Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2158/2012 * , **

C ommunication submitted by:Andrei Sviridov

Alleged victim:The author

State party:Kazakhstan

Date of communication:23 February 2012 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 12 June 2012 (not issued in document form)

Date of adoption of Views:13 July 2017

Subject matter:Administrative arrest for holding a peaceful assembly without prior authorization

Procedural issues:Substantiation; exhaustion of domestic remedies; compatibility ratione temporis

Substantive issue: Right to freedom of expression

Article of the Covenant: 19 (2)

Articles of the Optional Protocol:1, 2, 5 (2) (b)

1.The author is Andrei Sviridov, a citizen of Kazakhstan born in 1964. The author claims to be a victim of a violation by Kazakhstan of his rights under article 19 (2) of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 September 1992.

The facts as submitted by the author

2.1The author is the editor of the website of the non-governmental organization The International Office of Kazakhstan on Human Rights and Observance of the Rule of Law. On 2 and 3 September 2009, the director of the Office, Mr. Zhovtis, was tried by the Balkhashkiy District Court in Almaty and sentenced to four years’ imprisonment. The author was present at the trial and observed a number of procedural violations. He wrote an article about the observed violations and posted it on the website of the Office. Given the gravity of the observed violations, the author decided to carry out an individual protest. On 15 September 2009, he published a declaration on several websites informing different authorities of his intention to protest against Mr. Zhovtis’s conviction on 16 September at noon near the Zangar commercial centre in Almaty.

2.2On 16 September 2009, at noon, the author raised a poster reading “I demand a fair trial for Mr. Zhovtis!’’ in front of the commercial centre. The author was wearing an orange T-shirt bearing the slogan, in Russian, “Today it’s Zhovtis, tomorrow it’s you!” and, on his shoulders, another orange T-shirt with the same slogan in Kazakh. He was standing still, did not agitate anyone and only answered questions posed by journalists gathered around him. Several police officers, representatives of the mayor’s office and of the prosecutor’s office were observing the protest.

2.3At 12.15 p.m., a deputy prosecutor of the Almalinskiy district of Almaty approached the author and asked him to stop the unauthorized protest, stressing that his request for a fair trial for Mr. Zhovtis amounted to a crime, i.e., exercising pressure on the court.

2.4At 12.30 p.m., while the author was preparing to leave, he was approached by three policemen. One of them informed the author that he was being arrested for carrying out an unauthorized public gathering pursuant to article 373, paragraph 1, of the Code of Administrative Offences and that the commission of the offence needed to be recorded. The author asked that the record of the offence be drawn up on the spot. A police officer began to so do, but then announced that it needed to be finalized on a computer at the police station. Therefore, the author was taken to a police station and was brought before the Specialized Intradistrict Administrative Court for a hearing, which was to take place the same evening. The hearing was postponed until the next morning, and the author was released.

2.5On the morning of 17 September 2009, when author and his lawyer, O., arrived at the court, they discovered that the judge had held a preliminary hearing in their absence. The judge ordered that the administrative offence record be amended to classify the author’s actions as a “demonstration” instead of a “public gathering”.

2.6Later the same day, the author appeared before the Administrative Court. The author filed two motions, one to be represented by lawyer O. and another to recuse the judge, both of which were rejected. By a decision of 17 September 2009, the Administrative Court found the author guilty under article 373, paragraph 1, of the Code of Administrative Offences and fined him the equivalent of 10 monthly calculation indices, amounting to 12,960 tenge, stating that he had publicly expressed his opinion, carried out actions with the aim of drawing attention to his perception of Mr. Zhovtis’s court proceedings and conviction, and conducted a demonstration without obtaining the necessary authorization from the local executive authorities.

