The authors of the communications are Georgiy Arkhangelskiy, Bakhtiyar Albani, Ruslan Dzhumanbayev, Zhan Kenzhegulov and Zhanar Sekerbayeva, all nationals of Kazakhstan, born in 1947, 1957, 1974, 1968 and 1982, respectively. They claim that the State party has violated their rights under articles 14 (3) (d) and (g) and 21 of the Covenant. Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva also claim that the State party has violated their rights under article 19 of the Covenant. The Optional Protocol entered into force for the State party on 30 September 2009. The authors are represented by the same NGO.
On 10 March 2023, pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee decided to join communications 2538/2015, 2539/2015, 2544/2015, 2549/2015 and 2550/2015 submitted by the same NGO, on behalf of five different authors, for a joint decision, in view of substantial factual and legal similarity.
Facts as submitted by the authors
On 11 February 2014, the government of Kazakhstan announced that the national currency would be devaluated by 30%. The announcement came unexpectedly for many citizens of Kazakhstan because previously various government officials had publicly stated that no such devaluation would take place. After the announcement, many Facebook users from Almaty announced that they would gather in the city center on 15 February to peacefully protest against the devaluation measures.
On 15 February 2014, Georgiy Arkhangelskiy and Bakhtiyar Albani decided to join the announced protest and arrived to the designated place in the city center. Ruslan Dzhumanbayev and Zhan Kenzhegulov were passing by the area when they saw the protesters and upon learning why they had gathered they decided to join the protest. Zhanar Sekerbayeva, a journalist of the newspaper ‘Business and Power’ (Biznes i vlast’), came to city center to cover the protest for her newspaper. Because the area was fenced and guarded by the police, the demonstration moved to the Square of the Republic, where the authors were detained by the police, including Zhanar Sekerbayeva despite carrying her journalist ID.
On the same day, the Specialized Inter-District Administrative Court of Almaty found the authors guilty of an administrative offence under article 373.1 of the Code of Administrative Violations (violation of the legislation on organizing and holding peaceful assemblies).
The authors were sanctioned to various amounts of fine as described below: a) Georgiy Arkhangelskiy was sentenced to a fine in the amount of 1,852 tenge.4 He appealed to the Almaty City Court, however his appeal was denied on 6 March 2014. He further submitted appeals for a supervisory review to the Almaty City Prosecutor on 31 March 2014 and to the Prosecutor General’s Office of Kazakhstan on 5 May 2014, however both of his appeals were dismissed on 11 April 2014 and on 6 June 2014, respectively (the latter by the Deputy Prosecutor General); b) Bakhtiyar Albani was sentenced to a fine in the amount of 12,964 tenge.5 He appealed to the Almaty City Court, however his appeal was denied on 6 March 2014. He further submitted appeals for a supervisory review to the Almaty City Prosecutor on 9 April 2014 and to the Prosecutor General’s Office of Kazakhstan on 5 May 2014, however both of his appeals were dismissed on 16 April 2014 and on 10 June 2014, respectively (the latter by the Deputy Prosecutor General); c) Ruslan Dzhumanbayev was sentenced to a fine in the amount of 5,556 tenge.6 He appealed to the Almaty City Court, however his appeal was denied on 4 March 2014. He further submitted appeals for a supervisory review to the Almaty City Prosecutor on 31 March 2014 and to the Prosecutor General’s Office of Kazakhstan on 5 May 2014, however both of his appeals were dismissed on 11 April 2014 and on 10 June 2014, respectively (the latter by the Deputy Prosecutor General); d) Zhan Kenzhegulov was sentenced to a fine in the amount of 9,260 tenge.7 He appealed to the Almaty City Court, however his appeal was denied on 4 March 2014. He further submitted appeals for a supervisory review to the Almaty City Prosecutor on 31 March 2014 and to the Prosecutor General’s Office of Kazakhstan on 26 May 2014, however both of his appeals were dismissed on 4 April 2014 and on 14 July 2014, respectively (the latter by the Deputy Prosecutor General); e) Zhanar Sekerbayeva was sentenced to a fine in the amount of 5,556 tenge.8 She appealed to the Almaty City Court, however her appeal was denied on 4 March 2014. She further submitted appeals for a supervisory review to the Almaty City Prosecutor on 31 March 2014 and to the Prosecutor General’s Office of Kazakhstan on 26 May 2014, however both of his appeals were dismissed on 4 April 2014 and on 17 July 2014, respectively (the latter by the Deputy Prosecutor General).
