Teymur Akhmedov v. Kazakhstan

The author of the communication is Teymur Akhmedov, a national of Kazakhstan born in 1956. He claims that the State Party has violated his rights under articles 9, 14 (1), 18, 19, 26 and 27 of the Covenant. The Optional Protocol entered into force for the State Party on 30 September 2009. The author is represented by counsel.

On 9 January 2018, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to grant the author’s request for interim measures. It requested the State Party to ensure that the author received adequate medical treatment in prison and that his prison conditions were fully compatible with the Covenant and international standards. It also requested the State Party to consider releasing the author or placing him under house arrest owing to his health condition.

From May to November 2016, the author, a Jehovah’s Witness, had some 20 peaceful religious discussions with seven university students. The meetings were initiated by the students and took place either in the author’s apartment or the students’ rented apartment. The author shared his opinion about different religions and about Jehovah’s Witnesses, answering the students’ questions. Unbeknown to the author, the State National Security Committee had initiated a covert investigation against him in April 2016, using the students to record his religious discussions. The recording was authorized by the prosecutor’s office. On 18 January 2017, the National Security Committee searched the author’s home and detained him on suspicion of violating article 174 (2) of the Criminal Code for committing acts aimed at inciting religious discord and promoting the exclusivity and superiority of citizens based on their religious affiliation, using literature and other media that promote religious discord. During the search of the author’s apartment, various items of religious literature were discovered and seized.

Despite his reported health problems, on 20 January 2017, the Saryarkinsky District Court No. 2 in Astana authorized the author’s pretrial detention on the basis of the gravity of the criminal charges. On 30 January 2017, the Astana City Court rejected his appeal against the pretrial detention.

On 2 May 2017, the Saryarkinsky District Court No. 2 found the author guilty under article 174 (2) of the Criminal Code and sentenced him to five years in prison. It concluded that the author had publicly, in a group of persons, committed deliberate acts aimed at inciting religious discord, promoting exclusivity and superiority based on individuals’ attitudes toward religious affiliation, using literature and other media that promoted religious discord. The court noted that the author was not authorized to disseminate religious teachings and had no religious education, and that the meetings had been held outside an official place of worship, in violation of domestic law.

The author appealed on 16 May 2017 to the Astana City Court. He claimed, among other things, that the prosecutor had failed to prove that he had incited religious discord, promoted superiority based on religious affiliation, committed that act publicly and distributed literature. He also claimed that the court expert did not have the appropriate certification to examine the recordings of his discussions with the students. On 20 June 2017, the Astana City Court rejected his appeal. The author submitted a complaint to the Working Group on Arbitrary Detention which, on 25 August 2017, found his detention to be arbitrary.⁵ The author then appealed to the Supreme Court, referring to the opinion of the Working Group on Arbitrary Detention. On 4 December 2017, the Supreme Court rejected his appeal.

5. A/HRC/WGAD/2017/62. ↩

The author claims that his arrest, detention and imprisonment were arbitrary, in violation of article 9 of the Covenant, as the peaceful religious discussions he had with others did not pose a threat to public order or national security.

The author also alleges that the State party has violated article 14 (1) of the Covenant, claiming that he was a victim of entrapment by the National Security Committee. The students who worked for the National Security Committee asked him provocative questions and he would not have expressed his opinion on various religious matters if they had not asked him to do so.

The author claims that his arrest, detention and conviction for peacefully practising his religion constitute interference with his rights to freedom of religion and of expression. He argues that, owing to the vagueness of the wording of article 174 of the Criminal Code, it is being used to suppress religious debate and target minority religious groups. He claims a violation of articles 18 and 19 of the Covenant.

The author highlights the discriminatory treatment of Jehovah’s Witnesses in Kazakhstan, claiming that on the day of his arrest, the National Security Committee raided the regional premises of the Jehovah’s Witnesses organization. The author argues that articles 26 and 27 of the Covenant were violated.

On 28 March 2018, the State party informed the Committee that the author had been pardoned and his criminal record expunged by Presidential Decree of 2 April 2018. He was released from prison on 4 April 2018.

The State Party notes that there is a civil procedure for compensation for wrongly convicted persons. However, the expungement of a criminal record does not mean that the person was convicted wrongfully. The author has not been found to have been wrongfully convicted, therefore there are no grounds to investigate a violation of his rights.

On 11 July 2019, the author submitted his response to the State Party’s observations. The author reiterates his claim that he was wrongfully sentenced to five years in prison when he was merely exercising his rights to freedom of religion and of expression as a Jehovah’s Witness. He repeats that he is entirely innocent of the charges.

The author trusts that he was pardoned and released as a result of the interim measures requested by the Committee on 9 January 2018. He spent a total of 14 months and 18 days in detention. He author argues that, although he was released and his criminal record was expunged, he was not acquitted of the charges made against him. The Supreme Court rejected his supervisory appeal on 9 April 2018, depriving him of the possibility of being awarded compensation for his wrongful arrest, detention and imprisonment.

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 author’s claim that he has exhausted all available domestic remedies. In the absence of any objection from the State Party in that connection, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the communication.

The Committee notes the State Party’s argument that the author has been released from prison, that his criminal record has been expunged, that he was not found to have been wrongly sentenced and hence there was no need to address the allegation of a violation of his rights. The Committee also notes the author’s claim that, despite having been released from prison and having had his criminal record cleared, he has not been acquitted of the charges against him and cannot claim damages for the violation of his rights at the domestic level. The Committee considers that the author’s release and the expunged criminal record did not address any of the substance of his claims under the Covenant. The Committee will thus proceed to consider the author’s allegations.

