Report of the Special Rapporteur on Freedom of Religion Or Belief, Heiner Bielefeldt

A/HRC/28/66/Add.1

Human Rights Council

Twenty-eighth session

Agenda item 3

Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development

Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt

Addendum

Mission to Kazakhstan[*]

Annex

[English and Russian only]

Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt

Contents

ParagraphsPage

I.Introduction...... 13

II.General observations...... 2–153

A.A society characterized by religious pluralism...... 2–63

B.The self-understanding of the State in managing religious pluralism.....7–84

C.Constitutional standards...... 9–155

III.The prevalence of security and public-order concerns...... 16–236

A.Fear of religious extremism...... 16–196

B.The issue of limitation to freedom of religion or belief...... 20–237

IV.Required administrative permissions for religious activities...... 24–408

A.Mandatory registration as religious association...... 24–318

B.Theological criteria in registration reviews...... 32–3410

C.Registration of missionary activities...... 35–3710

D.Importation and distribution of religious literature...... 38–3911

E.Obstacles to religious charity work...... 4012

V.Combating religious hatred and religious extremism...... 41–5112

A.Combating religious hatred that constitutes incitement
to discrimination, hostility or violence...... 41–4312

B.Lack of clear definition of criminal offences...... 44–5113

VI.Educational efforts inside and outside of schools...... 52–6415

A.Differentiation between religious instruction and information
about religion...... 52–5315

B.Religious information as part of the school curriculum...... 54–5716

C.The problem of “anti-sect” campaigns...... 58–5916

D.Promoting “religious literacy” in society...... 60–6217

E.Religious socialization of young people...... 63–6417

VII.Conclusions and recommendations...... 65–6918

I.Introduction

1. From 25 March to 4 April 2014 the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, undertook a visit to Kazakhstan. First of all, he would like to express his gratitude to the Government of Kazakhstan for having invited him, as part of a standing invitation to all Special Procedures of the Human Rights Council. He is particularly grateful to the numerous interlocutors from different government agencies, a broad range of civil society organizations, a number of academics and various religious communities. Discussions took place in Astana, Almaty and Karaganda. The exchange of views, experiences and assessments, which he had with different interlocutors, took place in a constructive atmosphere. The United Nations country team in Astana played a crucial role in facilitating the visit and establishing important contacts to different government institutions, civil society organizations and religious communities. The Special Rapporteur would like to take this opportunity to again extend his thanks to the United Nations Resident Coordinator and his team, in particular the Human Rights Programme Officer.

II.General observations

A.A society characterized by religious pluralism

2. Interlocutors from the Government and civil society repeatedly pointed out that Kazakhstan, in spite of its rich and long history, is still a young nation. Since its independence in 1991, it has seen rapid and far-reaching transformations, including an unprecedented pace of economic growth, the establishment of new State agencies, the development of numerous civil society organizations, the further unfolding of ethnic, cultural and religious pluralism and a revival of religious life, epitomized inter alia in a number of impressive new religious buildings.

3. Religious pluralism is a hallmark of Kazakh society traceable to far back in history and perhaps even to pre-history. Many people with whom the Special Rapporteur discussed this issue praised the culture of religious tolerance that has existed in the country since time immemorial. Some also mentioned specifically the country’s “nomadic” traditions of hospitality and openness towards others. Today, two big confessions — Sunni Islam (of the Hanafi school) and Russian Orthodox Christianity — shape the religious landscape, together with a number of smaller communities. While Muslims constitute a majority of approximately 70 per cent of the population, Russian Orthodox Christians are estimated to amount to almost 25 per cent. Smaller communities include Catholics, Lutherans, Baptists, Methodists, Seventh Day Adventists, New Apostolic Church, Pentecostals, Jehovah’s Witnesses, Mormons, Shias, members of the Ahmadiyya Muslim Community, Baha’is, Buddhists, Scientologists and Hare Krishna adherents. One should not forget that there are possibly also a high number of atheists and agnostics or people who do not care much about religious beliefs and identities. While some of the above-mentioned communities have existed in Kazakhstan for centuries, others arrived in more recent times. The Special Rapporteur noticed broad agreement that the relationship between the various religious communities is generally a positive one. Incidents of interreligious clashes seem to be very rare, and people mostly appreciate religious diversity as something quite natural to Kazakhstan.

4. However, this generally positive attitude does not equally include members of non-traditional communities. According to a survey conducted by the Agency for Religious Affairs, the population generally displays different degrees of acceptance towards traditional and non-traditional religious communities. Members of communities perceived as “non-traditional” reported that they sometimes faced societal scepticism, suspicion and discrimination. For instance, they might encounter difficulties when trying to rent a building or room to gather the community or to hold services. Although government representatives mostly avoided the terms “traditional” and “non-traditional” when discussing this theme — except in the context of summits of religious leaders regularly convened in Kazakhstan — no one denied that adverse attitudes existed towards religious groups perceived as standing outside of the country’s traditional mosaic. Moreover, widespread fear of religious extremism, often associated with certain currents of Islam, and worries about the influence of “sects” generally associated with small non-traditional groups pose challenges to the climate of religious tolerance that largely prevails in the society.