The authors contend that they have exhausted all available domestic remedies.
Complaint
The authors claim that by sentencing them to a fine, the State party violated their right of peaceful assembly under article 21 of the Covenant. They argue that the State party has failed to provide any justification as to why it was necessary to restrict their rights.
Three of the authors, Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva , claim that the State party violated their right to freedom of expression under article 19 of the Covenant. In the communication of Zhanar Sekerbayeva , the author also claims that the State party violated her right to impart information as a journalist.
Finally, all authors claim that the State party violated their rights under article 14 (d) and (g) of the Covenant because the police and the Specialized Inter-District Administrative Court of Almaty refused to provide the authors with counsel and to allow journalists to attend their court hearings.
The authors request that the Committee request the State party to: bring to justice those who are responsible for the violation of their rights; provide them with compensation, including legal costs; take measures that would lift the existing restrictions on the right of peaceful assembly and right to a fair trial in the legislation of Kazakhstan contrary to articles 21 and 14 of the Covenant, respectively; and ensure that conducting peaceful protests does not entail unwarranted interference by authorities or persecution of organizers and participants.
State party’s observations on admissibility
By notes verbale dated 16 March, 25 March and 1 April 2015, the State party submitted its observations on admissibility of the communications. The State party deems that the authors have failed to sufficiently substantiate their claims and their communications should therefore be declared inadmissible. It notes that approximately between 12 and 4 pm on 15 February 2014, the authors, in a group with other people, took active part in an unsanctioned public gathering at the crossing of Abay and Dostyk streets in Almaty, and proceeded to march towards the city akimat9 protesting against the devaluation of the national currency tenge. The participants of the protest loudly chanted slogans and called for bystenders to join them, disturbing the peace of other people. Zhanar Sekerbayeva and several other participants tried to move turnstiles installed near the Abay monument for landscaping works and proceeded to the nearby square. The police warned the protesters that their actions violated the Law on the procedure for organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations and asked them to end the protest to no avail. As a result, the police detained the authors and issued administrative records against them for a violation under article 373.1 of the Code of Administrative Violations.
- The equivalent of a mayor’s office – local executive body. ↩
The State party notes that the Specialized Inter-District Administrative Court of Almaty found all authors guilty of the above offence and sentenced them to various amounts of fine. Their sentences were later upheld by the Almaty City Court.
According to the State party, the authors did not ask to get access to legal counsel or for their representatives to participate in the court proceedings, even though they had the right to do so.
The State party notes that the authors do not deny that they took part in the unauthorized gathering on 15 February 2014, but that they argue that their actions have not violated the law due to the spontaneous nature of the event as a result of which they could not submit a timely authorization request to the Amaty city akimat.
The State party submits that article 19 (2) of the Covenant guarantees freedom of expression, which includes the freedom to seek, receive and impart information. At the same time, paragraph 3 allows for certain restrictions as provided by law and 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. Similarly, article 21 of the Covenant includes the right to a peaceful assembly, which cannot be restricted unless 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. The State party submits that the provisions of articles 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. The State party notes that in accordance with article 2 of the Law on the procedure for organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations, an authorization must be obtained from a designated state body prior to conducting such events. Furthermore, in accordance with article 9 of the above law, persons who violate the prescribed procedure bear responsibility under the law.
The State party recognizes that freedom of assembly is a democratic exercise of political activism, and that the Constitution of Kazakhstan guarantees the realization and protection of this inalienable right. However, it notes that the realization of rights by some must not lead to the violation of rights of others. It refers to the guidance of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe, which recognizes the necessity of restrictions on and exceptions to the exercise of the right to peaceful assemblies. The State party notes that all developed democratic countries restrict the right to peaceful assembly through laws that provide specific conditions for its realization. According to the State party, in recent years, European countries have incurred billion-dollar losses from parts of society exercising its right to peaceful assemblies, namely as a result of, among other things, numerous riots, destruction of public and private property and stoppage of factories. Thus, to ensure the rights and freedoms of others, public safety, the normal functioning of transport and the preservation of infrastructure, local governments in Kazakhstan have identified designated areas where non-State public events can be held.
