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 (NPO-FR), requirements for mandatory financial audits and the procedure for conducting state audit of NPOs-FRs and other requirements.

To date, having studied the Resolution, we come to the conclusion that when it was issued by the Cabinet of Ministers, the following normative 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.

Firstly, the Regulation, approved by a Resolution of the Cabinet of Ministers, established new norms of law (legal norms). Its provisions correspond to the definition of paragraph 9, Article 2 of the Law on Regulatory Legal Acts of the Kyrgyz Republic - they are generally binding rules of conduct, designed for an indefinite circle of persons and repeated application.

It should be noted that the new legal norms go beyond the Law on NPOs:

1)     Paragraph 8 of the Regulation envisages the requirement to provide information not provided for by the Law on NPOs, namely:

- legal address;

- bank account details;

- tax identification number (TIN) of the founder(s) and the head;

- information about employees (surnames and initials of employees);

2)     Paragraph 2 of item 31 of the Regulation prescribes the NPO-FR to notify the Ministry of Justice of the admission or dismissal of employees within 7 calendar days.

Secondly, the Ministry of Justice did not comply with the requirements of article 22 of the Law on Regulatory Legal Acts of the Kyrgyz Republic, according to which "draft regulatory legal acts directly affecting the interests of citizens and legal entities [...] are subject to public discussion."  The OSCE/ODIHR Guidelines on Freedom of Association (hereinafter referred to as the Guidelines) also indicate the need for consultations with associations during the preparation and application of regulatory legal acts that affect the interests of associations (paragraphs 32, 106). However, 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) gives the only authorized state body (in this case, the Ministry of Justice of the Kyrgyz Republic) the right to "conduct checks on the compliance of the activities of an NPO, including the expenditure of funds and the use of other property, with the purposes provided for in its constituent documents." However, in the Regulation, 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 the following bodies:

1)     tax authorities – on compliance with the requirements of financial transparency and tax legislation;

2)     Ministry of Culture, Information, Sports and Youth Policy of the Kyrgyz Republic – on labeling of materials produced or distributed by NPOs -"FRs";

3)     prosecutor's offices – on issues related to the participation of NPOs in political activities, as well as verification of compliance with statutory goals and other legal requirements;

4)     other state bodies with the sphere of activity and competence concerning the main activities of NPOs - on issues of compliance of their activities with the statutory goals.

Fourth, part 3 of Article 23 of the Constitution of the Kyrgyz Republic prohibits "the adoption of subordinate regulatory legal acts restricting human and civil rights and freedoms." According to part 2 of Article 6 of the Law on Regulatory Legal Acts, a regulatory legal act should not contradict a regulatory legal act that has a higher legal force in comparison with it.  Also, according to paragraph 109 of the Guidelines, "any legal and other restrictions imposed on NPOs must be based on the constitution or provided for by another law." Thus, new additional burdensome requirements for NPOs-FRs not included in the Law on NPOs, pursuant to which a subordinate regulatory legal act was adopted, violate the specified norms of the Constitution of the Kyrgyz Republic and the Law on Regulatory Legal Acts, as well as international standards of the right to association.

Fifth, 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 possibility for abuse by both authorities and other interested parties.

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.

At the same time, paragraph 22 of the Guidelines was ignored. The paragraphs states, "... the 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."

Based on the circumstances, we state that the Cabinet of Ministers, having issued the appealed Resolution approving the Regulation, exceeded its powers and also, in violation of paragraph 6 of Article 2 of the Law on Regulatory Legal Acts of the Kyrgyz Republic, it went beyond its competence. That is unacceptable for the supreme executive authority, whose function is to ensure compliance with the Constitution, the laws of the Kyrgyz Republic and international treaties that have entered into force, the implementation of measures to ensure the rule of law, the rights and freedoms of citizens.

Due to the above violations of legislation, including international obligations, the PA "Bir Duino-Kyrgyzstan" filed an application to the Administrative Court of Bishkek for invalidation of the above-mentioned Resolution.

On 28 October, at 11:00 a.m., a preparatory hearing was held at 64 Ibraimov St., Bishkek. The hearing was attended by representatives of the plaintiff, the defendant (Cabinet of Ministers of the KR), third parties (Prosecutor's Office) and the Ombudsman Institution (Akyikatchy). 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 their right to participate in the management of public and state affairs.

The court also ordered the defendant's side (Cabinet of Ministers of the KR) to submit the entire package of documents regarding the contested Resolution. The representative of the plaintiff also requested to demand through the court (for subsequent hearings) the conclusion of the prosecutor's office regarding the case under consideration in accordance with part 3 of Article 42 of the Arbitration Procedure Code of the KR. The next meeting is scheduled for 20 November, 14:00. We request all interested parties, as well as concerned citizens, activists, and journalists to support our organization and attend the next court sessions.