The author was sentenced to administrative detention for participating in a peaceful protest- violation found

Facts

The author is a national of Kazakhstan born in 1970. He claims that the State of Kazakhstan violated his rights, by convicting and imposing on him an administrative arrest, in violation of article 19 of the Covenant, and his right to freedom of assembly, in violation of article 21 of the Covenant.

The author, a well-known public activist in Kazakhstan, applied to the Almaty City administration for authorization to hold a peaceful meeting on 19 June 2015, with the aim to protest against the government’s inaction regarding the environmental consequences of rocket launches. After having received no reply from the city authorities, the author, together with around twenty other persons ​​and participated in a ceremony of laying flowers at the Independence Monument in Almaty. The police filed a case against the author under the Code of Administrative Offence on 3 July 2015 and he was questioned in the presence of a lawyer. On 4 July 2015, the Almaty City Specialized Interregional Administrative Court found him guilty and sentenced him to 15 days of administrative arrest. The author appealed against that decision on the ground that the ceremony of laying flowers required no permission from the City authorities and that his freedom of expression and peaceful assembly is protected by articles 32 and 20 of the Constitution of Kazakhstan, and articles 19 and 21 of the covenant. The court rejected his appeal on 13 July 2015. His cassational complaint with the Almaty City Court and appeal for a supervisory review to the Prosecutor General were dismissed on 25 October 2015 and 29 March 2016, respectively.

In a separate communication (No. 2709/2016), the author stated that he was arrested by the police officers for a post he made on his Facebook page about planning to hold a picket in front of the Independence Monument on 20 August 2015. An administrative record was filed against him for violating the procedure for holding peaceful assemblies, meetings, processions, pickets and demonstrations as foreseen under article 488 (3) of the Code of Administrative Offence of the Republic of Kazakhstan. On 21 August 2015, the Almaty City Specialized Interregional Administrative Court established that the author posted an invitation on his Facebook page inviting others to join, and found him in violation of the Code, sentencing him to 15 days of administrative arrest. The author appealed against the decision of his administrative detention, which was dismissed. The author then filed a cassational appeal, requesting the Court to restore his right to freedom of expression and fair trial, which was also dismissed. Furthermore, the author’s appeal for a supervisory review to the office of the Prosecutor General was also dismissed.

Admissibility

The Committee noted the author’s claim that his rights were violated under article 14 (1)  and 14 (3)(d) were insufficiently substantiated and inadmissible. The Committee further noted that the author had sufficiently substantiated his claims under articles 19 and 21 of the Covenant, for the purposes of admissibility of both communications and proceeded with their consideration on the merits.

Merits

The Committee considered that, in the circumstances of the case, the restrictions imposed on the author, although based on domestic law, were not necessary and proportionate and were not justified pursuant to the conditions set out in article 19 (3) of the Covenant. The State party failed to invoke any specific grounds to support the necessity of the restrictions imposed and therefore, the Committee concluded that the author’s rights under article 19 of the Covenant have been violated. It also noted that the State party failed to demonstrate that the sanction in the form of administrative arrest imposed on the author for participating in or trying to attend a peaceful unauthorized assembly was necessary and proportionate under article 21 of the Covenant. The Committee, therefore, concluded that the State party had violated article 21 of the Covenant.

Recommendations

The State party is obligated, inter alia, to:

• provide the author with adequate compensation, including to reimburse the fine and any legal costs incurred by the author. 

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 on public events and the implementation thereof in order to make it compatible with its obligations under article 2 (2) to adopt measures able to give effect to the rights recognized by articles 19 and 21.

Implementation

Deadline: 18th April 2022

 

By Sugandha Sawhney