The author is Halelkhan Adilkhanov, a national of Kazakhstan born in 1962. He claims that the State party has violated his rights under articles 19 and 21 of the Covenant. The Optional Protocol entered into force for the State party on 30 September 2009. The author is represented by counsel.
The facts as submitted by the author
The author is a civil society activist and a member of two non-governmental organizations: Zheltoksan Akikaty and the Union of the Deaf. Approximately 15 activists from the Union of the Deaf, including the author, decided to draw the Government’s attention to the sudden rise in the prices of electricity, water and other utility services. On 1 * Adopted by the Committee at its 128th session (2–27 March 2020). ** The following members of the Committee participated in the examination of the communication: March 2013, they gathered near the monument of Rayimbek in Almaty to voice their disapproval about the actions of utility monopolists and local authorities. Since some of the participants had hearing disabilities, they came with posters bearing slogans such as “Do not raise prices for utility services!”, “Raise salaries and pensions!” and “Lower prices for basic food items!”.
After the gathering, the police apprehended the author and issued an administrative record against him for a violation under article 373.3 of the Code of Administrative Violations (violation of the legislation on organizing and holding peaceful assemblies).
On 15 March 2013, the Specialized Inter-district Administrative Court in Almaty found the author guilty of organizing an unauthorized public gathering and sentenced him to a fine in the amount of 346,070 tenge (approximately $230).
On an unspecified date, the author filed an appeal before the Almaty City Court, arguing that the sentence violated his freedom of assembly, which is guaranteed by the Constitution and the Covenant. The City Court denied his appeal on 2 April 2013. On unspecified dates, the author filed requests for a supervisory review to the Prosecutor’s Office of the Bostandyk District and the Prosecutor’s Office of the city of Almaty. The requests were rejected on 14 June 2013 and 20 July 2013, respectively. On 28 August 2013, the author submitted a request for a supervisory review with the Prosecutor General’s Office, which was rejected by the Deputy Prosecutor General on 25 September 2013.
The author contends that he has exhausted all available domestic remedies. The complaint
The author claims that by sentencing him to a fine, the State party violated his rights to freedom of expression and of peaceful assembly under articles 19 and 21 of the Covenant. He adds that the State party has failed to provide any justification as to why it was necessary to restrict his rights. State party’s observations on admissibility
In a note verbale dated 22 January 2016, the State party provided its observations on the admissibility of the communication. It submits that the communication is incompatible with the provisions of the Covenant and thus inadmissible under article 3 of the Optional Protocol. It notes that the Committee is not generally in a position to review decisions regarding the administrative, civil or criminal responsibility of individuals, nor can it review the question of innocence or guilt.
The State party further notes that while asking for remedies, the author requests that those responsible for the violation of his rights are brought to justice. The State party refers to the Committee’s Views in H.C.M.A. v. Netherlands where it was held that the Covenant did not provide for the right to see another person criminally prosecuted. In the State party’s view, this makes the communication incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.
Similarly, the State party submits that the author’s request for the State party to bring its legislation into compliance with article 21 of the Covenant and to guarantee conditions for peaceful assemblies is not only incompatible with the provisions of the Covenant, but also requires the Committee to exceed its competencies and to amend domestic laws of the State party, thus interfering in the internal affairs of a sovereign State.
The State party further submits that the author failed to substantiate how the domestic legislation in place violates his rights under articles 14, 19 and 21. The State party refers to the Committee’s Views in E.Z. v. Kazakhstan where the Committee found the communication inadmissible because the author did not substantiate his claims under article
The State party argues that the author was provided with all of the rights and means of defence to achieve a fair trial.
