The authors of the communications are eight nationals of Kazakhstan: Moldir Adylova, born in 1988; Bakhydzhan Toregozhina, born in 1962; and Suyundyk Aldabergenov, born in 1973 (communication No. 3044/2017); Lukpan Akhmedyarov, born in 1975; Baurzhan Alipkaliev, born in 1965; and Isaytay Utepov, born in 1961 (communication No. 3045/2017); Tamara Eslyamova, born in 1963 (communication No. 3063/2017); and Kural Ismanov, born in 1979 (communication No. 3072/2017). The authors of communications No. 3044/2017 and No. 3045/2017 claim that their rights under articles 14 (3) (b) and (c), 19 (2) and 21 of the Covenant were violated. The authors of communications No. 3063/2017 and No. 3072/2017 claim violations of their rights under articles 19 (2) and 21 of the Covenant. The author of communication No. 3072/2017 claims a general violation of article 14 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 September 2009. The authors, apart from Ms. Toregozhina, are represented by counsel.
On 19 March 2024, pursuant to rule 97 (3) of its rules of procedure, the Committee decided to consider communications No. 3044/2017, No. 3045/2017, No. 3063/2017 and No. 3072/2017 jointly, in view of their substantial factual and legal similarities.
Facts as submitted by the authors
The authors are all civic activists. They were all sanctioned by courts for organizing unauthorized public events in 2016 and subjected to a fine (communication No. 3063/2017) or to an administrative detention (communications No. 3044/2017, No. 3045/2017 and No. 3072/2017). The authors’ appeals to the domestic courts and prosecutors’ offices were rejected.
Communications No. 3044/2017 and No. 3045/2017
On 21 May 2016, peaceful demonstrations were to be held throughout Kazakhstan, under the theme “No to the selling of land!”. The demonstrations concerned the leasing of agricultural land to China, an issue of great public concern in Kazakhstan. The authors intended to participate in the gathering and posted information about it on their social media accounts beforehand, either encouraging other citizens to join in or simply informing others about the event. Between 17 and 19 May 2016, the authors were arrested and sentenced to 15 days’ administrative detention by the domestic courts for breaching article 488 (3) of the Code of Administrative Offences of Kazakhstan, on organizing and holding peaceful assemblies.3 The courts found that the authors had not received authorization from the akimat (local administration) for the event in question.4 By posting information about an unauthorized public event, the authors violated the procedure for organizing such events. The authors’ appeals were dismissed by the courts of appeal.5 Their requests to the prosecutors’ offices for review of the court decisions were also rejected.6
- Ms. Toregozhina and Mr. Aldabergenov were sanctioned on 17 May 2016 by the Specialized Administrative Inter-district Court of Almaty. Ms. Adylova was sanctioned on 18 May 2016 by the same court. Mr. Alipkaliev and Mr. Utepov were sanctioned on 18 May 2016 by the Specialized Administrative Court of Uralsk. Mr. Akhmedyarov was sanctioned on 19 May 2016 by the same court. ↩
- Under the Law of 17 March 1995 on the Order of Organization and Conduct of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations, an application for authorization to hold a public event should be submitted to the akimat 10 days before the date of the event. ↩
- The appeals of Ms. Adylova, Ms. Toregozhina and Mr. Aldabergenov were rejected on 1, 23 and 25 May 2016 by the Almaty City Court, respectively. The appeals of Mr. Alipkaliev, Mr. Akhmedyarov and Mr. Utepov were rejected by the West-Kazakhstan Regional Court on 19, 21 and 23 May 2016, respectively. ↩
- The requests for supervisory review of court decisions of Mr. Utepov, Mr. Alipkaliev and Mr. Akhmedyarov were rejected by the West-Kazakhstan Regional Prosecutor on 26 July 2016 and by the Prosecutor General on 21 October 2016. Ms. Adylova’s requests to the Office of the Almaty City Prosecutor and the Prosecutor General were rejected on an unspecified date and on 3 November 2016, respectively. Similar requests by Mr. Aldabergenov were rejected by the Office of the Almaty City Prosecutor on 5 August 2016 and by the Prosecutor General on 3 November 2016. Ms. Toregozhyna’s requests were rejected by the Office of the Almaty City Prosecutor on 31 August 2016 and by the Prosecutor General on 14 November 2016. ↩
Communication No. 3063/2017
The author, Ms. Eslyamova, is a journalist. On 21 May 2016 she went to Abaya square in Uralsk, where the demonstration detailed above was being held. The author had been informed that a journalist from her newspaper had been arrested in Abaya square, and she therefore decided to go to the square to assist her colleague. The author could not enter the square, as it was surrounded by the police. She took some photos on her mobile phone, and, as she was leaving the square, she was arrested by two police officers. She was sanctioned by the Specialized Administrative Court of Uralsk under article 488 (3) of the Code of Administrative Offences and fined 106,050 tenge,7 as it was determined that she had been an organizer of the meeting. The court found that the author was encouraging people not to leave and to continue the unauthorized demonstration. The author’s appeal was rejected on 9 June 2016 by the West-Kazakhstan Regional Court. Her request for supervisory review of court decisions by the Office of the West-Kazakhstan Regional Prosecutor and the Prosecutor General were rejected on 12 January 2017 and 3 May 2017, respectively.
