by Scott Horton and Alla Kazakina

The legal infrastructure for nonprofit organizations in the CAU rests on the following sources: (i) Constitutions of the CAU states, which guarantee the citizen's right to associate freely and do so without government interference; (ii) Civil Codes which establish basic civil-law institutions and create two major categories of legal entities: commercial and non-commercial organizations; (iii) laws governing public associations; and (iv) ancillary legislative acts.

As the purpose of this report is to provide a general overview of trends in the region, we will focus on the common elements of the systems in these states. As noted at the outset, each of the CAU republics are currently working on draft legislation regulating the activities of nonprofit organizations.

Kyrgyzstan. The Law of the Kyrgyz Republic "On Public Associations" was adopted on February 1, 1991 (hereinafter, the "Kyrgyz Associations Law") and the Civil Code (First Part) was adopted on May 8, 1996. The level of NGO involvement in the development of the new Kyrgyz law is quite impressive; indeed, it may be the only genuinely successful case of effective legislative lobbying by domestic NGOs in the region. Among the local NGOs participating in the process are the Foundation for international Legal Cooperation ("UKUK"), International Center Interbilim, the Fund for Legal Initiatives, the Fund for Legal Problems, and the Kyrgyz Bar Association. Currently, three draft laws governing nonprofit organizations exist in Kyrgyzstan. These drafts were submitted to the Zhogorku Kenesh (the Parliament of the Kyrgyz Republic), following compliance review by the Ministry of Justice. However, the Legislative Assembly of the Parliament decided not to consider the three drafts on the same issue. Instead, the Legislative Assembly authorized a prominent Uzbek deputy, Mr. Sabirov, to apply to the President's Consultative Council on Legal Reforms asking the Council to develop the structure (conception) of the NGO legislation which would simplify the task. Sabirov has been a vocal supporter of the NGO effort, as has the Uzbek community based in southern Kyrgyzstan, which views NGOs as an important vehicle for promoting and protecting their cultural identity and values. "UKUK" Foundation (which recently merged with the Kyrgyz Bar Association) has taken the initiative to draft the law governing charitable activities and organizations, and leadership in the process is being exercised by Mirgul Smanalieva, the president-elect of the Bar Association. In addition, a law on political parties was considered by the Parliament of Kyrgyzstan in January 1998. Both the laws on political parties and on nonprofit organizations are expected to be adopted before year's end, and President Akayev has noted their importance in light of the country's upcoming local elections.

Kazakstan. Kazakstan presents an interesting study in contradictions. The country has generally enjoyed a quite favorable reputation in the West with respect to laying the foundations for a civil society, but a study of its NGO legislation and of the implementation of such legislation would suggest this reputation is undeserved. Although Kazakstan adopted a new Law "On Public Associations" on May 31, 1996, much later than other Central Asian republics (hereinafter, the "Kazak Associations Law"), it contains several provisions which are similar to the provisions in other old post-Soviet public associations laws. Religious organizations are still regulated under the same law as public associations. The Civil Code of Kazakstan (First Part), was adopted on December 27, 1994. The other laws regulating nonprofit organizations in Kazakstan include the Law on Labor Unions (1993) and the Law on Political Parties (1996). Lamentably, Kazak law contains some very severe provisions designed to chill NGO development, particularly article 337 of the Criminal Code, which provides stern penalties for participation in an unregistered public association. Neither of Kazakstan's CAU neighbors has such a provision. The law on political parties also contains a noteworthy provision prohibiting and punishing those who seek to form a political party on the basis of religious beliefs. Although Kazakstan has a number of well-run and sophisticated NGOs which have attempted to influence the situation, it does not appear they have been terribly effective. In 1995, a draft law "On the Right to Associate" was prepared by Interlegal, a Moscow-based consultancy on philanthropic laws. The draft law "On the Right to Associate" was forwarded to Ms. Sevryukova, the deputy of the Parliament of Kazakstan who made several revisions and unsuccessfully tried to submit it to the Parliament. A draft law on nonprofit organizations has been developed and submitted to the Parliament.

Uzbekistan. A leading lawmaker in Tashkent accurately describes Uzbekistan's attitude towards NGOs as "accepting, but cautious." The law on its face is not bad, but its application has been uneven. The current law "On Public Associations" was adopted on February 15, 1991, as amended on July 3, 1992 (hereinafter, the "Uzbek Associations Law") and the Civil Code (First Part), was adopted on December 21, 1995. A progressive step was made in 1996 when the new law "On Political Parties" was adopted.

