Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2418/2014 * , **

Communication submitted by:Tazabek Sambetbai (represented by counsel, Bakhytzhan Toregozhina)

Alleged victim:The author

State party:Kazakhstan

Date of communication:7 December 2012 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 6 June 2014 (not issued in document form)

Date of adoption of Views:30 October 2020

Subject matter:Apprehension and conviction for an administrative violation and sentencing to a fine for participating in an unauthorized mass event

Procedural issues:Exhaustion of domestic remedies; substantiation of claims

Substantive issues:Freedom of association; freedom of expression

Articles of the Covenant:19 (2) and 21

Articles of the Optional Protocol:2 and 5

1.The author of the communication is Tazabek Sambetbai, a national of Kazakhstan born in 1980. He claims that Kazakhstan has violated his rights under articles 19 (2) and 21 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 June 2009. Theauthorisrepresentedbycounsel.

Facts as submitted by the author

2.1On28April2012,approximatelyatnoon,theauthor,asamemberoftheopposition,participatedinanddeliveredaspeechtoanunauthorizedpeacefulmeetingonapublicsquareinfrontoftheKazakhstanHotelinAlmaty.Priortotheevent,itsorganizerstriedtoobtainpermissiontoholditbuttheirapplicationwasdismissedbythelocalmunicipality(furtherdetailsarenotprovided).Theauthorwasnotamongtheorganizersoftheevent.Themeetingwasheldwiththeaimofprotestingagainstviolationsduringrecentparliamentaryandlocalmunicipalityelectionsandtocommemoratethevictimsofthemassacreof16December2011thattookplaceinZhanaozeninthewesternMangystauprovinceofKazakhstan.

2.2Theauthorexplainsthatsimilarpeacefulmeetingswereheldon17and28January,on25Februaryandon24March2012andthatduringthosemeetingsmanyparticipantswerearrestedandfoundguiltyofhavingcommittedanadministrativeoffence.

2.3On 28 April 2012, the author was apprehended and immediately brought before the specialized interdistrict administrative court of Almaty. On the same date, he was found guilty of participating in an unauthorized mass event under article 373 (1) of the Code of Administrative Offences of Kazakhstan (violation of regulations governing the organization or conduct of meetings, processions, pickets, assemblies or other mass events) and was fined 30,743 tenge.

2.4On 7 May 2012, the author appealed the decision of the specialized interdistrict administrative court before the Almaty city court. On 10 May 2012, the Almaty city court dismissed his appeal. Subsequently, the author lodged a complaint, on 25 May 2012, to the Office of the Prosecutor General contesting the judgment of 28 April 2012. On 31 May 2012, the Office of the Prosecutor General responded, stating that an additional revision would be conducted. The complaint was forwarded to the Office of the Prosecutor of Almaty, which, on 13 June 2012, rejected the complaint. On 27 July 2012, the Office of the Prosecutor of the Medeu district of Almaty also rejected the complaint. On 8 November 2012, the author lodged another complaint with the Office of the Prosecutor General contesting the judgment of 28 April 2012, but in vain. He explains that he has exhausted all available domestic remedies.

Complaint

3.1The author claims that the State party has violated his rights under article 19 (2) of the Covenant, as his right to freedom of expression was not guaranteed.

3.2He further claims that his rights under article 21 of the Covenant were violated, as the national authorities could not explain why the peaceful assembly of 28 April 2012 was prohibited.

3.3The author asks the Committee to urge the State party to hold accountable the persons responsible for the violation of his rights; ensure that the unjustified restrictions on freedom of assembly and freedom of expression are removed and that the relevant legislation is in line with articles 19 (2) and 21 of the Covenant; and guarantee that the organization of peaceful assemblies and the expression of opinion do not result in punishment.

State party’s submissions on admissibility

4.1On 5 August 2014, the State party presented its observations on the admissibility of the communication and requested the Committee to declare it inadmissible as unsubstantiated under article 5 (2) (b) of the Optional Protocol.

4.2The State party recalls the facts of the events of 28 April 2012 and submits that the author was convicted and sentenced to an administrative fine for an administrative offence under article 373 (1) of the Code of Administrative Offences by the specialized interdistrict administrative court of Almaty, and that the ruling was confirmed on appeal on 10 May 2012 by the Almaty city court. The State party notes that the author submitted a request to the Office of the Prosecutor of Almaty and the Office of the Prosecutor General to initiate a supervisory review of the decision of the administrative court before the Supreme Court, but his appeals were rejected.

