march on the roadway will create difficulties for traffic (which incurs liability according to the law) and a march along the sidewalk will create inconvenience for citizens who are not participating in the event.
Due to the above mentioned, we recommend holding an event near the monument to Urkuya Salieva without conducting a march, in accordance with the Law of the Kyrgyz Republic “On peaceful assemblies””.
As a result, BDK changed its original intention to hold a peaceful march and held an event at the monument to Urkuya Salieva.
However, later, believing that the Administration illegally refused to perform its duties to ensure conducting of the peaceful march, the BDK’s representative appointed by proxy, T. Arykov appealed to the Bishkek Mayor’s Office as a higher authority with an administrative complaint in accordance with the Law “On the Basics of Administrative Activities and Administrative Procedures” (as a pre-trial dispute resolution).
The Mayor’s Office, in turn, ignored the requirements of this law and did not consider the complaint within the time specified in it - 30 business days. That was the basis for appeal to the Interdistrict Court of Bishkek against the illegal inaction of the Mayor’s Office.
According to results of the trial, the court found that the Mayor’s Office did not comply with the provisions of the law and by its decision dd 22 June 2018 obliged the Mayor’s Office to examine the administrative complaint of BDK and issue an appropriate decision on the results of the examination. After the court decision entered into force, a write of execution was sent to be implemented by the Division of the Judicial Enforcement Service for Economic Affairs of Bishkek.
Since the court determined that the Mayor’s Office did not comply with the provisions of the law, BDK appealed to the Bishkek Prosecutor’s Office, which oversees the precise and uniform compliance of the state and municipal authorities and their officials with the legislation, with a request to initiate an administrative violation case under the Code On Administrative Responsibility and send the case materials to the court for imposition of an administrative penalty on the officials convicted of an administrative offense by employees of the Bishkek Mayor’s Office, as well as to issue a report of procuratorial action taken against Pervomaysky district administration concerning the inadmissibility of violation of the Law "On Peaceful Assemblies".
On 30 July 2018 the prosecutor of Pervomaisky district of Bishkek issued a decision on initiating a proceeding regarding administrative offense in respect of the Head of the Bishkek Mayor's Office, A.A. Sadykov in accordance with the Article 400 of the Code of the Kyrgyz Republic “On Administrative Responsibility” and sent it to the Pervomaisky District Court for consideration on the merits.
Also a submission (a demand for an act of response) was made to Bishkek Mayor’s Office, according to which the following was suggested:
1. Take measures to eliminate violations of the law on peaceful assemblies.
2. Resolve the issue of disciplinary actions to be taken against the responsible officials.
Eventually, based on the results of the measures taken and the actions of BDK to defend the constitutional right to freedom of peaceful assemblies the following was achieved:
1. The Inter-District Court of Bishkek established the illegal inaction of the Bishkek Mayor’s Offcie regarding the complaint of BDK (decision as of 22 June 2018).
2. The Disciplinary Commission of the Bishkek Mayor’s Office decided to impose disciplinary sanctions on the leading specialist of the Organizational and personnel work department of the Bishkek Municipal Administration in Pervomaysky administrative district, K. U. Aidarova for non-compliance with the requirements of the Law “On peaceful assemblies” (according to the order of the district administration No. 113-b “On disciplinary action” dated 8 August 2018, a disciplinary action was taken in the form of a reprimand).
3. On 22 September 2018 the Pervomaisky District Court of Bishkek decided to subject A.A. Sadykov, the Head of staff of the Bishkek Mayor’s Office (at the time of the ruling) to an administrative penalty for an administrative offense under Article 400 of the Code "On Administrative Responsibility" in the form of a fine in the amount of one hundred estimate indicators (10,000.00 soms).
National legislation which guarantees the right of citizens to freedom of assemblies
Article 34 of the Constitution of the Kyrgyz Republic guarantees everyone the right to freedom of peaceful assemblies.
The law “On peaceful assemblies” establishes that the organizers and participants of peaceful assemblies, when holding them, have the right to hold assemblies in any form (clause 7 of Article 9).
Local authorities in cooperation with the internal affairs bodies and other state bodies are obliged to take measures to ensure holding of peaceful assemblies.
In accordance with the Guidelines, Kyrgyzstan, as a member of the OSCE, should comply with 7 fundamental principles , including the following:
Presumption in favor of holding assemblies. Since the right to freedom of peaceful assembly is a fundamental right, its implementation should, as much as possible, be ensured without any regulation.
The state’s positive obligation to facilitate and protect peaceful assembly. It is the primary responsibility of the state to put in place adequate mechanisms and procedures to ensure that the freedom is practically enjoyed and not subject to undue bureaucratic regulation.
Legality. Any restrictions imposed must have a formal basis in law and be in conformity with the European Convention on Human Rights and Fundamental Freedoms, as well as other international human rights instruments.
Proportionality. Any restrictions imposed on the freedom of assembly must be proportional. The least intrusive means of achieving the legitimate objective being pursued by the authorities should always be given preference.
Non-discrimination. Freedom of peaceful assembly is to be enjoyed equally by everyone. In regulating freedom of assembly the relevant authorities must not discriminate against any individual or group on any grounds.
Good administration. Any restrictions placed on an assembly should be communicated promptly and in writing to the event organizer, with an explanation of the reason for each restriction. Such decisions should be taken as early as possible so that any appeal to an independent court can be completed in the notification for the assembly.
Good administration. The public should be informed which government body is responsible for taking decisions about the regulation of freedom of assembly, and this must be clearly stated in law.
The liability of the regulatory authority. The regulatory authorities must comply with their legal obligations and should be accountable for any failure - procedural or substantive – to do so. Liability should be gauged according to the relevant principles of administrative law and judicial review concerning the misuse of public power.