Religious organizations are now regulated by a separate law "On Freedom of Conscience and Religious Organizations" adopted by the Parliament of Uzbekistan on May 1, 1998. This law is directed at the Wahhabis. In Central Asian parlance, the term "Wahhabi" is not used to refer to the Islamic sect by that name of the Arabian peninsula, but rather any devout Muslim who rejects the state control of Islam through the official muftiate and state-controlled mosques. The Uzbek government perceives "Wahhabis" as the primary threat to state stability. According to a recent report issued by Human Rights Watch, the recent crackdown in the Farghona Valley appears to be a dramatic escalation of a sporadic six-year government campaign against free expression of religion, specificically nongovernmental Islam. The new law requires that all religious groups be registered with the Uzbek government and have at least 100 members (not just 10 as it was before). The law bans political parties based on religion and does not permit minors to take part in religious organizations and missionary activities. In addition, the new law permits to impose restrictions on religious organizations for national security reasons and for the protection of the life, health, and freedoms of other people. These restrictions must be viewed as substantive rather than procedural when considered in the overall context of the anti-"Wahhabi" campaign.

While the Uzbek NGO legislation is similar to the NGO legislation in the other CAU republics, the NGO sector in Uzbekistan experiences more restrictive regulation by the government. The NGO sector cannot play a significant role in discussing draft NGO legislation and there appears to be no adequate channel for domestic NGOs to present their concerns about such legislation. Foreign NGOs are, however, able to present their concerns and frequently get a friendly ear from officials in the Cabinet of Ministers. By the end of 1996, a draft NGO law was developed by the joint draft group established by the UNDP with the assistance of an ICNNL consultant Jacek Kurczewski. The draft group included deputies of Oli Majlis (the Parliament of Uzbekistan), government officials, and NGO representatives. The Ministry of Social Maintenance chaired the work of the joint drafting group. However, the work on the draft law ceased in the Spring of 1997. The parliamentary working group now addressing the issue has identified the ICNL draft and a draft of GTZ as models likely to influence their forthcoming legislation.

1. Analysis of Public Associations Laws

The right to form associations is regulated by the law on public associations (collectively, the "Public Associations Laws"). Adoption of the Public Associations Laws has represented progress for the hundreds of public associations in the CAU. Public associations now enjoy a level of legal protection, which they did not previously have.

Positive Aspects of the Public Associations Laws. As a point of departure, the Public Associations Laws show the obvious influence of the Soviet Law on Public Associations of October 19, 1991, part of the progressive legacy of the Gorbachev period. First and foremost, the Public Associations Laws assert that normative concepts of international agreements ratified by the CAU republics supersede domestic law in the event of conflict. This principle establishes an international safeguard against human rights abuses. Among CAU nations, Kyrgyzstan and Uzbekistan have ratified the major international human rights charters, including the International Covenants on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (each of December 16, 1966), whereas Kazakstan has ratified only the Convention on the Rights of the Child (1989).

The Public Associations Law provide a detailed list of permitted activities for public associations, including:

protection of civil, political, economic, social and cultural rights and freedoms of citizens;

promotion of peace and prevention of conflicts;

promotion of the moral and physical health of the population;

protection of the environment and animals; and

protection and maintenance of buildings and other objects of historical and cultural value.

This list is not exhaustive. It contains a catch-all provision "for other types of activities not restricted or prohibited by law." For the first time the Public Associations Laws give the people the right to form any kind of social organizations "except those that are prohibited." For instance, the Public Associations Laws provide that the creation and work of public associations whose purpose is the violent overthrow or alteration of the constitutional structure, violation of the unity of the state territory, propaganda for war, violence or brutality, inflammation of social, national or religious dissension or other criminally punishable acts are forbidden. The creation of public militarized associations and armed formations is prohibited. Therefore, the basic premise of the Public Associations Laws is that every type of association is permitted except those which are expressly and statutorily prohibited. Among the positive aspects of the Public Associations Laws is a provision according to which a citizen's participation in the activities of a registered public association may not serve as a basis for restricting his/her rights or a condition for employment in a state organization or as a justification for the state to grant other privileges or advantages.

Under the Public Association Laws the right of public associations to judicial protection is guaranteed. A refusal to register the charter of a proposed public association may be appealed in each CAU republic's general jurisdiction court. We have no meaningful record of successful appeals at this point, however.

Public associations laws provide the main principles of public associations' activities, such as volunteerism, equality of members, self-government, legality and publicity. The Public Associations Laws provide that foreign citizens can be members of public associations along with local citizens.