Finally, the State party challenges the admissibility of the communication owing to non-exhaustion of the available domestic legal remedies. The State party notes that after the author’s request for a supervisory review was rejected by the Deputy Prosecutor General of Kazakhstan, he was entitled to another request for a supervisory review addressed to the Prosecutor General. The State party refers to the Committee’s Views in T.I. v. Lithuania where the Committee found the communication inadmissible because the author had not advanced any reasons as to why he had not complained about the length of the proceedings while they were ongoing, including at the appeal and cassation appeal stages, as well as for his failure to pursue the remedy in respect to those claims later on, before the ordinary courts. The State party provides an example of a case where a request for a supervisory review, submitted to the Prosecutor General in 2015, resulted in the Supreme Court vacating the judgments of the lower courts and subsequently finding that the akimat of Almaty had unlawfully denied permission to two individuals to carry out a hunger strike in their apartment. Author’s comments on the State party’s observations on admissibility
In a letter dated 10 March 2016, the author provided his comments on the State party’s observations on admissibility. He rejects the State party’s references to the Committee’s jurisprudence as irrelevant. The author notes that the State party wrongly stated that he had made a claim under article 14. He further notes that the State party failed to offer any arguments as to why it forbids its citizens to exercise their right to peaceful assembly. He refers to the Guidelines on Freedom of Peaceful Assembly, issued in 2007 by the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe, and submits that the State party violates every single one of these guidelines. The author submits that, although article 10 of the Law on organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations allows local authorities to regulate the procedure of a peaceful assembly, it does not grant them the power to determine places where assemblies are to take place and to limit them to just one location. The author also submits that in its resolution No. 167 of 29 July 2005, the local council of Almaty recommended that the city mayor use the city’s main square for official State- funded events, the square behind a local movie theatre for events and gatherings organized by non-governmental organizations and all other squares for official and entertainment events. The author argues that this resolution cannot be considered to be a law, and that it is inconsistent with international human rights law because it effectively restricts the freedom of peaceful assembly. He also argues that the resolution discriminates on the basis of people’s political views.
With regard to the State party’s argument that he failed to exhaust domestic remedies, the author argues that a request for a supervisory review submitted to the Prosecutor General does not constitute an effective domestic remedy. He notes that he submitted such requests to the Prosecutor’s Office of Almaty and to the Prosecutor General’s Office, both of which were rejected. As to the case of two individuals who wanted to carry out a hunger strike in their apartment, referred to by the State party in its submission, the author submits that even though the Supreme Court vacated the judgments of the lower courts, it did not provide those two individuals with a remedy in the form of adequate compensation, nor did it direct the akimat of Almaty to take all steps necessary to prevent similar violations from occurring in the future. State party’s observations on the merits
In a note verbale dated 19 July 2016, the State party provided its observations on the merits. It submits that the author was found guilty of organizing an unauthorized gathering of 10 to 15 people near the monument to Rayimbek in Almaty. According to the State party, article 32 of the Constitution of Kazakhstan provides the right to hold peaceful gatherings, demonstrations and protests. At the same time, the Law on organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations establishes certain restrictions on this right. Article 2 of the Law states that peaceful assemblies can be held only after issuance of permits by local municipalities. In the author’s case, the courts established that no permit had been obtained by the author prior to the event of 1 March 2013. In addition, article 10 of the Law allows for additional restrictions on the right of peaceful assembly, which can be introduced by local legislative bodies depending on the specifics of local conditions.
The State party notes that the Covenant allows for certain restrictions to the right of peaceful assembly. According to the State party, in many developed democratic countries, the freedom of peaceful assembly is restricted by special laws that lay out the conditions under which such assemblies may take place, and in many countries, such laws are much stricter than in Kazakhstan. For example, in France, the authorities can disperse crowds after two warnings, and if the demonstration continues, its organizers can be imprisoned for up to six months. In the United States of America, in order to conduct a rally in New York, one has to submit an application 45 days prior to the event, showing the route the participants intend to take, and in cases where such an application is not made, rally participants can be arrested. In the United Kingdom of Great Britain and Northern Ireland, street demonstrations and rallies can be conducted only after receiving official approval from the police. In Germany, any mass event must be authorized by the authorities. Therefore, the State party submits that its regulation of public assemblies is in line with the norms of international law, the Covenant and existing practices in other democratically developed countries.
The State party further notes that the provisions of articles 19 and 21 of the Covenant are fully reflected in the domestic legislation of Kazakhstan. The right of peaceful assembly, as guaranteed by article 32 of the Constitution, can only be restricted by the law in the interests of national security, public order, the protection of public health or the protection of the rights and freedoms of others. Since article 10 of the Law on organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations allows the local legislative bodies to introduce additional requirements to holding peaceful assemblies, the local council of Almaty passed its resolution No. 167 of 29 July 2005 in order to further rationalize the use of the city infrastructure. According to the State party, this resolution is a normative act and is part of the current legislation of Kazakhstan. It notes that at its ninetieth plenary session, held on 16 and 17 March 2012, the European Commission for Democracy through Law (the Venice Commission) agreed with the Constitutional Court of the Russian Federation that the Law on assemblies, meetings, demonstrations, marches and pickets of the Russian Federation could leave some discretion to executive authorities. Therefore, the State party concludes that the introduction of additional requirements by the local legislative bodies to hold peaceful assemblies is in line with the Constitution of Kazakhstan, the conclusions of the Venice Commission and the relevant jurisprudence of the European Court of Human Rights.5
The State party rejects the author’s argument that resolution No. 167 of the Almaty local council discriminates on the basis of people’s political views. The State party submits that the celebration of national holidays may be followed with official events carried out in public places, and these are usually central locations that can accommodate a large number of people. These places are usually selected on the basis of their suitability from the point of view of public order and security, which is in line with the provisions of the Covenant. The resolution only recommends that events organized by the State and non-State bodies are held at certain places. Therefore, if circumstances require and depending on the anticipated number of participants, the akimat of Almaty may equally allocate the square behind a local movie theatre to be used for State-funded events or gatherings organized by non-governmental organizations. For example, on 31 October 2015, this square was used by the akimat of Auezov district for a public event attended by 300 people. Therefore, the State party considers this argument by the author to be groundless.
