The authors of the communication are Cholpon Djakupova and Narynbek Idinov, both nationals of Kyrgyzstan, born in 1959 and 1952, respectively. They claim that the State Party has violated their rights under articles 12 (2), 14 (1) and 19 (2) of the Covenant. The Optional Protocol entered into force for the State Party on 7 January 1995. The authors are represented by counsel.
Facts as submitted by the authors
The authors submit that, since 2016, there has been a marked increase in State-driven pressure on freedom of expression in Kyrgyzstan. In 2016, the security agencies began investigating material that was critical of then-President Almazbek Atambaev on social media and interrogated authors of such publications about their posts. In March 2017, the Prosecutor General initiated four lawsuits against different media outlets, journalists and human rights defenders on behalf of the President under the domestic legislation that protects the President’s honour and dignity,4 seeking compensation in the amount of 48 million soms. During his public speeches, President Atambaev harshly criticized independent media and condemned the activities of human rights defenders representing the interests of journalists and the media.5
- The Law on the Guarantees of the Activities of the President of Kyrgyzstan. ↩
- The authors refer to a meeting that the President held with several ambassadors to Kyrgyzstan at which he complained that some journalists had sold out Kyrgyzstan, calling those journalists “rotten”. https://kaktus.media/doc/354121_chto_govoril_prezident_atambaev_poslam_vystypaia_na_kyrgyzskom.html (in Russian). ↩
Both authors are civil activists and are well known in Kyrgyzstan for their public engagement in the protection of human rights. Ms. Djakupova, a director of the legal clinic Adilet and a former deputy of the Kyrgyz parliament, agreed to represent the defendants in all four civil cases initiated by the Prosecutor General. On 30 March 2017, the Ombudsperson organized a round table on freedom of assembly and freedom of speech to facilitate a discussion between civil society and the Kyrgyz authorities. During the round table, Ms. Djakupova took the floor and delivered a critical speech, in which she condemned the authorities and President Atambaev for interfering with freedom of expression and information in the country. On the same day, Mr. Idinov, a journalist and co-founder of the Internet news portal Zanoza, published an article containing Ms. Djakupova’s speech on his website.
On 20 April 2017, the Prosecutor General, relying on the provisions of article 4 of the Law on the Guarantees of the Activities of the President of Kyrgyzstan and article 18 of the Civil Code, which guarantees the protection of a person’s honour, dignity and professional reputation, filed a civil lawsuit to protect the honour and dignity of the President and to seek moral compensation in the amount of 3 million soms from each of the authors.6 The lawsuit also named another individual and a public foundation as co-defendants in the case. The authors claim that it is unprecedented in the judicial history of Kyrgyzstan to seek such a large amount as compensation and that for Mr. Idinov to pay such an amount would require him to surrender his entire income for the next 31 years. They also note that, in 2017, the average amount of compensation for non-pecuniary damages awarded by domestic courts, in, for example, cases of murder or rape, was between 100,000 and 200,000 soms. The Prosecutor General also requested the court to declare parts of Ms. Djakupova’s speech untrue and to order the removal of the article from Mr. Idinov’s website. The lawsuit alleged that Ms. Djakupova’s speech was inappropriate and contained emotionally expressive elements, irony and sarcasm aimed at negatively influencing public opinion, thereby affecting the reputation of the President.
- Approximately $43,500. ↩
On 26 April 2017, at the request of the Prosecutor General, Oktyabrsky District Court in Bishkek issued an injunction prohibiting the authors from leaving the country before the end of the court proceedings and ordering the temporary seizure of their assets to secure the payout of potential damages. As a result of the injunction order, court bailiffs froze a bank account and a house belonging to Ms. Djakupova. The court considered these measures necessary to ensure that nothing would hinder or prevent the implementation of the court’s final decision. The authors lodged an appeal against the injunction measures with Bishkek City Court; however, their appeal was denied on 18 May 2017. The authors also filed an appeal for a supervisory review with the Supreme Court, which was dismissed on 19 June 2017.
On 30 June 2017, Oktyabrsky District Court ruled that, in her speech, Ms. Djakupova defamed the honour and dignity of President Atambaev and ordered the article containing her speech to be deleted from Mr. Idinov’s website. Although the lawsuit was filed against four defendants, the trial lasted only two days. There were also numerous violations of procedural and substantive law: the authors’ counsels were not given sufficient time to examine case materials or to prepare legal arguments; the presiding judge interrupted the defendants’ testimonies, indicating that they had exceeded their time limit; and the authors’ motions for a linguistic expert testimony and additional time to prepare for closing arguments were dismissed without substantiation. The court ordered each of the authors to pay President Atambaev non-pecuniary damages in the amount of 3 million soms, as requested by the Prosecutor General. On 17 August 2017, Bishkek City Court denied the authors’ appeal. On an unspecified date, the authors lodged a cassation appeal with the Supreme Court, which was dismissed on 30 November 2017.
