Max Bokayev and Talgat Ayanov v. Kazakhstan

The authors of the communication are Mr. Max Bokayev and Mr. Talgat Ayanov, both nationals of Kazakhstan, born in 1973 and 1984 respectively. They bring claims against the State Party under articles 7, read alone and in conjunction with 2 (3), articles 9, 10 (1), 14 (3) (b) (d) and (e), 17 (1), 19, 21 and 26 of the Covenant. The authors are represented by counsel.

Mr. Bokayev is the head of a local NGO in the city of Atyrau in Western Kazakhstan and a human rights defender working on various issues, including protection of environment, freedom of expression and combatting torture. Mr. Ayanov is a lawyer and activist from Atyrau. In 2016, the authors regularly criticized the government on social media for its reform of the Land Code and made calls to the public to also voice its dissent. Between April and May 2016, several protests were held in Kazakhstan, calling for the abolition of the 2015 amendments to the Land Code aiming at facilitating the lease of agricultural lands to foreigners. During these protests, many participants were detained by the police and sentenced to administrative punishment on charges of “participating in unauthorized assemblies” and “hooliganism”.

On 14 April 2016, the authors submitted a request to the mayor’s office of Atyrau to hold a peaceful assembly on 24 April 2016. On 19 April 2016, the request was denied with an explanation that the Issatay Makhambet Square, where the assembly was supposed to take place, was not an adequate place for holding demonstrations. The authors note that the Issatay Makhambet Square was previously often used by various government agencies to hold state-sponsored meetings and rallies. The authors were also warned that they could be prosecuted if they were to organize an unauthorized assembly. Despite the warning, on 24 April 2016, around 4,000 people attended the assembly, including the authors. It was also attended by the governor of Atyrau region who told the participants that no one will face criminal prosecution for attending the assembly.

On 5 May 2016, the President of Kazakhstan created a special commission with the task of discussing the amendments to the Land Code, and Mr. Bokayev was included in the commission as one of the representatives from the Atyrau region. On 6 May 2016, Mr. Bokayev sent a request to the mayor’s office of Atyrau to hold another assembly on 21 May 2016 in the same place, with the purpose of strengthening social consensus around the amendments to the Land Code. On 16 May 2016, the request was denied with the same explanation that the Issatay Makhambet Square was not an adequate place for holding demonstrations. Mr. Bokayev was again warned that he could be prosecuted if he were to organize an unauthorized assembly.

On 17 May 2016, the authors were arrested in Atyrau after announcing on social media that, despite the lack of authorization, they intended to participate in the event planned for 21 May and encouraging others to do so as well. On the same day, the Atyrau Specialized Inter-District Administrative Court sentenced the authors to 15 days of administrative arrest for “organising an unauthorized assembly” (article 488 of the Administrative Offences Code). On 23 May 2016, the Atyrau Regional Court rejected the authors’ appeal.

On 31 May 2016, one day before the end date of the authors’ administrative arrest, the National Security Committee charged the authors with “preparation of a crime” and “propaganda or public calls for seizure of power or retention of power or violent change of the constitutional order” under articles 24 (1) and 179 (3) of the Criminal Code. On 3 June 2016, the Atyrau City Court No. 2 placed the authors in pre-trial detention finding them to be a flight risk.

On 21 July 2016, the charges of “preparation of a crime” and “propaganda or public calls for seizure of power or retention of power or violent change of the constitutional order” were changed to “agitation of social discord” (article 174 of the Criminal Code), “dissemination of knowingly false information” (article 274) and “violation of the procedure of organisation and holding of meetings, rallies, pickets, street processions and demonstrations” (article 400).

On 28 November 2016, the Atyrau City Court No. 2 found the authors guilty of the abovementioned crimes and sentenced each of them to five years of imprisonment and to a fine of 530,250 tenge (approx. 1,466 EUR) with the prohibition to engage in public activities for three years. The court also ordered the defendants to pay for procedural costs incurred by forensic examinations in the amount of 259,000 tenge (approx. 716 EUR).

On 20 January 2017, the Criminal Division of the Atyrau Regional Court upheld the decision of the trial court. Although, the law requires that convicted persons serve their sentences in prisons near their relatives and their own permanent place of residence, on 25 January 2017, the Committee of the Penal System of the Ministry of Interior decided that the authors would serve their sentences in a prison in Petropavlovsk in order “to prevent them from committing new offences”. The transfer took approximately one month, and the authors went through Aktobe, Almaty and Karaganda pre-trial detention facilities. The prison in Petropavlovsk is situated more than 1,500 km from Atyrau, the home city of the authors. There is no direct air or railway connection between Atyrau and Petropavlovsk. The flights to/from Petropavlovsk are operated three times a week and only through Astana, Almaty and Shymkent, which made it difficult for the authors’ family and lawyers to visit. Each time it took them 2 to 3 days to reach the authors.

In February 2017, the authors were placed on the list of persons linked to terrorist and extremist activities in Kazakhstan, in accordance with article 12 of the Kazakh anti-money laundering and counter terrorism law. This precludes them from performing any financial transactions, resulting, inter alia, in restrictions in opening and/or using bank accounts and insurance services.

On 13 April and 4 May 2017, the Supreme Court dismissed the authors’ appeals for a cassation review.

On an unspecified date, the authors submitted a communication to the UN Working Group on Arbitrary Detention. On 27 June 2017, the Working Group concluded that the deprivation of liberty of the authors, being in contravention of articles 9, 10, 19 and 20 of the Universal Declaration of Human Rights and of articles 9, 14, 19, 21 and 26 of the Covenant, was arbitrary and fell within categories II, III and V.⁴ The Working Group requested the State Party to take the steps necessary to remedy the situation of the authors without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the Covenant. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release the authors immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law. The authors submit that they have not been granted reparations for their arbitrary detention, as recommended by the Working Group on Arbitrary Detention

4. UN Working Group on Arbitrary Detention, Opinion No. 15/2017 concerning Max Bokayev and Talgat Ayanov (Kazakhstan), A/HRC/WGAD/2017/16, 27 June 2O17. ↩

On 11 May 2017, Mr. Bokayev’s sister filed a civil lawsuit with the Almatinsky District Court of Astana city against the Committee of the Penal System of the Ministry of Interior, claiming that Mr. Bokayev’s transfer to the prison in Petropavlovsk was unlawful and requesting to move him closer to his family. On 12 June 2017, the court recognized the transfer of Mr. Bokayev to Petropavlovsk as legitimate and denied the request to transfer him closer to Atyrau. On 29 August 2017, the Astana City Court upheld the decision of the district court. On 12 March 2018, the Supreme Court of Kazakhstan denied Mr. Bokayev’s appeal for a supervisory review of the case.

In August 2017, Mr. Ayanov was transferred from Petropavlovsk to a prison in the city of Aktobe, which is closer to his home city of Atyrau. On 28 April 2018, he was released from prison after paying the court-assessed fine.

