Dilnar Insenova v. Kazakhstan

The author of the two communications is Dilnar Insenova, a citizen of Kazakhstan born in 1972. She claims that Kazakhstan violated her rights under articles 14 (1), 14 (3) (d) and (g), 19 (2) and 21 of the Covenant. The author is represented by counsel. The Optional Protocol entered into force for Kazakhstan on 30 September 2009.

On 8 July 2019, pursuant to rule 97 (3), of the Committee's rules of procedure, the Committee decided to join the two communications for decision in view of their substantial factual and legal similarity.

On 5 September 2013 around 6 p.m., the author, an unemployed mother of three minor children, was apprehended by the police for distributing invitations for a meeting of homeless people, scheduled for 9 September 2013. After her apprehension the author requested a lawyer. Her request was ignored. On 8 September 2013, the Specialized Inter-district Administrative Court of Karasaysky District of Almaty region found her in violation of article 373 (1) of the Code of Administrative Offences (violation of the legislation on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations). The Court found that the author was distributing invitation for an unauthorized meeting and imposed on her a fine of 10 monthly calculation indices (17 310 KZT).⁴

4. Around 113 USD, source – National Bank of Kazakhstan, https://www.nationalbank.kz/?docid=362&switch=english. ↩

On 16 September 2013, the author submitted an appeal to the Almaty Regional Court. She claimed that the meeting scheduled for 9 September 2013 was to be held in closed premises for which authorization of local authorities is not necessary and that her right to peaceful assembly, as guaranteed by the Constitution of Kazakhstan and international treaties ratified by it, including the Covenant, was violated by the court decision of 8 September 2013. Her appeal was rejected on 3 October 2013. The Almaty Regional Court confirmed the finding of the first instance court that she participated in the organization of an unauthorized assembly. The Court found that the fine imposed on the author was within the limits of sanctions set out in article 373 (1) of the Code of Administrative Offences. On 8 October 2013, the author submitted a request to the Almaty Regional Prosecutor to initiate a supervisory review of the Specialized Inter-district Administrative Court’s decision. Her request was rejected on 5 November 2013. The author submitted a supervisory review request to the Prosecutor General on 22 January 2014. She claimed that in addition to her right to peaceful assembly, her right to freedom to impart information, under article 19 of the Covenant, has been violated. The Prosecutor General referred to the Law of 17 March 1995 on organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations and to the fact that the Law obliges organizers of public events to request authorization for an event from the local executive authorities, which was not done in the author’s case. The Prosecutor General rejected the author’s request on 17 July 2014.

On 15 February 2014, the author participated in a spontaneous assembly in protest of a sudden 30% devaluation of national currency of Kazakhstan. On the same date, around 6:30 p.m. she was apprehended by the police. Upon apprehension, she requested a lawyer but was not provided one. On 15 February 2014, the Specialized Inter-district Administrative Court of Almaty found her in violation of article 373 (1) of the Code of Administrative Offences and imposed on her a fine of 3 monthly calculation indices (5556 KZT).⁵

5. Around 36 USD, source – National Bank of Kazakhstan, https://www.nationalbank.kz/?docid=362&switch=english. ↩

On 25 February 2014, the author appealed the Specialized Inter-district Administrative Court decision to the Almaty City Court. Referring to the provisions of the Constitution and to articles 19 and 21 of the Covenant, the author maintained that she was arrested for expressing her opinion and participating in a peaceful demonstration. The author claimed in her appeal that upon apprehension she requested a lawyer but was not provided one. On 6 March 2014, the City Court rejected her appeal relying on article 2 of the Law of 17 March 1995.

On 31 March 2014, the author submitted a request to the Almaty City Prosecutor to initiate a supervisory review of the Administrative Court decision. On 5 May 2014, she submitted a similar request to the Prosecutor General. Both requests were denied on 11 April and 14 July 2014, respectively.

