To:
President of the European Council, Charles Michel
EU High Representative for Foreign Affairs and Security Policy, Josep Borrell
EU Trade Commissioner, Valdis Dombrovskis
Members of the Working Party on Eastern Europe and Central Asia (COEST) of the EU Foreign Affairs Council
Permanent Representations of Member States to the EU
Foreign Ministries of EU Member States
Members of the European Parliament
Copy:
EU Special Representative for Central Asia, Terhi Hakala
Delegation of the EU to the Kyrgyz Republic
Brussels, 13 February 2024
Re: The need for reinforced,
resolute EU action to support Kyrgyzstan’s civil society as the draft
law on ‘’foreign representatives’’ is close to adoption
Dear EU Representatives, Institutions and Member States,
We are writing to you on behalf of a
coalition of eight international human rights organisations regarding
the unprecedented threats currently facing civil society in Kyrgyzstan.
The Russia-inspired draft law on ‘’foreign representatives’’, which is
scheduled for second reading in parliament on 14 February 2024, would
have potentially disastrous implications for the country’s vibrant civil
society, including human rights groups, independent media organisations
and other non-profit organisations. As Kyrgyzstani decision-makers
appear determined to go ahead with this flawed and dangerous legislative
initiative, civil society in the country is counting on the
international community to demonstrate determined support.
Given the EU’s commitment to
promoting human rights, the rule of law, and civil society development
in Kyrgyzstan, its support is particularly important. Therefore, while
welcoming the EU’s active stance on the draft law on “foreign
representatives” and the concerns it has voiced both publicly
and non-publicly, we urge you to further step up action and take all
possible measures to help prevent the final approval and enforcement of
the draft law. In our view, the future of civil society in Kyrgyzstan is
at stake as well as the credibility of the EU’s value-based partnership
with the country, at a time of deepening ties
between the EU and Central Asia. The adoption of this draft law is also
likely to have repercussions on the situation of civil society in other
Central Asia countries, rendering it a matter of regional significance.
The draft law on ‘’foreign representatives’’, which was first initiated
in November 2022 and largely draws on corresponding Russian
legislation, has advanced in parliament despite strong criticism from
civil society, international experts, and representatives of the
international community. Passed by parliament at first reading on 25
October 2023, the draft law received approval by the parliament’s
Committee on Constitutional Legislation at a crucial hearing on 23
January 2024, paving the way for its final adoption by parliament. The
draft law was scheduled to be considered by parliament on second reading
on 7 February 2024. The reading was eventually was postponed, and the
draft law was returned
to the committee for technical reasons. However, the second reading has
now been rescheduled for 14 February 2024. If adopted by parliament on
both second and third reading, the draft law will be sent to the
president for signature.
The most recent version of the draft law, published
on the parliamentary website ahead of the planned second reading,
remains fundamentally repressive. Revisions made have failed to improve
the draft law’s restrictive nature. In accordance with the proposed
wording, NGOs that receive any kind of support from foreign sources and
engage in broadly defined political activities would have to register as
‘’foreign representatives’’ – a highly stigmatising and discrediting
label that implies that NGOs serve foreign interests and do not work to
the benefit of their own target communities or country. Basic NGO
activities, such as organising public debates, peaceful assemblies or
other events; publishing appeals, legal opinions or comments on state
policies; and conducting sociological research, opinion polls or public
awareness-raising would be classified as political activities if they
are construed as attempts to influence public decision-making, policies
or opinion.
Those registered as ‘’foreign
representatives’’ would be included in a separate, public registry and
would be required to use this negative label in any material that they
produce and disseminate. Groups that fail to register would be liable to
sanctions: the Ministry of Justice could suspend their activities for
up to six months without court approval and, after that, ask a court to
shut down the organisation.
Under the law, authorities would
also be given broad powers to oversee the activities of NGOs, including
by accessing their internal documents, attending any of their events,
and conducting intrusive inspections to check their compliance with
their own statutes and their use of funds and resources. In addition,
the law would introduce new criminal code provisions under which NGO
representatives could be sentenced to up to five years in prison if
found guilty of conducting activities that cause significant harm to
citizens’ rights, society, or to the state, or that induce citizens to
refuse to perform civic or official duties. These vaguely worded
provisions, which violate the principle of legal certainty, could be
used arbitrarily and selectively against representatives of NGOs that
the authorities perceive as inconvenient, for example, because they
expose corruption or misconduct of public officials, demand transparency
of government spending, or encourage citizens to stand up against
government initiatives that run counter to international human rights
standards.