- Approximately €282 in May 2016. ↩
Communication No. 3072/2017
On 23 October 2016, the author published information on his social media account about an unauthorized meeting to be held on the same day in support of two human rights defenders who had been arrested earlier that year. He was consequently arrested in Almaty, also on the same day, as he was approaching the location of the event, for publishing the announcement of an unauthorized meeting on his social media account. On the same date, the Almaty Inter-District Specialized Administrative Court sentenced him to a sanction of 10 days’ administrative detention under article 488 (3) of the Code of Administrative Offences. The court found that, by posting information on his social media account about the unauthorized peaceful meeting and calling for others to join the meeting, he became an organizer of the event. The author’s appeal to the Almaty City Court was rejected on 27 October 2016. His request for the supervisory review of the Office of the Almaty City Prosecutor was rejected on 30 November 2016. His appeal to the Prosecutor General was rejected on 14 February 2017.
Complaint
The authors of the four communications allege that their right to freedom of expression under article 19, and their right to freedom of peaceful assembly under article 21, of the Covenant were violated by the sanctions imposed on them. The domestic authorities and courts did not provide explanation as to why the restriction of the authors’ rights was necessary.
The authors of communications No. 3044/2017 and No. 3045/2017 also claim that the courts ignored their arguments and did not consider international principles concerning freedom of expression and freedom of peaceful assembly, in violation of articles 14 (3) (b) and 14 (3) (c) of the Covenant. The author of communication No. 3072/2017 alleges a violation of his rights under article 14 of the Covenant based on similar arguments.
The authors request that the Committee recommend that the State party take measures to guarantee the enjoyment of freedom of expression and freedom of peaceful assembly, and lift the existing restrictions on those rights that are contrary to articles 19 and 21 of the Covenant, and provide them with compensation for the costs that they incurred for their legal representation.
State party’s observations on admissibility and the merits
On 12 January 2020 (communication No. 3045/2017), 19 August 2021 (communication No. 3044/2017) and 10 February 2022 (communications No. 3063/2017 and 3072/2017), the State party submitted its observations on admissibility and the merits of the communications. With regard to communication No. 3044/2017, the State party submits that the authors could have presented the complaint themselves and that there was no reason for them to be represented by counsel. The State party claims that the communication is submitted in violation of the rule 99 (b) of the Committee’s rules of procedure.
The State party argues that the authors of communications No. 3045/2017, No. 3063/2017 and No. 3072/2017 failed to exhaust domestic remedies and that these communications should thus be declared inadmissible by the Committee. According to the State party, the amendments of 25 July 2017 made to the Code of Administrative Offences allowed for the authors to bring a cassation appeal directly to the Supreme Court under article 851 (4) of the Code. The State party provides two examples where this procedure was successful and the Supreme Court overturned in cassation the decisions of the lower courts. With regard to communication No. 3045/2017, the State party also submits that, given that the authors received a response from the Head of Department of the Office of the Prosecutor General, they can submit a request to the Prosecutor General himself.