The State party further notes that, between 2012 and 2015, State authorities officially authorized 130 peaceful assemblies in Kazakhstan. A total of 48 of them were held in 2012. Since they were held in conformity with the existing legislation, no measures have been taken against the organizers and participants of those events. The State party submits that nothing prevented the author in this case from organizing his public gathering in line with the existing legislation. It notes that the author was sanctioned not for expressing his opinion, but for organizing an unlawful gathering for which he did not obtain a permit. According to the State party, participants of the gathering prevented other people from freely passing by the monument to Rayimbek. The State party argues that in these circumstances, the actions of the police and courts were lawful since they were aimed at maintaining public order, and the sanctions used against him were justified and proportional. Author’s comments on the State party’s observations on the merits
In a letter dated 28 June 2018, the author provided his comments on the State party’s observations on the merits. He submits that the event of 1 March 2013 was of a peaceful nature, and that the participants did not commit any unlawful actions or prevent other people from passing by. Recalling paragraph 4 of the Committee’s general comment No. 10 (1983) on the freedom of opinion, the author considers that when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The author submits that the Committee has consistently held that the State party must demonstrate in specific fashion the precise nature of the threat to any of the enumerated purposes caused by the author’s conduct,6 and that, in his case, the limitation on his right to freedom of expression was not made on the basis of the needs of national security or the protection of the rights or reputations of others. If the limitation had been made on the basis of a threat to national security, the State party should have provided a detailed justification and indicated the precise nature of the threat. He maintains that, even if the State party established the existence of a legitimate purpose for the limitation, it would also need to demonstrate that the actions taken were necessary in order to protect that purpose. The author submits that the Committee has consistently observed that the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on the freedom of expression must be proportional to the value which the restriction serves to protect. As the State party had not clearly explained through the court decisions what value it protected by imposing restrictions on the author’s freedom of expression, the administrative sanctions imposed on him constitute a limitation on his right to freedom of expression, as protected by article 19 (2) of the Covenant.
The author notes that the event of 1 March 2013 was not a march, picket or a demonstration and, therefore, he did not have to apply for a permit. He submits that the authorities have expanded the definition of a peaceful assembly from the original law of 1995 to include flash and art mobs and even one-person protests, as a result of which any public event can be considered an unauthorized event, and its organizers can be sanctioned.
Consideration of admissibility
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.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the State party’s argument that the author has failed to file a petition for a supervisory review to the Prosecutor General. The Committee recalls its jurisprudence according to which a petition to a prosecutor’s office requesting a review of court decisions that have taken effect does not constitute a remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol. In the present case, the Committee notes the State party’s reference to a case in which an appeal to the Prosecutor General’s Office resulted in the submission of a protest by the Prosecutor General to the Supreme Court and a subsequent finding that the akimat of Almaty had unlawfully denied permission to two individuals to carry out a hunger strike in their apartment. The Committee also notes the author’s claim that on 28 August 2013, he petitioned the Prosecutor General’s Office for supervisory review of his administrative case. The request was rejected, however, by the Deputy Prosecutor General on 25 September 2013. The Committee considers that the State party has not demonstrated that a further request for a supervisory review to the Prosecutor General would have been an effective remedy in this case. Accordingly, the Committee finds that it is not precluded from examining the present communication under article 5 (2) (b) of the Optional Protocol.
The Committee considers that the author has sufficiently substantiated the claims under articles 19 and 21 of the Covenant for the purposes of admissibility. It therefore declares the communication admissible and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes the author’s claim that the State party has violated his rights under articles 19 and 21 of the Covenant by imposing an unjustified restriction thereon. The issue before the Committee is whether the author’s rights under articles 19 and 21 were violated when he was apprehended by the police for organizing an unauthorized gathering on 1 March 2013 and subsequently sentenced to an administrative fine.