5. Religious and ethnic pluralism is almost inextricably intertwined in Kazakhstan. While ethnic Kazakhs, who constitute the largest ethnic group, usually understand themselves as Muslims, ethnic Russians (constituting the second biggest group) are generally perceived as Orthodox Christians. However, such perceptions and self-identification do not always reflect an active religious commitment and practice. It seems that religion often serves as a proxy for ethnicity and vice versa. This complex ethno-religious pluralism is widely appreciated as a positive asset on which to build Kazakhstan’s future. The “Assembly of Peoples of Kazakhstan”, headed by the President of the country and convened at least once a year at national level, reflects this ethno-religious pluralism by bringing together people from all parts of society.

6. Conversion from one religion to another, or to atheism, is possible without any State interference. While missionary activities aimed at converting others are strictly monitored by the State, changing one’s religion does not incur any State-imposed sanctions. However, given the wide overlaps between religion and ethnicity, a change of one’s inherited religion may also be perceived as a rupture from one’s own ethnic and family background, thus possibly leading to social ostracism.

B.The self-understanding of the State in managing religious pluralism

7. In the international arena, Kazakhstan aspires to serving as a bridge between different global and regional organizations as well as between different world religions. Since the beginning of 2013 Kazakhstan has been a member of the United Nations Human Rights Council. The country also belongs to the United Nations Alliance of Civilizations. Kazakhstan plays an active role in the Organization for Security and Co-operation in Europe and takes pride in its 2010 chairmanship of that organization. Although Kazakhstan does not formally belong to the Council of Europe, it participates in the European Commission for Democracy through Law (“Venice Commission”), which is tasked with promoting the principles of rule of law in the broader European and Eurasian region. Kazakhstan is also a member of the Organization of Islamic Cooperation, and the Government has shown a commitment towards strengthening that organization’s human rights component. Finally, the Government takes particular pride in its role as convener of regular meetings of the Congress of Leaders of World and Traditional Religions.

8. The promotion of amicable relations between different religions thus characterizes Kazakhstan’s political aspirations in the international arena as well as in the domestic sphere. This commitment to interreligious dialogue has much to do with the existing and further emerging religious pluralism in the country and the Government’s experience in managing such pluralism. The Agency for Religious Affairs, established in 2011, plays an important facilitating role in convening interreligious council meetings both regionally and nationally. Such meetings take place at least four times a year. Besides the closed meetings reserved for formal members, some meetings are open for broader participation by non-members as well. Some representatives of religious minorities explicitly appreciated the efforts undertaken by the Government in this field, assuming that without the active role of the State the religious communities would probably meet less regularly.

C.Constitutional standards

9. Kazakhstan sees itself as a secular State that does not promote any particular religion or belief. Indeed, secularism belongs to the defining characteristics of the State, as laid down in the 1995 Constitution. According to article 1, paragraph 1, of the Constitution, “The Republic of Kazakhstan proclaims itself a democratic, secular, legal and social State whose highest values are an individual, his life, rights and freedoms”. Furthermore, article 5, paragraph 4, of the Constitution bans religious political parties.

10. The secular nature of the State was an issue mentioned in numerous discussions with government representatives and civil society organizations. In this context, the Agency for Religious Affairs referred to opinion polls that indicate that secularism enjoys broad approval among the population. Ideas of establishing a religious State, for instance an Islamic State, as exist in some of the neighbouring countries, seem to be very unpopular.

11. Moreover, the secular nature of the State is widely seen as the sine qua non for the Government to take an authoritative role in managing religious diversity. During discussions, Government officials underlined that secularism in Kazakhstan does not indicate an anti-religious attitude, as was the case during Soviet rule, but rather serves as a guarantee of State neutrality vis-à-vis the various religions that exist in the country. However, while clearly emphasizing the need to prevent religions from unduly influencing secular State institutions, the government representatives usually paid markedly less attention to the need to protect religious communities from undue State control. This peculiar understanding of secularism is also reflected in political practice. The Government pursues a restrictive policy of keeping religion largely out of State institutions such as public schools, the administration and the military. For instance, the military has no religious chaplains. At the same time, the State goes quite far in monitoring religious organizations, in particular non-traditional communities. In discussions on secularism, the Special Rapporteur argued for a less restrictive understanding and a more accommodating practice whereby State institutions would provide an open, inclusive space for the unfolding of diversity of religion and belief also in the public sphere.