On several occasions between December 2017 and January 2018, Mr. Bokayev refused to participate in mandatory morning outdoor exercises due to extreme low temperatures (up to –27 degrees Celsius) citing his poor health and pain in his back and legs. In accordance with his doctors’ recommendations to abstain from hypothermia and physical activities, Mr. Bokayev requested in writing and in advance to do the daily exercises indoors instead of outdoors because of the detrimental effects this would have on his precarious health situation. For refusing to exercise, each time he was reprimanded by being placed in a disciplinary detention ward, which is a small cell the size of a double bed for 24 to 48 hours. During the day, the bed was folded on to the wall and inmates were forced to stay on their feet and were not allowed to leave the cell. The cell itself was very cold, windows had crevices, there was no ventilation, and the light was on 24 hours a day. Periodically, prison guards carried out body searches of inmates while making them stand in common corridors, requiring everyone to take off all their clothes, which was humiliating for Mr. Bokayev. He appealed each of his placements in a disciplinary detention ward to the Petropavlovsk City Court, however the court transferred his appeals to the Prosecutor’s Office of the Northern Kazakhstan region for investigation, to which the Prosecutor's office replied that there were no grounds for the complaint.

Because he was reprimanded several times, on 16 January 2018, Mr. Bokayev was placed under the regime of strict conditions of detention for a period of six months. Inmates under this regime are not allowed to call their lawyers and family unless there is an emergency (death or serious illness in family, etc.), their right to receive any parcel or to access information from outside is very limited, and they cannot not be paroled or transferred to another facility. Because of these limitations, Mr. Bokayev was not even allowed to make a phone call to his family and lawyers to tell them that he was going to be placed under strict conditions of detention.

Mr. Bokayev has submitted several complaints to domestic courts and prosecutor’s office about forced outdoor exercise in low temperatures, reprimands, restriction of his rights to contact his lawyer and access information, and conditions of detention. However, he claims that the national authorities have not taken any steps to remedy the violations. On 20 February 2018, Mr. Bokayev’s lawyer submitted a complaint to the Office of the General Prosecutor about the inaction of the Regional Prosecutor’s Office in Petropavlovsk with regard to Mr. Bokayev’s complaints. After this complaint, there was a formal inquiry launched by the Internal Investigations Department of the Ministry of Interior concerning the author’s conditions of detention, however up to this date there has been no impartial investigation conducted into the matter.

On 28 March 2018, Mr. Bokayev paid the fine assessed by the court as part of his sentence, however, despite being entitled to an early release, he remained in the penal colony in Petropavlovsk at the time of the submission of the present communication.⁵

5. See para. 7. ↩

The authors submit that they have exhausted all available and effective domestic remedies with regard to the present communication.

The authors claim that they were arrested prior to the demonstration they had organized. The arbitrary character of the arrest was confirmed by the UN Working Group on Arbitrary Detention. They further claim that their pre-trial detention on criminal charges was also arbitrary, as the State Party has not shown that their remand in custody was necessary and justified. The authors submit that they were kept in pre-trial detention because the court considered that the fact they had friends abroad represented a flight risk, without presenting any proof thereof. In view of the above, the authors claim that the State party has violated their rights under article 9 of the Covenant.

The authors claim that the conditions of their detention in Petropavlovsk amount to a violation of article 10 (1) of the Covenant. They note that both the Committee Against Torture (CAT) and the Kazakh National Preventive Mechanism (NPM) have expressed concerns about the poor material conditions and infrastructure of detention facilities in Kazakhstan.⁶

6. The authors refer to the Concluding observations on the third periodic report of Kazakhstan, CAT/C/KAZ/CO/3, l2 December 2014, para. 17 and to the Consolidated report of the Kazakhstan’s National Preventive Mechanism Members on the preventive visits carried out in 2016 (not available online). ↩

The authors also claim that when they were arrested on 17 May 2016, they were not granted access to legal counsel, and if not for Mr. Ayanov’s father, who is a licensed lawyer in Kazakhstan, they would not have had legal representation during their trial on administrative charges, which represents a violation of article 14 (3) (b) of the Covenant.

The authors further claim that they did not have enough time to properly analyse all criminal case materials. They did not have the opportunity to study electronic materials such as phonograms, video recordings, slides and other media in electronic form since they were in pre-trial detention, and electronic devices are not allowed in pre-trial detention facilities. The authors submit that they complained about this to the Prosecutor’s office, but their complaints were denied. The authors claim that due to the lack of access to the materials of the criminal case, they were deprived of sufficient opportunity to prepare their defence and to refute the charges, in violation of article 14 (3) (b) of the Covenant.

The authors submit that during their criminal trial, the witnesses presented by the prosecutors were allowed to testify via videoconference from a court in Astana, despite motions filed by the defence lawyers requesting those witnesses to be brought to Atyrau. The authors submit that due to the poor quality of the sound, they could not clearly hear what the witnesses were saying. The authors claim that in violation of article 14 (3) (e) of the Covenant, they were de facto unable to react to the witnesses’ statements and properly contest the arguments of the prosecutor.

According to the authors, the Supreme Court’s denial to hear their cassation appeal without providing substantial grounds to this decision violates their right to appeal as established in article l4 (5) of the Covenant.

The authors submit that they were prosecuted for exercising the right to freedom of expression and assembly, in violation of articles 19 and 21 of the Covenant. They claim that in 2016, the Committee has already found that the Kazakh laws and practices concerning freedom of expression and assembly do not comply with the principles of legal certainty, necessity and proportionality as required by the Covenant and that there is a risk of legitimate activities being criminalized under these provisions.⁷ The authors note that they were arrested prior to the planned peaceful assembly and that such arrests have a chilling effect on the exercise of the right to freedom of assembly not only for the persons concerned, but for the civil society at large.

7. UN Human Rights Committee, Concluding observations on the second periodic report of Kazakhstan, UN Doc. CCPR/C/KAZ/CO/2, paras. 49, 53, and 54, 11 July 2016. ↩

Finally, the authors submit that since their conviction, they have been placed on the list of persons linked to terrorist and extremist activities in Kazakhstan. They submit that by doing this the State Party’s authorities try to silence and criminalize people with dissenting political views. They claim that several other activists in Kazakhstan have been charged with similar crimes and have also been included on the list of terrorists. Now they are precluded from performing any financial actions, including opening bank accounts or starting their business. This severely limits their ability to conduct their legitimate human rights work and makes it impossible for them to lead a normal life in Kazakhstan. The disproportional assertion and claims of terrorism as a response to the authors’ peaceful assemblies to protect human rights underscores the State’s motivation to obstruct their legitimate work as human rights defenders and represents a blatant violation of their right to equality before the law. They claim that throughout their arrest, legal proceedings and subsequent detention, they have faced discrimination that was motivated by the will to limit their dissenting voice on land issues, and therefore also represents a violation of article 26 of the Covenant.