The author claims in regard of both communications that in violation of article 14 of the Covenant, the domestic courts did not take into account her rights under articles 19 and 21 of the Covenant when sanctioning her for expressing her opinion and taking part in a peaceful assembly. She also claims that despite her request, she was not provided with a lawyer upon apprehension in violation of article 14 (3) (d) of the Covenant. The author claims that her right to defend herself in presence of a lawyer under article 14 (3) (d) was violated. She also claims violation of her rights under article 14 (3) (g) of the Covenant.

In Communication No. 2542/2015 the author claims that her rights under article 19 (2) and 21 of the Covenant were violated. In communication No. 2543/2015, she claims violation of article 21of the Covenant..

The author requests bringing to justice of those responsible for the violation; she asks for compensation for moral and material damage caused to her (the amount of fines) and legal expenses. She asks the Committee to request that the State party adopts measures to eliminate the existing limitations to the right of peaceful assembly and to free expression in its legislation; to adopt measures to eliminate violations of the right to fair trial under article 14 (3) (d) and 14 (3) (g), of the Covenant; and to urge the State party to guarantee that peaceful protests are not followed by unjustified interference by state authorities and prosecution of their participants.

In a Note verbale dated 17 March 2015, the State party submitted its observations in communication No. 2542/2015, claiming that the author has not requested the Prosecutor General to submit a protest in her case to the Supreme Court and thus has failed to exhaust domestic remedies.

On 30 July 2015, the State party submitted its observations on the merits of the communication. Concerning the author’s allegations under article 14 of the Covenant, the State party submits that she had equal rights with other participants of the process and that her appeals have been considered by higher courts.

The State party recalls that the rights enshrined in articles 19 and 21 of the Covenant are subject to certain limitations. While stating that freedom of peaceful assembly is not prohibited in Kazakhstan, the State party explains that there is a certain procedure to follow in order to carry out an assembly in a safe and orderly manner. This procedure is regulated by the law of 17 March 1995 on organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations. According to article 2 of this law, a request for authorization of a public event should be submitted to respective local executive authorities 10 days before the planned event. The local authorities are obliged to respond to the request within 5 days before the date for which the planned public event is scheduled.

The State party addresses the author’s argument regarding the private nature of the venue for the event of 9 September 2013 and inapplicability of the requirement to seek authorization from the authorities in such case. The State party explains that the law exonerates from seeking authorization for a public event held in closed private facilities, only professional and public associations (even unregistered). The meeting for which the author was distributing invitations was open to general public and was to be held at Dzharylgapov sports complex in Almaty. This facility contains closed premises as well as an open stadium. The facility’s administration denied receiving any requests for public events to be held on 9 September 2013.

The State party concludes that the author’s claims under articles 14, 19 and 21 of the Covenant are unsubstantiated on merits.

On 23 December 2015, the State party submitted observations in communication No. 2543/2015. As for the author’s allegations under article 14 of the Covenant, the State party submits that she enjoyed all the procedural guarantees set out in domestic administrative legislation. The State party contents the author’s claim that she requested a lawyer upon apprehension or in the first instance court.

The State party submits that no request has been submitted to the local executive authorites for authorization of the public event of 15 February 2014, in which the author participated. This event in question presented a threat to public order and safety and to the work of public infrastructure in such a large city as Almaty.

The State party submits that the right to peaceful assembly is guaranteed in the national Constitution and laws. The legislative provisions in place aim at regulating, and not restricting public events. The State party explains the provisions of the law on public events of 17 March 1995 and asserts that the national legislation is fully in line with the principles set out in article21 of the Covenant concerning possible restrictions on the right to peaceful assembly. In the light of the above arguments, the State party submits that the author’s claims under articles 14 and 21 of the Covenant are unsubstantiated on merits.

On 8 April 2015, the author responded to the State party’s observations concerning her failure to exhaust domestic remedies in communication No. 2542/2015. She claims that despite the ineffectiveness of the procedure to request that the Prosecutor General submits a protest to the Supreme Court, she did, nevertheless submit such a request to the Prosecutor General’s Office.