According to the State party, conducting spontaneous unauthorized public assemblies with loud slogan chanting in places, which are attended by the public or used as busy motorways, may provoke active unlawful actions from other members of the public while disturbing the peace and safety of others. The State party submits that the public gathering attended by the authors could have led to massive violations of the public order and jeopardize the health and safety of participants and other members of the public. However, thanks to their timely intervention, the police were able to halt the unlawful actions of the authors and to prevent the possibility of grave consequences.
The State party adds that it has studied practices in several other countries and has found that the restrictions on public events in some countries are more stringent than in Kazakhstan. In New York City, for example, it is necessary to request permission 45 days before the event itself and to indicate the route of the event. The city authorities have the right to move the event if its location is not acceptable. Some countries, such as Sweden, have a blacklist of organizers of previously prohibited or dispersed demonstrations. In France, local authorities have the right to prohibit any demonstrations. In the United Kingdom of Great Britain and Northern Ireland, the authorities have the right to introduce temporary bans. Also in the United Kingdom, street events are only allowed after receiving permission from the police. In Germany, any mass event, meeting or demonstration, inside or outside, must be permitted by the authorities. The State party therefore concludes that its regulation of peaceful assemblies is in line with international law and practice of other democratic countries.
The State party notes that contrary to what is being claimed by the authors before the Committee, they were held responsible under the administrative procedure not for exercising their rights to freedom of expression and peaceful assembly but rather for violating the requirements established in the national legislation for the exercise of these rights. The State party rejects the claim by Zhanar Sekerbayeva that she was attending the protest as a journalist. It notes that she was detained while trying to move turnstiles installed near the Abay monument for landscaping works so that participants can continue with their unauthorized protest.
With regard to the authors’ claim that the police and the Specialized Inter-District Administrative Court of Almaty refused to provide them with counsel, the State party reiterates that the authors were explained all of their procedural rights by the court in writing, including the right to have a counsel, and none of them chose to use that right. The State party notes that article 589 of the Code of Administrative Violations provides for a mandatory participation of a counsel in certain administrative proceedings, however the authors’ cases did not fall under such category, thus the absence of counsel did not prevent the proceedings from continuing. At the same time, the State party notes that the authors’ case files do not contain information about any motions submitted by the authors requesting participation of their representatives, trial monitors or journalists.
Finally, the State party challenges the admissibility of the communications owing to non-exhaustion of the available domestic legal remedies. The State party notes that after the authors’ requests for a supervisory review were rejected by the Deputy Prosecutor General of Kazakhstan, they were entitled to another request for a supervisory review addressed to the Prosecutor General. Therefore, the State party considers that the authors have not exhausted all available domestic legal remedies and that their communications should be found inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.
Authors’ comments on the State party’s observations on admissibility
By letters dated 3, 8 and 13 April 2015, the authors provided their comments to the State party’s observations. The authors argue that in the context of the present communication, the State party’s authorities have violated the following six guiding principles contained in the Guidelines on Freedom of Peaceful Assembly, of the OSCE Office for Democratic Institutions and Human Rights, which were adopted by Kazakhstan along with the other OSCE participating States: (1) the presumption in favour of holding assemblies; (2) the State’s positive obligation to facilitate and protect peaceful assembly; (3) legality; (4) proportionality; (5) good administration; and (6) non-discrimination. They submit 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 power to determine places where assemblies are to take place, and especially to limit them to just one location.
The authors refer to decision No. 167 adopted by the Maslikhat of Almaty10 on 29 July 2005, which authorizes non-governmental public events “of a social and political nature” to be held only on the square behind the Sary Arka cinema. Pursuant to the same decision of the Maslikhat of Almaty, official events at the local and national levels organized by the relevant State bodies, as well as other events with the participation of high-level State and city officials, are to be held on Republic Square. Other squares are to be used for holding official, cultural and entertainment activities, in accordance with their architectural and functional purposes. The authors argue that the decision of the Maslikhat of Almaty effectively divided all public events held in Almaty into State-run and non-governmental events and, according to their content, divided the latter category further into events “of a social and political nature” and other events. Consequently, pursuant to the decision of the Maslikhat of Almaty, all events organized and run by the State, as well as events of a non-political nature (e.g. sports events, competitions, concerts, business events and fairs), can be held on any suitable square, garden, park or street. All events “of a social and political nature”, however, are to be held solely on the square behind the Sary Arka cinema. Therefore, the authorization by the State party’s authorities to organize public events “of a social and political nature” only in one specially designated place, while authorizing State-run and non-political public events in other locations, is politically motivated and discriminatory.