Mr. Bokayev suffers from chronic hepatitis C and while in detention, he did not have access to the antiviral therapy. He has developed further health complications in the form of a spinal disc herniation, which consequently caused pain in his lower back and legs. He submits that the State party is under an obligation to comply with certain minimum standards for the treatment of prisoners, including the provision of medical care for sick prisoners, as provided for in Rule 24 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules). Mr. Bokayev claims that during the whole period of his detention, he suffered from the lack of specialized medical services that he needed, in violation of article 7 of the Covenant.

Mr. Bokayev further submits that he was subjected to disciplinary isolation due to refusing to do outdoor exercises. He notes that confinement in isolation should only be resorted to in exceptional circumstances since it has serious psychological consequences for detainees. He notes that he asked in advance and in writing for a permission to do the daily exercises indoors due to extreme weather conditions and their effect on his already precarious health situation. However, he was reprimanded by being placed in the disciplinary detention ward and under strict conditions of detention regime for a period of six months. Moreover, the restrictions on contacting the outside world under strict conditions of detention were also perceived as an additional punishment by Mr. Bokayev. He also notes that instead of promptly and impartially investigating his complaints about the disciplinary reprimands against him, the local courts merely transferred them to the prosecutor's office. Only after Mr. Bokayev submitted a complaint to the General Prosecutor's Office of Kazakhstan, the Northern Kazakhstan Regional Prosecutor’s office initiated an inquiry into his wrongful treatment. In view of the above, Mr. Bokayev claims that the conditions of his detention amount to cruel, inhuman and degrading treatment in violation of article 7, in conjunction with article 2 (3), of the Covenant.

Mr. Bokayev also claims that conditions of his detention in the disciplinary detention ward and heavy restrictions on contacting his family and lawyers while under strict conditions of detention regime caused him a lot of pain and stress and that it constitutes a separate violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10 (1) of the Covenant.

Mr. Bokayev submits that during the civil court hearing on 12 June 2017, concerning his transfer to a prison closer to his home, the defence was not allowed to see the materials submitted by the prosecution as evidence justifying Mr. Bokayev’s transfer to Petropavlovsk, because it was classified as “secret information”. As a result of this, the defence was deprived of an opportunity to adequately prepare for the trial in violation of article 14 (3) (b) of the Covenant.

Mr. Bokayev submits that the hearing of the civil case related to his transfer closer to Atyrau was held without his remote participation, despite the motion filed by his sister. He argues that the Covenant requires that accused persons have the right to be present during their trials and that trials in the absence of the accused are permissible only if it is in the interests of proper administration of justice or when the accused are sufficiently informed in advance of the proceedings and refuse to exercise their right for presence. Since he did not refuse to attend the proceedings and it hadn’t been shown that excluding him from the trial would serve the interests of the proper administration of justice, Mr. Bokayev claims that there has been a violation of article 14 (3) (d) of the Covenant.

Mr. Bokayev submits that by sending him to serve his prison sentence to a penal colony in Petropavlovsk, which is situated more than 1500 km from his home city, the State party arbitrarily interfered with his right to receive visits on a regular basis in violation of article 17 of the Covenant. It also violated Kazakh law, which required incarceration of convicted persons in the same region with the place of their residence. Mr. Bokayev further claims that his placement under strict conditions of detention with restrictions on contacting his family and lawyers for six months further violated his rights under article 17 of the Covenant.

On 19 July 2019, the State Party submitted its observations on the merits of the communication. The State Party notes that the authors’ detention on remand was sanctioned by the investigative judge on 3 June 2016 and thereafter was extended several times. The decisions of the investigating judge were upheld on appeal. According to the State Party, on 28 November 2016, the authors were found guilty by the Atyrau City Court No. 2 of: 1) committing intentional acts aimed at inciting social and national discord, insulting the national honour and dignity of citizens, using the media and telecommunications networks; 2) dissemination, during public events, of information known to be false and creating a danger of disturbing public order while using the media and telecommunications networks; and 3) organizing, conducting and directly participating in an illegal meeting, causing substantial harm to the legally protected interests of the State. The court sentenced the authors to five years' deprivation of liberty and a fine, with restriction of the right to engage in public activities for three years. On 20 January 2017, the trial court’s verdict was upheld on appeal, except for the episode concerning the organization by the authors of the demonstration on 21 May 2016 in Atyrau, which was excluded from the final verdict. On 13 April and 4 May 2017, the Supreme Court dismissed the cassation appeals submitted by the authors’ lawyers. At the same time, the State Party notes that under article 486 of the Criminal Procedure Code, the authors retain the right to lodge cassation appeals to the Supreme Court on their own behalf.

The State Party submits that on 31 January 2018, both authors became eligible to apply to have their sentences commuted or transferred to a penal colony. Mr. Ayanov exercised this right and submitted an application to a court, which commuted the outstanding part of the sentence to restriction of liberty and released him on 29 April 2018. Mr. Bokayev chose not to submit such an appeal. The State Party notes that on 18 September 2018, Mr. Bokayev was transferred to a penitentiary facility in the city of Aktobe. The State Party notes that during Mr. Bokayev’s incarceration in Petropavlovsk, he was disciplined 8 times for violating prison’s internal rules and regulations. Also, on 8 occasions he was recognized for good behavior. It further notes that Mr. Bokayev has not confessed or repented of the crimes he committed and has not paid the fine imposed by the court.

With regard to the lawsuit filed by Mr. Bokayev’s sister against the Prison Administration Office of the Ministry of Interior concerning his transfer to the prison in Petropavlovsk, the State Party notes that the Almatinsky District Court of Astana city dismissed all of her claims, and the decision was later upheld by the appellate and cassation courts. According to the State Party, if there are exceptional circumstances, she still can submit a request for a supervisory review to the Chairperson of the Supreme Court.

Finally, the State Party submits that since 5 July 2019, Mr. Bokayev has been receiving medical treatment for lumbosacral osteochondritis, and his state of health is satisfactory.

In a letter dated 24 September 2019, the authors responded to the State Party’s observations on the merits of the communication. They confirm that on 18 September 2018, Mr. Bokayev was transferred to a penitentiary facility in the city of Aktobe. With regard to the claim of lack of proper medical assistance, the authors maintain that contrary to the State Party’s submission Mr. Bokayev, who suffers from chronic hepatitis C and spinal disc herniation, did not receive proper medical treatment while in detention in the Petropavlovsk prison from January 2017 to September 2018.

With regard to their conditions of detention, the authors reiterate that the detention conditions in the Petropavlovsk prison, including the imposition of disciplinary penalties against Mr. Bokayev, amounted to cruel, inhuman and degrading treatment. They deplore that the State Party’s observations fail to address this claim despite their detailed statements. The authors note that the State party in its response admits that Mr. Bokayev was, inter alia, punished for refusing to participate in outdoor exercises when it was -27 degrees Celsius.