With regard to communications No. 3044/2017, No. 3045/2017 and No. 3072/2017, the State party argues that the authors failed to substantiate their claims under article 14 of the Covenant. It also argues that, while claiming that the domestic legislation is not in line with the requirements of articles 19 and 21 of the Covenant, the authors fail to indicate which parts of the domestic legislation contradicts the standards set out in the articles.
On the merits of communication No. 3044/2017, the State party submits that the authors were sanctioned for failing to follow the procedure for organizing public events, which is established in the legislation and for which prior authorization from the local authorities is required. Given that the authors failed to request such authorization, but nevertheless were inviting the public to attend an unauthorized event, they were violating domestic law. They were sanctioned for breaching the legal requirements for the organization of public events and not for exercising their rights to freedom of expression and peaceful assembly. The State party asserts that the requirement to obtain prior authorization is in force in many countries and is not unlawful and that the domestic laws meet the respective international standards. The State party adds that, on 25 May 2020, a new law on the organization and holding of peaceful assemblies was adopted. The requirement to seek authorization was replaced with a requirement to notify the local authorities about the upcoming event.
With regard to the communication No. 3063/2017, the State party submits that the author did not identify herself as a journalist or present any relevant identification when she was apprehended.
The State party also submits that numerous public events were held across the country at which many thousands of participants expressed their disagreement with the land reform policy. As a result, a presidential decree was adopted on 6 May 2016 declaring a moratorium on the application of some provisions of the Land Code. A commission on land reform has been set up with a broad representation from civil society. Anyone could come to the commission and present their point of view. A special website was created to provide citizens with a platform to ask questions and post suggestions about the commission’s work. Through these and other measures, the State has provided a possibility for individuals to express their opinion personally and in groups without a need to hold public assemblies, especially unauthorized ones.
Authors’ comments on the State party’s observations on admissibility and the merits
The authors submitted their comments on the State party’s observations on admissibility and the merits on 31 December 2021 (communication No. 3044/2017), 1 May 2022 (communication No. 3045/2017) and 8 August 2022 (communications No. 3063/2017 and No. 3072/2017).
The authors of communication No. 3045/2017 refer to the State party’s observation that they should have submitted another request to the Office of the Prosecutor General to receive a personal response from the Prosecutor General as being formalistic. With regard to the State party’s claim that they could have submitted the complaint to the Committee themselves, without resorting to legal representation, the authors of communication No. 3044/2017 submit that they do not have a legal degree and prefer to be represented by counsel.
The authors reiterate their claims under article 14 (communications No. 3044/2017, No. 3045/2017 and No. 3072/2017) and under articles 19 and 21 of the Covenant. The authors of communications No. 3044/2017 and No. 3045/2017 argue that they were unlawfully sanctioned for the mere intention to hold a public event, as they consider that posting information about the meeting on social media is not the same as participating in a public event. The State party imposed administrative detention to the authors for organizing an unauthorized event on the grounds of imparting information on their social media accounts without providing any justification of any risk that their actions posed.
The author of communication No. 3063/2017 reiterates in addition that she is a journalist and has a right to be present at any public event, authorized or not, in exercise of her duties.
State party’s further observations
The State party submitted additional observations on 30 December 2022 (with regard to communication No. 3045/2017), 13 July 2022 (communication No. 3044/2017), 11 March 2023 (communication No. 3072/2017) and 13 March 2023 (communication No. 3063/2017).
The State party reiterates its observations on admissibility. Regarding communications No. 3045/2017, No. 3063/2017 and No. 3072/2017, the State party adds an argument previously expressed regarding communication No. 3044/2017 that the authors should have submitted their complaints themselves, and not through counsel, in violation of rule 99 (b) of the Committee’s rules of procedure.
In response to the authors’ argument that they were sanctioned for the intention to participate in a public event (communications No. 3044/2017, No. 3045/2017 and No. 3072/2017), given that the events in question did not take place, the State party clarifies that the law, and the relevant sanction, covers not only participation, but also the organization of a public event, and that this part of the law was violated by the authors. Before the authorization from local authorities is received, organizers are not permitted to publicly announce a planned public event. The law regulates the organization and holding of mass events to prevent chaotic and disorganized gatherings that could jeopardize public order and the safety and health of others and the authors themselves or have other negative outcomes. The sanctions of administrative detention were imposed within the limits set out by the legislation after due consideration by the courts.