4.3The State party submits that the format and the manner of expression of societal, group or personal interests in public places, as well as certain limitations on them, are established by Law No. 2126 of 17 March 1995 on the Procedure for the Organization and Conduct of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations. According to article 9 of the law, failure to comply with such procedural requirements entails liability. The author did not address a request to the executive authorities.

4.4The 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 a certain procedure has to be followed to organize an assembly. The State party refers to articles 2, 7, and 10 of the Law on the Procedure for the Organization and Conduct of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations, according to which the organizers should request authorization from the local executive authorities to hold an assembly; the local authorities can prohibit a mass event that has an illegal aim or the conduct of which threatens public order and the safety of citizens; and the local authorities can establish additional requirements for holding mass events. The author obtained no such authorization. He was therefore sanctioned for violating the procedures for holding an assembly.

4.5The State party recalls that international human rights law recognizes the need for certain limitations to be imposed on freedom of assembly. In Kazakhstan, special venues for assemblies have been allocated in order to protect the rights and freedoms of others and public order. The State party claims that the realization of the right to freedom of assembly in Kazakhstan is in full conformity with the Universal Declaration of Human Rights and the Covenant.

4.6The State party claims that the national courts carefully assessed the author’s claims that he did not commit any unlawful acts and found them unsubstantiated. The courts took into account the circumstances of the author’s case and found that the sanction applied was within the limits set out in article 373 (1) of the Code of Administrative Offences.

4.7The State party submits that chapter 40 of the Code of Administrative Offences provides for an exceptional procedure under which the author could have requested the Prosecutor General to initiate a supervisory review in his administrative case before the Supreme Court. By failing to resort to that procedure, the author has failed to exhaust domestic remedies.

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

5.1On 22 September 2014, the author provided comments on the State party’s observations. He submits that although, according to the State party, the rights under articles 19 and 21 of the Covenant are guaranteed in Kazakhstan and can only be restricted under certain circumstances, the State party has not explained why it was necessary to sanction him with an administrative fine.

5.2He claims that according to the international obligations assumed by the State party, any restrictions on freedom of assembly should be proportionate and applied depending on the specific circumstances of each case and that the involvement of the authorities in the process of organization of public events should be reduced to a minimum. 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 a request to the Office of the Prosecutor General to initiate a supervisory review before the Supreme Court. He also states that a further complaint to the Prosecutor General is not an effective remedy, since he has already received the response of the Office of the Prosecutor General, signed by the Deputy Prosecutor General, who had not found any grounds for the introduction of a supervisory protest motion.

State party’s submissions on the merits

6.1On 7 January 2015, the State party submitted its observations on the merits. It contends that no violation of the author’s rights under articles 19 and 21 of the Covenant have occurred in the present case. It also reiterates its inadmissibility argument. The State party reiterates that freedom of peaceful assembly is not prohibited in Kazakhstan, but is regulated by certain limitations.

6.2The State party submits that the author was found liable not for the realization of his right to freedom of assembly but for violation of the order concerning realization of the right to freedom of assembly as prescribed by the law.

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

7.1On 10 March 2015, the author provided comments on the State party’s observations. He submits that although, according to the State party, the rights under articles 19 and 21 of the Covenant are guaranteed in Kazakhstan and can only be restricted under certain circumstances, the State party has not explained why it was necessary to sanction him with an administrative fine.

7.2Theauthorsubmitsthat,inhiscase,theconvictionandtheadministrativesanctionimposedweretheconsequenceofhimparticipatinginapublicassemblythathadnotbeengivenapermitbythelocalauthorities.Hemaintainsthat,undersuchcircumstances,hisconvictionconstitutesarestrictiononhisfreedomofassembly.Hesubmitsthatsucharestrictionisnotcompatiblewitharticle21oftheCovenant.

7.3The author recalls the observations of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, according to which the law is an expression of the peoples’ will and is therefore meant to serve the people. The rule of law implies that individuals are free to enjoy their human rights without prior authorization from State authorities (A/HRC/29/25/Add.2, para. 91).

State party’s additional information

8.1On 11 February 2016, the State party submitted additional information reiterating its position in regard to the author’s submission.

8.2The State party refutes the author’s statement that there was no explanation as to why the limitation of the author’s rights was necessary. The 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, it could be restricted 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. In Kazakhstan, the maintenance of public order is the most important element of respect for human rights guaranteed by the law. The authorities should stop violations of public order and prevent administrative offences.