The authors reiterate that they were subjected to arbitrary detention to prevent their participation in a peaceful demonstration. In support of their claim, the authors also refer to the opinion of the UN Working Group on Arbitrary Detention which held that their detention was arbitrary and in contravention of articles 9, 14, 19, 21 and 26 of the Covenant. They note that the use of so called “preventive detention” in Kazakhstan has already been criticized by several UN bodies.⁸ According to the authors, the State Party’s observations have not provided any justification that their preventive detention was either necessary or reasonable. Accordingly, the authors submit that their detention amounted to a breach of article 9 of the Covenant.

8. The authors refer to the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, A/HRC/29/25/Add.2, 16 June 2015. ↩

The authors note that in its observations, the State Party has largely ignored their claims under articles 19 and 21 of the Covenant. They stress that their submissions concerning the freedom of expression and the right to peacefully assemble go to the heart of the case. They note that the charges of “agitation of social discord” concern their posts on social media urging people to demonstrate and announcing the intent to peacefully express disagreement with the amendments to the Land Code. The charges of “dissemination of knowingly false information” refer to the information posted on social media showing discontent with the amendments of the Land Code and calling for protests against them. Lastly, the charges of “violation of the procedure of organization and holding of meetings, rallies, pickets, street processions and demonstrations” concern the intent to participate and the participation in peaceful assemblies and expressing disagreement with the amendments to the Land Code. The authors argue that all the above-mentioned acts are commonplace in the exercise of the freedom of expression and the right to peaceful assembly and, therefore, restriction of these rights should not be considered as “necessary in a democratic society”, but rather the opposite - detrimental to an informed, pluralistic and well-functioning democratic society.

The authors also reiterate their claims under articles 14 and 26 of the Covenant, and article 17 separately for Mr. Bokayev, and note that the State Party in its observations has not addressed their arguments.

The authors request the State Party to immediately release Mr. Bokayev, to lift the prohibition to engage in social activities for three years for both authors, to quash their obligation to pay the fine and procedural costs, to reimburse the amounts that they have already paid in relation to their case, and to remove them from the list of persons linked to terrorists and extremist activities in Kazakhstan. They also ask to overturn their criminal convictions and to drop all the charges filed against them. Finally, they request to provide them with redress for the pain that they have suffered, encompassing restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

On 16 January 2020, the State Party reiterated its previous submission. Regarding the authors’ claim on the lack of proper medical treatment, the State Party notes that after his arrest and during the detention at the penitentiary facility in Atyrau, Mr. Bokayev underwent medical examinations for hepatitis C at the prison’s medical ward and the city and regional hospitals on 3 June, 28 June and 13 September 2016 respectively. It further notes that Mr. Bokayev was examined by the medical team upon his arrival at the penitentiary facility in Petropavlovsk, and between 25 February 2017 and 26 August 2018, he was hospitalized on two occasions. The State Party submits that while serving his sentence in Petropavlovsk, Mr. Bokayev’s health was described as satisfactory, and he fully received treatments prescribed by doctors.

The State Party submits that on 25 February 2017, due to overcrowding of medium security prisons in Atyrau and Aktobe regions, Mr. Bokayev was transferred to prison EC-164/3 in Petropavlovsk. Then, on 26 August 2018, due to the availability of a place in the medium security prison in Aktobe, which is closer to Atyrau, Mr. Bokayev was transferred to the penitentiary facility KA-168/2, where he continues to serve his sentence. He has been registered by the medical services at the facility with the diagnosis of hepatitis C as well as other illnesses, such as chronic cholecystitis and chronic pyelonephritis, both in remission, and is under constant monitoring of the medical specialists. The State Party submits that Mr. Bokayev has also been registered by the city polyclinic No. 1 where he underwent blood tests. On 11 January 2019, he was taken to the Aktobe regional hospital for a fibro scan, PCR test and ultrasound of his abdomen. Between 5 and 11 July 2019, he was treated for an acute respiratory infection and osteochondrosis in the prison’s medical ward. The State Party notes that Mr. Bokayev did not submit any complaints about lack of medical assistance or conditions of detention while incarcerated in Aktobe.

With regard to Mr. Bokayev’s conditions of detention in Petropavlovsk, the State Party notes that Mr. Bokayev was disciplined on 8 different occasions, including for creating a conflict situation, failure to obey lawful orders of the prison administration, and for refusing to attend morning exercises (five times). The State Party submits that on 11 and 22 December 2017, Mr. Bokayev was examined by the prison medical commission and a local neurologist, respectively, and was found to be fit to attend morning exercise outdoors for up to 15 minutes. The State Party also notes that two out of the five disciplinary citations against Mr. Bokayev were later quashed due to air temperatures falling below – 25 degrees Celsius, as the prison’s rules and regulations prohibit outdoor exercises below that temperature.

The State Party submits that on 10 September 2019, Mr. Bokayev applied to the Penitentiary System Committee of the Ministry of Internal Affairs for a transfer closer to his place of residence in Atyrau, however his application was denied due to the lack of a “positive degree of his behavior”. At the same time, the State party notes that since 11 January 2020, at the initiative of the Office of the Prosecutor General, the domestic legislation has been amended and now a positive degree of behavior is not required for a prisoner to be transferred to another facility closer to his or her place of residence. Therefore, should Mr. Bokayev wish to be transferred to a prison closer to his home, he can submit a new request subject to availability of space. The State party also notes that on 20 December 2019, Mr. Bokayev had a short-term visit with his mother and sister.

According to the State party, Mr. Bokayev is eligible for a transfer to a minimum-security prison or an early release starting from 30 November 2018. However, he has not submitted a request for any of the above. At the same time, Mr. Ayanov submitted a request to substitute his remaining sentence for a restriction of freedom and, on 29 April 2018, was released from prison. He is currently registered with the probation service of the Aralsky district in Kyzylorda region.

On 17 February 2026, the authors’ counsel informed the Committee that Mr. Bokayev was released in February 2021 upon serving his full sentence. According to the counsel, none of the authors remain subject to any restrictions.

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 must ascertain, as required under article 5 (2) (a) of the Optional Protocol, that the matter is not being examined under another procedure of international investigation or settlement. It notes that the authors’ case has been examined by the Working Group on Arbitrary Detention, which rendered an opinion thereon on 27 June 2017. The Committee recalls that nothing precludes it from considering communications on cases previously dealt with by another international investigation or settlement body, even when the body has adopted a decision on the merits, unless the State party has made a reservation explicitly prohibiting successive procedures,⁹ which is not the case here. As the Working Group had completed its examination of the case before the present communication was considered by the Committee, the Committee considers that there are no obstacles to the admissibility of the present communication under that provision.