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 failed to file a request for supervisory review with the Prosecutor General after they received a response to their request from the Head of the Department. The Committee also takes note of the fact that, on various dates, the authors did submit requests to initiate supervisory review proceedings to the office of the respective regional prosecutors and to the Office of the Prosecutor General and that they were all dismissed. The Committee recalls its jurisprudence according to which petitions to a prosecutor’s office and depending on the discretionary power of the prosecutor for supervisory 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.8 The Committee takes note of the legislative amendments made to article 851 of the Code of Administrative Offences in July 2017, providing for the filing of cassation appeals with the Supreme Court, which came into force 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.
- Arkhangelskiy et al. v. Kazakhstan (CCPR/C/137/D/2538/2015-2539/2015, CCPR/C/137/D/2544/2015 and CCPR/C/137/D/2549/2015-2550/2015), para. 7.3; 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; and 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 authors’ communications were submitted to the Committee by a third party instead of by 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 cases, the Committee notes that the alleged victims duly issued powers of attorney authorizing their counsel 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 takes note of the claims of the authors of communications No. 3044/2017, No. 3045/2017 and No. 3072/2017 that their rights under articles 14, 14 (3) (b) and 14 (3) (c) of the Covenant have been violated, because the domestic courts did not consider their arguments and did not consider their cases in the light of articles 19 and 21 of the Covenant. In the absence of any other pertinent information in that respect on file, the Committee considers that the authors have failed to sufficiently substantiate that claim for the purposes of admissibility. Accordingly, it concludes that this part of the communications is inadmissible under article 2 of the Optional Protocol.
The Committee takes note of the fact that the author of communication No. 3063/2017 denied in her submission to the Committee her intention to participate in the public event in the vicinity of which she was arrested and explained that she went to the location of the event to help her colleague who had been arrested. The Committee notes that the author was sanctioned for participating in an unauthorized public event, even though she clearly argues that that was not her intention. Regarding the claims under article 19, the author does not provide any arguments to substantiate how her right to exercise her freedom of expression under article 19 (2) of the Covenant was breached in the factual context of her case. In these circumstances, the Committee is of a view that the author did not substantiate her claims under article 19 (2) of the Covenant. The Committee finds this part of the author’s claim inadmissible under article 2 of the Optional Protocol.
The Committee considers that the remainder of the authors have sufficiently substantiated their claims under article 19 (2) and that all the authors have sufficiently substantiated their claims under article 21 of the Covenant for the purposes of admissibility. It therefore declares them admissible and proceeds with its examination 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 authors’ claims that the sanctions imposed on them for sharing the announcement about the upcoming public events related to the land reform violated their rights to freedom of expression under article 19 (2), and to freedom of peaceful assembly under article 21, of the Covenant. The Committee also takes note of the State party’s argument that the authors (except for the author of communication No. 3063/2017), by sharing information on a public event on their social media accounts, became organizers of unauthorized event and were therefore sanctioned for violating the procedure on the organization of public events and not for their intention to participate in the events. The Committee observes, nevertheless, that sanctions were imposed on the authors after they imparted information on an upcoming peaceful assembly and that that prevented them from taking part in the events to express their civic position. The Committee must therefore decide whether the limitations imposed on the authors were allowed under one of the permissible restrictions set out in articles 19 (3) and 21 of the Covenant.