12. The Constitution contains a number of human rights provisions, some of which are especially pertinent to the practice of freedom of religion or belief. Article 14 enshrines the principles of equality and non-discrimination. Among the explicitly prohibited grounds of discrimination, the article lists “attitude towards religion” and “convictions”. Article 19 guarantees everyone the right to determine and indicate or not to indicate religious affiliation. The most pertinent constitutional provision concerning freedom of religion or belief is article 22, which reads as follows: “1. Everyone shall have the right to freedom of conscience. 2. The right to freedom of conscience must not specify or limit universal human and civil rights and responsibilities before the State”. In addition, article 39 of the Constitution prohibits limitations on the right to freedom of conscience under all circumstances.

13. The formulation used in article 22 of the Constitution is clearly narrower than the wording found in article 18 of the International Covenant on Civil and Political Rights, which Kazakhstan ratified in 2006. While article 18 of the Covenant broadly covers freedom of thought, conscience, religion or belief in its various private and public dimensions for everyone, individually and together with others, article 22 of the Constitution merely refers to freedom of conscience of individuals. Furthermore, in comparison with article 22, paragraph 2, of the Constitution, which leaves the issue of possible limitations rather open, the criteria for limitations on manifestations of freedom of religion or belief enshrined in article 18, paragraph 3, of the Covenant are more precisely and more carefully defined.

14. According to the Constitution, international human rights treaties have priority over conflicting domestic law — except for the Constitution, which remains the supreme law of the country. While article 4, paragraph 2, anchors the supreme legal authority of the Constitution “as the highest judicial force” in Kazakhstan, article 4, paragraph 3, provides that “international treaties ratified by Kazakhstan are to be directly implemented except in cases when the application of an international treaty shall require the promulgation of a law”.

15. A number of State institutions, including the Human Rights Commission under the President and the Ombudsman, have a mandate to monitor the domestic human rights situation, based on constitutional and international standards. The Ombudsman so far has an office only in the capital, but the establishment of regional offices is currently under discussion.

III.The prevalence of security and public-order concerns

A.Fear of religious extremism

16. The Government’s active role in managing religious pluralism seems to be strongly motivated by the fear of religious extremism. Apart from State representatives, such fear was also voiced by members of civil society organizations and representatives of religious communities. In the face of religious militancy, violent religious clashes and even terrorism in some of Kazakhstan’s neighbouring countries, the existing anxiety is certainly understandable.

17. Some academic experts were of the opinion that, owing to the Soviet legacy, most believers lacked an in-depth understanding of their own religious traditions — a situation which, they said, might render people vulnerable to the simplistic slogans of religious radicalism. The fact that religious and ethnic pluralism are nearly inextricably interwoven in Kazakhstan may add yet another dimension to security concerns.

18. Stability, tranquillity and harmony figured as keywords in many discussions, in particular with government representatives. The Special Rapporteur concurs that the political stability that Kazakhstan has by and large enjoyed since its independence is an accomplishment that deserves to be appreciated and further developed. However, the strong emphasis on stability can, and does, lead to subordinating human rights norms, including freedom of religion or belief, to broadly defined security and public-order concerns. This even obscures the elevated normative rank of human rights, including freedom of religion of belief, as inalienable rights.

19. The Special Rapporteur would like to reiterate that freedom of religion or belief is not a mere dividend of efficient diversity management by the State, but rather has the status of a universal right belonging to all human beings. Everyone must be able to practise their religion or belief, individually and in community with others, in private or in public. To have this freedom is everyone’s right — prior to, and ultimately independent of, any acts of administrative approval. Moreover, the ways in which people wish to express their freedom of religion or belief are manifold. They include traditional and less traditional forms of worship, communicative outreach within and beyond their own religious community, educational efforts in families and communities, organized charity work, importation and distribution of religious literature, and establishment of an appropriate religious infrastructure. Reportedly, the enjoyment of these freedoms is hampered by the law and in practice, in particular for members of so-called “non-traditional” communities.

B.The issue of limitation to freedom of religion or belief

20. In discussions with government representatives, general agreement could be found that freedom of religion or belief — apart from its absolutely protected forum internum dimension — is not without possible limitations. However, disagreements repeatedly occurred concerning the question of where to draw the line. Fortunately, international human rights law gives clear guidance in this respect. The decisive point is that the onus of proof always falls on those who argue on behalf of limitations, not on those who defend or practise a human right to freedom. In other words, the relationship between a human right to freedom and its limitations must remain a relationship between rule and exception. In case of doubt, the rule prevails; with exceptions always requiring an extra burden of argumentation, both at the level of empirical evidence and of normative reasoning.

21. Limitations to freedom of religion or belief cannot be legitimate unless they cumulatively meet the criteria set out in article 18, paragraph 3, of the Covenant. Accordingly, they must be legally prescribed; they must be clearly necessary — i.e. as an ultimate resort — to pursue a legitimate aim; and they must remain within the realm of proportionality, which inter alia means they must be confined to the minimum degree of interference needed to reach one of the legitimate aims. In addition, limitations must not have any discriminatory intentions or effects.