Moldir Adylova, Suyundyk Aldabergenov, Kural Ismanov and Tamara Eslyamova ; Bakhytzhan Toregozhina (not represented by counsel); Lukpan Akhmedyarov, Baurzhan Alipkaliev, and Isaytay Utepov (represented by counsels, Ms. Zhanara Balgabayeva and Bakhytzhan Toregozhina) v. Kazakhstan

The authors of the communications are eight Kazakstan nationals: 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. 2063/2017) 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 14 (3) (c), 19 (2) and 21 of the Covenant were violated. The authors of communications No. 3063/2017 and No. 3072/2017 claim violation of their rights under articles 19 (2) and 21 of the Covenant. The author of communication No. 3072/2017 also claims a general violation of article 14 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 September 2009. The authors are represented by counsels.

On 19 March 2024 pursuant to rule 97 (3) of its rules of procedure, the Committee decided to deal with communications No. 3044/2017, No. 3045/2017, No. 3063/2017 and No. 3072/2017 jointly, in view of their substantial factual and legal similarities.

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 arrest (communications No. 3044/2017, No. 3045/2017 and No. 3072/2017). The authors’ appeals to domestic courts and prosecutor’s office were rejected.

On 21 May 2016, peaceful demonstrations were to be held throughout Kazakhstan under the theme “No to the selling of land!” The demonstrations concerned leasing of agricultural land to China, a burning issue in Kazakhstan. The authors intended to participate in the gathering and posted information about it on their social media beforehand, either encouraging other citizens to join in or simply informing about the event. Between 17 and 19 May 2016, the authors were arrested and sentenced to 15-days administrative arrest by the domestic courts for breaching article 488 (3) of the Code of Administrative Offenses of the Republic of Kazakhstan on organising and holding peaceful assemblies.⁴ The courts found that there was no authorization from akimat(the local administration) for the event in question.⁵ By posting information about an unauthorized public event, the authors violated the procedure for organizing such events. The authors’ appeals were dismissed by the appeal courts.⁶ Their requests to the prosecutor’s office for review of the court decisions were also rejected.⁷

4. Ms. Toregozhina and Mr. Aldabergenov were sanctioned on 17 May 2016 by the Specialised 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 Specialised Administrative Court of Uralsk. Mr. Akhmedyarov was sanctioned on 19 May 2016 by the same court. ↩
5. The Law of 17 March 1995 on the Order of Organization and Conduct of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations in the Republic of Kazakhstan requires that an application for an authorisation to hold a public event should be submitted to akimat (local administration) 10 days before the date of the event. ↩
6. 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 on 19, 21 and 23 May 2016 by the West-Kazakhstan Regional Court, respectively. ↩
7. 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 Almaty city prosecutor’s office 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 Almaty city prosecutor’s office on 5 August 2016 and by the Prosecutor General on 3 November 2016. Ms. Toregozhyna’s requests were rejected by the Almaty city prosecutor’s office on 31 August 2016 and by the Prosecutor General on 14 November 2016. ↩

The author is a journalist. On 21 May 2016 she went to the Abaya square in Uralsk, where the demonstration under the theme “No to the selling of land!” was being held. The author was in fact informed that a journalist from her newspaper got arrested on Abaya square and therefore she 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 Violations and fined to 106.050 KZT⁸ as 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 West-Kazakhstan Regional prosecutor’s office and the Prosecutor General were rejected on 12 January 2017 and on 03 May 2017, respectively.

8. Approximately 282 EUR in May 2016. ↩

On 23 October 2016, the author published on his Facebook page information about an unauthorized meeting to be held on the same day in support of two human rights defenders arrested in spring 2016. He was consequently arrested in Almaty, on the same day, as he was approaching the location of the event, for publishing on his Facebook page an announcement of an unauthorized meeting. On the same date, the Almaty Inter-District Specialized Administrative Court sentenced him to a sanction of 10 days of administrative arrest under article 488 (3) of the Administrative Offence Code to. The court found that by posting information on his Facebook page about the unauthorized peaceful meeting and calling 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 to the Almaty city prosecutor’s office was rejected on 30 November 2016. His appeal to the Prosecutor General was rejected on 14 February 2017.

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 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: (a) take measures to guarantee possibility to enjoy freedom of expression and freedom of peaceful assembly and lift the existing restrictions on these rights that are contrary to articles 19 and 21 of the Covenant; (b) provide them with compensation for legal representation costs.

On 12 January 2020 (communication No. 3045/2017), 19 August 2021, (communication No. 3044/2017) 10 February 2022 (communications No. 3063/2017 and 3072/2017), the State party submitted its observations on admissibility. In 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 25 July 2017 amendments to the Code of Administrative Violations, allowed the authors to bring a cassation appeal directly to the Supreme Court under article 851 (4) of the Code of Administrative Violations. The State party provides two examples, where this procedure was successful, and the Supreme Court overturned in cassation, the decisions of the lower courts. In regard of communication No. 4045/2017, the State party also submits that since the authors received a response from the Head of Department of the Prosecutor General’s Office, they can submit a request to the Prosecutor General himself.