Shortcomings of the Public Associations Laws. The Public Associations Laws have some serious shortcomings which, taken collectively, may be viewed as impairing freedom of association in these countries. One of the most serous shortcomings of the Public Associations Laws is the concept of "prior approval"-the necessity of prior registration and approval of the charter of a public association or the public association itself (as in the case of Kazakstan) with the Government. This concept opens the door for significant restrictions on freedom of those associations the government deems undesirable and for the persecution of start-up organizations. Pursuant to the Public Associations Laws, all public associations must register with the government. The founders of public associations convene a constitutional congress (conference) or general meeting at which the charter is adopted and officers are elected. Following such a conference, public associations must file all of their organizational documents including a list of founding members with the Ministry of Justice.

The Public Associations Law stipulate that if a public association does not adopt a charter or the charter is not registered, the public association cannot legally exist. If a public association operates without registration, the Public Associations Laws provide for criminal (in Kazakstan), or administrative and civil liability (in Uzbekistan and Kyrgyzstan) pursuant to the legislation of the CAU.

In addition to a complicated procedure involving the collection of various documents for registration, the Ministry of Justice, or, at its request, some other governmental departments, thoroughly review the purposes of the activities of a public association listed in the charter, especially if it is intended to be political in nature. The Ministry of Justice and its local departments often drag out the process of registration or use various bureaucratic methods to add new conditions to registration. According to an important Kazak NGO, the Association for the Protection of the Rights of Prisoners and the Rights of Persons Released from Prison has not been able to register for more than one and one-half years. Its organizers have presented different charters to the authorities. But due to the intractability of the Ministry of Internal Affairs they were not able to obtain permission to register their organization, even though they obtained statements of support from the Commission on Human Rights. This association was even forced to change its name to the Center Facilitating Criminal Justice Reform. Finally, at the end of 1996 the Center was registered. This case demonstrates that applicants seeking to create an association with a mission critical to the Government can be subject to more scrutiny than the law on its face warrants and that there is a clearly subjective and political element to the registration process.

Uzbekistan has been generous in permitting registration of NGOs except when it views the conduct of such NGOs as hostile and political. The registration ordeal of the Human Rights Society of Uzbekistan is a useful example of the practice. Since 1992, the Government has repeatedly frustrated the efforts of the Human Rights Society of Uzbekistan, a local human rights group with close ties with exiled opposition figures, to register officially. In the Fall of 1996, President Islam Karimov invited the Society's Chairman, Abdummanob Pulat, to visit the country after three and one-half years of exile. However, the Ministry of Justice rejected the Society's application in January 1997, citing a number of technical problems in the submitted documentation, and a duly revised application met a final rejection in July 1997. The Government, however, granted registration to another human rights group, the Committee for Protection of Individual Rights, a group formed with the support of the Government.

According to the State Department's human rights reports, all human rights public organizations have been able to register in Kyrgyzstan, with the exception of a Uighur organization with the stated goal of the creation of an independent Uighur state in Northwest China. This organization was seen as threatening the territorial integrity of China, an important neighbor, and its rejection was justified on that basis. The decision of the Kyrgyz authorities to reject registration did in fact comply with the requirements of Kyrgyz law. Which precluded the registration of an organization with a charter like the one proposed.

Non-political associations and social organizations usually do not encounter comparable difficulties in registering, although bureaucratic delays and official suspiciousness continue to plague the registration process for such groups. It should be emphasized that registration is not just a bureaucratic formality. Subsequent to the registration of the charter of a public association, the public association is recognized as a corporate body. The corporate status, which is the primary goal of registering the association , is needed to establish a bank account, to be eligible for preferential tax treatment, and for various corporate housekeeping matters.

The procedure for registration of public associations is not only complicated, but also an expensive one. Many public associations consider a required registration fee as a deterrent to registration. For instance, the registration fee in Kazakstan is about 10,000 tenge (about $150, which is one and a half times the average monthly wage in Kazakstan). The payment of such a registration fee creates a great problem for citizens of Kazakstan who want to form an association.

The other serious shortcoming of the Public Associations Laws is their tendency to justify inappropriate state intervention into the activities of NGOs. Although each of the Public Associations Laws contains precatory language stating that the interference of state agencies in the activities of public associations is not permitted, the laws contemplate a number of ways in which the state can in fact interfere in the activities of public associations, and not all of these roles are consistent with the state's legitimate regulatory authority. For example, according to the Public Associations Laws, the charter of a public association should set forth not only the name and purpose of the public association, the structure of the public association and sources of funding, but also the conditions and procedures for admission to membership in the public association and withdrawal from it, the rights and responsibilities of the members of the public association and the competence of procedure for establishing the management. Consequently, the Public Associations Laws require excessive mandatory details for inclusion in the charter of a public association. We believe that the state has a legitimate interest in identifying founders, officers and directors, and in insuring fair standards for the process of including members, but some of these provisions seem to exceed these needs. In practice, these provisions appear sometimes to be drawn upon to gain information about members and to chill or complicate the process of attracting members-clearly inappropriate conduct for a state regulator.

