View Adopted: 2021.03.18
The author of the communication is Andrey Tsukanov, a national of Kazakhstan born in 1982. He notes that he was covering a peaceful protest as a journalist; however, the police did not want the video footage of the protest and the subsequent arrests to be aired on television, and for that reason, they arrested him, damaged his camera and deleted all video recordings. He claims that the State party has violated his rights under articles 14 (3) (d) and (e), 19 and 21 of the Covenant.
The author went to cover the protest on behalf of a local television channel on 7 July 2014. Soon after, several police vehicles arrived at the scene and police officers started detaining participants and taking their identification documents. While covering the protests, he was approached by several police officers who demanded that he show his ID and delete the video recording. As the author refused, the officers took away his camera, damaging it in the process, twisted his arms behind his back and escorted him, along with several protesters, to a police station. He was later charged with an administrative offence under Code of Administrative Offences, and on 11 July 2014, the Specialized Inter-District Administrative Court of Almaty found the author guilty of refusal to obey lawful orders of the police and sentenced him to 15 days of administrative arrest. The author appealed the decision, which was rejected by both the court and the Office of Prosecutor. on 17 July 2014.
The Committee noted that the author failed to sufficiently substantiate the allegations of violation of his rights under article 14 (3) (d) of the Covenant. However, the Committee further stated that the author had sufficiently substantiated his remaining claims raising issues under articles 14 (3) (e), 19 and 21 of the Covenant for the purposes of admissibility, and declared the communication admissible and proceeded with its consideration of the merits.
The Committee noted that the protest in question was held spontaneously at around 10 p.m., it did not seem unreasonable for police officers to request that the author show his ID card in the context of maintaining public safety and order and for purposes of ascertaining his status as a journalist. In this respect, a request by police officers to the author to show his ID may be deemed necessary. On the other hand, the State party failed to explain why the confiscation of his camera, the deletion of video recordings and, above all, 15 days of administrative arrest of the author were necessary for the maintenance of public safety and order. The Committee considered that, in the circumstances of the case, the limitations on the author, although imposed on the basis of domestic law, were not shown to be both necessary and proportionate pursuant to the conditions set out in article 19 (3) of the Covenant. It therefore concluded that the author’s rights under article 19 (2) of the Covenant had been violated.
The Committee also noted that in the present case, the State party had not provided the Committee with any information to support the claim that the author’s actions created a risk to the life or safety of persons or to property, except to submit that he was obstructing passing traffic. The Committee found that the State party did not meet the onus to justify the restrictions on the author’s rights under article 21, and it concluded that the author’s rights under article 21 of the Covenant had been violated. Lastly, the Committee found that the author’s rights under article 14 (3) (e) of the Covenant had been violated, as he was unable to call any witnesses in his defence, contrary to article 14 (3) (e) of the Covenant.
The State party is obligated, inter alia, to:
The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, in particular by reviewing its national legislation and the implementation thereof in order to make it compatible with its obligations to adopt measures able to give effect to the rights recognized by articles 19 and 21 of the Covenant.
Individual Dissenting Opinion (Committee member Gentian Zyberi): The Committee member opined that the author had failed to demonstrate that the alleged “bias” or “lack of equality of arms” reached the threshold for arbitrariness in the evaluation of the evidence, or amounted to a denial of justice. He stated that the Committee should have found the claim under article 14 (3) (e) as not sufficiently substantiated, or alternatively that there was no violation of article 14 (3) (e).
Deadline: 14th September 2021
By Sugandha Sawhney