8.3The State party also submits that the apprehension of the author was lawful and conducted in order to protect public order, since the participants in the unauthorized assembly disturbed the people in the hotel and the public square. The author was therefore apprehended and found liable for participation in an unauthorized assembly in order to stop the violation of public order. The measure applied against him was the least limiting by nature and proportionate to protecting public order, that is, it was justified and proportionate.

8.4The State party submits that the citizens of Kazakhstan actively realize their rights to freedom of expression and freedom of assembly. Between 2012 and 2015, 130 public events were conducted. The author could have requested authorization for a public event.

8.5The State party also submits that the complaint of the author should be found inadmissible as incompatible with the provisions of the Covenant, since a violation claimed in a complaint should concern the rights which are protected by the Covenant. The Committee is generally not in a position to review a sentence imposed by national courts, nor can it review the question of innocence or guilt. It is also generally not in a position to review the evaluation of facts and evidence made by the national courts and authorities, nor can it review the interpretation of domestic legislation, unless the author of the communication can demonstrate that such evaluation was arbitrary or amounted to a manifest error or denial of justice, or that the courts otherwise failed in their duty of independence and impartiality.

8.6The State party submits that the claims of the author are not compatible with the above-mentioned principles. The author requests the Committee to go beyond its competence and to intervene in the internal affairs of an independent State, and to have a direct impact on public policies in the field of human rights. At the same time, the author has not provided any expert conclusions that the national law on freedom of association and freedom of expression contradicts international standards.

8.7The State party also submits that the appeal to the Prosecutor General is an effective remedy. The State party cites an example of an appeal to the Prosecutor General that was successful.

Author’s comments on the State party’s additional information

9.On 10 March 2016, the author reiterated all the previous information he had submitted to the Committee, claiming the communication admissible and substantiated.

State party’s additional information

10.1On2April2016,theStatepartysubmittedadditionalinformation.

10.2TheStatepartysubmitsthatthecomplaintshouldbefoundinadmissibleunderarticle3oftheOptionalProtocolandrule96(b)oftherulesofprocedureoftheCommitteesincetheauthorhasnotprovidedanyinformationastowhyhewasnotabletosubmithiscomplainthimselfwhentherulesofprocedureallowacomplainttobesubmittedbyarepresentativewhenapersonisnotabletodoithimself.

10.3TheStatepartyprovidedanotherexampleofanappealtotheProsecutorGeneralthatwassuccessful.

Issues and proceedings before the Committee

Consideration of admissibility

11.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

11.2As 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.

11.3The 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 Prosecutor General to initiate supervisory review proceedings under article 40 of the Code of Administrative Offences before the Supreme Court and that he has thus failed to exhaust domestic remedies. In that regard, the Committee notes that the author submitted a request to initiate supervisory review proceedings to the Office of the Prosecutor General on 25 May and 8 November 2012. His first request was rejected by the Office of the Prosecutor of Almaty on 13 June 2012 and by the Office of the Prosecutor of Medeu district on 27 July 2012. The Committee recalls its jurisprudence, according to which a petition to the office of a prosecutor to review 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. Accordingly, it considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining this part of the communication.

11.4The Committee takes note of the argument of the State party that the communication is inadmissible since it was submitted to the Committee by the author’s counsel and not by the alleged victim himself. In that respect, the Committee recalls that rule 99 (b) of its rules of procedure states that a communication should normally be submitted by the individual personally or by a representative of that individual, but that a communication submitted on behalf of an alleged victim may be accepted when it appears that the individual in question is unable to submit the communication personally. In the present case, the Committee notes that the alleged victim submitted his complaint himself and later obtained counsel, who presented a duly signed power of attorney to represent him before the Committee. Accordingly, the Committee considers that it is not precluded by article 1 of the Optional Protocol from examining the communication.

11.5The Committee notes that the author’s claim that his rights under articles 19 (2) and 21 of the Covenant have been violated, as he was sanctioned without justification for having participated in a peaceful assembly with others to protest against violations during recent parliamentary and local municipality elections and to commemorate the victims of the Zhanaozen massacre of 16 December 2011. The Committee considers that these claims have been sufficiently substantiated for the purposes of admissibility. It therefore declares them admissible and proceeds with its examination of the merits.

Consideration of the merits

12.1The 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.