If finally approved, the new law
would enter into force very rapidly: 10 days after its official
publication, with the government having only one month to elaborate
implementing procedures. These procedures could be developed without any
public consultation.
Both national and international
human rights experts and bodies have concluded that the draft law flies
in the face of Kyrgyzstan’s international human rights obligations. In a
joint letter
sent to Kyrgyzstan’s government in October 2023, three UN Special
Rapporteurs stated that the draft law unduly impedes the right of NGOs
to seek, receive and use funding for their work, which is an integral
part of the freedom of association and essential to their existence and
operations. The experts also criticised the fact that the draft law
grants authorities excessively wide and unjustified powers to control,
monitor, interfere with and suspend the activities of NGOs. A
spokesperson of the High Commissioner for Human Rights pointed out
that the new criminal offence introduced by the draft law is
‘’ill-defined, broad and open to subjective interpretation’’ and ‘’may
result in the selective prosecution of legitimate human rights
advocacy’’.
In comments
published on 7 February 2024, the Director of the OSCE Office for
Democratic Institutions and Human Rights (ODIHR) and the OSCE
Representative on Freedom of the Media warned that the draft law would
have ‘’an overwhelmingly negative impact on civil society, human rights
defenders, and the media’’ in Kyrgyzstan and introduce ‘’nearly total
government control over the right to free expression of civil society
and media actors’’. In an earlier opinion
prepared at the request of Kyrgyzstan’s Ombudsperson, ODIHR found that
the proposed provisions are incompatible with the right to freedom of
association, amongst others, because they grant authorities ‘’unfettered
discretion’’ to apply the ‘’foreign representative’’ label and could be
used to stigmatise, intimidate and harass organisations carrying out
legitimate work. The opinion also referred to case law
from the European Court of Human Rights deeming “foreign agent” style
legislation inconsistent with the right to freedom of association.
While the initiators of the draft
law on ‘’foreign representatives’’ have claimed that it is aimed at
ensuring the transparency of NGOs, this is not a legitimate reason under
international human rights law for imposing excessive restrictions on
them. It is also clear that this is not the draft law’s true objective.
Under existing legislation, all NGOs, including foreign-funded ones, are
already subjected to extensive state oversight and regularly report
about their activities and finances to different state bodies.
Amendments to the Law on Non-commercial Organisations adopted in 2021
oblige NGOs to annually provide detailed information on their sources of
funding, use of funds and assets for publication on the Tax Service
website. This information is thus already publicly accessible.
Instead, the draft law on ‘’foreign
representatives’’ appears to have been designed primarily as a tool of
pressure against groups that scrutinise, criticise and advocate for
improvements in state policies and legislation, to the detriment of the
entire civil society sector. Proponents of the law have carried out
organised smear campaigns against human rights defenders, independent
journalists and other civil society representatives, portraying them as
threats to national security and accusing them of propagating values
that allegedly are ‘’alien’’ to national traditions and mentality.
Government officials, including President Sadyr Japarov have also
disparagingly referred to
foreign-funded NGOs as ‘’grant eaters’’ and accused them of sharing
‘’unreliable’’ information about the situation in the country with
donors.
However, by pursuing the draft law
on ‘’foreign representatives’’, the authorities are doing a disservice
to citizens. Rather than increasing the transparency of NGOs, the draft
law will undermine civil society’s crucial role not only in assisting
public bodies with the provision of support to vulnerable groups of the
population, but also in promoting public sector transparency and
accountability. Watchdogs have already warned
of a significant decline in government transparency in Kyrgyzstan,
preventing the exposure of wrongdoing and increasing the risk of
corruption. This negatively affects investments, including foreign
investments as well as economic growth and well-being in the country.
The draft law fits into a broader, alarming pattern
in which the Kyrgyzstani authorities have stepped-up efforts to
suppress free speech, access to information and civic engagement,
including through other restrictive legislative initiatives targeted at
NGOs and media, raids and pressure
against independent media outlets, as well as arbitrary arrests and
criminal prosecution of outspoken journalists, bloggers and activists.
Last week’s court decision to shut down the independent Kloop media organisation, the ongoing criminal investigation against the 24.kg news site whose office has been sealed, and the recent arrest
of 11 current and former staff of Temirov Live - known for its exposure
of high-level corruption - are of particular concern. A draft media
law, also under consideration in parliament, would significantly expand
government control over the media and make it difficult for independent outlets to operate in the country.