The Committee notes the author’s claim under article 14 (1) of the Covenant that he was a victim of entrapment by the National Security Committee. The meetings in question were arranged at the initiative of the students hired by the National Security Committee and the students asked him provocative questions and recorded the discussions. The Committee notes that the author, when answering questions posed to him by the students, was merely sharing his opinion. However controversial his answers might have been, the opinions he shared are part of his beliefs and could have been expressed in any other circumstances, with or without instigation by or on behalf of State agents. The Committee notes that the author’s claim under article 14 (1) concerns the interpretation of the evidence and the application of the law (art. 174 (2) of the Criminal Code) by the National Security Committee and by the courts rather than entrapment. The Committee thus finds the author’s claims under article 14 (1) of the Covenant to have been insufficiently substantiated and therefore inadmissible under article 2 of the Optional Protocol.

The Committee notes that the author is a member of the Jehovah’s Witnesses, a religious minority within the State Party. Nonetheless, with respect to the author’s claims under articles 26 and 27 of the Covenant, the Committee notes that the arguments provided by the author are insufficient to substantiate his claims that he has been discriminated against as a Jehovah’s Witness. The Committee therefore considers that those claims have been insufficiently substantiated for the purposes of admissibility under article 2 of the Optional Protocol.

The Committee considers that the author has sufficiently substantiated the claims under articles 9, 18 and 19 of the Covenant for the purpose of admissibility. It therefore declares them admissible and proceeds with their consideration on 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 will first consider the author’s claim that his arrest, detention and conviction for peacefully expressing his religious views violated his rights under article 18 of the Covenant. The Committee recalls its general comment No. 22 (1993) on the right to freedom of thought, conscience and religion, in which it held that article 18 does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice (para. 3).⁶ By contrast, the freedom to manifest one’s religion or belief may be subject to certain limitations, but only those prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others (para. 8).

6. Bekmanov and Egemberdiev v. Kyrgyzstan (CCPR/C/125/D/2312/2013), para. 7.2, and Niftaliyev et al. v. Azerbaijan (CCPR/C/134/D/3094/2018), para. 9.4. ↩

In the present case, the Committee notes that the author was monitored by the National Security Committee, that the evidence against him was collected secretly through staged meetings with students, who were recording the discussions for the National Security Committee, that the author was charged with and found guilty of publicly inciting religious discord and that he was sentenced to five years in prison for holding peaceful private religious discussions without authorization, outside an official place of worship. Applying its general comment No. 22 (1993), in which it stated that the freedom to manifest religion or belief may be exercised either individually or in community with others and in public or private (para. 4), the Committee considers that the author’s claims relate to his right to manifest his religious beliefs and that his arrest, detention and conviction constitute limitations of that right.⁷

7. Niftaliyev et al. v. Azerbaijan, para. 9.4. ↩

The Committee must address the issue of whether those limitations on the author’s freedom to manifest his religious beliefs were prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others, within the meaning of article 18 (3) of the Covenant. The Committee recalls that article 18 (3) is to be interpreted strictly and that limitations on the freedom to manifest one’s religion or beliefs may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.⁸

8. General comment No. 22 (1993), para. 8. ↩

The Committee notes that the author was charged and sentenced to five years in prison under article 174 (2) of the Criminal Code for inciting religious discord and promoting the exclusivity and superiority of his religious beliefs. Based on the documents before it, the Committee observes that the domestic courts did not clarify how the author incited religious discord by engaging in an open discussion with several adult individuals in a private apartment. No harmful effects of his efforts to promote his religion have been established by the domestic courts. The State Party has not explained what considerations of public safety, order, health, morals, or the fundamental rights and freedoms of others under article 18 (3) necessitated the imposition on the author of such restrictive sanctions. In the Committee’s view, the author was punished merely for sharing his religious views and expressing his personal opinion. The excessively broad application of article 174 (2) of the Criminal Code by the domestic courts not only penalized the author for exercising his basic freedoms, but could also have a chilling effect on him and others, deterring any discussion of religious matters, even in private.⁹ The Committee finds that the facts of the present case reveal a violation of the author’s rights under article 18 of the Covenant.

9. CCPR/C/KAZ/CO/2, para. 47, and A/HRC/28/66/Add.1, paras. 45–47. ↩

The Committee notes the author’s claim that his arrest, detention and imprisonment violated article 9 of the Covenant. In this regard, the Committee recalls its general comment No. 35 (2014) on liberty and security of person, according to which arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the Covenant, including freedom of religion under article 18, is arbitrary (para. 17). In the light of the finding that there has been a violation of the author’s rights under article 18 of the Covenant, and that the arrest, detention and imprisonment were imposed on him as a sanction for exercising peaceful religious activities, the Committee finds that the facts before it disclose a violation by the State Party of article 9 (1) of the Covenant.

In the light of its finding that there has been a violation of article 18, the Committee does not deem it necessary to examine whether the same facts constitute a violation of article 19 of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of articles 9 (1) and 18 of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide the author with adequate compensation, including reimbursement of any legal costs he has incurred, and to offer an effective remedy that allows for the review of his sentence. The remedy should provide the author with the opportunity to seek compensation for damages resulting from the unlawful conviction. 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 and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State Party.