The Committee also notes the State party’s submission that the author was sanctioned not for expressing his opinion, but for organizing an unlawful gathering for which he did not obtain a prior authorization. In this regard, the Committee notes that since the State party imposed a procedure for organizing mass events, it effectively established restrictions on the exercise of the rights to freedom of expression and assembly. The Committee considers that the State party imposed limitations on the author’s rights, in particular on his right to impart information and ideas of all kinds, as provided for under article 19 (2) of the Covenant, and his right of peaceful assembly, as provided for under article 21. The Committee must therefore determine whether the restrictions imposed on the author’s rights can be justified under article 19 (3) and the second sentence of article 21.
The Committee refers to paragraph 2 of its general comment No. 34 (2011) on the freedoms of opinion and expression, in which it states that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person and that such freedoms are essential for any society. They constitute the foundation stone for every free and democratic society. The Committee recalls that article 19 (3) of the Covenant allows certain restrictions only as are provided by law and are necessary (a) for respect of the rights and reputation of others and (b) for the protection of national security or of public order (ordre public), or of public health or morals. Any restriction on the exercise of such freedoms must conform to the strict tests of necessity and proportionality. Restrictions 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. The Committee also recalls that it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 of the Covenant were necessary and proportionate.11
The Committee observes that the author was sanctioned for having organized a public gathering of 10 to 15 activists from the Union of the Deaf on 1 March 2013 for the purpose of drawing the Government’s attention to the rise in the prices of electricity, water and other utility services. According to the author, the gathering was of a peaceful nature and its participants did not commit any unlawful actions. The Committee also notes the State party’s submission that the author was sanctioned for organizing an unlawful gathering for which he did not obtain a prior authorization. According to the State party, participants prevented other people from freely passing by the monument to Rayimbek, and that in these circumstances, the actions of the police and courts were lawful, since they were aimed at maintaining public order, and the sanctions used against the author were justified and proportional.
The Committee observes that even though the State party argues that the restrictions were necessary for maintaining public order, it has failed to invoke any specific grounds to support the necessity of the restrictions imposed on the author as required under article 19 (3). Moreover, the State party has not sufficiently demonstrated why it was necessary to apprehend and punish the author, in the light of his concrete acts on 1 March 2013, under article 19 (3) of the Covenant, and how it was justified in imposing an administrative fine on him. In this context, the Committee recalls that it is up to the State party to show that the restrictions on the author’s right under article 19 are necessary, and that, even if a State party introduces a system aimed at striking a balance between an individual’s freedom to impart information and the general interest in maintaining public order in a certain area, such a system must not operate in a way that is incompatible with article 19 of the Covenant. The Committee considers that, in the circumstances of the present case, the restrictions on the author, although imposed on the basis of domestic law, were not shown to be justified and proportional pursuant to the conditions set out in article 19 (3) of the Covenant. It therefore concludes that the author’s rights under article 19 (2) of the Covenant have been violated.15
The Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential for the public expression of an individual’s views and opinions and is indispensable in a democratic society. This right entails the possibility of organizing and participating in a peaceful assembly in a public 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 this 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 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 on it. The State party is thus under an obligation to justify the restriction on the right protected by article 21 of the Covenant, and to demonstrate that it does not serve as a disproportionate obstacle on the exercise of the right.17
The Committee observes that a requirement to seek an authorization from the authorities, where an authorization regime amounts in fact to a 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. A failure to notify the authorities of an assembly should not render participation in the assembly unlawful, and should not in itself be used as a basis for dispersing the assembly or arresting the participants or organizers, or for the imposition of undue sanctions such as charging them with criminal offences. Even in the case of an unauthorized assembly, any interference with the right of peaceful assembly must be justified under the second sentence of article 21.20
The Committee notes the State party’s indication that the provisions of articles 19 and 21 of the Covenant are fully reflected in the domestic legislation of Kazakhstan, and that the right of peaceful assembly, as guaranteed by article 32 of the Constitution, can only be restricted by the law in the interests of national security, public order, the protection of public health or the protection of the rights and freedoms of others. However, the Committee observes that neither the State party nor the domestic courts have provided any explanations as to how the author’s apprehension and administrative fine were justified pursuant to the conditions of necessity and proportionality set out in article 21 of the Covenant. Accordingly, the Committee concludes that the facts before it also reveal a violation of the author’s rights under article 21 of the Covenant.
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.
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 take appropriate steps to provide Mr. Adilkhanov with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In that regard, 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 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 or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable 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.