The requirement of the Public Associations Laws on the number of individuals needed to constitute a public association represents another display of interference of state agencies in the activity of public associations. The Public Associations Laws require that public associations be created on the initiative of no less than 10 individuals. Furthermore, under the Public Associations Laws, foreigners are not generally allowed to be founders of public associations. Although as a matter of practice, foreigners appear to be allowed to be founders of public associations, but not to be founders of political parties and trade unions. An exception is the generally more liberal Kyrgyz Associations Law, which also requires that the number of founders be not less than 10 individuals, it permits foreigners to be founders of public associations along with citizens of Kyrgyzstan. The membership threshold seems unreasonably high and seems designed to force disclosure of a larger list of names than otherwise would be appropriate.

Another set of provisions which may cloak or authorize inappropriate intervention by state agencies is found under the rubric of "control and supervision of public associations." Under the Public Associations Laws, the state authority which registers the charter of a public association exercises supervision of compliance with the provisions of the charter with respect to the activities of public associations. This is far more sweeping than merely monitoring compliance with regulations or positive law; it creates an opportunity for Government bureaucrats to substitute their judgment for that of the NGOs governing structures with respect to the entity's program of action. Furthermore, the organs of Procuracy are authorized to conduct investigations at their own initiative to ascertain whether activities of public associations comply with the laws of the CAU. In theory, this means that the procurators can interview staff and officers, seize and inspect records and take other potentially disruptive steps without notice or a subpoena or writ issued by a judge or magistrate. In both cases, the sweeping supervisor authority given Government officers is inappropriate. It derives from socialist legal norms applied with respect to state property. The registering authority has the right to require management of a public association to submit copies of decisions adopted, send its representatives to participate in activities conducted by the public association and obtain explanations from members of the public associations and other citizens on questions relating to charter compliance. While there is a legitimate sense of public trust with respect to some NGO assets, it certainly does not rise to the highly paternalistic level envisioned in the Public Associations Laws. In enacting the Civil Code and Companies Laws throughout the region, these extraordinary powers of the Procuracy and the branch ministries have largely been repealed. A change is also appropriate with respect to NGOs. These provisions taken collectively give the State ample authority to suppress and intimidate NGOs which come into their cross hairs.

Nor are the fears identified in the foregoing paragraph purely academic. There is ample evidence in the CAU of abuse of these provisions by State actors. According to a Report of the Kazakstan-American Bureau on Human Rights and the Rule of Law, in the city of Kentau, in the South-Kazakstan region, the Association of Independent Trade Unions was subjected unexpectedly to a financial audit by the local procurator and the local department of the Committee on National Security, even though these state bodies have no connection with the tax inspectorate. In general, the tax audit is a favorite tool used to put a disfavored business out of operation throughout this region. In the village of Leninsk in Central Kazakstan, under the guise of checking documents, the cars of the co-chairman of the "Azamat" movement, Murat Auezov and Piotr Svoik, were stopped for 15 hours and prevented from continuing their travel around the country to set up branches of their association in the various regions of Kazakstan. In December, Mr. Svoik was attacked and beaten while attending a civil society conference hosted by Kyrgyzstan International University in Bishkek; many have asserted that his masked attackers were linked to the Kazak security services.

The Public Associations Laws include several loopholes which seem designed to provide State actors with vague grounds for terminating the existence of NGOs they dislike. For instance, the activities of public associations may be suspended if they "violate republican legislation." Nobody can predict today what legislative acts may be used as a pretext for the suspension of public associations in the future, but in concept it could be something an innocuous as a traffic rule or building code. The "suspension of activities" the law contemplates is also ill-defined, but in interviews with local law enforcement authorities we learned that it is understood to include a sort of "gag order" under which the organization and its leaders may be prohibited access to mass media, denied the rights to organize meetings, conferences and demonstrations, denied the right to participate in elections, and perhaps even a "freezing" or seizure of the association's bank accounts. Under the Public Associations Laws, the activities of a public association may be suspended for up to 6 months. It is important to note that in the event a public association fails to eliminate the violations giving rise to its suspension within this period of time, a court may liquidate the public association.