On 27 August 2024, the Cabinet of Ministers of the Kyrgyz Republic (hereinafter referred to as the Cabinet of Ministers) issued Resolution No. 518 (hereinafter referred to as the Resolution), which approved the Regulation on the Procedure for Maintaining the Register of Non–Profit Organizations Performing the Functions of a Foreign Representative and conducting an audit of their Activities (hereinafter referred to as the Regulation) in accordance with the Law of the Kyrgyz Republic on Non-profit Organizations (hereinafter - the Law on NPOs).

The Regulation establishes the procedure for the inclusion of non-profit organizations (NPOs) in the Register of NPOs-Foreign Representatives (NPOs-FRs), requirements for mandatory financial audits and the procedure for conducting state audit of NPOs-FRs and other requirements.

Having studied the Resolution, the organization's experts came to the conclusion that when it was issued by the Cabinet of Ministers, the following regulatory legal acts were violated and not complied with:

1)     The Constitution of the Kyrgyz Republic;

2)     OSCE/ODIHR Guidelines on Freedom of Association;

3)     The Law on Regulatory Legal Acts of the Kyrgyz Republic;

4)     The Law on Non-Profit Organizations.

Therefore, on 26 September 2024, the PA "Bir Duino-Kyrgyzstan" filed an administrative claim with the Administrative Court of Bishkek to invalidate the above-mentioned Resolution.

The main arguments of the administrative claim were the following violations:

Firstly, the Regulation approved by the Resolution of the Cabinet of Ministers established new rules of law (legal norms) that go beyond the Law on NPOs. Namely: 1) item 8 of the Regulation envisages the requirement to provide information not provided for by the Law on NPOs; 2) paragraph 2 of item 31 of the Regulation prescribes NPOs-FRs to notify the Ministry of Justice of hiring or dismissal of employees within 7 calendar days.

Secondly, in violation of Article 22 of the Law on Regulatory Legal Acts of the Kyrgyz Republic, paragraphs 32, 106 of the OSCE/ODIHR Guidelines on Freedom of Association, the Cabinet of Ministers did not publish the draft for public discussion on the Unified Portal (http://www.koomtalkuu.gov.kg). At the same time, no discussions or consultations were held with representatives of NPOs and civil society. That is a violation of the rule-making process.

Thirdly, the Regulation approved by the Resolution expanded the list of authorized state bodies conducting inspections of NPOs-FRs. The Law on NPOs (Article 17-1) grants the only authorized state body (in this case, the Ministry of Justice of the Kyrgyz Republic) the right to "conduct inspections" of the activities of NPOs. However, the Cabinet of Ministers expanded the list of bodies authorized to conduct inspections of NPOs-FRs. In accordance with paragraph 37 of the Regulation, inspections may also be carried out by: 1) tax authorities; 2) the Ministry of Culture, Information, Sports and Youth Policy of the KR; 3) prosecutor's offices; 4) other state bodies whose scope of activities and competence relate to NPOs' core activities.

Forth, the Regulation (paragraph 36) permits inspections of NPOs on the basis of statements made by state bodies, local governments or the media, even verbally, about an alleged violation by an NPO of the Law on NPOs or inconsistency of the activities of an NPO with its statutory goals. At the same time, it lacks clear mechanisms to protect NPOs from unfounded or arbitrary statements.  It does not provide for a preliminary verification of the reliability of the information received before starting a direct audit of NPOs-FRs, which may open the door to abuse by both authorities and other stakeholders.

Fifth, the Regulation also does not contain clear and specific procedures regarding the process of inspections of NPOs-FRs. First of all, there are no procedures regarding the duration, timing and frequency of inspections, as well as the ways and criteria by which the authorities will monitor and evaluate the involvement of NPOs in political activities and other issues provided for by the Regulation. The absence of these important norms and procedures creates legal uncertainty and may jeopardize the right of NPOs-FRs to an objective and fair assessment of their activities.

Sixth, paragraph 22 of the OSCE/ODIHR Guidelines on Freedom of Association was ignored, according to which "... legal provisions concerning associations should be well developed. They must be clear, precise and indisputable. In addition, in order to ensure that the content of the law is supported by all stakeholders, the process of adopting such provisions should be open, accessible to all and based on the participation of all stakeholders."

On 28 October, at 11:00 a.m., a preparatory hearing was held at 64 Ibraimov Str., Bishkek, chaired by Judge Ch.M. Dosmambetova. The hearing was attended by representatives of the plaintiff, the defendant (the Cabinet of Ministers of the KR), third parties (the Prosecutor's Office) and the Ombudsman Institution (Akyykatchy). Unfortunately, the representative of the Ombudsman Institution (Akyikatchy) refused to further participate in the consideration of the case. Although, in our opinion, this institution, whose function is parliamentary control over the observance of human rights and freedoms in Kyrgyzstan, should be interested in challenging regulatory legal acts that impede the free exercise of rights by citizens, primarily the right to association, as well as the exercise by citizens of their right to participate in the management of public and state affairs. The prosecutor's office also ignored the court sessions on the case and did not participate in the proceedings.

On 20 November 2024, the court granted the plaintiff's request to attach to the case file the Opinion of the Venice Commission of the Council of Europe (European Commission for Democracy through Law) dated 14 October 2024, Strasbourg CDL - AD (2024) 033. The translation from English into Russian was carried out at the initiative of the plaintiff by a certified professional translator.

Representatives of the Cabinet of Ministers and the Ministry of Justice of the KR did not appear at the previous meeting on 9 December 2024, without any explanation, although at the previous meeting a representative of the Cabinet of Ministers signed the notification of the scheduling of the next trial.

On 14 January 2025, at 2 p.m., a regular court session was held, at which the case was considered on its merits. On the same day, having listened to the opinions of the parties and examined the available case materials, the court ruled to dismiss the administrative claim of the PA "Bir Duino– Kyrgyzstan".

Our organization is currently awaiting a written reasoned court decision on our case. However, until then, we consider it important to first note the following points and issues that have emerged during the past process:

1)     the respondent's representative acknowledged that the information requested under the Regulation has already been provided to the relevant authorities (the Ministry of Justice, tax authorities and Statistical Committee), and therefore, the next submission of information is a duplication and a double obligation of NPOs;

2)     the representative of the Ministry of Justice could not clarify whether sufficient measures were being taken to ensure the safety of the collected data (under article 21 of the Law on Personal Information);

3)     even an oral statement can serve as a basis for starting an audit of an NPO, since the Regulation does not require a written statement;

4)     according to the representative of the Cabinet of Ministers, the number of inspections (including simultaneous ones) can be unlimited;

5)     it remains unclear whether an NGO is required to translate documents requested during verification that exist in foreign languages into Kyrgyz and Russian.

The PA "Bir Duino-Kyrgyzstan" notes that the organization, after receiving a written reasoned decision of the Administrative Court of Bishkek, intends to appeal to the Bishkek City Court within the time limits stipulated by law.

Should you have any questions, please, contact our lawyer via mobile: 0770 341 720 or via email: birduinokyrgyzstan@gmail.com