The Right to Freedom of Thought, Conscience, and Religion
In its years of independence, fundamental and necessary favorable political conditions for a democratic social system and the development of civil society have been created in Kazakhstan: internal stability, interethnic and interfaith peace and accord.
In its years of independence, the number of religious associations has increased six times. In the 1990s, 671 religious associations were active, and the status on March 1, 2009, was that 3993 religious institutions are active in Kazakhstan representing more than 40 confessions and denominations. 3034 of these institutions are valid religious associations.
A simplified mechanism for the registration of religious associations in force since 2004 and also the tax policy of the government, directed toward the freeing of religious associations from the payment of taxes on profits and church collections, facilitates the free development of registered religious associations on the territory of the State.
Multinationality and interfaith have been defined as some of the fundamental prёiorities of governmental policy in the sphere of religion – that is the establishment of interfaith agreement as a necessary condition for the maintaining of stability in society and the observance of human rights.
Experience with interfaith dialogue in Kazakhstan received acknowledgement and support from world religious leaders. In Astana in 2003 and 2006 were held two Congresses of Leaders of World and Traditional Religions. In 2003, 17 delegations from various religious confessions were at the conference, and at the second conference 29 delegations from 43 countries participated, including not only leaders of religious confessions but of political activities, scientists and experts from European and Asian countries, leaders and representatives of leading international organizations – the UN, OSCE, and UNESCO. The humanitarian concept of Congresses has had a large part in the strengthing of mutual understanding.
In June, 2006, the President of Kazakhstan signed the Decree on the Approval of the Conception of the Development of Civil Society, the goal of which is acknowledged as further improvement of legislative, social-economic, and organizational bases for comprehensive development of institutions of civil society and their equal partnership with the government in compliance with international legal instruments in the framework of international agreements and pacts in the area of human rights and the human dimension. Among institutions of civil society are also indicated religious associations. A key instance of interaction of government authorities and institutions of civil society is the guaranteeing of religious freedom and the right of citizens to form associations.
In 2007, the State Programme on the Provision of Freedom of Belief and Enhancement of State-Confessional Relations in the Republic of Kazakhstan for 2007-2009 was passed, the fundamental goal of which is the creation of conditions for the implementation of religious freedom in the Republic of Kazakhstan.
In addresses, Kazakhstan has been given a series of positive assessments by the OSCE, UN, and other international organizations on the grounds of the effectiveness of models of civil peace and accord currently functioning in the country.
A high assessment of the models of interfaith accord existent in Kazakhstan was given by Pope John Paul the Second during his visit to the country in 2002 and other leaders of various confessions visiting Kazakhstan for conferences of leaders of world religions.
It would be good to note that the guarantee of the right to freedom of thought, conscience, and religion in the Republic of Kazakhstan is contained in Article 22 of the Constitution of RK.
“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.”
Article 39 of the Constitution of RK establishes:
“1. Rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population.”
Furthermore, Paragraph 3 of Article 39 of the Constitution of RK includes freedom of conscience in the list of rights and freedoms that shall not be restricted in any event.
The legal regulation of the right to freedom of conscience and religion in Kazakhstan is in effect per the Law “On Freedom of Religion and Religious Associations” (further referred to as “the Law on Freedom of Religion”), the Civil Code and other legislation.
The total quantity of normative legislation influencing the existence of freedom of conscience and religion to one extent or another is numbered at approximately 100.
In international regulations the guarantee of the right to freedom of thought, conscience, and religion is contained in fundamental international documents on human rights: the UN Declaration of 1981 on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (further referred to as “DEIDRB”), the International Covenant on Civil and Political Rights (further referred to as “ICCPR”) and in the responsibilities which governmental members of the Organization for Security and Co-operation in Europe (OSCE) take upon themselves.
Article 18 of the ICCPR defines the understanding of freedom of thought, conscience, and religion in the following manner: “This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Article 1 of the DEIDRB expands this understanding of the principle conditions of expression: “This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief . . .” (further per the text of Article 18 of the ICCPR).
The understanding and contents of the freedoms of thought, conscience, religion, and belief are more fully developed in Concluding Documents Meetings on the highest level of the OSCE (Helsinki 1975, Madrid 1980, Vienna 1989, Copenhagen 1990, Paris 1990, Budapest 1994). Especially, in Paragraph (9) of the Copenhagen Document of 1990, participating States of the OSCE confirmed, “(9.4) everyone will have the right to freedom of thought, conscience, and religion. This right includes freedom to change one’s religion or belief and freedom to manifest one’s religion or belief, either alone or in community with others, in public or in private, through worship, teaching, practice and observance. Here, the understanding of the freedom of thought, conscience, religion and belief is expanded to the freedom to change them, and the manifestation of these freedoms includes also the freedom to teach.
Consequently, the contemporary understanding of the freedom of religion, including freedom of thought, belief, and religion consists of the following: The right to have or not to have, accept or change any belief or religion of his choice, and also to manifest and express his beliefs or religion, either alone or in community with others, in public or in private, through teaching, worship, practice and observance.
