View Adopted: 2020.07.23
The author is a national of Kazakhstan who claims that the State party has violated his rights under article 14 (3) (d) and (g), 19 and 21 of the Covenant.
On 5 September 2013, the author was apprehended by police when he was transporting over 2,000 leaflet invitations to an unsanctioned meeting of homeless people, scheduled for 9 September 2013. The police detained the author and seized the leaflets from the boot of his car. He remained in custody until 6 September 2013 and claims to have been ill-treated in this period. The author claims that he was not provided with a lawyer upon his apprehension and that he was forced to admit guilt. On 6 September 2013, he was found guilty of having breached the legislation on the organization of peaceful assemblies. He was sentenced to 15 days of administrative arrest. The author submits that he was eventually detained for one day longer than his sentence.
On the above basis, the author claims that by sentencing him to administrative arrest for his intention to participate in a planned assembly which had not yet taken place, the State party violated his rights to freedom of expression and of peaceful assembly. He also submits that the State party’s failure to provide him with a lawyer upon apprehension was in violation of Article 14(3)(d) of the Covenant and that the court erred in the calculation of days of his administrative arrest.
The Committee first ascertained that the communication was not being examined under another procedure of international investigation or settlement and that all domestic remedies had been exhausted. The Committee also noted that, in the absence of any other pertinent information, the author had insufficiently substantiated his claims under article 14 of the Covenant – in claiming that his rights had been violated as he was denied access to a lawyer, that his additional day of detention amounted to a manifest error, and that the domestic courts did not take into account his claims under article 19 and 21 of the Covenant. The Committee considered that the author had sufficiently substantiated his remaining claims under article 19 (2) and 21 of the Covenant.
The Committee observed that no explanations had been provided by the State party to justify the restriction on the author’s freedom of expression and verify whether the author’s actions were endangering the rights or reputation of others, national security, or public order, or public health or morals. In the absence of such an explanation, the Committee found that sanctioning the author with a sentence entailing the deprivation of liberty for 15 days for distributing invitations to a peaceful public event was not a necessary and proportionate measure. On this basis, it concluded that the author’s rights under article 19 (2) of the Covenant had been violated.
In terms of the author’s claims in relation to the right of peaceful assembly, the Committee noted that the State reply relied on provisions of the law on public events, which requires permission from the local authorities for a peaceful assembly. It observes that such authorization regimes, where those wishing to assemble have to apply for permission from the authorities to do so, undercut the idea that peaceful assembly is a basic right. It also noted that the State party made no attempt to demonstrate that the apprehension and trial of an imposition of a sanction on the author for the organization of a peaceful assembly were necessary in a democratic society and proportionate to the interests of national security or public safety. In these circumstances, it found that the State party violated the author’s rights under article 21 of the Covenant.