On 6 December 2017, the authors requested Oktyabrsky District Court to approve an instalment plan to execute the court’s decision regarding compensation, whereby 50 per cent of the authors’ monthly income would be withheld until the entire amount of the compensation had been paid. The authors provided the court with detailed information about their income and showed that they would not be able to pay the awarded damages at once. On 19 December 2017, Oktyabrsky District Court denied the authors’ request. The authors lodged an appeal against the decision with Bishkek City Court, but their appeal was denied on 7 February 2018.
On 12 January 2018, a legal representative of President Atambaev requested Oktyabrsky District Court to execute the court’s final decision by initiating foreclosure proceedings on the authors’ seized property with a view to its subsequent sale. On 14 February 2018, this request was granted in relation to Ms. Djakupova’s property. At the time of the submission of this communication, the foreclosure proceedings were in process.
The authors submit that they have exhausted all available domestic remedies.
Complaint
The authors claim that the State Party has violated their rights under articles 12 (2), 14 (1) and 19 (2) of the Covenant.
The authors claim that, by imposing a travel ban on them, the State Party has violated their rights under article 12 (2) of the Covenant. The authors note that the Committee has held that, while restrictive measures are admissible under certain circumstances provided by article 12 (3), those restrictive measures must conform to the principle of proportionality and must be appropriate to achieve their protective function and proportionate to the interest to be protected.7 The authors submit that the travel ban resulted in their inability to fully pursue their professional activity, given that both of them, as part of their work, had to travel abroad. The authors note that the travel ban remained in force after the decision of the court of first instance, pending full payment of the awarded damages.
- General comment No. 27 (1999) on freedom of movement, para. 14. ↩
The authors also consider that their rights under article 14 (1) of the Covenant have been violated because of procedural irregularities and the violation of the principle of equality of arms. The authors claim that the domestic courts did not give them sufficient time to prepare their defence, did not allow them to fully present their arguments and summarily dismissed their motions, thus failing to ensure that each side was given the opportunity to contest all the arguments and evidence adduced by the other party.8 They also note that the proceedings took place in a general environment of shrinking space for freedom of expression, in which public officials openly criticized human rights defenders and journalists. In particular, the President repeatedly criticized local media outlets in his speeches and condemned the activities of human rights defenders. The authors consider that the President influenced the Prosecutor General’s decision to start legal proceedings against them.
- General comment No. 32 (2007) on the right to equality before courts and tribunals and to fair trial, para. 13. ↩
Referring to article 19 (2) of the Covenant, the authors submit that the restriction imposed on them was not provided for by law and was neither necessary in a democratic society nor proportionate to the aim pursued. The authors claim that the Kyrgyz authorities failed to take into consideration that Ms. Djakupova’s speech was of public interest and primarily urged government officials to uphold the standards of the Constitution and the rule of law in general, while Mr. Idinov simply reproduced and critically reported a political event. The authors note that the courts did not consider that public figures, especially the President, should be subject to the highest level of scrutiny, and failed to establish any pressing social need for placing the protection of the President’s reputation above the authors’ own freedom of expression. The authors also argue that the amount of the damages awarded by the domestic courts is void of any logic or explanation as to how it was calculated.
State Party’s observations on the merits
In a note verbale dated 20 December 2018, the State Party submitted its observations on the merits of the communication. The State Party notes that, at a public event held on 30 March 2017, Ms. Djakupova voiced a number of statements and accusations that discredited and degraded the honour, dignity and reputation of President Atambaev. In particular, she, without providing any evidence or facts, stated that the President persecuted the media out of personal revenge and interfered in the administration of justice, effectively accusing him of committing the crime of abuse of office. She publicly accused the President of ignorance of the Constitution and the law and of abusing his authority as the Head of State. She also condemned the President for creating a situation in which a coup and a civil war could occur and said that he had a mania for revenge and referred to him as someone with a manic personality and sick tendencies.
