[( Re: Concerns over Article 12 of the draft Law of the Kyrgyz Republic on "Fighting Against the Legalization (Laundering) of Criminal Proceeds and the Financing of Terrorist or Extremist Activities" )]
Excellencies,
We are writing to you to express our concern regarding Article 12 of the draft Law of the Kyrgyz Republic on "Fighting against the Legalization (Laundering) of Criminal Proceeds and the Financing of Terrorist or Extremist Activities".
The bill, which was drafted by the State Financial Intelligence Service under the Prime-Minister’s office, was initially introduced to Parliament on January 28, 2013.
However, in April 2013, a restrictive Article 12, titled “Preventive measures for [Non-Commercial Organisations] NCOs”, was incorporated in the bill. If adopted, this Article would violate a number of international and regional standards related to freedom of association and result in additional burdens for the Kyrgyz civil society.
Such article would indeed introduce three major setbacks for NGOs:
First, it would require citizens and legal entities to communicate their suspicions over any activity of an NCO to the financial intelligence body, the law enforcement bodies and the State security body. We have strong fears that the vagueness of this provision could lead to de facto violations of the presumption of innocence, and in an inversion of the burden of the proof.
Second, this article would set up what is labelled as an “authorised State body” in charge of “monitoring and controlling” the activities of NCOs. Without further details about the scope and mandate of such a body, we fear that this could result in a form of legitimisation of undue restrictions over NGOs activities.
Third, the same article would empower State bodies to verify the “proper use” of the income and funds of NCOs “receiving a high percentage of funds from abroad”, through the imposition of new burdensome reporting requirements - such as the submission of information on the identity of the donors of these NCOs, information on the mandate and “positive reputation” of the recipients and partner NCOs, and detailed reports on their internal and international transactions - to the financial intelligence, national security and law enforcement bodies. Again, the broad character of this provision could result in undue interference in the internal affairs of NCOs.
Excellencies, if Article 12 is adopted in its current version, we fear that it would establish a set of harsh restrictions towards NCOs, which would go far beyond what is permissible under international law and standards.
The Observatory for the Protection of Human Rights Defenders, a joint programme of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), recalls indeed that the right of non-governmental organisations (NGOs) to freedom of association is a fundamental and universal right enshrined in numerous international treaties and standards, especially Article 22 of the International Covenant on Civil and Political Rights (ICCPR). Although this rights is naturally accompanied by certain responsibilities on the part of NGOs, especially in terms of transparency and good governance, as in any other sector of society, legitimate restrictions on this right must always be “prescribed by law” and “necessary in a democratic society”, and respect the primacy of the general interest and the principle of proportionality (Article 22.2 of ICCPR). Moreover, while certain restrictions may be imposed, it should be emphasised that freedom should be the rule, and restrictions the exception.
Accordingly, the Observatory respectfully urges you to:
– Immediately reject the above-mentioned legal provision targeting the Kyrgyz civil society;
– Ensure in all circumstances the proper implementation of the constitutional rights of the citizens of Kyrgyzstan and comply with international and regional human rights standards, such as the right to freedoms of association and peaceful assembly;
– Guarantee in all circumstances the development of a safe and enabling environment in which independent NGOs, civil society, and the media can operate free from any hindrances and reprisals.
In the hope that you will take these elements into account, we also invite you to consult the recommendations outlined in the Annual Report 2013 of the Observatory for any upcoming legislation related to the issue of NGO funding[1].
We remain,
Souhayr BELHASSEN Gerald STABEROCK
FIDH President OMCT Secretary General
[1] The Report is available in Russian on the following weblinks:
http://www.fidh.org/IMG/pdf/obs_2013_human_rights_defenders_russian.pdf
http://www.omct.org/files/2013/02/22162/obs_2013_human_rights_defenders_russian.pdf.