2.7On 28 September 2009, the author appealed the court decision to the City Court of Almaty. He claimed, in particular, that his actions were wrongly classified as a demonstration, on the basis of which the judge had reached the erroneous conclusion that he had to obtain prior authorization from the authorities. He also complained about the rejection of his motion to be represented by lawyer O. On 6 October, the court dismissed the author’s appeal, without examining his classification claim. The court also rejected his claim in relation to representation by lawyer O. on the ground that the Kazakh legislation does not allow offenders to be represented by a proxy.

2.8The author contends that he has exhausted all available and effective domestic remedies. The court’s decision is not subject to further appeal. Nevertheless, on 20 November 2009, he submitted a request to the prosecutor’s office to introduce a supervisory review appeal in relation to the court decisions which had entered into force. That request was rejected by the Office of the Prosecutor of Almaty on 24 December 2012.

The complaint

3.1The author claims that the State party has violated his rights under article 19 (2) of the Covenant, as his right to express opinions was restricted without justification. He considers that the interference by the local authorities with his right to freedom of expression was not necessary in the interests of national security, public order or public health or the rights and freedoms of others. The domestic courts erred in classifying his stand-alone protest as a demonstration and establishing that prior authorization was necessary for that reason. Even if the protest could be considered a demonstration, he did not breach the law, as he had informed the respective authorities, via the Internet, of his intention to conduct the protest beforehand.

3.2The author stresses that even though the Optional Protocol entered into force for Kazakhstan on 30 September 2009 and his protest took place on 16 September, the violations of the Covenant continued after the date of entry into force as his appeal was rejected on 6 October and he paid the fine as ordered by the court on 30 October.

State party’s observations on admissibility

4.By a note verbale of 24 August 2012, the State party challenged the admissibility of the communication. It argues that the author failed to exhaust all available domestic remedies as he did not appeal to the Office of the Prosecutor General for a supervisory review by the Supreme Court. Pursuant to article 676 of the Code of Administrative Offences, the Supreme Court is empowered to verify the legality and validity of court decisions that entered into force in relation to administrative offences and to review such decisions. Therefore, the communication should be considered inadmissible under article 5 (2) (b) of the Optional Protocol.

Author’s comments on the State party’s observations on admissibility

5.1On 30 October 2012, the author challenged the State party’s observations on admissibility. He notes that the State party has provided no arguments as to why his communication should be declared inadmissible on the merits.

5.2He further submits that the State party has not demonstrated that a supervisory review appeal to the Supreme Court through the Office of the Prosecutor General would have been an effective remedy. In any case, such a remedy would have been unavailable to him, as the Office of the Prosecutor General has the discretion to decide whether to introduce a supervisory review appeal before the Supreme Court. Furthermore, the Office takes the position that any public gathering should be authorized by the national authorities. Therefore, a request by the author to the Office would not have had any prospect of success.

State party’s observations on the merits

6.1By notes verbales of 27 December 2012 and 27 February 2013, the State party reiterated the facts of the case. On 28 January 2013, the State party added that the author’s claims in relation to the decisions of the domestic courts had been examined and rejected as unsubstantiated.

6.2The State party further recalls provisions of law No. 2126 of 17 March 1995 on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations. According to article 1 of the law, there are several avenues for expressing opinions and protests: assemblies, meetings, processions and demonstrations. The author conducted a demonstration, i.e., he demonstrated publicly in order to attract attention, provide support or exercise pressure and express an opinion about certain events. Such public gatherings require authorization by local executive authorities. According to articles 2 and 3 of the law, in order to conduct assemblies, meetings, processions, pickets or demonstrations, a request must be submitted to the local executive authorities no later than 10 days before the date of the planned event. The request should indicate the aim and time of the event; an approximate number of expected participants; the credentials, occupations and places of residence of the organizers; and the date of submission of the request. The timeline starts from the date the request is registered by the local executive authorities. According to the letter of the Almaty mayor’s office of 16 September 2009, no authorization was issued in relation to the author’s event. Holding an unauthorized demonstration is unlawful. The author has not disputed that he conducted a public protest in a public space during the daytime in the presence of other citizens. The fact that the law does not provide a definition of such terms as “demonstration” and “public protest” does not imply that a person would not be held accountable for expressing opinions and protesting in any of the forms provided by the law should s/he fail to meet the requirements for the organization of such events. Therefore, the author committed an administrative offence under article 373, paragraph 1, of the Code of Administrative Offences, as he acted in breach of the requirements imposed by the law.