The State Party submits that, on the same day, Zanoza published an article entitled “Cholpon Djakupova: It’s time to reprimand a person with manic tendencies” that contained Ms. Djakupova’s speech, which was reproduced without any prior fact-checking. It also submits that the article distorted some of Ms. Djakupova’s statements to strengthen the negative presentation of the information to the public, such as by adding the phrase “It’s time to reprimand” in the heading of the article as if it had been said by the speaker, when, in fact, Ms. Djakupova had not used such a phrase in her speech. The State Party notes that a linguistics expert from the State Forensic Centre of the Ministry of Justice conducted a forensic linguistic examination of the videotape and transcript of Ms. Djakupova’s speech, which revealed that it contained emotionally expressive elements, irony and sarcasm. According to the Centre’s report, by characterizing the President’s ethical and moral standards negatively, Ms. Djakupova had undermined his status and tarnished his professional reputation and public image, degrading his honour and dignity.
The State Party submits that, on 20 April 2017, the Prosecutor General filed a lawsuit with Oktyabrsky District Court to protect the honour and dignity of the President and requested the removal of the article containing Ms. Djakupova’s speech from the Zanoza website. The Prosecutor General also asked the court to award non-pecuniary damages, with an amount of 3 million soms to be paid by each of the defendants.
With regard to the authors’ claim that the injunction measures violated their rights under the Covenant, the State Party submits that the Code of Civil Procedure provides for injunction measures that include temporarily seizing a defendant’s assets to guarantee the payment of damages, should the defendant be unable to pay the court-awarded compensation. The State Party further notes that the travel ban was imposed by the trial court at the request of the Prosecutor General, given that the nature of the authors’ work required frequent trips abroad and that their departure before consideration of the merits of the case could complicate and delay the trial. The State Party notes that, at the time the lawsuit was filed, article 46 (8) of the law on external migration provided for the possibility of a temporary travel ban in the case of a pending civil lawsuit. However, on 30 May 2018, the Constitutional Chamber of the Supreme Court ruled that the above-mentioned article was contrary to the Constitution of Kyrgyzstan.
With regard to the proportionality of the damages sought by the Prosecutor General, the State Party notes that, when determining the amount of monetary compensation to be recovered from the authors, several factors were taken into account, including the nature and content of the public statements, the method and duration of the publication, the degree of influence of the statements and publications in forming a negative public opinion of the victim and the extent to which his dignity, social status and business reputation were affected, along with other negative consequences that he had faced. At the same time, it notes that current legislation does not provide an established methodology for determining the amount of monetary compensation for non-pecuniary damages in such cases. It considers that the domestic courts have complied with the requirements of reasonableness, fairness and proportionality in determining the amount of the compensation for moral damages.
The State Party submits that, on 23 May 2018, President Atambaev waived part of his claim for non-pecuniary damages and requested Oktyabrsky District Court to lift the injunction measures issued by the court on 26 April 2017. On 4 June 2018, Oktyabrsky District Court granted the request and lifted all injunction measures against the authors. The State Party submits that the waiver of non-pecuniary damages by President Atambaev rendered the decisions of the domestic courts devoid of any legal consequences. Moreover, on 17 October 2018, the Constitutional Chamber of the Supreme Court ruled that the provisions of article 4 of the Law on the Guarantees of the Activities of the President of Kyrgyzstan were contrary to the Constitution insofar as they allowed for the protection of the President’s honour and dignity and determination of the amount of moral compensation by the Prosecutor General without the President’s explicit consent.
As to the procedural irregularities and the violation of the principle of equality of arms alleged by the authors, the State Party considers that the trial court maintained its objectivity and impartiality throughout the process, providing all necessary conditions for a comprehensive examination of evidence and correct application of domestic law in resolving the case. It notes that the trial was open to the public and that the rights of all parties involved in the case were fully observed by the court.
Lastly, with regard to the authors’ claim under article 19 of the Covenant, the State Party notes that, in accordance with article 29 of the Constitution, everyone, including the President, has the right to the protection of honour and dignity. In addition, article 12 of the Universal Declaration of Human Rights states that no one is to be subjected to attacks upon his honour and reputation and everyone has the right to the protection of the law against such attacks. Moreover, article 8 of the Universal Declaration of Human Rights provides that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. The State Party refers to the jurisprudence of the European Court of Human Rights, which has held that, despite the role that the press plays in a State governed by the rule of law, it is obliged to adhere to certain frameworks set by the law.9 Therefore, the State Party argues that the judgments of the domestic courts were based on the relevant provisions of Kyrgyz legislation, and that their application pursued the legitimate aim of the protection of the reputation or rights of others, namely President Atambaev.
