The author of the communication is Nina Erkaeva, a Kazakh national born in 1961. She claims that the State party violated her rights under articles 2, 14(1), 19, 21, 26, read in conjunction with article of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for the State party on 30 September 2009. The author is represented by counsel
The fact as presented by the author
The author submits that in December 2014, in the city of Karaganda, she saw a billboard that advertised “Viktoria Rehabilitation Centre”, and this centre promised assistance to victims of “negative religious influence”. The author took insult in the content of this billboard, and on 15 December 2014, she petitioned the Karaganda municipality (akimat) for permission to hold a single-person picket near the store “Yubileiny” in Karaganda, at the location where she saw the billboard in question, with a view to supporting “freedom of religion and conscience as important components of building a democratic society”. On 23 December 2014, the head of the municipality, the akim, rejected her request, citing an earlier decision No. 3, issued by the municipality on 16 July 2007.
The decision No. 3 determines that public events such as pickets and demonstrations by ordinary citizens shall be held only near the stadium “Liteishik”, at the outskirts of the city. At the same time, the same decision allows for government officials to hold their events at the center of the city. The author appealed this negative decision to Kazykbekbiy District Court. The courts rejected the author’s claims at first instance, appeal and cassation levels on, 17 February 2015, 30 April 2015 and 2 December 2015, respectively. The courts confirmed the municipal decisions, and did not find any violations of the author’s rights to equality and non-discrimination.
The author acknowledges that the municipality has a right to regulate demonstrations. But she claims that the “Liteishik” stadium is located at the outskirts of the city that the stadium is abandoned and has not been used for a long time, it has not been cleaned of snow, and is not intended for demonstrations. The author claims that nobody would attend demonstrations there. The author claims that these restrictions therefore are arbitrary, and are intended to stifle her right to hold a peaceful picket. Furthermore, these restrictions were not introduced in the interests of national security or public safety, public order, the protection of public health, morals, or the rights and freedoms of others.
The complaint
The author claims that her rights under article 14 were violated as the State party failed to assure that the courts were impartial, independent, and fair. During the court hearings, representatives of the prosecutor’s office provided their “conclusions”, and since these opinions are considered “priority” by courts, this violated the author’s rights under article 14(1) of the Covenant.
The author claims that the State party restricted her right to freedom of expression, under article 19 of the Covenant, as she was planning to protest against the contents of the billboard that she saw. Her rights were restricted in a way that was not necessary to achieve the goals as indicated by the State party. Furthermore, the fact that she was prevented from peacefully picketing at the proposed location, means that her rights under article 21 of the Covenant were also violated.
The State party authorities also discriminate against citizens based on the fact whether they are government employees, or private citizens. This is evident from the rule that the official events organized by government can be held in the centre of Karaganda, but non-government organizations must hold their events near “Liteishik” stadium, in violation of the author’s rights under article 26 of the Covenant. This treatment also violates article 2 of the Covenant.
State party’s observations on admissibility and merits
On 30 January 2017, the State party submitted its observations on admissibility and merits of the communication. The State party confirms that on 15 December 2014, the author requested permission from the municipality of Karaganda, to hold a one-person protest, near the store “Yubileiny” in Karaganda. The Karaganda city authorities refused to issue the permission, stating that all public events must be held near “Liteishik” stadium. The author challenged this decision in Kazykbekbiy District Court, where her appeals were rejected as well. Furthermore, on 11 April and 20 June 2016, the Supreme Court of Kazakhstan refused to hear the author’s appeal under the cassation procedure.
The author further appealed these decisions, and asked the Office of the Prosecutor General of Kazakhstan to bring a request (protest) before the Supreme Court of Kazakhstan. On 23 August 2016, the Deputy Prosecutor General rejected the author’s request. The author has a right to further appeal to the Prosecutor General, but she did not use this remedy, which is not limited in duration. In her submission, the author failed to provide sufficient arguments that this remedy is not effective, and according to the Committee’s jurisprudence, mere doubts about the effectiveness of the remedies does not free the author from fulfilling her obligations on exhaustion of domestic remedies.
As to the merits of the communication, the law “On organizing and holding peaceful assemblies” allows local authorities to impose additional requirements which regulate peaceful assemblies, considering the “local conditions”. When adopting these measures, the local municipality took into consideration the necessity to protect rights and freedoms of others, the requirements of public security, and the need for proper functioning of transportation. The author requested to hold her event in a “lively part” of the city, and the event, if held, could have led to threats to the public order, to the population and the author herself. The courts took these circumstances into account, and considered, inter alia, that the ambulances would have had difficulties in reaching this location, if needed.
