Violation of freedom of expression following the unjustified State prohibition to hold a single-person picket

Facts

The author, a Kazakh national, is a lawyer and an activist for the anti-unsymmetrical dimethylhydrazine (UDMH) movement in Almaty. He conducted a one-person protest, was subsequently detained by the police and accused of carrying out an unauthorized assembly. On the same day, the court found the author guilty of carrying out an unauthorized protest and sentenced him to a fine. The author challenged the decision in the court of appeal, which overruled the first instance court’s decision. However, the Prosecutor submitted an appeal to the Supreme Court against the decision of the court of appeal. Without informing the author or his counsel about the appeal by the prosecutor or about the hearing, the Supreme Court re-examined the case and upheld the decision of the first instance court. The author claimed that the State party had violated his rights under articles 14 (3) (d) (right to a fair trial), 19 (freedom of expression), and 21 (freedom of assembly) of the Covenant.

Admissibility

The Committee declared the claim under article 14 (3) (d) inadmissible due to the lack of substantiation, as the State party informed that the author was sent a letter informing him about the appeal to the Supreme Court. The Committee further considered that the author had not sufficiently substantiated his claim under article 21, and therefore found it inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol. The Committee held that the author sufficiently substantiated the claim under article 19 of the Covenant.

Merits

The Committee considered that the authorization regime that requires to apply for permission from the authorities to conduct a one-person protest is generally incompatible with article 19 of the Covenant. The Committee observed in this regard that the State party failed to invoke any specific grounds to support the necessity of such restrictions as required under article 19 (3) of the Covenant. The State party also failed to demonstrate that the measures selected were the least intrusive in nature or proportionate to the interest that it sought to protect. The Committee considered that the restrictions imposed on the author were not justified 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.

Recommendations

The State party should:

(a) provide adequate compensation to the author, including reimbursement of the fine and any legal costs incurred by the author;

(b) take all steps necessary to prevent similar violations from occurring in the future;

(c) revise its normative framework on public events, in accordance with its obligation under article 2 (2) of the Covenant, with a view to ensuring that the rights under articles 19 of the Covenant may be fully enjoyed in the State party.

Implementation

Deadline: 7 January 2023

By: Anna Gorodetskaya