New information
KAZ 001 / 0417 / OBS 040.1
Restrictions to freedom of association /
Judicial harassment / Sentencing
Kazakhstan
July 5, 2017
The Observatory for the Protection of Human Rights Defenders, a partnership of FIDH and the World Organisation Against Torture (OMCT), requests your urgent intervention in the following situation in Kazakhstan.
New information:
The Observatory has been informed by its trial observers about the sentencing of the human rights NGO"International Legal Initiative" (ILI) [1].
According to the information received, during the June-21 hearing, the Almaty City Court upheld the decision of the Specialized Inter-District Economic Court of Almaty dated April 6, which had concluded that ILI had failed to pay corporate income tax, and accordingly condemned the NGO to pay a 3,700-euro fine. On July 3, 2017, ILI paid the amount of 3,900 euros, including fine and penalties, but the organisation intends to prepare a cassation complaint to challenge this court decision.
The sentencing is related to the outcome of a tax audit conducted by the Department of State Taxes of the Ministry of Finances from August to December 2016, which, through the Statement of Notification n. 1725, concluded that grants received by ILI between January 1, 2011, and June 30, 2016, from certain donors, including the National Endowment for Democracy (NED), Freedom House, the Norwegian Helsinki Committee, the Canadian Embassy, the United States (US) Embassy and the US Department of State should be subject to income tax under Article 96 of the Tax Code [2] (see background information).
During the trial, ILI asserted that according to article 134(2) of the Tax Code, non-for-profit organisations registered in Kazakhstan and “participating in the performance of the governmental social order”, such as ILI, shall not be subject to corporate taxation. ILI then argued that these grants should not be subject to Corporation Income Tax (CIT) due to their charitable and non-profit purpose. Additionally, ILI brought into discussion the fact that the organisation “Kadyr Kasiet” was not subjected to taxation despite having the same donors as ILI, which would show a difference in treatment to different organisations and would speak of the arbitrariness of the decision. Finally, ILI requested the Court to acknowledge the Statement of Notification n. 1725 had been illegal and thus, should be cancelled.
During the hearing, the Tax Department representative was not able to respond to questions posed by the judge. The representative and the prosecutor went on alleging that ILI had not provided all the financial documents for inspection. ILI proved on the contrary that all the requested documents had been provided. On his final remarks, the prosecutor requested the Court to uphold the Specialized Inter-District Economic Court of Almaty’s decision. A representative of the Coalition for Security of Human Rights Defenders and Activists observed the courtroom to support ILI and freedom of association in Kazakhstan. Representatives of Freedom House and the Norwegian Helsinki Committee also attended the trial.
The Observatory denounces the sentence handed down against ILI as it disregards fair trial standards and sets a negative precedent by de facto depriving an NGO of its non-profit status. The Observatory urges the Kazakh authorities to put an end to all acts of harassment, including at the judicial and administrative levels, against ILI and all human rights organizations operating in the country as to ensure the respect for freedom of association, expression and peaceful assembly in Kazakhstan. Kazakhstan authorities should not be using tax audits to prevent human rights organizations from carrying out their work.
Background information:
In August 2016, the tax authorities began inspections on the basis of a letter from a Kazakh citizen requesting tax authorities to inspect NGOs receiving foreign funding. In the letter, the individual referred to an anonymous Internet article reporting about “unclear amounts of funding” granted to “unclear NGOs of Kazakhstan” that “"may work against the main value of Kazakhstan – stability”" and asked the authorities to verify whether three NGOs, ILI, “Kadyr Kasiet" and “Liberty”, were paying their taxes.
Carried out from August to December, 2016, the audit resulted in the issuing of State of Notification n. 1725, dated December 30, 2016, which ordered ILI to pay a fine for alleged failure to pay taxes. ILI received a fine of approximately 3,700 euros. In February 2017, ILI appealed the Department of State Taxes of the Ministry of Finances’ decision in the Specialized Inter-District Economic Court of Almaty, which resulted in a first instance ruling against ILI on April 6, 2017.
The two other human rights NGOs mentioned in the letter "Kadyr Kasiet" and "Liberty" - were also subjected to similar audits. The NGO “Liberty” filed a lawsuit challenging the legality of a decision to impose on them a corporate income tax, but unsuccessfully. “Liberty” appealed to the Almaty City Court. However, the NGO “Kadyr Kasiet” was not subjected to taxation, despite having the same donors as ILI. This fact denotes further the arbitrariness on the use of tax legislation to prosecute independent human rights organizations and to discredit the work they carry out.
Actions requested:
Please write to the authorities of Kazakhstan asking them to:
i. Put an end to all acts of harassment, including at the judicial level, against ILI and all human rights organizations in Kazakhstan;
ii. Review the court decision of June 26, 2017 in accordance with internationally recognized fair trial standards;
ii. Revise tax legislation to ensure its compliance with international standards of freedom of association;
iv. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially Articles 1, 5, 6 and 12.2; and
v. More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with the Universal Declaration of Human Rights and with international and regional human rights instruments ratified by Kazakhstan.
Addresses:
· Mr. Nursultan NAZARBAEV, President of the Republic of Kazakhstan. Fax: + 7 3172 32 61 82, 007 / 3172 / 32 40 89
· Mr. Kalmukhanbet Kassymov, Minister of Internal Affairs of Kazakhstan. Email: Kense@mvd.kz
· Mr. Zhakyp Assanov, Prosecutor General of Kazakhstan. Fax: +7 7172 506 402
· Mr. Askar Shakirov, Human Rights Commissioner of Kazakhstan. Fax: +7 7172 74 05 48
· Ambassador Ms. Zhanar Aitzhanova, Permanent Representative of the Republic of Kazakhstan to the UN Office and other international organizations in Geneva. Fax: +41 (0) 22 788 66 02. Email: mission@kazakhstan-geneva.ch
· Ambassador Mr. Almaz KHAMZAYEV, Embassy of Kazakhstan in Brussels. Email: brussels@mfa.kz .
· Permanent Delegation of the Republic of Kazakhstan to the OSCE in Vienna. Fax: +43 1 890 80 08 20. Email: kzosce@kazakhstan.at
Please also write to the diplomatic mission or embassy of Kazakhstan in your respective country.
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Paris-Geneva, July 5, 2017
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.
The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to intervene to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.
To contact the Observatory, call the emergency line:
E-mail: Appeals@fidh-omct.org
· Tel and fax FIDH + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80
· Tel and fax OMCT + 41 (0) 22 809 49 39 / + 41 22 809 49 29