In 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 these articles.

On the merits of communication 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 which requires a prior authorization from the local authorities. Since the authors failed to request such authorization, but nevertheless were inviting 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 organization and holding of peaceful assemblies was adopted. The requirement to seeking 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 nor present any relevant identification when she was apprehended.

The State party also submits that numerous public events were held across the country where dozens of thousands of participants expressed their disagreement with the land reform. 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 jerturaly.kz 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.

The authors submitted their comments on the State party’s observations 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 prosecutor general’s office to receive a personal response from the Prosecutor General, as 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. Authors in 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 ground of imparting information on their Facebook profiles without providing any justification of any risk 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.

On 30 December 2022 (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 submitted its additional observations.

The State party reiterates its observations on admissibility, submitted earlier. Regarding communications No. 3045/2017, No. 3063/2017 and No. 3072/1017, 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 an intention to participate in a public event (communications Nos. 3044/2017, 3045/2017 and 3072/2017), since the events in question did not take place, the State party clarifies that the sanction covers not only participation, but organization of a public event as well. This part of the law was violated by the authors. Before the authorisation from local authorities is received, the organizers are not permitted to announce publicly about the planned public event. The law regulates organization and holding of mass events to prevent chaotic and disorganized gatherings which could put at risk public order, safety and health of others and the authors themselves, and have other negative outcomes. The sanctions of administrative arrest were imposed within the limits set out by the legislation after a due consideration by courts.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State party’s argument that the 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 a Department. The Committee also notes that, on various dates, the authors did submit requests to initiate supervisory review proceedings to the respective regional prosecutors’ offices and to the General Prosecutor’s Office, respectively, and that they were all dismissed. The Committee recalls its jurisprudence, according to which petition 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.⁹ 3 The Committee further notes that the legislative amendments to article 851 of the Code of Administrative Violations in July 2017, which provides for the filing of cassation appeals with the Supreme Court, 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.

9. Arkhangelskiy et al. v. Kazakhstan (CCPR/C/137/D/2538/2015 and 4 others), 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 notes 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 the counsels 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 notes 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 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 purposes of admissibility. Accordingly, it concludes that this part of the communications is inadmissible under article 2 of the Optional Protocol.

The Committee notes 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 was arrested. The Committee notes that the author was sanctioned for participating in an unauthorized public event, even if she clearly argues 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 their examination 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 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 notes the State party’s argument that the authors (except communication No. 3063/2017), by sharing information on a public event on their Facebook pages, became organizers of unauthorized event and were sanctioned for violating the procedure on organization of public events and not for their intention to participate in the said events. The Committee observes, nevertheless, that sanctions were imposed on the authors after they imparted information on an upcoming peaceful assembly and prevented them from taking part in the event 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 laid out in articles 19 (3) and 21 of the Covenant.

The Committee refers 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.¹⁰ 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.¹¹

10. Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 2. ↩
11. Ibid., para. 22. ↩

The Committee noted 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 organization of public events. At the same time, the Committee notes, that the authors, in fact, were sanctioned for imparting information about the upcoming events on their Facebook pages, which is covered by article 19 (2) of the Covenant. By arresting the authors, the State party also made it impossible for them 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’ case 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, or public order (ordre public), or public health or morals in the light of article 19 (3) of the Covenant. Neither 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 and 15 days 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.¹² It therefore concludes that the authors’ rights under article 19 (2) of the Covenant have been violated.

12. 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 Human Rights Committee, general comment No. 34, 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.¹³ 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: (a) imposed in conformity with the law; and (b) necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. When a State party imposes restrictions with the aim of reconciling an individual’s right of 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.¹⁴ 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.¹⁵

13. See, for example, Korol v. Belarus (CCPR/C/117/D/2089/2011), para. 7.5. ↩
14. Korol v. Belarus, para. 7.5; Toregozhina v. Kazakhstan, para. 7.3. ↩
15. See Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 8.4. ↩

The Committee observes that regimes of prior authorization where 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.¹⁶ 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.¹⁷ Notification regimes, for their part, must not in practice function as authorization systems.¹⁸

16. 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. ↩
17. Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 8.3. ↩
18. General comment No. 37, para. 73. ↩

The Committee notes 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 regulating such events is necessary for the preservation of the rights of others and that, therefore, the law is 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: 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.¹⁹ Moreover, the limitations should be proportionate to the objective 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.²⁰ Establishing whether a restriction is necessary requires therefore not only a legal but also a factual assessment. A previous legislative act is thus necessary but not sufficient for such an evaluation.

19. Krasulina v. Belarus (CCPR/C/132/D/3126/2018), para. 7.5. ↩
20. General comment No. 37 (2020), para. 40. ↩

The Committee notes that it has dealt with similar cases in respect of the same laws and practices of the State party in a number of earlier communications.²¹ 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 arrest of 10 and 15 days 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 in regard of all the authors.

21. 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 in all 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 inter alia, 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 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.