On 15 September 2015, the author submitted comments to the State party’s observations on the merits in communication No. 2542/2015. She repeats her claim that she did not need an authorization in order to hold a meeting in a private facility, like the sports facility in question. She claims that sanctioning her for the organization of an unauthorized public event was unlawful and that such preventive measures against the organizers serve as a deterrent for others and prevents them from expressing their opinion or dissatisfactions. The author refers to the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association after his visit to Kazakhstan on January 2015 in which he criticized the restrictive approach to freedom of assembly in the country.⁶ The author makes proposals on how to improve the legislation of the State party on organization of public events. The author claims that the State party continues to adopt an aggressive policy towards organizers of public events and their participants.

6. A/HRC/29/25/Add.2 ↩

On 31 January 2016, the author submitted her comments to the State party’s observations in communication No. 2543/2015. She contends the State party’s statement that its legislation is in conformity with the principles of article 21 of the Covenant. She claims that the requirement to request an authorization from the local executive authorities deprives people of their right to peaceful assembly.

Regarding the violation of article 14 (3) (d), she claims that the police officers are obliged to ask the apprehended person whether he/she needs a lawyer. This was not done in her case. However, knowing her rights she did request to be provided with legal assistance, to no avail.

On 5 November 2015, the State party, in essence, reiterated its initial observations on merits of communication No. 2542/2015.

In a Note verbale dated 15 March 2016, the State party stated that it adheres to its initial observations in both communications. The State party repeats its statement that the author did not submit a request for lawyer upon apprehension or in the first instance court.

On 18 November 2015 the author submitted additional comments in communication No. 2542/2015 repeating the facts of her original submission and claiming that during the two last years she was sanctioned by the courts several times for participating in peaceful protests. She claims that the State party continues its practice of restriction of peaceful assemblies through administrative fines and arrests up to 15 days.

On 16 March 2016, the author responded, reiterating her previous claims in both communications.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the author’s claim that all available domestic remedies have been exhausted. It also notes the State party’s observation in communication No. 2542/2015, that the author has not requested the General Prosecutor to initiate supervisory review proceedings before the Supreme Court and has thus failed to exhaust domestic remedies. On a general note, the Committee recalls its jurisprudence, according to which a petition to a court or to the prosecutor’s office requesting a review of court decisions that have taken effect and depend on the discretionary power of a judge or a prosecutor constitutes an extraordinary remedy and that the State party must show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case.⁷ In the present case, the Committee notes that on 22 January 2014 the author did submit a request to the General Prosecutor’s Office for the initiation of a supervisory review. Her request was rejected by the Prosecutor General’s Office on 17 July 2014. Accordingly, the Committee considers that the domestic remedies were exhausted by the author and that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

7. See Schumilin v. Belarus (CCPR/C/105/D/1784/2008), para. 8.3, and Dorofeev v. the Russian Federation (CCPR/C/111/D/2041/2011), para 9.6. ↩

The Committee notes the author’s claim that her rights under article 14 (1) of the Covenant had been violated because the domestic courts did not take into account her claims under articles 19 and 21 of the Covenant. In the absence of any other pertinent information in that respect, however, the Committee considers the author has failed to sufficiently substantiate that claim for purposes of admissibility. Accordingly, it concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.

