The author is Murat Telibekov, a citizen of Kazakhstan born in 1958. He claims to be the victim of a violation by Kazakhstan of 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 the head of the Union of Muslims of Kazakhstan and a member of the community council on prevention of social conflicts under the akimat (mayor’s office) of Almaty, Kazakhstan. According to the author, the akim (mayor) of Almaty is the only akim in the country who does not allocate time in his working schedule for meetings with city * Adopted by the Committee at its 128th session (2–27 March 2020). ** The following members of the Committee participated in the examination of the present residents. The author has repeatedly but unsuccessfully tried to organize a meeting of city residents with the akim to discuss various pressing social issues. On 28 May 2013, determined to schedule a meeting with the akim, the Union of Muslims of Kazakhstan and the Muslim Committee on Human Rights in Central Asia sent the akim a letter informing him that a group of residents of Almaty would like to meet with him on 4 June 2013 to discuss those issues. On the author’s social media page, he posted a message describing the letter to the akim and invited those who wanted to participate in the meeting to join him at the akimat building on 4 June 2013.
In the morning on 4 June 2013, a group of city residents gathered in front of the akimat building for the meeting with the akim. According to the author, the residents did not block the road, nor did they prevent others from passing, and participants had no posters or sound-enhancing equipment. That same morning, the author was arrested by the police as he was leaving his house to attend the meeting. He was charged under article 373.3, violation of the legislation on organizing and holding peaceful assemblies, of the Code of Administrative Violations, and his case was immediately forwarded to the Specialized Interdistrict Administrative Court in Almaty. On the same day, the court found him guilty of organizing an unsanctioned public gathering and sentenced him to 7 days’ administrative detention.
On an unspecified date, the author appealed the ruling to the Almaty City Court arguing that his freedom of assembly and freedom of expression had been violated. On 7 June 2013, the Almaty City Court rejected the appeal. The author also filed requests for a supervisory review with the Office of the Prosecutor of Almaty, which was denied on 25 June 2013, and with the Office of the Prosecutor General of Kazakhstan, which was rejected by the Deputy Prosecutor General of Kazakhstan on 5 November 2013.
The author contends that he has exhausted all available domestic remedies. The complaint
The author claims that, by arresting and sentencing him to 7 days’ administrative detention, the State party violated his rights to freedom of expression and freedom 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
By a note verbale dated 3 February 2016, the State party provided its observations on the admissibility of the communication. The State party submits that a communication can be submitted by a third person only if the author is unable to personally submit it. Given that, in the present case, the author failed to provide any evidence that he was not able to personally submit the communication, it should be declared inadmissible under article 3 of the Optional Protocol.
The State party submits that the communication is also incompatible with the provisions of the Covenant and therefore 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 notes that, while asking for remedies, the author requests that those responsible for the violation of his rights be brought to justice. The State party refers to the Committee’s Views in H.K.M.A. v. Netherlands, in which the Committee held that the Covenant did not provide for the right to see another person criminally prosecuted1 In the State party’s view, that makes the communication incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.
The State party submits that the author’s request that the State party 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, thereby interfering in the internal affairs of a sovereign State.
The State party also submits that the author has failed to substantiate how the domestic legislation in place violates his rights under articles 19, 21 and 14 of the Covenant. The State party refers to the Committee’s Views in E.Z. v. Kazakhstan, in which the Committee found the communication inadmissible because the author did not substantiate his claims under article 14. The State party argues that the author was provided with all of the rights and means of defence to achieve a fair trial.
The State party challenges the admissibility of the communication due 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 a request for a supervisory review addressed to the Prosecutor General. The State party refers to the Committee’s Views in T.J. v. Lithuania, in which 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 proceedings during his criminal trial, including at the appeal and cassation appeal stages, as well as for his failure to pursue the remedy in respect to those claims subsequently, before the ordinary courts. The State party gives an example of a case in which a request for a supervisory review, submitted to the Prosecutor General in 2015, resulted in the Supreme Court vacating the judgments of lower courts and subsequently finding that the akimat of Almaty had unlawfully denied permission for two individuals to carry out a hunger strike in their apartment. Author’s comments on the State party’s observations on admissibility
By 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. He notes that the State party has 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 developed in 2007 by the Organization for Security and Cooperation in Europe4 and submits that the State party violates every single one of those 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 the places where assemblies are to take place, nor 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, use the square behind a local movie theatre for events and gatherings organized by non-governmental organizations and use all other squares for official events and entertainment. The author argues that that resolution cannot be considered as law and is inconsistent with international human rights law, because it effectively restricts the freedom of peaceful assembly. He also argues that the resolution is discriminatory on the basis of people’s political views.
