Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2309/2013 * , **

Com munication submitted by:Anar Abildayeva (represented by counsel, Bakhytzhan Toregozhina)

Alleged victim:The author

State party:Kazakhstan

Date of communication:5 July 2013 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 6 December 2013 (not issued in document form)

Date of adoption of Views:29 March 2019

Subject matter:Sanctioning of the author for participation in a peaceful assembly

Procedural issues:Exhaustion of domestic remedies; substantiation of claims

Substantive issues:Freedom of opinion and expression; freedom of assembly

Articles of the Covenant:19 and 21

Article of the Optional Protocol:5 (2) (b)

1.The author of the communication is Anar Abildayeva, a citizen of Kazakhstan born in 1992. She claims that Kazakhstan violated her rights under articles 19 and 21 of the Covenant. The author is represented by counsel. The Optional Protocol entered into force for Kazakhstan on 30 September 2009.

The facts as submitted by the author

2.1On 15 June 2012, the author participated, with her colleagues, in a public protest against the arrest earlier on the same day of theatre director Bolat Atabaev and journalist Zhanbolat Mamai. Since the protest was a spontaneous, urgent reaction to the arrest, no authorization was sought from the city authorities.

2.2.On 28 June 2012, the Specialized Inter-district Administrative Court of Almaty found the author guilty of an administrative offence under article 373 (3) of the Code of Administrative Offences. The Court found that the author had participated in an unauthorized assembly in violation of the law on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations. As the author had committed a similar offence earlier the same year, the Court sentenced her to 10 days of administrative detention.

2.3.On 4 July 2012, the author submitted an appeal to the Almaty Court of Appeals. Referring to article 19 of the Covenant, the author maintained that she was arrested only for expressing her opinion. She acquiesced to the fact that she had not respected the rule by which requests for authorization must be submitted 10 days in advance of holding a protest, but argued that this was because of the urgent need to react to the arrest of the theatre director and the journalist. She underlined that the protest had been peaceful and had not presented any threat to public order or security, the protection of health or morals or the rights or freedoms of others.

2.4On 5 July 2012, the Almaty Court of Appeals confirmed the decision of the Administrative Court and dismissed the author’s appeal, finding that she had failed to obtain authorization for the assembly, as required by the law on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations. On 19 July 2012, the author submitted a request to the General Prosecutor’s Office to initiate a supervisory review of the Administrative Court’s decision before the Supreme Court. Her request was transmitted to the Almaty City Prosecutor’s Office, which rejected it on 20 May 2013. The author submitted another request for a supervisory review to the General Prosecutor’s Office on 23 May 2013. Her request was rejected on 28 June 2013.

2.5The author submits that the authorities continue to practice a restrictive approach to freedom of expression and freedom of assembly by either prohibiting the organization of peaceful assemblies or authorizing them in specially designated remote places in the suburbs. In addition, any spontaneous gathering to react to urgent situations is rendered impossible by the requirement to submit requests for authorization 10 days in advance of holding a meeting.

The complaint

3.1The author claims that her unjustified arrest and sentencing to 10 days of administrative detention for expressing her opinion in a peaceful assembly violated her rights under articles 19 and 21 of the Covenant.

3.2The author requests the Committee to urge the State party to hold accountable the persons responsible for the violation of her rights and to provide her with compensation for 10 days of administrative detention; to ensure that the unjustified restrictions to the freedom of assembly are lifted and that the respective legislation is brought into line with article 21 of the Covenant; and to guarantee that the organization of peaceful assemblies does not result in punishment.

State party’s observations on admissibility and the merits

4.1In a note verbale dated 23 January 2013, the State party submitted its observations, arguing that the communication was inadmissible and unsubstantiated under article 5 (2) (b) of the Optional Protocol. The State party submits that article 40 of the Code of Administrative Offences provides for an exceptional procedure under which the author could have requested the General Prosecutor to initiate a supervisory review of her administrative case before the Supreme Court. By not resorting to that procedure, the author has failed to exhaust domestic remedies.

4.2The State party recalls that the rights enshrined in articles 19 and 21 of the Covenant are subject to certain limitations. While stating that freedom of peaceful assembly is not prohibited in Kazakhstan, the State party explains that there is a certain procedure to follow in order to carry out an assembly. The State party refers to article 2 of the law on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations, according to which organizers should request authorization from local executive authorities to hold an assembly. According to article 9 of that law, failure to comply with such procedural requirements entails liability. The author did not obtain such authorization. She was sanctioned, therefore, not for expressing her opinion but for violating the procedure for carrying out an assembly at which her opinion was expressed.

4.3Domestic courts assessed carefully the author’s claims that she did not commit any unlawful acts and found them unsubstantiated. The courts took into account the circumstances of the author’s case and the sanction applied was within the limits set out in article 373 (3) of the Code of Administrative Offences.

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

5.1On 20 February 2014, the author provided comments on the State party’s observations. She submits that although, according to the State party, the rights under articles 19 and 21 of the Covenant are guaranteed in Kazakhstan and can be restricted only under certain circumstances, the State party did not explain why it was necessary to sanction her to 10 days of administrative detention. To protest her detention, she went on hunger strike for its duration.

