Administrative citations and fining of peaceful protestors in violation of freedom of peaceful assembly

Facts

The authors of the communication are two nationals of Kazakhstan, Mr. Koshkarbayev and Ms. Insenova. In response to the devaluation of Kazakhstan’s national currency, a peaceful protest in the city center was announced. Mr. Koshkarbayev filmed the protest on his phone, stopped to speak with the participants, and stayed at the protest out of solidarity. He was detained by the police and cited for violating legislation on organizing and holding peaceful assemblies. On the same day, an administrative court found Mr. Koshkarbayev guilty and sentenced him to a fine. Mr. Koshkarbayev’s appeal was denied and his requests for supervisory review were dismissed.

Ms. Insenova protested against bank lending policies in Almaty, and was detained and cited by the police. An administrative court found Ms. Insenova guilty of the administrative offence as to the first protest and sentenced her to a fine. Ms. Insenova’s appeal was denied and her requests for a supervisory review were dismissed. Following a second protest, the administrative court also found Ms. Insenova guilty of the offence of violating the legislation on organizing and holding peaceful assemblies, and sentenced her to a fine. Her appeals and requests for supervisory review were, again, unsuccessful.

Both authors claim that the State party has violated their right of peaceful assembly under article 21 of the Covenant. Ms. Insenova claims that the State party has violated her right to freedom of expression under article 19 of the Covenant, as well as her right to fair trial under article 14 of the Covenant because she claims that the courts did not take into account her arguments based in domestic and international law, and were not impartial in considering her cases. Finally, Mr. Korshkarbayev claims that the State party violated his right to fair trial under article 14 (3) (d) and (g) because the police and the administrative court refused to provide him with counsel and to allow journalists to attend his court hearing.

Admissibility

The Committee noted that, per the State party’s submission, Mr. Koshkarbayev participated in all court hearings and had been informed in writing by the courts about the right to counsel, which he did not exercise. The Committee therefore considered that Mr. Koshkarbayev’s claim that the State party had violated his right to fair trial under article 14 (3) (d) and (g) was inadmissible. The Committee further considered that Ms. Insenova’s claim as to her right to a fair trial under article  14 of the Covenant was inadmissible, because the author had failed to sufficiently substantiate these allegations for the purposes of admissibility.

The Committee considered that the remaining claims were admissible, insofar as they raise issues under article 19 with respect to Ms. Insenova’s right to freedom of expression, and issues under article 21 with respect to the right of peaceful assembly of both authors.

Merits

With respect to the claim regarding the right to peaceful assembly raised by both authors, the Committee observed that the State party has not demonstrated that sanctioning the authors with fines for participating in a peaceful assembly was necessary in a democratic society to pursue a legitimate aim, or was proportionate to such an aim in accordance with the requirements article 21 of the Covenant. The State party therefore failed to justify the restriction on the authors’ right of peaceful assembly and violated article 21 of the Covenant.

The Committee observed that sentencing Ms. Insenova to fines for participating in peaceful expressive events raised serious doubts as to the necessity and proportionality of the restrictions on the author’s rights under article 19 of the Covenant. The State party failed to invoke any specific grounds to support the necessity of such restrictions, and did not demonstrate that the measures were the least intrusive in nature, or proportionate to the interest that it sought to protect. The Committee concluded that the rights of Ms. Insenova under article 19 of the Covenant had been violated. The Committee therefore considered that the facts disclosed a violation by the State party of the rights of both authors under article 21 of the Covenant, and the rights of Ms. Insenova under article 19 (2) of the Covenant.

Recommendations

The State party should, inter alia:

• (a) make full reparation to individuals whose Covenant rights have been violated;
• (b) take appropriate steps to provide the authors with adequate compensation and reimbursement of the imposed fines and any legal costs incurred by them; and
• (c) take all steps necessary to prevent similar violations from occurring in the future.

Implementation

Deadline for implementation: 16 January 2025