With regard to the State party’s argument that he had failed to exhaust all 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 Office of the Prosecutor of Almaty and to the Office of the Prosecutor General, both of which were rejected. State party’s observations on the merits
By 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 25 people in front of the akimat building in Almaty. According to the State party, article 32 of the Constitution of Kazakhstan provides for 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 that right. Article 2 of the Law states that a peaceful assembly may be held only after the issuance of a permit by the local municipality. In the author’s case, the courts established that no permit had been obtained by the author prior to the event of 4 June 2013. In addition, article 10 of the Law allows for additional restrictions on the right to peaceful assembly, which can be introduced by local legislative bodies depending on the specific local conditions.
The State party notes that article 19 of the Covenant allows for certain restrictions on the right to peaceful assembly. According to the State party, in many developed, democratic countries, the freedom of peaceful assembly is restricted by special laws that set out the conditions upon 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. To conduct a rally in New York, United States of America, one must submit an application 45 days prior to the event, showing the route the participants intend to take, and, in cases in which 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 may be conducted only after receiving official approval from the police. In Germany, any mass event must be authorized by the authorities. The State party submits that its regulation of public assemblies is therefore in line with the norms of international law, the Covenant and existing practices in other democratically developed countries.
The State party notes that the provisions of article 19 and 21 of the Covenant are fully reflected in the domestic legislation of Kazakhstan. The right to peaceful assembly is guaranteed by article 32 of the Constitution, and restrictions may only be placed on that right in the interests of national security, public order, the protection of public health or the protection of the rights and freedoms of others. Because 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 for holding peaceful assemblies, the local council of Almaty passed resolution No. 167 in order to further rationalize the use of the city infrastructure. According to the State party, that resolution is a normative act and is part of the current legislation of Kazakhstan. It notes that, in its Opinion No. 659/2011 of 20 March 2012, the European Commission for Democracy through Law agreed with the Constitutional Court of the Russian Federation that the latter’s Law on gatherings, meetings, demonstrations, marches and protests could leave some discretion to the executive authorities. The State party therefore 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 Commission and the relevant jurisprudence of the European Court of Human Rights.6
The State party rejects the author’s argument that the resolution of the local council of Almaty is discriminatory on the basis of people’s political views. The State party submits that the celebration of national holidays may be observed with official events carried out in public places, usually in central locations that can accommodate a large number of people. Those places are usually selected based their suitability from the point of view of public order and security, which is in line with the provisions of the Covenant. Resolution No. 167 only contains the recommendation that events organized by the State and by non-State bodies be held in certain locations. The akimat of Almaty, if circumstances require and depending on the anticipated number of participants, may therefore allocate the square behind a local movie theatre to be used for State-funded events or for gatherings organized by non-governmental organizations. For example, on 31 October 2015, the square was used by the akimat of Auezov district for a public event attended by 300 people. The State party therefore considers that argument by the author to be groundless.