The Committee recalls to its general comment No. 34 (2011) on the freedoms of opinion and expression, according to which freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. Those freedoms are essential for any society and constitute the foundation stone for every free and democratic society.9 All restrictions imposed on freedom of expression must conform to the strict tests of necessity and proportionality, must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.10
The Committee takes note of the State party’s argument that the authors of communications No. 3044/2017, No. 3045/2017 and No. 3072/2017 were sanctioned for violating the procedure for the organization of public events. At the same time, the Committee takes note of the fact that the authors were sanctioned for imparting information about the upcoming events on their social media accounts, which is covered by article 19 (2) of the Covenant. By arresting the authors, the State party also made it impossible for those authors to participate, as they intended, in the planned assemblies and to express their opinion on a matter of public importance. The Committee observes that no effort was made by the domestic authorities to consider the authors’ cases from the perspective of freedom of expression. No explanation has been provided by the State party to justify the restrictions and verify whether the authors’ actions were endangering the rights or reputation of others, national security, public order or public health or morals in the light of article 19 (3) of the Covenant, 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. In the absence of any such explanation, the Committee finds that sentencing the authors to a sanction of deprivation of liberty for 10 or 15 days’ duration for sharing invitations to a peaceful public event, albeit unauthorized, was not a necessary and proportionate measure pursuant to the conditions set out in article 19 (3) of the Covenant.11 It therefore concludes that the authors’ rights under article 19 (2) of the Covenant have been violated.
- Sadykov v. Kazakhstan (CCPR/C/129/D/2456/2014), para. 7.4; Toregozhina v. Kazakhstan (CCPR/C/124/D/2257/2013-CCPR/C/124/D/2334/2014), para. 7.5; and general comment No. 34 (2011), para. 34. ↩
The authors of all four communications also claim a violation of their rights under article 21 of the Covenant. The Committee recalls that the right of peaceful assembly is a fundamental human right essential for the public expression of an individual’s views and opinions and indispensable in a democratic society.12 That right entails the possibility of organizing and participating in a peaceful assembly in a publicly accessible location. The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience, and no restriction to that right is permissible unless it is 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 peaceful assembly and the aforementioned interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it.13 The State party is thus under an obligation to justify any limitation of the right protected by article 21 of the Covenant and to demonstrate that it does not pose a disproportionate obstacle to the exercise of that right.14
The Committee observes that regimes of prior authorization, wherein those wishing to assemble must 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 persist, 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. ↩
- General comment No. 37 (2020) on the right of peaceful assembly, para. 73. ↩
The Committee takes note of the State party’s argument that the national legislation is fully in line with the provisions of article 21 of the Covenant and is aimed at regulating, and not restricting, freedom of peaceful assembly. The Committee observes that the State party refers to the provisions of the Law of 17 March 1995 on the order of organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations, that it submits that regulating such events is necessary for the preservation of the rights of others and that the law is therefore sufficient grounds for limiting the right to freedom of peaceful assembly. In this respect, the Committee notes that article 21 of the Covenant sets out two inseparable conditions, namely, that limitations should be based on domestic law and, at the same time, they should be necessary in a democratic society in the interests of protecting national security, public safety, the public order, public health or morals or the rights and freedoms of others.18 Moreover, the limitations should be proportionate to the objective that they aim to achieve, which requires a value assessment by the authorities, weighing the nature and detrimental impact of the interference against the resultant benefit to one of the grounds for interfering.19 Establishing whether a restriction is necessary therefore requires not only a legal but also a factual assessment. A previous legislative act is thus necessary but not sufficient for such an evaluation.
The Committee notes that it has considered similar cases in respect of the same laws and practices of the State party in a number of previous communications.20 In the present case, the State party sanctioned the authors for violating an authorization regime for organizing a peaceful assembly, which itself raises issues of compatibility with the Covenant. Moreover, the State party did not attempt to demonstrate that the sanction consisting of a considerable fine imposed on one of the authors (communication No. 3063/2017) and administrative detention of 10 or 15 days’ duration imposed on the rest of the authors were necessary and proportionate under article 21 of the Covenant. The Committee therefore concludes that the State party has violated article 21 of the Covenant with regard to all of the authors.
- See, for example, Sadykov v. Kazakhstan (CCPR/C/129/D/2456/2014); Adilkhanov v. Kazakhstan (CCPR/C/128/D/2686/2015); Toregozhina v. Kazakhstan (CCPR/C/124/D/2257/2013-CCPR/C/124/D/2334/2014). ↩
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 article 19 (2) in relation to the authors of communications No. 3044/2017, No. 3045/2017 and No. 3072/2017 and of article 21 of the Covenant with regard to the authors of all the communications.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide all the 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 to take appropriate steps to provide the authors with adequate compensation and reimbursement of the imposed fine for the author of communication No. 3063/2017 and any legal costs incurred by all of the authors. 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.