- The State Party refers to European Court of Human Rights, Prager and Oberschlick v. Austria, Application No. 15974/90, Judgment, 26 April 1995; and Flux v. Moldova (No. 6), Application No. 22824/04, Judgment, 29 July 2008. ↩
Authors’ comments on the State Party’s observations on the merits
On 25 February 2019, the authors provided their comments on the State Party’s observations on the merits. The authors reject the legality and the legal sufficiency of the forensic linguistic examination of Ms. Djakupova’s speech because it was not commissioned and conducted on the basis of an independent court decision, but rather was ordered by the Office of the Prosecutor General, which was one of the parties in the case. The authors note that, in accordance with national legislation, if a forensic examination is ordered by a court, each of the parties has the right to petition the court to include questions for the consideration of experts or to give objections on issues proposed by the other party to the court process. However, as the linguistic examination was ordered by the Office of the Prosecutor General, they were deprived of this opportunity.
The authors reject the State Party’s submission that the trial court maintained its objectivity and impartiality throughout the process and provided necessary conditions for a comprehensive examination of evidence in the case. They note that the trial court did not grant their lawyers sufficient time to examine case materials and to properly prepare their arguments. During their cassation appeal, it took the Supreme Court only 30 minutes to hear three separate appeals of three co-defendants in the case. The authors note that they were repeatedly and rudely interrupted by the court and reminded of the time constraints.
The authors argue that the Prosecutor General demanded that the authors pay an excessively high amount of compensation for moral damages, in violation of the principle of reasonableness and proportionality, knowing that the authors would not be able to pay it. This has resulted in other violations of the authors’ rights, such as the prolonged freezing of their property and bank accounts. The authors note that, throughout the domestic proceedings, they repeatedly drew the courts’ attention to the fact that President Atambaev had not given his formal consent to the Prosecutor General to file a lawsuit to protect his honour and dignity or approved the amount of the compensation sought. Later, after the authors submitted a complaint to the Constitutional Chamber of the Supreme Court, that court ruled that the provision of the law that had allowed the Prosecutor General to file a lawsuit against the authors without the President’s consent was unconstitutional.
The authors disagree with the arguments of the State Party on the reasonableness and proportionality of imposing travel restrictions when filing and considering claims relating to the protection of honour and dignity. They note that they never missed or delayed a court hearing in their case, and that the courts did not have any reason to believe that they would obstruct or delay the consideration of the case. Moreover, they submit that their case was the first such case concerning the protection of honour and dignity in the history of Kyrgyzstan for which such an injunction measure had been applied. The authors note that they had to appeal the unconstitutionality of the travel ban and, on 30 May 2018, the Constitutional Chamber of the Supreme Court concluded that a travel ban as an injunction measure in civil cases was inconsistent with the principles of proportionality and exceeded the limits of restriction on the rights protected by the Constitution, since there are other judicial mechanisms available to courts aimed at forcing defendants to participate in a trial. Only after President Atambaev waived part of his claim for non-pecuniary damages and requested the court to lift the injunction measures on 4 June 2018 did Oktyabrsky District Court lift the authors’ travel ban. The authors submit that they had to cancel several trips abroad during the duration of their travel ban, between 26 April 2017 and 4 June 2018, which had a negative effect on their professional work.
The authors reject the State Party’s submission that the domestic courts have complied with the requirements of reasonableness, fairness and proportionality in determining the amount of compensation for moral damage. They note that neither the Prosecutor General nor the court of first instance provided the methodology that had been used to calculate the amount of the compensation. They note that, in 2017, Ms. Djakupova’s monthly income was 104,795 soms, while Mr. Idinov was making only 8,000 soms a month, and that this information was provided to the trial court. They also note that, according to the National Statistics Committee, the median monthly salary in Bishkek in 2016 was 18,311 soms.
With regard to the State Party’s observations on the authors’ claim of a violation of article 19 of the Covenant, the authors note that the two cases referenced by the State Party in its submission differ substantially from the case of the authors and cannot be used as precedents for a number of reasons, one being that those exercising the highest political authority, such as Heads of State, are legitimately subject to criticism and political opposition. They submit that, amid repeated attacks against human rights defenders and mass media outlets in Kyrgyzstan at the time of the events in question, the State Party’s legal actions must be interpreted as an attempt to interfere with and suppress the expression of views contradicting official views. The authors note that, in 2017, the Prosecutor General filed five lawsuits against independent journalists and human rights defenders to defend the honour and dignity of President Atambaev, including the case against them.