The author’s arguments about lack of independence, impartiality and fairness of courts due to the presence of the prosecutor during the hearings are also not substantiated. The prosecutor’s presence is foreseen by article 54(2) of the Civil Procedure Code of Kazakhstan.
The State party further argues that the legislation on peaceful assemblies in Kazakhstan is fully compliant with international law standards, and the Constitution of Kazakhstan, article 32, protects the right of peaceful assembly for all citizens. Anyone can petition the local authorities and upon receiving a permission, to hold a peaceful event. These requirements are in line with the provisions of article 21 of the Covenant, which states that the rights can be restricted in the interests of national security or public safety, public order, protection of public health or morals or the protection of the rights and freedoms of others. In its conclusion which was adopted during its plenary meeting on 16-17 March 2012, the Venice Commission agreed that “certain issues” on regulating public events must be left to the discretion of local authorities. The European Court for Human Rights in its decision Sunday Times v. UK, opined that the law should allow for some flexibility, admitting that it is impossible to foresee absolute certainty of laws.
In 2015, 146 public events were held, and more than 5000 persons participated in them. The local authorities have adopted more than 200 regulations that identify more than 500 locations for such events and more than 340 routes for peaceful demonstrations. If it is impossible, for various reasons, to hold an event at the requested date and time, the local authorities offer alternative solutions. The organizers of public events are entitled to file a complaint in the court system, which are considered within short time frame. Unlawfully preventing someone from organizing such an event can be punishable under the Criminal Code of Kazakhstan, article 155.
The right to peaceful assembly is actively practiced in the city of Karaganda. On 17 March 2015, for example, an organization called “Levie Kommunisti” held a meeting near the “Liteishik” stadium. Other meetings were held in 2015 and 2016 as well. Therefore, the author’s assertion that the decision of the municipality dated 13 July 2007 is discriminatory in nature is erroneous. According to this decision, the municipality only recommends the location of the proposed event. This decision, however, was annulled, and replaced by decision no. 40, dated 24 August 2016. This new procedure puts forward five possible locations for peaceful assemblies, and two routes for demonstrations, including the centre of the city.
Based on the aforementioned, the author’s claims should be considered as inadmissible and unsubstantiated.
Author’s comments on the State party’s observations
On 27 April 2017, the author provided her comments on the State party’s observations on admissibility and merits. The author claims that the request to the Prosecutor General to bring a protest before the Supreme Court can be considered as an ineffective remedy. In any case, she already petitioned the Prosecutor General, and this petition was rejected. Including the prosecutor’s office, the author filed complaints at four different levels of the State party authorities, and all of them rejected her claims.
The author submits that the law indeed allows the local municipalities to regulate peaceful assemblies. The municipalities, however, instead of regulating the way the events are organize, regulate the way these events are held. The authorities should let the organizers decide issues of date, time, place, the number of participants, the subjects raised, and others. The local authorities also should not have a right to discriminate against “non-governmental” public events, and events organized by the authorities themselves, which are held in the centre of the city.
The State party’s arguments that the author’s event would somehow impede traffic, and access of ambulance, are not relevant, since the author request to hold a single-person picketing on the sidewalk of the street. The restrictions imposed by the government, must be in any case proportionate to the risk posed, and the State party, without considering these factors, simply prohibited the author’s conduct. The author chose this specific location, since it was located near a billboard, and the author was planning to protest against the text of this billboard. In this scenario, holding the event near a stadium far from the centre is impossible.
The author further submits that the same exact location that she requested, was earlier used by other groups, such as small and medium business groups, farmers, with a large of groups of persons participating in these events. When it was necessary, the authorities were able to stop the traffic nearby, such as during sporting events, to provide safe conditions to the participants.
As stated previously, the law on public events allows the local authorities to set the order of holding public events, but this does not mean that the law allows them to restrict the place of holding such events. The law on public events, article 7, already sets the list of restricted public places where the public events are not allowed, such as transportation hubs, water supply infrastructure, and so on. The new decision by the municipality of Karaganda dated 24 August 2016, does not alleviate these concerns. Though this decision is not relevant to the events, the author submits that the new decision only expands the list to five locations.