6.3In relation to the court proceedings, the State party submits that the administrative legislation does not provide for a transcript of a hearing in an administrative case. The author’s request to be represented by lawyer O. was dismissed due to the failure to produce a valid power of attorney for the time in question.

6.4The State party recalls that the rights enshrined in article 19 of the Covenant are subject to certain limitations. As was established in the course of the court proceedings, the author did not comply with the requirements imposed by domestic law. The domestic courts evaluated the evidence in the case on the basis of the requirements of relevance, validity, reliability and sufficiency, in accordance with article 617 of the Code of Administrative Offences. As a result, the author was found guilty under article 373, paragraph 1, of the Code and sanctioned, taking into account the circumstances of the case. The State party therefore considers the author’s allegation that his rights under article 19 of the Covenant were violated to be unsubstantiated.

Author’s comments on the State party’s observations on the merits

7.1On 20 March 2013, the author challenged the State party’s submission that authorization from local executive authorities is required to conduct public events. He refers to the Guidelines on Freedom of Peaceful Assembly issued by the Venice Commission and the Office of Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe. According to paragraph 12 of the Guidelines: “Domestic laws regulating freedom of assembly must be consistent with the international instruments ratified by the state in question. Domestic laws should also be drafted, interpreted and implemented in conformity with relevant international and regional jurisprudence and good practice.” Law No. 2126 is not in compliance with the Covenant or the Guidelines.

7.2Law No. 2126 requires the submission of a request for authorization to hold an assembly rather than a notice of intent. According to the Guidelines, requiring advance notification about an assembly is an impermissible restriction on freedom of assembly and goes against the essence of this right. The right of peaceful assembly implies the obligation of the State to ensure the effective enjoyment of this right to every person, without any specific authorization on the part of the authorities. In its concluding observations, the Committee has also identified a number of implementation gaps with respect to freedom of assembly, including unnecessary requirements to obtain authorizations that affect the enjoyment of freedom of assembly. Furthermore, according to paragraph 116 of the Guidelines: “Any notification process should not be onerous or bureaucratic … Furthermore, the period of notice should not be unnecessarily lengthy … but should still allow adequate time for the relevant state authorities to plan and prepare … and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged.”

7.3According to the Committee’s jurisprudence, a requirement to notify the authorities of an intended demonstration in a public place may be compatible with the limitations laid down in article 21 of the Covenant, but only for the reasons of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. The Committee also previously established that a gathering of several individuals at the site of the welcoming ceremonies for a foreign Head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration. As the gathering in question posed no threat to any of the legitimate aims under article 21 of the Covenant, the Committee concluded that the organizers did not have to notify the authorities. The European Court of Human Rights has affirmed this practice, concluding that a requirement of prior notification does not necessarily violate the right to freedom of peaceful assembly but should not represent a hidden obstacle to this right.

7.4The author reiterates that a day before holding the protest in support of Mr. Zhovtis, he informed relevant authorities of his intent by publishing a declaration on several websites. Nevertheless, according to the Committee’s jurisprudence, he had no notification obligation, since the event concerned did not fall within the limitation provisions of article 21 of the Covenant. Therefore, finding him guilty for holding an unauthorized protest pursuant to law No. 2126, which is not consistent with international standards on freedom of assembly, constitutes an unlawful restriction on his right protected by article 19 (2) of the Covenant.