- The equivalent of a city council, or more precisely, an elected, local representative body (a local government) in the regions and districts of Kazakhstan. ↩
With regard to the communication of Zhanar Sekerbayeva , this author notes that she initially covered the gathering as a journalist, however, after witnessing how the protesters were treated by the police, she started actively protesting against the actions of the police and of the authorities.
As to the State party’s argument that the authors have failed to exhaust domestic remedies, the authors submit that recourse to the Prosecutor’s Office is not an effective remedy that needs to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol. Nevertheless, they filed requests to the Almaty City Prosecutor and to the Prosecutor General’s Office to initiate supervisory review proceedings in their administrative cases, but those requests were rejected. Therefore, all available and effective domestic remedies have been exhausted.
State party’s further observations
By a note verbale dated 21 September 2022, the State party submitted its further observations. It reiterates that the local legislation does not limit the rights of citizens to express their opinions, but only establishes conditions for peaceful assemblies in order to ensure the public order and safety of all members of the public. The State party argues that the authors’ rights under articles 19 and 21 of the Covenant were not violated since they did not have permission from the local executive body to hold the event, meaning their actions were against the law. It notes that the authors’ actions could have led to mass violations of public order and endangered the health and safety of participants and the public.
With regards to the authors’ claims under article 14 of the Covenant, the State party reiterates that neither at the time of the issuance of the administrative orders by the police nor during their court hearings, did the authors request the presence of legal counsel or their representatives. The State party notes that the decisions of the Specialized Inter-District Administrative Court of Almaty finding all authors guilty were later upheld by the Almaty City Court. At the same time, in view of the amendments to article 851 of the Code of Administrative Violations dated 11 July 2017, judicial decisions that have entered into legal force, can be reviewed upon cassation appeals to the Chairperson of the Supreme Court and the Chairperson of the Judicial Board of the Supreme Court. The State party notes that the authors have not submitted cassation appeals to the Supreme Court and therefore have not exhausted all available domestic legal remedies.
The State party notes that on 6 June 2020, the new Law on the procedure for organizing and holding peaceful assemblies in the Republic of Kazakhstan entered into force. It was adopted taking into account recommendations from the civil society, including on the notification procedure for holding public assemblies, whereby local executive bodies must render their decision on public assembly requests within three working days. The State party informs that the new law shows general presumption in favour of peaceful assemblies, and contains such new developments as providing up to two hours for single picketing and reduced time for local executive bodies to consider notifications of public assemblies. The new law also provides for an exhaustive list of grounds on which local executive bodies may refuse to hold an assembly.
The State party concludes that all communications submitted by the authors shall be found inadmissible for failure to exhaust available domestic remedies. It also argues that the communications were submitted in violation of the rule 99 (b) of the Committee’s rules of procedure, which requires that communications should be submitted by individuals personally or by their representatives when it appears that the individual in question is unable to submit the communication personally.
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 authors have failed to file a request for a supervisory review to the Prosecutor General. The Committee notes that on various dates the authors did submit requests to initiate supervisory review proceedings to the Almaty City Prosecutor and to the General Prosecutor’s Office, which were all later denied. The Committee recalls its jurisprudence according to which a petition to a prosecutor’s office, dependent on the discretionary power of the prosecutor, 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.11 The Committee also notes that the legislative amendments to article 851 of the Code of Administrative Violations, dated 11 July 2017, allowing people to file cassation appeals with the Supreme Court came into force on 21 July 2017, i.e. after the submission of the present communications. Accordingly, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communications.
- See, e.g., Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Zhagiparov v. Kazakhstan (CCPR/C/124/D/2441/2014), para. 12.3; Poplavny and Sudalenko v. Belarus (CCPR/C/118/D/2139/2012), para. 7.3. ↩
The Committee takes note of the State party’s submission that the communications had been brought before the Committee by third party individuals instead of the authors themselves. 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 victims duly issued powers of attorney to authorize a NGO to represent them before the Committee. Accordingly, the Committee considers that it is not precluded by article 1 of the Optional Protocol from examining the present communications.