9. Tsarsi et al. v. Chad (CCPR/C/140/D/3806/2020), para. 6.2. ↩

The Committee notes that the authors claim to have exhausted all available and effective domestic remedies. The Committee recalls that in order to exhaust domestic remedies, the authors must have raised, through all effective and available domestic mechanisms for redress, the substance of the claims that are the subject of the communication before the Committee.¹⁰ The Committee observes that the authors have not provided any information on whether they had raised their claims under articles 14 (3) (e) and 26 of the Covenant before the domestic authorities. The Committee therefore finds these claims inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.

10. Coral v. Spain (CCPR/C/83/D/1356/2005, para. 4.2. ↩

The Committee notes Mr. Bokayev’s claim that during the entire period of his detention, he suffered from the lack of specialized medical services for his chronic hepatitis C and spinal disc herniation, in violation of article 7 of the Covenant. The Committee also notes the State party’s submission that upon arrival at the penitentiary facility in Atyrau, Mr. Bokayev underwent a medical examination for hepatitis C at the prison’s medical ward and the city and regional hospitals on 3 June, 28 June and 13 September 2016 respectively. Also, while incarcerated in the penitentiary facility in Petropavlovsk, he was examined by the medical team upon his arrival at the facility and while incarcerated, he was hospitalized on two occasions. According to the State Party, while serving his sentence in Petropavlovsk, Mr. Bokayev’s health was described as satisfactory, and he was fully treated as prescribed by the doctors. After his transfer to a prison in Aktobe, Mr. Bokayev was registered by the medical services at the facility with the diagnosis of hepatitis C as well as other illnesses, such as chronic cholecystitis and chronic pyelonephritis, both in remission, and was under constant monitoring by the medical specialists. According to the State Party, he also underwent blood tests, a fibro scan, PCR test and ultrasound of his abdomen at local medical facilities. In the absence of any further pertinent information on file, the Committee considers that, for the purposes of admissibility, the author has failed to provide sufficient information and factual evidence in support of the claims regarding lack of treatment for his illnesses, and declares that part of the claim under article 7 of the Covenant inadmissible pursuant to article 2 of the Optional Protocol.

The Committee notes that Mr. Bokayev invokes both article 7 and article 10 (1) of the Covenant, on the basis of the conditions of detention in Petropavlovsk. The Committee notes that although these provisions complement each other, their purpose and scope are not identical. While article 10 (1) deals specifically with persons deprived of their liberty and encompasses for such persons the elements set out in article 7, article 7 concerns serious forms of ill-treatment whereby the individual, including persons deprived of their liberty, is singled out for specific attacks.¹¹ The Committee considers that in the present case, the author has not sufficiently substantiated individual risk of ill-treatment that would run contrary to article 7 of the Covenant. The Committee thus finds his claims under article 7of the Covenant unsubstantiated and inadmissible under article 2 of the Optional Protocol.

11. I.A. v. Lithuania (CCPR/C/126/D/2989/2017), para. 11.8. ↩

The Committee further notes Mr. Bokayev’s claims under article 14 (3) (b) and (d) of the Covenant in relation to the civil trial concerning his transfer to a prison closer to his home. The Committee recalls that paragraphs 2 – 5 of article 14 of the Covenant contain procedural guarantees available to persons charged with a criminal offence.¹² Therefore, the Committee considers the present claims, insofar as they relate to the civil case initiated by Mr. Bokayev’s family, to be inadmissible under article 3 of the Optional Protocol to the Covenant.

12. See the Committee’s general comment No. 32 (2007) on article 14: right to equality before courts and tribunals and to a fair trial, para. 3. Also, see N.S. v. Kazakhstan (CCPR/C/140/D/3039/2017), para. 8.3. ↩

With regard to both of the authors’ claim that conditions of their detention in Petropavlovsk amount to a violation of article 10 (1) of the Covenant, the Committee notes that the authors refer to the concluding observations on the third periodic report of Kazakhstan by the Committee Against Torture and to the Consolidated report of the Kazakhstan’s National Preventive Mechanism Members on the preventive visits carried out in 2016. The Committee notes that these reports do not concern the specific conditions of the authors’ detention and are of a general nature, and therefore finds this claim insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee notes the authors’ claims under article 14 (3) (b) of the Covenant concerning lack of access to legal counsel on the day of their arrest and lack of time and access to materials in the criminal case to prepare their defence. However, the Committee observes that the authors were represented by a lawyer at the Atyrau Specialized Inter-District Administrative Court on 17 May 2016. As to the authors’ claims that did not have sufficient time to prepare for their trial or access to certain materials, the Committee notes that it is not clear from the materials on file if the authors or their lawyers requested the trial court to grant an adjournment to prepare their defence.¹³ In these circumstances, the Committee considers that the authors have failed to provide sufficient information and factual support to these claims. Accordingly, and in the absence of any further pertinent information on file, the Committee considers that the authors have failed to sufficiently substantiate these claims for the purposes of admissibility and declares that part of the communication inadmissible under article 2 of the Optional Protocol.

13. Ibid., para. 32. ↩

As to the authors’ claim that the Supreme Court’s denial to hear their cassation appeal without providing substantial grounds to this decision violates their right to appeal as established in article l4 (5) of the Covenant, the Committee notes that the authors’ sentence was reviewed by the Criminal Division of the Atyrau Regional Court, which is a higher tribunal within the meaning of article 14 (5). Consequently, the Committee considers that the authors have failed to substantiate these claims under article 2 of the Optional Protocol.

The Committee considers that the authors have sufficiently substantiated their joint claims regarding articles 9, 19, and 21 of the Covenant. The Committee is also of the opinion that Mr. Bokayev has sufficiently substantiated, for the purposes of admissibility, his claims under articles 10 (1) and 17 of the Covenant, pertaining to his detention in the disciplinary detention ward in Petropavlovsk. The Committee therefore declares the above-mentioned claims admissible and proceeds with the 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 under article 9 of the Covenant that: (a) they were arrested and sentenced to 15 days of administrative arrest after announcing on social media that they intended to participate in the demonstration in Atyrau planned for 21 May 2016 and encouraging others to do so as well; (b) that their pretrial detention in the criminal case was arbitrary, as they were remanded in custody for having “friends abroad” and that this would represent a risk of flight without presenting any proof thereof; and (c) that they have not been granted reparations for their arbitrary detention, as recommended by the Working Group on Arbitrary Detention.

The Committee observes that the State party has not responded to these allegations. It recalls its jurisprudence, according to which the burden of proof should not rest solely on the author of a communication, especially given that the author and the State party do not always have the same degree of access to evidence and that often only the State party is in possession of the necessary information.¹⁴ The Committee recalls that the notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, and a lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.¹⁵ That means, inter alia, that remand in custody on criminal charges must be reasonable and necessary in all circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.¹⁶ The Committee notes that the State party has not provided any explanation regarding the necessity and proportionality of the authors’ administrative arrest on 17 May 2016 or within the framework of the criminal case against them on 3 June 2016. The Committee also takes note of the opinion of the Working Group on Arbitrary Detention concerning the arrest and detention of the authors and their right to be granted reparations.¹⁷ In the light of the foregoing, and in the absence of any further information, the Committee concludes that there has been a violation of article 9 (1) of the Covenant.