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 notes the authors’ submission that they have exhausted all effective domestic remedies available to them. In the absence of any objection by the State Party in that regard, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the communication.
The Committee observes in this regard that the authors’ claims under article 14 (1) of the Covenant refer primarily to the appraisal of evidence adduced during the court proceedings and the application of domestic legislation, matters falling in principle to the national courts, unless the evaluation of evidence was clearly arbitrary or amounted to a manifest error or denial of justice, or the court otherwise violated its obligation of independence and impartiality.10 In the present case, the Committee is of the view that the authors have failed to demonstrate, for the purposes of admissibility, that the conduct of the proceedings in their case was clearly arbitrary or amounted to a manifest error or denial of justice, or provided evidence that the courts otherwise violated their obligation of independence and impartiality. The Committee consequently considers that this part of the communication has not been sufficiently substantiated and thus finds it inadmissible under article 2 of the Optional Protocol.
- General comment No. 32 (2007), para. 26. See also Kurakbaev and Sabdikenova v. Kazakhstan (CCPR/C/132/D/2509/2014), para. 10.9. ↩
The Committee considers that the authors have sufficiently substantiated their claims under articles 12 (2) and 19 (2) of the Covenant for the purposes of admissibility. The Committee therefore declares the communication admissible and proceeds with its 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’ claim that the decisions of the domestic courts ordering the removal of the article containing Ms. Djakupova’s speech from the website cofounded by Mr. Idinov and imposing excessive non-pecuniary damages, as well as the injunction measures in the form of a travel ban and the freezing of assets, constituted a restriction on the authors’ right to freedom of expression, as guaranteed by article 19 (2) of the Covenant. The Committee must therefore examine whether the imposed restrictions were justified under the criteria provided by article 19 (3) of the Covenant.
The Committee refers to its general comment No. 34 (2011), according to which freedom of opinion and expression are essential for any society and constitute the foundation stone for every free and democratic society.11 According to article 19 (3) of the Covenant, the right to freedom of expression can be subject to certain restrictions, but only such as are provided by law and are necessary: (a) for respect for the rights or reputations of others; or (b) for the protection of national security or public order, or of public health or morals.12 All restrictions imposed on freedom of expression must be provided by law. They may only be imposed on the grounds set out in subparagraphs (a) and (b) of article 19 (3) and they must conform to the strict tests of necessity and proportionality.13 Furthermore, the Committee recalls that a free, uncensored and unhindered press or other media, including Internet news portals, as in this case, is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It constitutes one of the cornerstones of a democratic society.14
The Committee notes that, in the present case, the relevant provisions of the Law on the Guarantees of the Activities of the President of Kyrgyzstan and the Kyrgyz Civil Code were applied with the legitimate aim of protecting the reputation or rights of others. Therefore, the restriction imposed on the authors was provided for by law. The Committee will now determine whether the restriction on the authors’ right to freedom of expression was necessary and proportionate.
As the Committee notes in paragraph 35 of its general comment No. 34 (2011), when a State Party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion why the specific action taken was necessary and proportionate.15 The Committee notes that Ms. Djakupova delivered her speech during a round table involving representatives of civil society and the Kyrgyz authorities during which she criticized the then-President and the Government for interfering with freedom of expression and information in the country. Therefore, her critique of the perceived interference with people’s constitutional rights was a matter of public interest. The Committee recalls in that respect that, to meet the test of necessity, any restriction on the right to freedom of expression which seeks to protect the reputation of others must be shown to be appropriate to achieve its protective function; must be the least intrusive instrument among those which might achieve their protective function; and must be proportionate to the interest to be protected.16 In any event, a public interest in the subject matter of the criticism should be recognized as a defence and care should be taken by States Parties to avoid excessively punitive measures and penalties.17 Where relevant, States Parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. The Committee recalls that, in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high.18 Moreover, all public figures, including those exercising the highest political authority, such as Heads of State, are legitimately subject to criticism and political opposition.19 Thus, the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant.20
- See also Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para. 7.3; and Kozlov v. Belarus (CCPR/C/111/D/1986/2010), para. 7.4. ↩
- General comment No. 34 (2011), para. 34. See also Kozlov v. Belarus, para. 7.6. ↩
- General comment No. 34 (2011), para. 47. ↩
- Ibid., para. 38. See also Bodrozic v. Serbia and Montenegro (CCPR/C/85/D/1180/2003), para. 7.2. ↩
- General comment No. 34 (2011), para. 38. ↩
- Ibid. ↩
The Committee observes that, to protect the reputation of the then-President, the authors were ordered to remove the article containing Ms. Djakupova’s speech from the Zanoza website and to each pay non-pecuniary damages in the amount of 3 million soms. The Committee notes the authors’ arguments that, based on their income, Mr. Idinov would be required to surrender all his earnings for the next 31 years, and Ms. Djakupova for 2.5 years, in order to pay the compensation amount. At the same time, the Committee notes that neither the domestic courts nor the State Party provided any explanation as to why such a hefty amount of non-pecuniary damages was awarded by the courts in addition to the order to remove the article from the website.