The Committee further notes the authors’ claims that the State party violated their rights under articles 14 (3) (d) and (g) of the Covenant because the police and the Specialized Inter-District Administrative Court of Almaty refused to provide them with counsel and to allow mass media to attend their court hearings. The Committee also notes the State party’s submission that the authors’ case files do not contain information about any motions submitted by the authors requesting participation of counsel, representatives, trial monitors or journalists and that they were not prevented from requesting their participation. In the absence of any other pertinent information on file in that respect, the Committee considers that the authors have failed to sufficiently substantiate these allegations for the purposes of admissibility. Accordingly, it declares this part of the communications inadmissible under article 2 of the Optional Protocol.
The Committee considers that the authors have sufficiently substantiated their remaining claims raising issues under article 21 of the Covenant for all authors and under article 19 of the Covenant for Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva for the purposes of admissibility. It therefore declares this part of the communications admissible and proceeds with their 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 authors’ claims that the State party has violated their right of peaceful assembly under article 21 of the Covenant by detaining them and sentencing them to various fines on 15 February 2014 for participating in a peaceful protest against the national currency devaluation measures. The Committee also notes the claims by Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva that the State party has violated their right to freedom of expression under article 19 of the Covenant. The authors do not consider the restrictions imposed on their rights to be necessary and to fall within the permissible restrictions enshrined in articles 19 and 21 of the Covenant. The Committee further notes that the State party acknowledges that the authors’ rights under articles 19 and 21 Covenant have been restricted but considers that the imposed restrictions are compatible with the Covenant.
The Committee recalls its general comment 37 (2020) on the right of peaceful assembly and states that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential for public expression of an individual’s views and opinions and is indispensable in a democratic society. Such assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.12 No restriction to this right is permissible, unless it (a) is imposed in conformity with the law; and (b) is necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), protection of public health or morals or protection of the rights and freedoms of others. When a State party imposes restrictions with the aim of reconciling an individual’s right to 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.13 The State party is thus under an obligation to justify the restriction of the right protected by article 21 of the Covenant, and to demonstrate that such restriction does not serve as a disproportionate obstacle on the exercise of the right.14
The Committee observes that authorization regimes, where those wishing to assemble have to apply for permission (or a permit) from the authorities to do so, undercut the idea that peaceful assembly is a basic right.15 Where such requirements exist, they must in practice function as a system of notification, with authorization being granted as a matter of course, in the absence of compelling reasons to do otherwise. Such systems should also not be overly bureaucratic.16 Notification regimes, for their part, must not in practice function as authorization systems.17
- CCPR/C/MAR/CO/6, para. 45; CCPR/C/GMB/CO/2, para. 41; and African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly in Africa, para. 71. ↩
- Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 8.3. ↩
- Human Rights Committee, general comment No. 37 (2020), para. 73; and CCPR/C/JOR/CO/5, para. 32. ↩
The Committee notes that the State party relied on the provisions of the Law on the procedure for organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations, which require an application to be made prior to the intended event and authorization by the local executive authorities to be received, thus constituting restrictions to the right of peaceful assembly. The Committee recalls that the right of peaceful assembly is a right, not a privilege. Restrictions on this right, even if authorized by law, must also meet the criteria under the second sentence of article 21 of the Covenant, in order to comply with the Covenant. In this connection, the Committee observes that restrictions imposed for the protection of “the rights and freedoms of others” may relate to the protection of Covenant rights or other human rights of people not participating in the assembly. At the same time, assemblies are a legitimate use of public and other spaces, and since they may entail by their very nature a certain level of disruption to ordinary life, such disruptions have to be accommodated, unless they impose a disproportionate burden, in which case the authorities must be able to provide detailed justification for any restrictions.18 The Committee also observes that “public order” refers to the sum of the rules that ensure the proper functioning of society, or the set of fundamental principles on which society is founded, which also entails respect for human rights, including the right of peaceful assembly.19 States parties should not rely on a vague definition of “public order” to justify overbroad restrictions on the right of peaceful assembly.20 Peaceful assemblies can in some cases be inherently or deliberately disruptive and require a significant degree of toleration. “Public order” and “law and order” are not synonyms, and the prohibition of “public disorder” in domestic law should not be used unduly to restrict peaceful assemblies.21 However, the Committee notes that the State party has not provided any specifics as to the nature of the disturbance occasioned by the assembly in question, except that some participants tried to move turnstiles installed near the Abay monument for landscaping works in order to proceed to a nearby square, nor any information as to how such peaceful assembly crossed the threshold of permissible disruption to be tolerated.