State party’s additional observations

8.1By note verbale of 12 March 2014, the State party rejected the author’s allegations as unsubstantiated. It recalls the provisions of articles 19 (3) and 21 of the Covenant. It stresses that freedom of association is enshrined in article 32 of the Constitution of Kazakhstan and is subject to limitations similar to those laid down in the Covenant. Although holding peaceful assemblies is not prohibited in Kazakhstan, their organization and conduct are regulated by law No. 2126 requiring prior authorization from the competent authorities. According to its article 9, persons that breach the law are held liable. The author was found guilty not for expressing his opinion but for conducting a public event without authorization.

8.2The State party acknowledges that the right of peaceful assembly is a fundamental human right and a democratic value which is constantly developing. Its enjoyment and protection is guaranteed by national legislation, in particular the Constitution and law No. 2126. However, this right is subject to limitations, which is also recognized in the Guidelines on Freedom of Peaceful Assembly and in the domestic laws of many European States. European States have sustained considerable damage caused by mass events, such as the destruction of property, the disruption of business operations and transport routes, etc. In Kazakhstan, specific areas are designated, generally by elected bodies, for non-State public events of a social and political nature with the aim of ensuring protection of the rights and freedoms of others, public safety, functioning public transport, infrastructure, parks and small buildings. In many countries, domestic laws are even more restrictive with regard to the organization and conduct of public events and provide for advance notification. For instance, the State of New York in the United States of America requires that a request to hold a gathering be submitted 45 days beforehand and include its itinerary. In Sweden, organizers of previously unauthorized events are blacklisted. In France, any demonstration can be prohibited by the local authorities and in Germany, all mass events are subject to authorization from the authorities.

8.3The State party emphasizes that national legislation guaranties the enjoyment of the rights of peaceful assembly and freedom of expression. It stresses that the author’s claims were examined and found unsubstantiated by the domestic courts. Therefore, the State party considers that the communication should be considered inadmissible as lacking substantiation.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

9.2As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

9.3The Committee takes note of the State party’s argument that the author has failed to file a supervisory review appeal to the Supreme Court through the Office of the Prosecutor General. In this regard, the Committee notes the author’s assertion that on 20 November 2009 he submitted such a request to the Office of the Prosecutor of Almaty, which was rejected on 24 December 2012. It further notes the author’s explanation that such a remedy would in any case have been ineffective as it cannot be submitted directly to the Supreme Court and depends on the Prosecutor’s discretion, and would have contradicted the position of the Office of the Prosecutor General that any public gathering must be authorized by the national authorities. The Committee recalls its jurisprudence, according to which a petition to a prosecutor’s office requesting a review of court decisions that have taken effect does not constitute a remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol. It also considers that requests for supervisory review to the president of a court against court decisions that have entered into force and depend on the discretionary power of a judge constitute an extraordinary remedy and that the State party must show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case. In the present case, the Committee notes the author’s claim, unrefuted by the State party, that the State party has not demonstrated that a supervisory review appeal to the Supreme Court through the Office of the Prosecutor General would have been an effective remedy in his case. Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

9.4The Committee further notes that the alleged original violation of article 19 (2) of the Covenant, relating to the author’s protest on 16 September 2009, occurred prior to the entry into force of the Optional Protocol for the State party on 30 September. The Committee observes that it is precluded ratione temporis from examining alleged violations of the Covenant which occurred before the entry into force of the Optional Protocol for the State party, unless the violations complained of continue after that date or continue to have effects which in themselves constitute a violation of the Covenant or an affirmation of a prior violation. The Committee notes the author’s argument, undisputed by the State party, that the violation of the Covenant continued after the entry into force of the Optional Protocol for the State party, since the domestic proceedings finding him guilty of conducting an unauthorized event were finalized on 6 October and he paid the fine imposed by virtue of the court decisions on 30 October. In the circumstances, the Committee is not precluded ratione temporis by article 1 of the Optional Protocol from examining the communication.