The Committee takes note of the author’s claim that her rights under article 14 (3) (d) of the Covenant have been violated because she did not have a lawyer upon arrest on 3 September 2013, and that her right to defend herself in presence of a lawyer was violated. The Committee notes, that the author was accused of an administrative offence, while article 14 (3) (d) provides guarantees in cases regarding the determination of criminal charges against individuals. The Committee, however, recalls⁸ that although criminal charges relate in principle to acts declared to be punishable under domestic criminal law, the concept of a “criminal charge” has to be understood within the meaning of the Covenant.⁹ According to paragraph 15 of the Committee’s general comment No. 32, the notion may also extend to sanctions that, regardless of their qualification in domestic law, must be regarded as penal in nature because of their purpose, character or severity. In the present cases, the author was apprehended, brought to trial, found guilty and sanctioned with a considerable fine for peacefully imparting information and participating in a public event. The Committee views that such penalty was preceded by a deprivation of liberty, albeit brief, and had the aims of punishing the author for her actions and serving as a deterrent for future similar offences - objectives analogous to the general goal of the criminal law.¹⁰ In this light, the Committee finds that the author’s claim falls under protection of article 14 (3) (d) of the Covenant. The Committee notes, however, that the author has not provided any details nor documents to substantiate her claim that she was denied a lawyer in connection with the proceedings against her and finds them inadmissible under article 2 of the Optional Protocol.

8. General comment No. 32 on the right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, para. 15. ↩
9. See Osiyuk v. Belarus (CCPR/C/96/D/1311/2004), para. 7.3 and Zhagiparov v. Kazakhstan (CPR/C/124/D/2441/2014), para. 13.7.. ↩
10. See, mutatis mutandis, Osiyuk v. Belarus (CCPR/C/96/D/1311/2004), para. 7.4. ↩

The Committee notes that the author has not provided any clarification to her claims under article 14 (3) (g) of the Covenant. The Committee thus finds this part of claim unsubstantiated and inadmissible under article 3 of the Optional Protocol.

The Committee considers that the author has sufficiently substantiated her remaining claims under articles 19 (2) and 21 of the Covenant in communication No. 2542/2015 and under article 21 in communication No. 2543/2015 for the purposes of admissibility. It therefore declares them admissible and proceeds with examination of the merits.

The Committee has considered the present communications in the light of all the information submitted by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claim that her right to impart information under article 19 (2) of the Covenant was violated because she was sanctioned for distributing invitations for a public meeting on 3 September 2013. The Committee must therefore decide whether the limitations imposed on the author are allowed under one of the restrictions laid out in article 19 (3) of the Covenant.

The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, according to which freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. Those freedoms are essential for any society and constitute the foundation stone for every free and democratic society (para. 2). All restrictions imposed on freedom of expression must conform to the strict tests of necessity and proportionality, “must be applied only for those purposes for which they were prescribed” and “must be directly related to the specific need on which they are predicated”.¹¹

11. See general comment No. 34 (2011), para. 22. ↩

The Committee notes the State party’s argument that the national legislation is in line with the provisions of article 19 (3) of the Covenant and is aimed at regulating and not restricting freedom of expression. The Committee observes, however, that no explanation has been provided by the State party as to how the author’s actions were endangering the rights or reputation of others, national security or public order (ordre public), or public health or morals in light of article 19 (3) of the Covenant. In absence of such explanation, the Committee finds that sanctioning of the author for distributing invitations for a peaceful public event, albeit unauthorized, was not necessary and proportionate pursuant to the conditions set out in article 19 (3) of the Covenant.¹² It therefore concludes that the the author’s rights under article 19 (2) of the Covenant have been violated.

12. See, for example, Pivonos v. Belarus, (CCPR/C/106/D/1830/2008), para. 9.3; Androsenko v. Belarus, (CCPR/C/116/D/2092/2011), para.7.3 and Toregozhina v. Kazakhstan (CCPR/C/124/R/2257/2013 and CCPR/C/124/R/2334/2014), para. 7.5; and general comment No. 34 (2011), para. 34. ↩

As to the author’s allegations that her rights under article 21 of the Covenant were violated, the Committee recalls that the right of peaceful assembly is a fundamental human right that is essential for the public expression of an individual’s views and opinions and indispensable in a democratic society.¹³ That right entails the possibility of organizing and participating in a peaceful assembly in a publicly accessible location. The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience and no restriction to that right is permissible unless it is: (a) imposed in conformity with the law; and (b) necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. When a State party imposes restrictions with the aim of reconciling an individual’s right of peaceful assembly and the aforementioned interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it.¹⁴ The State party is thus under the obligation to justify the limitation of the right protected by article 21 of the Covenant, and to demonstrate that it does not serve as disproportionate obstacle on the exercise of the right.¹⁵