The State party further notes that, between 2012 and 2015, the State authorities officially authorized 130 peaceful assemblies in Kazakhstan, 48 of which were held in 2012. Given that they were held in conformity with the existing legislation, no measures were taken against the organizers and participants of those events. The State party submits that nothing prevented the author in the present 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 had not obtained a permit. According to the State party, participants prevented people from freely passing by the entrance to the akimat building, thereby hindering the work of the State body and disturbing public order. The State party argues that, given those circumstances, the actions of the police in arresting the author for having organized an unauthorized gathering were lawful. The author was afforded all rights and means of defence provided under the law, and the sanction he received was justified and proportional. Author’s comments on the State party’s observations on the merits
By letter dated 28 June 2018, the author provided his comments on the State party’s observations on the merits. The author submits that the event of 4 June 2013 was of a peaceful nature and that its participants did not commit any unlawful actions. The author notes that, in accordance with paragraph 4 of the Committee’s general comment No. 10 (1983) on article 19 (freedom of opinion), when a State party imposes certain restrictions on the exercise of freedom of expression, they may not put in jeopardy the right itself. The author submits that the Committee has consistently held that a State party must demonstrate in a specific fashion the precise nature of the threat to any of the enumerated purposes caused by the author’s conduct7 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 had established the existence of a legitimate purpose for the limitation, it would have also needed 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. Given that the State party did not clearly explain 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 4 June 2013 was not a march, picket or demonstration and that he therefore did not have to apply for a permit. He submits that the authorities have expanded the definition of a “peaceful assembly” set out in the original law of 1995 to now include flash mobs and art mobs – 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 takes note of the State party’s argument that the author has failed to file a petition for supervisory review with the Office of 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 must be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol. In the present case, the Committee also takes note of the State party’s reference to a case in which an appeal to the Office of the Prosecutor General resulted in a submission of protest by the Prosecutor General to the Supreme Court and a subsequent finding that the akimat of Almaty had unlawfully denied permission for two individuals to carry out a hunger strike in their apartment. The Committee further takes note of the author’s claim that, on an unknown date, he petitioned the Office of the Prosecutor General for a supervisory review of his administrative case. The request was denied, however, by the Deputy Prosecutor General on 5 November 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 the present case. Accordingly, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.
The Committee takes note of the State party’s submission that the communication had been brought before the Committee by third party individuals instead of the author himself. In that respect, the Committee recalls that rule 99 (b) of its rules of procedure provides that a communication should normally be submitted by the individual personally or by that individual’s representative. In the present case, the Committee notes that the alleged victim duly issued a power of attorney to authorize counsel to represent him before the Committee. Accordingly, the Committee considers that it is not precluded by article 1 of the Optional Protocol from examining the communication.
In the Committee’s view, the author has sufficiently substantiated his 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 takes note of 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 arrested by the police for organizing an unauthorized gathering on 4 June 2013 and sentenced to 7 days’ administrative detention. 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 to 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 of the Covenant.
The Committee refers to paragraph 2 of its general comment No. 34 (2011) on the freedoms of opinion and expression, in which it stated that freedom of opinion and freedom of expression were indispensable conditions for the full development of the person and that such freedoms were essential for any society. Such freedoms 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 for respect of the rights and reputation of others and for the protection of national security or of public order 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 trying to organize a public meeting between a group of Almaty residents and the city akim to discuss various pressing social issues, as a result of which 25 people gathered in front of the akimat building on 4 June 2013. According to the author, the residents did not block the road, did not prevent others from passing and had no posters or sound enhancing equipment. The Committee takes note of the author’s explanation that he tried to organize the meeting in his capacity as a member of the community council on prevention of social conflicts under the akimat of Almaty and that he did not even participate in the gathering, given that he was arrested by the police as he was leaving his house on 4 June 2013.
The Committee takes note of 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 permit. In that regard, the Committee notes that, when 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 observes that, in the present case, the arrest of the author and the penalty imposed – 7 days’ administrative detention – raise serious doubts as to the necessity and proportionality of the restrictions imposed on the author’s rights. The Committee also observes that the State party has failed to invoke any specific grounds to support the necessity of the restrictions imposed on the author, as required under article 19 (3), other than that the author did not obtain a permit prior to the gathering. Moreover, the State party did not demonstrate that the measures selected were the least intrusive in nature or proportionate to the interests it sought to protect. 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 have been 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.14
The Committee recalls that the right to 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 indispensable in a democratic society. That 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 that right is permissible unless it is imposed in conformity with the law and necessary in a democratic society, in 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. 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 therefore 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 to the exercise of the right.16
The Committee observes that a requirement to seek an authorization from the authorities, in which 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 for arresting the participants or organizers or for imposing undue sanctions, such as charging them with criminal offences. Even in the case of an unauthorized assembly, any interference with the right to peaceful assembly must be justified under the second sentence of article 21.19
The Committee takes note of the State party’s submission that the provisions of articles 19 and 21 of the Covenant are fully reflected in the domestic legislation of Kazakhstan and that the right to 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. The Committee observes however that neither the State party nor the domestic courts have provided any explanations as to how the author’s 7-day administrative detention was 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. That requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide Mr. Telibekov 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 in the State party.