- Stambrovsky v. Belarus (CCPR/C/112/D/1987/2010), para. 7.6; and Pugach v. Belarus (CCPR/C/114/D/1984/2010), para. 7.8. ↩
- Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, para. 22. GC = para 44. ↩
- CCPR/C/KAZ/CO/1, para. 26; and CCPR/C/DZA/CO/4, para. 45. ↩
- Human Rights Committee, general comment No. 37 (2020), para. 44. ↩
The Committee recalls that article 21 of the Covenant provides that any restrictions must be “necessary in a democratic society”. Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient.22 Such restrictions must be appropriate responses to a pressing social need, related to one of the permissible grounds in article 21 of the Covenant. They must also be the least intrusive among the measures that might serve the relevant protective function.23 Moreover, they have to be proportionate, which requires a value assessment, weighing the nature and detrimental impact of the interference on the exercise of the right against the resultant benefit to one of the grounds for interfering.24 If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible. The Committee further observes that the State party has not demonstrated that the authors’ sanctioning with fines for participating in peaceful rallies was necessary in a democratic society to pursue a legitimate aim or was proportionate to such an aim in accordance with the strict requirements under the second sentence of article 21 of the Covenant. The Committee also recalls that any restrictions on participation in peaceful assemblies should be based on a differentiated or individualized assessment of the conduct of the participants and the assembly concerned. Blanket restrictions on peaceful assemblies are presumptively disproportionate.25 For these reasons, the Committee concludes that the State party failed to justify the restriction of the authors’ right to peaceful assembly and thus violated article 21 of the Covenant.
The Committee further notes the claims by Georgiy Arkhangelskiy and Bakhtiyar Albani that the State party has violated their right to freedom of expression under article 19 of the Covenant. The Committee also notes the claim by Zhanar Sekerbayeva that the State party violated her right to impart information as a journalist. Athough the State party disputes that she was attending the protest as a journalist, the Committee finds it unnecessary to evaluate these factual allegations, because the author’s claims can be decided on the assumption that the challenged restrictions were motivated by concern for public safety and public order similarly to other authors as submitted by the State party. The Committee must therefore decide whether the restrictions imposed on Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva are allowed under one of the permissible restrictions laid out in article 19 (3) of the Covenant.
The Committee notes that sanctioning the authors for expressing their views through participation in public events interfered with their right to impart information and ideas of any kind, as protected under article 19 (2) of the Covenant. The Committee recalls that article 19 (3) of the Covenant allows certain restrictions, but these are only such as are provided by law and are necessary for respect of the rights or reputations of others or for the protection of national security or of public order (ordre public) or of public health or morals. The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, in which it states that those freedoms are indispensable conditions for the full development of the person and are essential for any society. These freedoms constitute the foundation stone for every free and democratic society. Any restriction on the exercise of those 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 were predicated. The Committee recalls that it is for the State party to demonstrate that the restrictions on the authors’ rights under article 19 were necessary and proportionate.26
- See, for example, Pivonos v. Belarus (CCPR/C/106/D/1830/2008), para. 9.3; and Olechkevitch v. Belarus (CCPR/C/107/D/1785/2008), para. 8.5; Sambetbai v. Kazakhstan, para. 12.8; Kurtinbaeva v. Kazakhstan, para. 9.9; Nurlanuly v. Kazakhstan, para. 9.9; and Kulumbetov v. Kazakhstan, para. 8.9. ↩
The Committee observes that sentencing Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva to administrative fines for participating in a peaceful albeit unauthorized event with an expressive purpose, raises serious doubts as to the necessity and proportionality of the restrictions on the authors’ rights under article 19 of the Covenant. The Committee observes in this regard that the State party has failed to invoke any specific grounds to support the necessity of such restrictions as required under article 19 (3) of the Covenant.27 Nor did the State party demonstrate that the measures selected were the least intrusive in nature or proportionate to the interest that it sought to protect. The Committee considers that, in the circumstances of the case, the restrictions imposed on Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva , although based on domestic law, were not justified pursuant to the conditions set out in article 19 (3) of the Covenant. It therefore concludes that their rights under article 19 of the Covenant have been violated.28
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 all authors’ rights under article 21 of the Covenant and of the rights of Georgiy Arkhangelskiy, Bakhtiyar Albani and Zhanar Sekerbayeva 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 all authors 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 the authors with adequate compensation and reimbursement of the imposed fines and any legal costs incurred by them. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
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 disseminate them widely in the official languages of the State party.