13. See, for example, Korol v. Belarus (CCPR/C/117/D/2089/2011), para. 7.5. ↩
14. Ibid; and Toregozhina v. Kazakhstan (CCPR/C/124/R/2257/2013 and CCPR/C/124/R/2334/2014), para. 7.3. ↩
15. See Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 8.4. ↩

The Committee observes that a requirement to notify or seek an authorization from the authorities, where an authorization regime amounts in fact to notification system, and the authorization for carrying out a public event is granted as a matter of course, does not, in itself, violate article 21 of the Covenant, if its application is in line with the provisions of the Covenant. In all events, where a notification or authorization regime procedure is used, it should not be overly burdensome.¹⁶ Even in case of an unauthorized assembly, any interference with the right of peaceful assembly must be justified under the second sentence of article 21.

16. See, as an example, Poliakov v. Belarus, CCPR/C/111/D/2030/2011, para. 8.3. ↩

The Committee observes, that the State party relied only on the provisions of the law on public events, which requires a 10-day request and a permission of the local executive authorities for a peaceful assembly, which already in itself restricts the right of peaceful assembly. The State party has not attempted to demonstrate that the apprehension, trial and imposition of a sanction on the author for organization of a peaceful assembly was necessary in a democratic society and proportionate to the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others, as required under article 21 of the Covenant. The Committee therefore concludes that the State party has violated article 21 of the Covenant. Communication No. 2543/2015

The Committee notes that on 15 February 2014, the author took part in allegedly spontaneous assembly to protest against sudden 30% devaluation of national currency. The Committee notes that author´s claim that the 10-day authorization requirement in the State party´s legislation deprives people from their right to carry out peaceful assemblies (para 5.2 above) and that the State party violated her right under article 21 by fining her for participation in an unauthorized spontaneous assembly. The Committee also notes the State party’s argument that no request of authorization for the event in question was sought from the local executive authorities, as required by the national law and that the protest presented a threat to public order and safety and to the operation of public infrastructure. The Committee notes, however, that the State party has not provided any further information to support the latter statement.

The Committee observes that a requirement to seek an authorization from authorities for carrying out a public event does not, in itself, violate article 21 of the Covenant. In the present case, the Committee observes, that the authorization requirement in the national legislation excludes any possibility of spontaneous assemblies, which cannot by their very nature be subject to a lengthy system of submitting a prior request for authorization.¹⁷ The Committee notes, therefore, that there is no legal basis for regulating spontaneous assemblies in the State party.

17. See, mutatis mutandis, Popova v. Russian Federation (CCPR/C/122/D/2217/2012), para. 7.5. ↩

The Committee notes that even in case of an unauthorized assembly, any interference with the right of peaceful assembly must be justified by the State party in the light of the second sentence of article 21. It observes, that the State party has not attempted to demonstrate that the imposition of a sanction on the author for participation in a peaceful spontaneous assembly was necessary in a democratic society and proportionate to the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others, as required under article 21 of the Covenant. The Committee therefore concludes that the State party has violated article 21 of the Covenant in communication No. 2543/2015.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under articles 19 (2) and 21 of the Covenant in regard of communication No. 2542/2015 and article 21 of the Covenant in communication No. 2543/2015

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide the author with adequate compensation, including reimbursement for any legal costs incurred by her. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In that connection, the Committee reiterates that, pursuant to its obligations under article 2 (2) of the Covenant, the State party should review its legislation with a view to ensuring that the rights under articles 19 and 21 of the Covenant, including the right to organize and conduct peaceful, including spontaneous, assemblies, meetings, processions, pickets and demonstrations, may be fully enjoyed in the State party.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.