The State party authorities refer to a number of public events that were organized as planned. The author, however, submits that there were multiple cases where the local authorities refused to allow such public gatherings. On 21 May 2016, the authorities refused permission for protests related to so-called land issues. In November 2016, two human rights defenders were sentenced to five years of imprisonment each.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with article 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 claim that the author failed to exhaust domestic remedies by not availing herself of the remaining possibility of requesting the Prosecutor General to intervene and request supervisory review of the court decisions. The Committee recalls its jurisprudence, according to which a petition to a prosecutor’s office requesting a review of court decisions that have entered into force depends on the discretionary power of a prosecutor and constitutes an extraordinary remedy. The State party must therefore show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case.3 The Committee notes that the author lodged petitions for supervisory review to the Office of the Prosecutor General of the Republic of Kazakhstan and that this petition was dismissed. The Committee considers that the State party has not sufficiently demonstrated that further supervisory review appeals to prosecutorial authorities would have been an effective remedy in the author’s case. Accordingly, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.
- Communication No. 2416/2014, Bakytgul Suleymenova v. Kazakhstan, Views adopted on 17 July 2019, 8.3; Communication No. 2311/2013, Bakhytzhan Toregozhina v. Kazakhstan, Views adopted on 25 July 2019, para. 7.3; Communications Nos. 2542/2015 and 2543/2015, Dilnar Insenova v. Kazakhstan, Views adopted on 26 July 2019, para. 8.3. ↩
The Committee takes note of the author’s claims, framed under articles , 14 (1), 214 26, read in conjunction with article 2 of the Covenant, that the State party violated her right to an independent judiciary, peaceful assembly, and that she was discriminated based on her status of a private citizen. However, the Committee considers that the author has not sufficiently substantiated these claims for the purposes of admissibility, therefore finds that these claims are inadmissible under articles 2 and 5(2)(b) of the Optional Protocol.
- The Committee further notes its jurisprudence, according to which, one-person pickets normally do not fall under article 21 of the Convention, on the right of peaceful assembly, but instead are protected by article 19 of the Covenant (see for example, Levinov v. Belarus (CCPR/C/117/D/2082/2011), para. 7.7.) ↩
The Committee considers that the author’s claims, raising issues under article 19 of the Covenant have been sufficiently substantiated for the purposes of admissibility and proceeds to their examination on the merits.
Consideration of the merits
The Committee has considered the case 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 claims that her rights to freedom of expression have been restricted in violation of article 19 of the Covenant, as she was denied permission to organize a peaceful action to protest against the contents of the billboard and defending her rights to freedom of religion and conscience, as the author argues. It also notes the author’s claims that the authorities failed to explain why in her case the restriction to hold a picket was necessary in the interests of national security or public safety, public order, the protection of public health, morals, or the rights and freedoms of others. The Committee notes the State party arguments that the right to pose restrictions on the freedom of assembly is well within the purview of the local authorities, and that they were acting in accordance with the law on Public Events. The Committee further notes the State party’s claims that the restrictions as imposed by local authorities are intended to protect the public safety, health of others, rights and freedoms of others, as well as functioning of public transportation and other infrastructure items.
The Committee recalls its general comment No. 34 (2011), on freedoms of opinion and expression, in which it states, inter alia, that freedom of expression is essential for any society and constitutes one of the foundation stones for every free and democratic society.5 It notes that article 19 (3) of the Convention allows for certain restrictions on the freedom of expression, including the freedom to impart information and ideas, only to the extent that those restrictions are provided for by law and only if they are necessary (a) for respect of the rights or reputation of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals. Finally, any restriction on freedom of expression must not be overbroad in nature – that is, it must be the least intrusive among the measures that might achieve the relevant protective function and be proportionate to the interest to be protected. 6 The Committee 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.7
The Committee notes that the refusal to authorize the picket was based on the law on Public Events and on the decision No. 3, issued by the municipality of Karaganda on 16 July 2007, which states that the holding of public events is permitted only in one location in the city, near the stadium “Liteishik”, at the outskirts of the city. The Committee observes that limiting holding of a picket with an expressive purpose to certain predetermined locations does not appear to meet the standards of necessity and proportionality under article 19 of the Covenant8. The Committee further notes that neither the State party nor the national courts have provided an adequate explanation as to how such restrictions were justified in the present case pursuant to the conditions of necessity and proportionality referred to earlier. The Committee considers that, in the circumstances of this case, the restrictions imposed on the author, although based on domestic law, were not justified for the purposes of article 19 (3) of the Covenant. In the circumstances of the case as submitted by the parties, the Committee concludes that the rights of the author under article 19 (2) of the Covenant have been violated.
- See, inter alia, Yury Voronezhtsev et al. v Belarus (CCPR/C/132/DR/2561/2015). ↩
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 article 19 (2) 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 provide the author 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. To that end, the State party should revise its normative framework on public events, in accordance with its obligation under article 2 (2), with a view to ensuring that the rights under article 19 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 and 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.