14. Ammari v. Algeria (CCPR/C/112/D/2098/2011), para. 8.3; Mezine v. Algeria (CCPR/C/106/D/1779/2008/Rev.1), para. 8.3; Berzig v. Algeria (CCPR/C/103/D/1781/2008), para. 8.3; and El Abani v. Libyan Arab Jamahiriya (CCPR/C/99/D/1640/2007), para. 7.4. ↩
15. General comment No. 35 (2014) on liberty and security of person, para. 12. Also, Mirzayanov v. Belarus (CCPR/C/126/D/2434/2014), para. 8.9. ↩
16. Mirzayanov v. Belarus, para. 8.9. ↩
17. Tsarsi et al. v. Chad, para. 7.4 ↩

The Committee further notes the authors’ claims that they were sanctioned for exercising their right to freedom of expression and assembly, as they were arrested and sentenced to 15 days of administrative arrest after announcing on social media that, despite the lack of authorization, they intended to participate in the demonstration planned for 21 May 2016 in Atyrau and encouraging others to do so as well. The Committee also notes the authors’ claim that the State party’s authorities prosecuted them and sentenced them to five years’ imprisonment for exercising their right to freedom of expression and for their political activities. The Committee considers that the above actions of the authorities interfere with the authors’ rights to freedom of expression and freedom of assembly, and therefore it must decide whether or not the measures taken against the authors amount to / are permissible restrictions under 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 those freedoms are indispensable conditions for the full development of the person and constitute the foundation stone for every free and democratic society.¹⁸ 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.¹⁹ The Committee observes that the State party has failed to invoke any specific grounds to support the necessity of the restrictions imposed on the author as required under article 19 (3) of the Covenant, which included administrative arrest, criminal conviction and additional restrictions such as placing them on the list of persons linked to terrorist and extremist activities in Kazakhstan and prohibition to engage in public activities for three years. Moreover, the State party did not demonstrate that the measures selected were least intrusive in nature or proportionate to the interest it sought to protect. In the absence of any explanation as to how the restrictions imposed on the authors in the exercise of their right to freedom of expression were justified pursuant to the conditions of necessity and proportionality, the Committee finds that the State party violated the authors’ rights under article 19 (2) of the Covenant. ²⁰.

18. General comment No. 34 (2011) on the freedoms of opinion and expression, para. 2. ↩
19. Ibid., para. 22. ↩
20. Adamovich v. Belarus (CCPR/C/133/D/2619/2015), para. 7.11; 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. ↩

Regarding the authors’ claims under article 21 of the Covenant, the Committee similarly considers that the State party has failed to demonstrate that the restrictions imposed on the authors’ rights, namely, the detention of the authors and sanctioning them with 15 days of administrative arrest, were necessary in the interest 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. Accordingly, the Committee concludes that the facts before it resulted also in a violation of the author’s rights under article 21 of the Covenant.²¹

21. Toregozhina v. Kazakhstan (CCPR/C/112/D/2137/2012), para. 7.6. ↩

The Committee notes Mr. Bokayev’s claim that he was subjected to disciplinary citations, detention in the isolation ward, and strict conditions of detention on account of refusing to do outdoor exercises on several occasions despite requesting to do them indoors due to extreme weather conditions and their effect on his precarious health situation. According to Mr. Bokayev, the repetitive disciplinary citations triggered the change of conditions of his detention from medium to strict for a period of six months, which in turn imposed additional restrictions on communicating with the outside world, including his family and lawyers. The Committee also notes the State party’s submissions that Mr. Bokayev was disciplined on 8 different occasions, including for creating a conflict situation, failure to obey lawful orders of the prison administration, and five times for refusing to attend morning exercises, two of which were later rescinded due to air temperatures falling below – 25 degrees Celsius.

The Committee notes that for each disciplinary violation, Mr. Bokayev was placed in disciplinary detention ward for 24 to 48 hours, under poor conditions of detention and subjected to body searches in front of other inmates. The Committee also notes that due to disciplinary violations, Mr. Bokayev was placed under a six-month strict detention regime with heavy restrictions on contacting the outside world that caused him a lot of stress. When appealing each disciplinary reprimand to the Petropavlovsk City Court, his appeals were transferred to the Prosecutor’s Office of the Northern Kazakhstan region, to which the Prosecutor's office replied that there were no grounds for a complaint.

The Committee recalls that persons deprived of liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty and that the measure of their treatment under the Covenant is as set out, inter alia, in the Standard Minimum Rules for the Treatment of Prisoners (1957).²² In the absence of specific information from the State party regarding Mr. Bokayev’s conditions of detention in the disciplinary ward, the Committee considers that confining him in such conditions,²³ searches of cells and restriction of his contact with the outside world,²⁴ violated Mr. Bokayev’s right to be treated with humanity and with respect for the inherent dignity of the human person and are therefore contrary to article 10 (1) of the Covenant.

22. Gorbaeva v. Kyrgyzstan (CCPR/C/139/D/3261/2018), para. 7.9. ↩
23. Aminov v. Turkmenistan (CCPR/C/117/D/2220/2012), para. 9.3. ↩
24. Khadjiev v. Turkmenistan (CCPR/C/113/D/2079/2011), para. 8.8. ↩

The Committee notes Mr. Bokayev’s claim that the decision of the Committee of the Penal System of the Ministry of Interior ordering his transfer a penal colony in Petropavlovsk, which is situated more than 1500 km from his home city, constituted an interference with his family in violation of article 17 of the Covenant. Furthermore, his placement under strict conditions of detention with restrictions on contacting his family and lawyers for six months also violated his rights under article 17 of the Covenant. The Committee considers that this constitutes an interference with his family and must therefore examine whether such interference was justified under the criteria provided by the Covenant.

The Committee recalls that prisoners shall also be allocated, to the extent possible, to prisons close to their homes or their places of social rehabilitation in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (Rule 59). The Committee also refers to its general comment No. 16 (1988), according to which article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence. Arbitrariness within the meaning of article 17 is not confined to procedural arbitrariness but extends to the reasonableness of the interference with the person’s rights under article 17 and its compatibility with the purposes, aims and objectives of the Covenant.²⁵

25. Tornel et al. v. Spain (CCPR/C/95/D/1473/2006), para. 7.3. ↩

According to the information submitted by Mr. Bokayev, the Committee of the Penal System of the Ministry of Interior ordered his transfer to Petropavlovsk “to prevent him from committing new offences”.²⁶ The Committee notes that the State party has not provided any explanation as to how transferring Mr. Bokayev to such a remote prison from his home would prevent him from committing new offences. The Committee also notes the State party’s later submission that Mr. Bokayev was transferred to prison EC-164/3 in Petropavlovsk due to overcrowding of medium security prisons in Atyrau and Aktobe regions. According to the State party, on 26 August 2018, once a place in a medium security prison closer to Mr. Bokayev’s home became available, he was transferred to the penitentiary facility KA-168/2 in Aktobe. In this regard, the Committee observes that the State party has not provided any information as to the precise number of inmates held in medium security prisons in Atyrau and Aktobe regions at the time of Mr. Bokayev’s sentencing, nor such information was shared with the family of Mr. Bokayev citing “confidentiality” when they attempted to obtain his transfer through the domestic courts.

