On August 27, 2024, the Cabinet of Ministers of the Kyrgyz Republic (hereinafter - the Cabinet of Ministers) issued Resolution No. 518 dated August 27, 2024 (hereinafter - 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 Audits of Their Activities (hereinafter - the Regulation) in accordance with the Law of the Kyrgyz Republic “On Non-Profit Organizations” (hereinafter - the NGO Law).

The Regulation establishes the procedure for inclusion of non-profit organizations ( NCOs) in the Register of NCOs-foreign representatives (NCO-Foreign Representatives), requirements for conducting mandatory financial audits and the procedure for conducting state inspections of NCO-Foreign Representatives and other requirements.

As of today, having studied the Resolution, we come to the conclusion that the Cabinet of Ministers violated and failed to comply with the following normative legal acts when issuing it:

1) Constitution of the Kyrgyz Republic;

2) OSCE ODIHR Guidelines on Freedom of Association;

3) Law “On Normative Legal Acts of the Kyrgyz Republic”;

4) Law “On Non-Profit Organizations”.

The first Regulation approved by the Resolution of the Cabinet of Ministers established new norms of law (legal norms). And its provisions correspond to the definition of paragraph 9 of Article 2 of the Law “On Normative Legal Acts of the Kyrgyz Republic” - are generally binding rules of behavior, designed for an indefinite number of persons and repeated application.

It should be noted that the new legal norms go beyond the Law on NCOs. Namely:

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

- legal address;

- bank account details;

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

- information on employees (surname and initials of employees);

Paragraph 2 of Clause 31 of the Regulation requires a foreign NPO to notify the MOJ on hiring or dismissal of employees within 7 calendar days.

Second, the Ministry of Justice did not comply with the requirements of Article 22 of the Law “On Normative Legal Acts of the Kyrgyz Republic”, according to which “draft normative legal acts directly affecting the interests of citizens and legal entities[...] are subject to public discussion”. Also, the OSCE ODIHR Guidelines on Freedom of Association (hereinafter - the Guidelines) also indicate the need to consult with associations during the preparation and application of normative legal acts that affect the interests of associations (paras. 32, 106). However, the Cabinet of Ministers did not publish the draft for public discussion on the Single Portal(http://www.koomtalkuu.gov.kg). At the same time, no discussions or consultations with representatives of NGOs and civil society were held. This is a violation of the rule-making process.

Third, the Regulation approved by the Resolution expanded the list of authorized state bodies to conduct inspections of NPOs - Foreign Representative. The Law on NCOs (Article 17-1) gives the only authorized state body (in this case, the Ministry of Justice of the Kyrgyz Republic) the right to “conduct inspections of compliance of NCO activities, including expenditures of funds and use of other property, with the goals stipulated by its constituent documents. However, in the Regulation, the Cabinet of Ministers expanded the list of bodies authorized to conduct inspections of NCOs-foreign representative. In accordance with Clause 37 of the Regulation, inspections may also be conducted by:

1) Tax authorities - on issues of compliance with the requirements of financial transparency and tax legislation;

2) Ministry of Culture, Information, Sports and Youth Policy of Kyrgyzstan - on issues related to labeling of materials produced or distributed by “Foreign Representative” NPOs;

3) Prosecutor's Office bodies - on issues related to participation of NCOs in political activities, as well as verification of compliance with statutory goals and other legal requirements;

4) other state bodies whose scope of activities and competence relate to NPOs' core activities - on issues of compliance of their activities with the statutory objectives.

Fourth, part 3 of Article 23 of the Constitution of the Kyrgyz Republic prohibits the “adoption of subordinate normative legal acts that restrict human and civil rights and freedoms”. According to paragraph 2 of Article 6 of the Law “On Normative Legal Acts”, a normative legal act must not contradict a normative 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 be provided for by another law”. Thus, the new additional burdensome requirements for NPO-Foreign Representative, which are not in the Law on NPOs, pursuant to which the subordinate normative legal act was adopted, violates the specified norms of the Constitution of the Kyrgyz Republic and the Law “On Normative Legal Acts”, as well as international standards of the right to association.

Fifth, the Regulation (paragraph 36) authorizes inspections of NPOs on the basis of statements by state bodies, local self-government bodies or the media, even verbal ones, about alleged violations of the NPO Law on NPOs or inconsistency of NPO activities with its statutory goals. At the same time, it lacks clear mechanisms to protect NPOs from unreasonable or arbitrary allegations. It does not provide for preliminary verification of the reliability of the information received prior to direct verification of the NPO Foreign Representative, which may open the door to abuse by both the authorities and other stakeholders.

The Regulation also does not contain clear and specific procedures regarding the process of vetting foreign NPOs. These include, first and foremost, the duration, timing and frequency of inspections, as well as the ways and criteria by which the authorities will monitor and assess NPOs' involvement in political activities and other matters provided for in the Regulation. The absence of these important norms and procedures creates legal uncertainty and could jeopardize the right of foreign NPOs to an objective and fair assessment of their activities.

This ignores paragraph 22 of the Guidelines, according to which “...legal provisions relating to associations should be well drafted. They should 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 participatory”.

Based on the existing circumstances, we find that the Cabinet of Ministers, by issuing the appealed Resolution, which approved the Regulation, exceeded its authority and also in violation of paragraph 6 of Article 2 of the Law “On Normative Legal Acts of the Kyrgyz Republic” went beyond its competence. This is unacceptable for the supreme body of executive power, whose function is to ensure the implementation of the Constitution, laws of the Kyrgyz Republic and international treaties that have entered into force, to implement measures to ensure the rule of law, rights and freedoms of citizens.

In connection with the above violations of the legislation, including international obligations, the Public Association “Bir Duino Kyrgyzstan” filed a petition to the Administrative Court of Bishkek to invalidate the above Resolution.

On October 28 at 11:00 a.m. a preparatory hearing was held at the address 64 Ibraimova Street, Bishkek. The hearing was attended by: representatives of the plaintiff, the defendant (the Cabinet of Ministers of Kyrgyzstan), third parties (prosecutor's office) and the Ombudsman Institute (Akyikatchy). To our regret, the representative of the Ombudsman Institute (Akyikatchy) expressed her refusal 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 normative legal acts that prevent the free exercise of the rights of citizens and every right, primarily the right to association, as well as the realization by citizens of the right to participate in the management of the affairs of society and the state.

The court also obliged the defendant party (the Cabinet of Ministers of Kyrgyzstan) to submit the whole package of documents concerning the contested Resolution. Also, the plaintiff's representative requested to request through the court (for subsequent sessions) the opinion of the prosecutor's office regarding the case under consideration, in accordance with Part 3 of Article 42 of the APC of Kyrgyzstan. The next hearing is scheduled for November 20 at 14:00. We ask all interested parties, as well as concerned citizens, activists, journalists to support our organization and be present at the next sessions of the court.