International standards - I3h
|FREEDOM OF RELIGION OR BELIEF
Commission on Human Rights resolution 2005/40 (paragraphs 4 (c) and 4 (e)) and
Human Rights Council resolution 6/37 (paragraphs 12 (e) and 12 (h))
Urges States, "To review, whenever relevant, existing registration practices in order to ensure the right of all persons to manifest their religion or belief, alone or in community with others and in public or in private;".
Urges States, "To ensure that, in accordance with appropriate national legislation and in conformity with international human rights law, the freedom for all persons and members of groups to establish and maintain religious, charitable or humanitarian institutions is fully respected and protected."
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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)
E/CN.4/2005/61, paras. 56-58:
"56. The Special Rapporteur has noted in this regard, on the basis of information brought before her, that registration appeared often to be used as a means to limit the right of freedom of religion or belief of members of certain religious communities.
57. In this regard, the Special Rapporteur would like to expressly refer to the "Guidelines for Review of Legislation Pertaining to Religion or Belief", prepared by the Organization for Security and Cooperation in Europe/Office of Democratic Institutions and Human Rights (OSCE/ODIHR) Advisory Panel of Experts on Freedom of Religion and Belief in consultation with the Council of Europe's Venice Commission in 2004. ["Guidelines for Review of Legislation Pertaining to Religion or Belief" prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in consultation with the Council of Europe's Commission for Democracy Through Law (Venice Commission), adopted by the Venice Commission at its fifty-ninth plenary session (Venice, 18-19 June 2004) (see www.osce.org/documents/odihr).] Since the panel has extensive experience in compiling information about international norms and best practices based on universal documents and standards, its guidelines are particularly relevant for the situations analysed by the Special Rapporteur.
58. Some main points to take into consideration with regard to registration are that:
- Registration should not be compulsory, i.e. it should not be a precondition for practising one's religion, but only for the acquisition of a legal personality and related benefits;
- In the latter case, registration procedures should be easy and quick and not depend on extensive formal requirements in terms of the number of members or the time a particular religious group has existed;
- Registration should not depend on reviews of the substantive content of the belief, the structure, the clergy, etc.;
- No religious group should be empowered to decide about the registration of another religious group. "
E/CN.4/2006/5/Add.1, paras. 51-52 and 445-446 (communications report):
"Observations [concerning the response from the Government of Belarus]
51. The Special Rapporteur is grateful for the Government's response and draws its attention to Resolution 2005/40 of the Commission on Human Rights, in which the Commission urged States, "[t]o review, whenever relevant, existing registration practices in order to ensure the right of all persons to manifest their religion or belief, alone or in community with others and in public or in private" (Paragraph 4(c)). In this regard, the Special Rapporteur wishes to emphasize that the right to freedom of religion is not limited to members of registered religious communities. As she noted in her previous report to the Commission on Human Rights, referring to the OSCE/ODIHR Guidelines for Review of Legislation pertaining to Religion or Belief, "registration should not be compulsory, i.e. it should not be a precondition for practicing one's religion, but only for the acquisition of a legal personality and related benefits" (E/CN.4/2005/61, para. 58).
52. Moreover, the Special Rapporteur takes this opportunity to remind the Government of the views of the Human Rights Committee of 23 August 2005 on communication No. 1207/2003 (Malakhovsky and Pikul v. Belarus, CCPR/C/84/D/1207/2003) in which the Committee found a violation of Article 18 of the International Covenant on Civil and Political Rights, following the refusal to register Minsk Vaishnava community as a religious association. In its decision the Human Rights Committee made a distinction between the requirement for suitable premises for the purpose of carrying out religious rituals on the one hand and as a precondition for registration on the other hand (paragraphs 7.5 and 7.6). The Committee noted "that the State party has not advanced any argument as to why it is necessary for the purposes of article 18, paragraph 3 [ICCPR], for a religious association, in order to be registered, to have an approved legal address which not only meets the standards required for the administrative seat of the association but also those necessary for premises used for purposes of religious ceremonies, rituals, and other group undertakings. Appropriate premises for such use could be obtained subsequent to registration. [...] Also taking into account the consequences of refusal of registration, namely the impossibility of carrying out such activities as establishing educational institutions and inviting foreign religious dignitaries to visit the country, the Committee concludes that the refusal to register amounts to a limitation of the authors' right to manifest their religion under article 18, paragraph 1 that is disproportionate and so does not meet the requirements of article 18, paragraph 3. The authors' rights under article 18, paragraph 1 have therefore been violated". [...]