26. As per the decision of the Almaty District Court in Astana from 29 January 2018. ↩

Accordingly, the Committee considers that the State Party has failed to justify the interference with Mr. Bokayev’s family life, as required by article 17 of the Covenant. The Committee concludes that transferring Mr. Bokayev to a remote penal facility prevented him from receiving regular family visits and therefore amounted to a violation of his rights under article 17 (1) of the Covenant, which was further aggravated by placing him under strict conditions of detention for a period of six months.

The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses a violation by the State Party of the authors’ rights under articles 9 (1), 19 (2) and 21 of the Covenant. Furthermore, the Committee also finds that the State party violated the rights of Mr. Bokayev under articles 10 (1) and 17 (1) of the Covenant.

In accordance with article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. That requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to provide the authors with adequate compensation for moral and material damaged caused to him. 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 language of the State Party.

The authors in this case were convicted of criminal offenses relating to organizing a peaceful but unauthorized public assembly (para. 2.6). Following the denial of their appeals, both authors were placed on a list of persons linked to terrorist and extremist activities established pursuant to Kazakhstan’s anti-money laundering and counter terrorism law.²⁷ Placement on this list prevented the authors from performing any financial transactions, such as opening bank accounts, accessing their funds, or starting their own businesses (see para. 2.9). The authors allege that Kazakh authorities have repeatedly placed civil society activists and political dissidents on this list to silence them and obstructing their work as human rights defenders (para. 3.8), a claim that is supported by a recent NGO report on the State Party.²⁸

27. On combating legalization (laundering) of proceeds from crime, financing of terrorism and financing of the proliferation of weapons of mass destruction, Law of the Republic of Kazakhstan (28 August 2009) No. 191-IV, https://adilet.zan.kz/eng/docs/Z090000191_#:~:text=The%20Law%20of%20the%20Republic%20of%20Kazakhstan,weapons%20of%20mass%20destruction%20and%20its%20financing (unofficial English translation). ↩
28. Human Rights Watch, Politically Targeted, Economically Isolated: How Kazakhstan’s Financing Terrorism List Compounds Human Rights Harms (27 August 2024), https://www.hrw.org/report/2024/08/27/politically-targeted-economically-isolated/how-kazakhstans-financing-terrorism. ↩

The authors initially sought to have the State Party remove them from the list (para. 5.6). However, shortly before the adoption of the Views in this case, counsel informed the Committee that neither author remains subject to any restrictions (para. 7), which presumably means that all financial and other sanctions have been removed. In finding a violation of the right to freedom of expression, the Committee observes that the State Party has not justified the necessity or proportionality of the restrictions imposed on the authors, including “placing them on the list of persons linked to terrorist and extremist activities” (para 9.5). However, the remedies that the Committee indicates for the violations of the Covenant are general in nature: an obligation to provide compensation for moral and material damage and to prevent similar violations from occurring in the future (para. 11).

Laws authorizing governments to identify individuals allegedly linked to terrorism or extremist activities for financial and administrative sanctions implicate numerous provisions of the Covenant, including the rights to freedom of expression and association, to private and family life, to a fair hearing, and to an effective remedy, as well as the prohibition of arbitrary application of the criminal law.²⁹ The potential violation of these rights are exacerbated where such laws contain overbroad or vague definitions of terrorism that encompass the peaceful activities of civil society groups, journalists, human rights defenders or political dissidents.³⁰ Due process concerns also arise where listing or delisting procedures are opaque, burdensome, or lack clear standards for judicial review.³¹

29. The Impact of Counter-Terrorism Targeted Sanctions on Human Rights, Position Paper of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin (2021). ↩
30. Defining terrorism to respect and protect human rights, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Saul (8 January 2026). ↩
31. OSCE Office for Democratic Institutions and Human Rights, Policy Brief: Border Management and Human Rights (2021). ↩

Several States Parties have enacted laws establishing terrorist and extremist lists that impose financial sanctions on natural persons and organizations.³² The Committee has not previously considered on the merits a communication challenging such laws. However, in Sayadi and Vinck v. Belgium,³³ decided in 2008, the Committee found violations of articles 12 and 17 of the Covenant when the State Party placed the authors on a list established by the UN Security Council that imposed asset freezes and travel bans on individuals with suspected links to terrorism. To remedy the violations, the Committee urged the State party “to do all it can to have their names removed from the list as soon as possible, to provide the authors with some form of compensation and to make public the requests for removal”.³⁴

32. Eurasian Group on Combating Money Laundering and Financing of Terrorism, Guidelines on the Listing/De-Listing of Terrorists/Extremists and Freezing of their Assets (2023), https://eurasiangroup.org/files/uploads/files/Guidelines_on_freezing.pdf. ↩
33. CCPR/C/94/D/1472/2006. ↩
34. Ibid. para. 11. ↩

In Sayadi and Vinck, the individuals remained on the sanctions list long after the dismissal of the criminal investigations against them. In this case, in contrast, the authors were apparently removed from the Kazakh terrorism and extremist list after serving their criminal sentences but before the Committee adopted its Views. The decision thus does not address this aspect of the authors’ complaint, and the potential violations of the Covenant that resulted from placing the authors on the list evades the Committee’s review. In a future case, the Committee should give careful consideration to the potential violations raised by the placement on the lists and to the appropriate remedies for such violations, including a transparent administrative process for requesting removal and access to an effective judicial remedy for both listing and delisting decisions.

My disagreement with the majority opinion of the Committee refers to the interpretation of Article 5(2)(a) of the Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966. In particular, I disagree that the Committee may examine communications relating to cases previously dealt with by another international investigative or settlement body, even where that body has taken a decision on the merits, unless the State Party has entered a reservation explicitly prohibiting subsequent appeals.

When the International Covenant on Civil and Political Rights and the Optional Protocol, both of 1966, were concluded, the subsequent proliferation of international courts and bodies had not yet taken place. The European Commission of Human Rights existed, to which Austria refers in the Declaration it made under Article 5(2)(a). However, to consider that States had, ab initio, the burden of formulating a reservation prohibiting successive appeals in relation to developments that had not yet occurred is an a posteriori construction.

A number of States have made unilateral declarations under Article 5(2)(a), but they did so with the intention of clarifying a text that has been authenticated in several languages which are confusing because they do not convey the same meaning. In Spanish, it states that the Committee shall not examine any communication unless it ascertains that the same matter “no ha sido sometida” to another procedure, whilst in French it states that “la même question n’est pas déjà en cours d’examen devant une autre instance” and in English “the same matter is not being examined”. They do not say the same thing and the interpretation was confusing.