The Committee disagrees with the State Party’s objection that the waiver of nonpecuniary damages by the former President had rendered the decisions of the domestic courts devoid of any legal consequences. Although the proceedings against the author were formally civil, the amount of the non-pecuniary damages clearly indicates the punitive nature of the measure applied. The court’s judgment became final and enforceable, and the sole reason for which the compensation part of the judgments was not claimed was a personal decision of the then-President, which was an unpredictable factor, rather than a result of a regular legal procedure.
In view of the above, the Committee concludes that the restriction imposed on the authors’ right to freedom of expression was neither necessary nor proportionate. Therefore, the Committee is of the view that the facts before it disclose a violation by the State Party of article 19 (2) of the Covenant.
The Committee notes the authors’ claim that, by imposing a travel ban on them, the State Party had violated their rights under article 12 (2) of the Covenant. The Committee recalls that liberty of movement is an indispensable condition for the free development of a person.21 However, the Committee also recalls that the rights under article 12 of the Covenant are not absolute. Article 12 (3) provides for exceptional cases in which the exercise of rights covered by article 12 may be restricted. In accordance with the provisions of that paragraph, a State Party may restrict the exercise of those rights only if the restrictions are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the Covenant. In its general comment No. 27 (1999), the Committee noted that restrictive measures must conform to the principle of proportionality, must be appropriate to achieve their protective function and proportionate to the interest to be protected.22
In the present case, the Committee observes that, on 26 April 2017, at the request of the Prosecutor General, Oktyabrsky District Court issued an injunction prohibiting the authors from leaving the country before the end of the court proceedings. The Committee notes the State Party’s submission that the travel ban was imposed by the trial court given that the nature of the authors’ work required frequent trips abroad and that their departure before consideration of the merits of the case could complicate and delay the trial. It notes that the restriction was based on article 46.8 of the law on external migration, which provides for the possibility of a temporary travel ban in the case of a pending civil lawsuit. However, the Committee observes that the travel ban remained in force even after the decision of the court of first instance and until 4 June 2018, when the then-President waived part of his claim for non-pecuniary damages and requested Oktyabrsky District Court to lift the injunction measures issued by the court on 26 April 2017.
The Committee also notes the authors’ arguments that they never missed or delayed a court hearing in their case, and that the courts did not have any reason to believe that they would obstruct or delay the consideration of the case. According to the authors, their case had been the first such case concerning the protection of honour and dignity in the history of Kyrgyzstan for which such an injunction measure had been applied. The Committee observes that the State Party has not provided any information that would address the authors’ arguments, point to the necessity of the restriction or provide any justification as to its proportionality. Moreover, the Committee notes that, on 30 May 2018, the Constitutional Chamber of the Supreme Court ruled that a travel ban as an injunction measure in civil cases was inconsistent with the principles of proportionality and exceeded the limits of restriction on the rights protected by the Constitution, since there were other judicial mechanisms available to courts aimed at forcing defendants to participate in a trial. Accordingly, the Committee considers that the State Party has failed to justify the restrictions imposed on the authors, as required by article 12 (3) of the Covenant. The Committee concludes that imposing a travel ban on the authors was contrary to the freedom of movement and therefore amounted to a violation of their rights under article 12 (2) 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 the authors’ rights under articles 12 (2) and 19 (2) of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide 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: (a) to reimburse any legal costs and court fees paid by the authors, as well as any expenses incurred by the authors in connection with the travel ban; and (b) to provide the authors with adequate compensation. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In this connection, the Committee reiterates that, pursuant to its obligations under article 2 (2) of the Covenant, the State Party should review its legislation with a view to ensuring that the rights under article 19 (2) of the Covenant may be fully enjoyed in Kyrgyzstan.
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.