5.2The author believes that she was punished for expressing her political opinion, which was not in line with the official State policy. She claims that, according to international obligations assumed by the State party, any restrictions on freedom of assembly should be proportionate and take into account the specific circumstances of each case; that the involvement of the authorities in the process of organizing public events should be reduced to a minimum; and that ending assemblies by force should be a measure of last resort. The author alleges that the State party ignores and violates these principles.

5.3The author claims to have exhausted all available domestic remedies, including submitting to the General Prosecutor’s Office a request for the initiation of a supervisory review before the Supreme Court.

State party’s additional observations

6.On 19 May 2014, the State party reiterated its initial observations.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before 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.

7.2As 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.

7.3The Committee notes the author’s claim that all available domestic remedies have been exhausted. It also notes the State party’s observation that the author has not requested the General Prosecutor to initiate supervisory review proceedings before the Supreme Court and has thus failed to exhaust domestic remedies. In that regard, the Committee notes that the author submitted requests to the General Prosecutor’s Office for the initiation of a supervisory review on 19 July 2012 and on 23 May 2013. Her requests were rejected by the Almaty City Prosecutor’s Office on 20 May 2013 and by the General Prosecutor’s Office on 28 June 2013. The Committee further recalls its jurisprudence, according to which a petition to a court or to the prosecutor’s office requesting a review of court decisions that have taken effect and depend on the discretionary power of a judge or a prosecutor constitutes 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. The State party has not shown, however, that petitions under supervisory review procedures have been applied successfully in cases concerning freedom of expression and assembly. Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

7.4The Committee considers that the author has sufficiently substantiated her claims under articles 19 and 21 of the Covenant for the purposes of admissibility. It therefore declares the communication admissible and proceeds with its examination of the merits.

Consideration of the merits

8.1The Committee has considered the present communication in the light of all the information submitted by the parties, in accordance with article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s claim that, by sentencing her to 10 days of administrative detention for holding a peaceful assembly, the State party violated her rights to freedom of expression and freedom of assembly. The Committee also notes the State party’s claim that the author was sentenced to administrative detention for organizing a public event without obtaining permission from the local authorities and not for expressing her opinion.

8.3The Committee notes that sanctioning the author for expressing her opinion through participation in a public protest interfered with her right to impart information and ideas of any kind, as protected under article 19 (2) of the Covenant. The Committee must therefore decide whether the limitations imposed on the author are allowed under one of the restrictions laid out in article 19 (3).

8.4The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, according to which freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. Those freedoms are essential for any society and constitute the foundation stone for every free and democratic society (para. 2). The Committee recalls that, in accordance with article 19 (3) of the Covenant, certain restrictions may be applied only as are provided by law and are necessary: (a) for respect of the rights or reputation of others; and (b) for the protection of national security or of public order (ordre public), or of 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. 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. The Committee further recalls that it is up to the State party to demonstrate that the restrictions on the rights under article 19 are necessary and proportionate. The State party contends that the author violated a procedure for obtaining permission for an assembly, but does not otherwise respond to the author’s allegations. In particular, the State party does not attempt to demonstrate that the author’s detention was proportionate to a legitimate government aim. The Committee considers that, in the circumstances, the prohibition imposed on the author was not justified by the State party 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) of the Covenant have been violated.

8.5As to the author’s allegations that her rights under article 21 of the Covenant were violated, the Committee recalls that the right to peaceful assembly is a fundamental human right that is essential for the public expression of an individual’s views and opinions and indispensable in a democratic society. That right entails the possibility of organizing and participating in a peaceful assembly in a public location. The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience and no restriction to that right is permissible unless it is: (a) imposed in conformity with the law; and (b) necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. When a State party imposes restrictions with the aim of reconciling an individual’s right of peaceful assembly and the aforementioned interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it. The State party is thus under the obligation to justify the limitation of the right protected by article 21 of the Covenant.

8.6The Committee notes the author’s claim that the State party has not justified imposing administrative detention on her for having participated in a peaceful, albeit unauthorized, assembly, and that the requirement to submit requests for authorization 10 days in advance of holding an assembly means that the law does not allow for spontaneous assemblies. The Committee also notes the State party’s submission that the restriction was imposed on the author in conformity with the Code of Administrative Offences and the provisions of the law on the organization and conduct of peaceful assemblies, meetings, processions, pickets and demonstrations.

8.7The Committee notes that it has dealt with similar cases in respect of the same laws and practices of the State party in a number of earlier communications. The Committee observes, again, that the State party has not attempted to demonstrate that the imposition of administrative detention on the author for participation in a peaceful public protest was necessary in a democratic society and proportionate to the interests 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, as required under article 21 of the Covenant. The State party has also failed to demonstrate why spontaneous assemblies are not protected. Limitations on the right in question, even if authorized under domestic law, must also be justified in terms of those criteria. The Committee therefore concludes that the State party has violated article 21 of the Covenant.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under articles 19 (2) and 21 of the Covenant.

10.Pursuant to 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. Accordingly, the State party is obligated, inter alia, to provide the author with adequate compensation, including reimbursement for any legal costs incurred by her. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In that connection, the Committee reiterates that, pursuant to its obligations under article 2 (2) of the Covenant, the State party should review its legislation with a view to ensuring that the rights under articles 19 and 21 of the Covenant, including the right to organize and conduct peaceful assemblies, meetings, processions, pickets and demonstrations, may be fully enjoyed in the State party.

11.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 and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, 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 present Views and to have them widely disseminated in the official languages of the State party.