In this context, the draft law on
‘’foreign representatives’’ has caused widespread anxiety among civil
society groups in Kyrgyzstan, who are left pondering what the future
holds should the law enter into force – which could occur as early as
this spring. Hundreds, if not thousands of groups that receive any kind
of foreign funding and engage in legitimate and important activities
aimed at promoting public dialogue around and improvements in national
legislation, policies and protection mechanisms will have to decide
whether to register as ‘’foreign representatives’’ and be subjected to
stigmatising and excessive state control, refuse to do so and risk
suspension and eventual liquidation, or pre-emptively close down their
operations.
The Russian Federation, where a law
on ‘’foreign agents’’ was first adopted in 2012 and the scope of the law
has been repeatedly extended, provides a harrowing example of the
crippling impact of this type of legislation on civil society. The
Russian authorities have systematically used the ‘’foreign agent’’
legislation to discredit, harass and silence NGOs, with hundreds of
groups and activists working on human rights, the environment, election
monitoring, anti-corruption and other important issues having been designated
“foreign agents” as part of an ever-widening crackdown, which has resulted in the destruction of the country’s civil society.
Therefore, at this critical
juncture, when the draft law on ‘’foreign representatives” is close to
final approval, we appeal to EU officials, institutions and member
states to stand up for Kyrgyzstan’s civil society and take all possible
measures to prevent Kyrgyzstan from following the same tragic path as
Russia. We urge you to remind Kyrgyzstan’s government that human rights issues are matters of direct and legitimate international concern and to use available means of leverage to reinforce your message on the draft law on ‘’foreign representatives”,
as well as the wider campaign against independent civil society and
media actors in Kyrgyzstan (as described above). In particular, we urge
you to consider the following steps:
- Suspending Kyrgyzstan’s trade preferences under the
EU’s Generalised Scheme of Preferences Plus (GSP+), which allows it to
pay zero custom duties on most products exported to the EU in return for
the ratification and effective implementation of 27 international human rights conventions. The European Commission’s recent GSP+ monitoring report
on Kyrgyzstan highlighted shrinking space for civil society as a key
area of concern and called for measures to reverse this negative trend
in the light of the country’s obligations under the International
Covenant on Civil and Political Rights (ICCPR). However, the EU should
not stop here but clearly convey to Kyrgyzstan’s government that a
failure to prevent further damage to civil society space, in particular
through the adoption and implementation of the draft law on ‘’foreign
representatives’’ could result in the re-assessment and suspension of
the country’s GSP+ benefits. As the draft law falls far short of ICCPR
standards (including articles 22, 21, 19, 25 and 26, which protect the
freedoms of association, assembly and expression, the right to take part
in public affairs and the right to non-discrimination), such a move
would be both appropriate and justified and would demonstrate to
Kyrgyzstan’s government that non-compliance with its GSP+ obligations
comes at a price, in accordance with the recommendations made in the
European Parliament resolution on Kyrgyzstan adopted in July 2023.
- Postponing
the signing and ratification of the EU-Kyrgyzstan Enhanced Partnership
and Cooperation Agreement (EPCA), which would replace the Partnership and Cooperation Agreement currently in place and significantly deepen political and economic ties between the two sides. Initialled in 2019, the EPCA is expected to be signed soon,
after which it could be provisionally applied even before final
ratification. Given the EPCA’s strong emphasis on shared values,
democracy, the rule of law, and human rights, moving ahead with the
signing and eventual ratification of this agreement at a time when a
repressive draft NGO law is being pushed through and a widening
crackdown on the country’s civil society is looming would send a
completely misleading signal to Kyrgyzstan’s government.
- Taking
other concrete measures to demonstrate that ‘’business as usual’’
cannot continue if the draft law on ‘’foreign representatives’’ is
pushed through, and the current campaign against independent civil
society and media continues. Such measures could include
putting a hold on planned joint events and initiatives with the
government, freezing financial allocations committed to supporting
government programmes, and suspending the issuance of Schengen visas to
decision-makers who have been involved in elaborating and supporting the
draft law, as previously called for
by local civil society representatives. While acknowledging that EU
cooperation with Kyrgyzstan is multi-faceted and serves different
purposes, we believe that it is crucial that the EU ensures that human
rights issues are put at the centre of all its engagement with the
government and that the EU makes it clear that pursuing initiatives such
as the law on ‘’foreign representatives’’ is at odds with its
fundamental values and the priorities for its partnership with
Kyrgyzstan and will have real, negative consequences for mutual
relations. As you know, the EU’s Central Asia Strategy
sets out that the EU will promote human rights, with a particular focus
on ensuring freedom of association and ‘’an enabling legal and
political environment for civil society’’ as a key condition for
sustainable development in Kyrgyzstan and the other countries of the
region.
We thank you for your attention to the points outlined in this letter.
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