Observations [concerning the response from the Government of Uzbekistan]
445. The Special Rapporteur is grateful for the Government's response. She would like to point to the Concluding Observations of the Human Rights Committee, dated 26 April 2005, (CCPR/CO/83/UZB), paragraph 22: "The Committee notes that the provisions of the Freedom of Conscience and Religious Organizations Act require religious organizations and associations to be registered in order to be able to manifest their religion or belief. It is concerned about de facto limitations on the right to freedom of religion or belief, including the fact that proselytizing constitutes a criminal offence under the Criminal Code. The Committee is also concerned about the use of criminal law to penalize the apparently peaceful exercise of religious freedom and the fact that a large number of individuals have been charged, detained and sentenced and that, while a majority of them were subsequently released, several hundred remain in prison." The Special Rapporteur joins the Human Rights Committee in its recommendation that it should ensure that its legislation and practice are in full conformity with article 18 of the International Covenant on Civil and Political Rights.
446. Moreover, the Special Rapporteur wishes to emphasize that the right to freedom of religion is not limited to members of registered religious communities. As she reminded in her previous report to the Commission on human rights, referring to the OSCE/ODIHR Guidelines for Review of Legislation pertaining to Religion or Belief, "registration should not be compulsory, i.e. it should not be a precondition for practicing one's religion, but only for the acquisition of a legal personality and related benefits" (E/CN.4/2005/61, para. 58)."
A/HRC/10/8/Add.4, paras 22-32 (country visit to Turkmenistan)
22. According to article 11 of the Religious Organizations Law, the registration of a religious organization is conducted by the Ministry of Justice upon the application submitted by the Council on Religious Affairs. At the time of the visit of the Special Rapporteur, there were 122 registered religious organizations, of which 94 were Sunni Muslim, 13 were Russian Orthodox, 5 were Shi’a Muslim, and 10 were from other religious communities, such as Bahai, Baptist, Hare Krishna and Protestant. In addition, five applications submitted by the Council on Religious Affairs were being considered by the Ministry of justice and three other applications were being reviewed by the Council on Religious Affairs.
23. As done previously in her report to the Commission on Human Rights (see E/CN.4/2005/61, paras. 55-58), the Special Rapporteur would like to refer to some points of the OSCE/ODIHR Guidelines for Review of Legislation pertaining to Religion or Belief which are of particular relevance when examining the registration issue in Turkmenistan. While it would be appropriate to require registration for the acquisition of a legal personality and similar benefits, registration should not be a mandatory precondition for practicing one’s religion. Registration procedures should be easy and quick and should not depend on extensive formal requirements in terms of the number of members or the length of existence of a particular religious group. Registration should not depend on the rev ew of the substantive content of the belief, the structure of the faith group and methods of appointment of the clergy. Additionally, provisions which are vague and which grant excessive governmental discretion in giving registration approvals should not be allowed. It is imperative that no religious group be empowered to decide about the registration of another religious group.
24. The fact that the Religious Organizations Law prohibits the activities of unregistered religious organizations stands in contradiction with international human rights standards as well as the principles enshrined in the Constitution of Turkmenistan. Unregistered religious activity is no longer a criminal offence but has become an administrative offence in 2004. The prohibition of unregistered religious activity remains a matter of great concern to the Special Rapporteur. It adversely affects numerous aspects of the freedom to manifest one’s religion or belief. Indeed, members of unregistered groups, especially those living outside of Ashgabat and those who are not Sunni Muslim or Russian Orthodox, seem to be under constant threat. They are not permitted to congregate, are unable to find facilities for meetings, and any collective observance is liable to punishment.
25. The Special Rapporteur wishes to reiterate that international human rights law recognizes freedom of religion or belief regardless of registration status. Those who cannot or do not want to register should therefore still be able to manifest their religion or belief both individually and collectively, in private or in public. Any limitations to the freedom to manifest one’s religion or belief must not only be prescribed by law but must also be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, according to article 18 paragraph 3 of the International Covenant on Civil and Political Rights. The Human Rights Committee in its general comment No. 22 (1993) emphasizes that paragraph 3 of article 18 is to be strictly interpreted and that restrictions are not permitted on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as “national security”. However, article 3 of the Religious Organizations Law states that the practice of freedom of religion shall not be contrary to the established public legal order and that it can be temporarily restricted to ensure national security and to protect public order, life, health, morality, rights and freedoms of other citizens. Consequently, article 3 of the Religious Organizations Law is not in consonance with international law since it includes “national security” as a possible limitation ground.