9.5In addition, the Committee considers that the author has sufficiently substantiated his claim under article 19 (2) of the Covenant for purposes of admissibility. It therefore declares the claim admissible and proceeds with the examination of the merits.

Consideration of the merits

10.1The Committee has considered the communication in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

10.2The Committee notes the author’s claim that his right to freedom of expression, as protected by article 19 (2) of the Covenant, was restricted without the required justification based upon any of the legitimate aims prescribed by article 19 (3). The Committee notes that the right of an individual to express his or her opinions, including, obviously, opinions on matters of human rights such as the right to a fair trial, forms part of the freedom of expression guaranteed by article 19 of the Covenant. The Committee notes that the author was found guilty and fined for organizing a “demonstration”, in which he was the sole participant, without having formally requested authorization from the local executive authorities. The Committee considers that the State party’s authorities interfered with the author’s right to freedom of expression and to impart information and ideas of all kinds, which is protected under article 19 (2) of the Covenant.

10.3The Committee has next to consider whether the restrictions imposed on the author’s freedom of expression were provided by law and justified under any of the criteria set out in article 19 (3) of the Covenant. The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, in which it states that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society, and constitute the foundation stone for every free and democratic society (para. 2). The Committee recalls that article 19 (3) of the Covenant allows certain restrictions only as provided by law and necessary (a) for the respect of the rights and reputation of others and (b) for the protection of national security or public order (ordre public) or public health or morals. Any restriction on the exercise of such freedoms must conform to the strict tests of necessity and proportionality. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated (para. 22). The Committee also recalls that it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 of the Covenant were necessary and proportionate. Finally, the Committee recalls that any restriction on the freedom of expression must not be overbroad in nature, that is, it must be the least intrusive among the measures that might achieve the relevant protective function and proportionate to the interest whose protection is sought (para. 34).

10.4The Committee notes the author’s claim that the restrictions imposed on him were not provided for by law, since expression by a single individual does not constitute a “demonstration”. The Committee further notes the State party’s position that although the concepts of “demonstration” and “public protest” are not defined in law, the author’s conduct did constitute a “demonstration” for purposes of the law on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations. Regardless of whether the author’s conduct was prohibited by the domestic law, the Committee observes that the act of a single individual peacefully conveying a message regarding a reportedly unfair trial in a public place should not be subject to the same restrictions as those applying to an assembly. The Committee further observes that neither the State party nor the domestic courts have invoked any specific grounds, as required under article 19 (3) of the Covenant, to support the necessity of the restrictions imposed on the author. In particular, the State party has not demonstrated why obtaining prior formal authorization from local authorities before conducting a solitary protest was necessary for the protection of national security, public order, public health or morals, or for the respect of the rights or reputation of others. Neither has the State party demonstrated that the measures selected, i.e., finding the author guilty and imposing a fine of half the maximum amount under article 373, paragraph 1, of the Code of Administrative Offences, were the least intrusive in nature or proportionate to the interest it sought to protect. The Committee considers that, in the circumstances of the case, the limitations imposed on the author were not shown to be justified by a legitimate aim or necessary and proportional to such an aim pursuant to the conditions set out in article 19 (3) of the Covenant. It therefore concludes that the author’s rights under article 19 (2) have been violated.

11.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by Kazakhstan of article 19 of the Covenant.

12.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In the present case, the State party is under an obligation, inter alia, to review the author’s conviction and provide adequate compensation and appropriate measures of satisfaction, including reimbursement of any legal costs incurred by the author. The State party is also under an obligation to prevent similar violations in the future. In this connection, the Committee reiterates that, pursuant to its obligations under article 2 (2) of the Covenant, the State party should review its legislation, in particular the law on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations, as it has been applied in the present case, with a view to ensuring that the rights under article 19 of the Covenant may be fully enjoyed in the State party.

13.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy should a violation have been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views and to have them translated in the official languages of the State party and widely distributed.