These are not reservations, even though Denmark, El Salvador, Iceland, Poland, Slovenia and France referred to them as such, but rather declarations, as Austria, Croatia, Luxembourg, Malta, Romania and the Soviet Union (USSR) described them, whilst others chose to clarify without labelling them one way or the other (principle of non-nominalism), as Germany, Ireland, Italy, Norway, Moldova, Spain or Sweden did.

That said, the content of all these interpretative, unilateral and written declarations is largely consistent. Their purpose is to clarify the meaning of Article 5(2)(a): a matter already examined by another settlement or investigative body cannot be examined by the Committee. However, these declarations do not alter the legal effect of the article; rather, they clarify it. That would also have been the intention of the States in 1966. It is the most reasonable interpretation to be drawn from the text and the context.

Article 5(2)(a) does not reflect a rule of lis pendens in international law, which is not a rule of general application (nor is it a custom, nor is it a general principle of international law), since each treaty is a self-contained system, and there is no legal link between settlement and investigation bodies, whatever their nature. Nor was there lis pendens within the United Nations itself between the International Court of Justice and the Security Council in the Lockerbie case. This is a consequence of the fragmentation of international law.

It is also unclear whether Article 5(2)(a) reflects respect for res judicata, even where the matter has not yet been interpreted. Article 5(2)(a) stems from the intention of the States that individuals wishing to have other international avenues for the defence of their rights (as was the case under the European Convention on Human Rights) should be able to choose. Article 5(2)(a) reflects more of a disjunctive than a conjunctive option, more the idea of choosing one avenue or the other than of making successive appeals.

If a matter has been ‘submitted’ but not ‘examined’ on the merits – for example, if it has been declared inadmissible by another settlement or investigative body – it may be deemed admissible by the Committee, as is the practice, in the same way as if it were an aspect of the matter that has not been examined by another body. In other words, a case may be admitted by the Committee if it is not exactly the “same case”, as stated in Article 5(2), that is to say, “the same complaint concerning the same person” with “the same basic set of facts and allegations” before two proceedings.

Ultimately, I do not agree, without further clarification, with the view that the special public procedures established since 1967 under Economic and Social Council resolution 1235, following the adoption of the Covenant – and which today are established by the Human Rights Council, a subsidiary body of the General Assembly – can be regarded as international settlement or investigation procedures for the purposes of Article 5(2)(a), as some might infer from reading the final line of paragraph 7.2 of Opinion 3250/2018, in relation to the Working Group on Arbitrary Detention.

I concur with the conclusion reached by the Committee in the present case, regarding the violation of the authors’ rights under Articles 9, 10, 17, 19 and 21 of the Covenant. However, I disagree with the decision to declare inadmissible the claims under Article 7 in conjunction with article 2(3) of the Covenant regarding his placement in disciplinary isolation and a more severe regime of detention (para. 8.5).

As I have already stressed in several dissenting opinions, that the distinction drawn by the Committee between article 7 and article 10 in cases dealing with ill-treatments in detention is not only unclear, inconsistent and poorly reasoned,³⁵ but also dangerous.³⁶ The present case illustrates the same inconsistency and the concerning and regressive trend followed by the Committee regarding disciplinary regime in detention.

35. See my partially dissenting Opinion in CCPR/C/126/D/2302/2013 (Nazarov et al. v. Turkmenistan). ↩
36. See my partially dissenting Opinion in CCPR/C/144/D/3053/2017 (Lopez Mendoza v. Venezuela). ↩

In his complaint, one of the authors (Mr. Bokayev) claimed that he was “subjected to disciplinary isolation due to refusing to do outdoor exercises”, despite his requests for being exempted from physical exercise “due to extreme weather conditions and their effect on his already precarious health situation” (para. 3.10). He affirmed that he has been reprimanded and placed in isolation and under a stricter regime of detention for months as a sanction for refusing to perform recreational activities. He brought a formal complaint before the domestic authorities but without much success. Therefore, before the Committee, Mr. Bokayev did not only claim the violation of article 10 due to his bad conditions of detention; he also raised a claim under article 7 considering the “punishment” (para. 3.10) he was subjected to.

As a response, the Committee decided to reject the claim, considering that “article 7 concerns serious forms of ill-treatment whereby the individual, including persons deprived of their liberty, is singled out for specific attacks” (para. 8.5).³⁷ However, this explanation is not convincing. First, the decision of the Committee in the case referred to in the footnote (I. v. Lithuania) is based on a factual background and claims that are different from the present case. More importantly, this precedent referred to the Committee’s previous case-law - and in particular, to Bobrov v. Belarus -, that goes in the exact opposite direction and contradicts the reasoning of the Committee followed in the present case. In Bobrov, after examining the hardship of the conditions of detention of the author, the Committee concluded as follows: “The Committee considers, as it has repeatedly found in respect of similar substantiated claims, 11 that the author’s conditions of detention as described violated his right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore also contrary to article 10 (1), a provision of the Covenant dealing specifically with the situation of persons deprived of their liberty and encompassing for such persons the elements set out generally in article 7. For these reasons, the Committee finds that the circumstances of the author’s detention, as described by the author, constitute a violation of articles 7 and 10 (1) of the Covenant.”³⁸ Therefore, facing two contradictory approaches to the articulation of articles 7 and 10 in its own jurisprudence, it is regrettable that the Committee did not apply the most favourable one to the author.

37. Emphasis added. ↩
38. CCPR/C/122/D/2181/2012, para. 8.2 (emphasis added). ↩

Furthermore, affirming that Article 7 only applies when a victim is “singled out for specific attacks” introduces not only a new requirement in the condition of applicability of the provision - some treatments falling under Article 7 do not necessarily require the proof of an intentional attack -, but also makes it almost impossible to prove the violation. Proving that an ill-treatment suffered by a person deprived of liberty is based on a specific and targeted attack is not only requiring a probatio diabolica at odds with precedents of this Committee, but also retrogressing in the longstanding stance of human rights bodies affirming that the disciplinary sanctions applied to persons deprived of liberty must comply with human rights.³⁹

39. As a starting point of this jurisprudence: Eur. Court H.R., Golder v. UK, 21 February 1975, Application No. 4451/70. ↩

In this regard but also considering the multiplication of these recent inconsistent precedents - the present case must be read in light of the Lopez Mendoza case above-mentioned -, it is of the utmost importance for the Committee to clarify its jurisprudence on the articulation between articles 7 and 10. In the present case, I have no doubt that the facts as presented by Mr. Bokayev not only revealed a violation of the right not to be subjected to inhumane conditions of detention (article 10) but also that he was victim of an excessive regime of disciplinary sanctions and isolation that falls under the prohibition of ill-treatments (article 7 of the Covenant).