The including of freedom of religion as a constituent of freedom of conscience is more fully covered in the positions of the Concluding Document of the Vienna Meeting of 1986, to which member States of the OSCE obligated themselves:
“(16.4) – Respect the rights of these religious communities to:
- Establish and maintain freely accessible places of worship or assembly;
- Organize themselves according to their own hierarchical and institutional structure,
- Select, appoint and replace their personnel in accordance with their respective requirements and standards as well as with any freely accepted arrangement between them and their State;
- Solicit and receive voluntary financial and other contributions,
(16.5) – Engage in consultations with religious faiths, institutions, and organizations in order to achieve a better understanding of the requirements of religious freedom;
(16.6) – Respect the right of everyone to give and receive religious education in the language of his choice, whether individually or in association with others;
(16.7) – In this context respect, inter alia, the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions;
(16.8) – Allow the training of religious personnel in appropriate institutions;
(16.9) – Respect the right of individual believers and communities of believers to acquire, possess and use sacred books, religious publications in the language of their choice, and other articles and materials related to the practice of religion or belief;
(16.10) – Allow religious faiths, institutions and organizations to produce, import and disseminate religious publications and materials;
(16.11) – Favorably consider the interests of religious communities to participate in public dialogue, including through the mass media.
(17) The participating States recognize that the exercise of the above-mentioned rights relating to the freedom of religion or belief may be subject only to such limitations as are provided by law and consistent with their obligations under international law and with their international commitments. They will ensure in their laws and regulations and in their application the full and effective exercise of the freedom of thought, conscience, religion, or belief.
(32) They will allow believers, religious faiths and their representatives, in groups or on an individual basis, to establish and maintain direct personal contacts and communication with each other, in their own and other countries, inter alia through travel, pilgrimages and participation in assemblies and other religious events. In this context and commensurate with such contacts and events, those concerned will be allowed to acquire, receive and carry with them religious publications and objects related to the practice of their religion or belief.
Constitutional guarantees of the freedom of thought, conscience, and religion in the Republic of Kazakhstan are expressed in the following principles: respect for the principles and norms of international law, the priority of international law over the laws of the Republic – Paragraphs 1 and 3 Article 4, Article 8; acknowledgement of the absolute and inalienable right of everyone to freedom of thought, conscience and religion and the forbidding of limitations of the freedom of conscience under any circumstances – Paragraphs 1 and 2 Article 12, Paragraph 1 Article 18, Paragraph 1 Article 19, Paragraph 1 Article 22, Paragraph 3 Article 39; the equality before law and the freedom from discrimination under any circumstance – Article 14; the equality of rights of citizens and non citizens – Paragraph 4 Article 12; legislative and judicial protection – Paragraphs 1 and 2 Article 4, Paragraphs 2 and 3 Article 74, Article 78.
Consequently, the Constitution of the Republic of Kazakhstan guarantees that: everyone (citizens of Kazakhstan, foreigners legally on its territory, refugees or stateless persons) has the right to freedom of conscience, (in other words, subject to the regulations of international law, which are part of the current laws of the Republic of Kazakhstan, the right to have, accept, or change religion or belief at one’s choice); no one may be forced to disclose their thoughts or affiliation with one religion or belief or another; no one may be subject to discrimination on the grounds of his relationship toward religion, or his affiliation with various religious trends, groups or associations.
Constitutional guarantees of the freedom to manifest one’s religion or beliefs “either alone or in community with others, in public or in private” are expressed in the following principles: respect for the principles and regulations of international law and the priority of international law over the laws of the Republic – Paragraphs 1 and 3 Article 4, Article 8; ideological diversity – Paragraph 1 Article 5; equality before the law – Paragraph 2 Article 5; freedom to form associations and to assemble – Paragraph 1 Article 23 and Paragraph 1 Article 32; freedom from discrimination under any circumstances – Article 14; equality of rights of citizens and non citizens – Paragraph 4 Article 12; the forbidding of illegal interference by the government in the affairs of associations and by associations in the affairs of the government, and also the forbidding of the imposition of functions of governmental agencies on associations – Article 1, Paragraph 3 Article 5; legislative and judicial protection – Paragraphs 1 and 2 Article 4, Paragraphs 2 and 3 Article 74, Article 78.
Consequently, the Constitution of the Republic of Kazakhstan guarantees that: religious institutions (of all forms) are separate from the government; in the government there is no State supported religion, and no religion is a factor in the formation of the government; no confession fulfills any governmental function; no one religion, religious group or association may have any privileges in relation to other religions, religious groups or associations; no one (citizens of Kazakhstan, foreigners legally in the territory of Kazakhstan, refugees or stateless persons) may be subject to discrimination by reason of religion, affiliation with various religious trends, groups, or associations.
Constitutional limitations of the freedom to manifest religion or belief “either alone or in community with others, in public or in private” are based on the following positions: the exercise of human rights and freedoms must not violate rights and freedoms of other persons, infringe on the constitutional system and public morals – Paragraph 5 Article 12; the goals or actions of associations must not be directed toward a violent change of the constitutional system, violation of the integrity of the Republic, undermining the security of the state, inciting social, racial, national, religious, class and tribal enmity, as well as formation of unauthorized paramilitary units, – Paragraph 3 Article 5; the prohibition of the actions of religious parties – Paragraph 4 Article 5; the activities of foreign religious associations on the territory of the Republic as well as appointment of heads of religious associations in the Republic by foreign religious centers shall be carried out in coordination with the respective state institutions of the Republic – Paragraph 5 Article 5; and the rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population – Paragraph 1 Article 39.