26. Concerning formal requirements in terms of the number of members or the length of existence of a particular religious group, the Religious Organizations Law does not require a particular religious group to have a lengthy existence in order to be registered and the 2004 Presidential Decree has reduced the number of required members for registration from 500 to 5. It is, however, not clear why the Religious Organizations Law distinguishes between “religious groups” (up to 50 members) and “religious organizations”, which shall consist of no less than 50 citizens. Though presumably the latter can be granted legal status, such a distinction adds unnecessary confusion to the number of members required in order to register a religious organization. In addition, it is not clear which provisions of the Religious Organizations Law apply to religious groups or religious organizations.
27. The authorities have allegedly used the registration process to unduly restrict the right of freedom of religion or belief of members of certain religious communities, in particular of religious minorities. The Special Rapporteur was informed by members of certain religious communities seeking registration that they had often faced obstructions on procedural and/or substantive grounds. For instance, certain religious communities have seen their registration application being repeatedly sent back by officials of the Ministry of Justice requesting additional materials or suggesting amendments to the wording in the charter of the religious community and therefore delaying action on the application. While, according to article 11 of the Religious Organizations Law, decision regarding the registration of a religious community shall be made within three months from the date of the submission of the application, certain applications have reportedly been pending for several years. Other cases of obstruction relate to the requirement that the registration application be signed by all members of the religious organization and should contain their full names, dates of birth and places of residence. The Special Rapporteur would recommend that this requirement be at least limited to the initiators of the religious organizations, since it might in practice be difficult to obtain before registration the signature of all members, especially in large religious communities. Furthermore, those who were not included in the registration application might subsequently face difficulties when taking part in religious activities of their fellow believers. In addition, some members may legitimately wish to keep their religious affiliation confidential.
28. The Special Rapporteur would like to recall that registration procedures shall be applied in a non-discriminatory manner. Therefore, they shall make no distinction between large or small religious communities or between traditional religions and other religions or beliefs. As stated by the Human Rights Committee in its general comment No. 22 (1993), “the terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community”.
29. The case of the small community of Jehovah’s Witnesses living in Turkmenistan is of particular concern to the Special Rapporteur. Although their members have sought to register their community for many years, the Council on Religious Affairs has invoked substantive reasons in order to deny legal status to the Jehovah’s Witnesses. These reasons relate, for instance, to the manner in which Jehovah’s Witnesses disseminate their religious views, to their refusal to serve in the army or to allow any blood transfusions. The Special Rapporteur would like to recall that while limitations on freedom to manifest one’s religion or belief are permissible under certain strict conditions no limitations may be made to the internal and private realm of the individual’s belief (forum internum). This is a core element of religious freedom, where the State has no right to interfere. No substantive review of an application should therefore be allowed, since it might lead to a discriminatory and excessively intrusive practice from the authorities. In a secular State like Turkmenistan,7 the authorities should remain neutral with respect to religious matters and restrict themselves to a formal review of registration applications.
30. Among the different reasons for denial of registration or liquidation of a religious organization spelt out in articles 12 and 14 of the Religious Organizations Law, some of them lack clarity. It is difficult to determine what exactly constitutes an offence and this might lead to abusive interpretation or excessive discretion by the authorities. Further, this could result in the imposition of collective sanctions for offences committed by individuals or a small group of individuals within the religious organization. Some examples include denial of registration if the organization fails to be recognised as a religious one (article 12) or the liquidation of an organization if there are interferences into family relationships that result in the break-up of a family (article 14). The Religious Organizations Law also refers to the commitment of “illegal actions” as a basis for liquidating a religious organization. During her mission, the Special Rapporteur was often told by Government officials that there were organizations using religious cover to carry out illegal activities and that these should be denied registration and/or liquidated. In this regard, she wishes to reiterate that the use of registration law is rarely efficient in tackling such criminal activities and that related allegations should be addressed on a case-by-case basis in accordance with the common criminal or civil legislation.
31. Although the Special Rapporteur was told by Ministry of Justice officials that, once registered in Ashgabat, religious organizations have the right to operate on the entire national territory and to establish local branches, it appears that in practice local registration is required in order to carry out religious activities. The Religious Organizations Law contains no provisions on that issue and since local authorities are left with wide discretionary power, registration requirements at the local level are often unclear. As a result, religious organizations have reportedly faced difficulties when trying to obtain local registration. The 2004 presidential decree, which has relieved the Ministry of Justice from the obligation to publish the list of registered religious organizations in the local media, has created further difficulties for religious organizations wishing to establish local branches and having to provide proof of their registration on the national level.
32. While religious organizations which have obtained registration seem to be able to operate with greater freedom, their activities, especially those of religious minorities, are still under great scrutiny on the part of the authorities. For instance, registered religious organizations still require permission from the authorities before holding a special meeting. The Special Rapporteur received reports that some religious communities preferred not to register, in order to avoid exposure to, and interference from, the authorities."
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