12.2The Committee notes the author’s claim that by imposing an administrative fine on him for participating in a peaceful event, the State party violated his right to freedom of assembly. The author contends that he was apprehended just after a peaceful protest. The State party argues that in fact the author was apprehended for participating in an unauthorized public event. The Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, 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. Given the typically expressive nature of assemblies, participants must as far as possible be enabled to conduct assemblies within “sight and sound” of the target audience and no restriction on 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. While the right of peaceful assembly may in certain cases be limited, the onus is on the authorities to justify any restrictions. The authorities must be able to show that any restrictions meet the requirement of legality and are also both necessary for and proportionate to at least one of the permissible grounds for restrictions enumerated in article 21 of the Covenant. Where this onus is not met, article 21 is violated. The imposition of any restrictions should be guided by the objective of facilitating the right, rather than seeking unnecessary and disproportionate limitations to it. Restrictions must not be discriminatory, impair the essence of the right or be aimed at discouraging participation in assemblies or causing a chilling effect.

12.3TheCommitteeobservesthatauthorizationregimes,wherethosewishingtoassemblehavetoapplyforpermission(orapermit)fromtheauthoritiestodoso,undercuttheideathatpeacefulassemblyisabasicright(CCPR/C/MAR/CO/6,para.45,andCCPR/C/GMB/CO/2,para.41).Wheresuchrequirementsexist,theymustinpracticefunctionasasystemofnotification,withauthorizationbeinggrantedasamatterofcourseintheabsenceofcompellingreasonstodootherwise.Suchsystemsshouldalsonotbeoverlybureaucratic. Notificationregimes,fortheirpart,mustnotinpracticefunctionasauthorizationsystems(CCPR/C/JOR/CO/5,para.32).

12.4The Committee notes the author’s claim that the State party’s authorities or courts have not justified the imposition of his administrative fine for having participated in a peaceful, albeit unauthorized, assembly. 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 organizing and holding peaceful assemblies, meetings, marches, pickets and demonstrations. The Committee also notes the State party’s argument that the requirement to file a request is aimed at protecting public order, as well as the rights and freedoms of other citizens. The Committee further notes, however, the author’s claim that, although the restriction may have been lawful under national law, his apprehension and conviction were unnecessary in a democratic society for the pursuance of the legitimate aims invoked by the State party. The author further argues that the protest, in response to an important issue – recent parliamentary and local municipality elections and commemoration of the victims of the Zhanaozen massacre of 16 December 2011 – was peaceful and did not harm or endanger anyone or anything.

12.5The Committee notes that the State party relied on the provisions of the law on public events, which requires a request to be made 10 days prior to the event and the permission of the local executive authorities, these constituting restrictions to the right of peaceful assembly. The Committee recalls that freedom of assembly is a right, not a privilege. Restrictions on this right, even if authorized by law, must also meet the criteria under the second sentence of article 21 of the Covenant, in order to comply with the Covenant. The Committee further notes the State party’s observation that the author’s apprehension was needed for the protection of public order, because the participants in the assembly disturbed people and the functioning of public transport. In that connection, the Committee observes that restrictions imposed for the protection of “the rights and freedoms of others” may relate to the protection of Covenant or other human rights of people not participating in the assembly. At the same time, assemblies are a legitimate use of public and other spaces and since they may entail by their very nature a certain level of disruption to ordinary life, such disruptions have to be accommodated, unless they impose a disproportionate burden, in which case the authorities must be able to provide detailed justification for any restrictions. The Committee also observes that “public order” refers to the sum of the rules that ensure the proper functioning of society, or the set of fundamental principles on which society is founded, which also entail respect for human rights, including the right of peaceful assembly. States parties should not rely on a vague definition of “public order” to justify overbroad restrictions on the right of peaceful assembly (CCPR/C/KAZ/CO/1, para. 26, and CCPR/C/DZA/CO/4, para. 45). Peaceful assemblies can in some cases be inherently or deliberately disruptive and require a significant degree of toleration. “Public order” and “law and order” are not synonyms and the prohibition of “public disorder” in domestic law should not be used to unduly restrict peaceful assemblies. However, the Committee notes that the State party has not provided any specifics as to the nature of the disturbance occasioned by the assembly in question, nor any information as to how it crossed the threshold of permissible disruption.

12.6The Committee recalls that article 21 of the Covenant provides that any restrictions must be “necessary in a democratic society”. Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient. Such restrictions must be appropriate responses to a pressing social need, related to one of the permissible grounds in article 21. They must also be the least intrusive among the measures that might serve the relevant protective function. Moreover, they must be proportionate, which requires a value assessment, weighing the nature and detrimental impact of interference in the exercise of the right against the resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible. The Committee further observes that the State party has not demonstrated that the author’s administrative fine for participating in a peaceful public protest was necessary in a democratic society to pursue a legitimate aim or was proportionate to such an aim in accordance with the strict requirements under the second sentence of article 21. The Committee also recalls that any restrictions on participation in peaceful assemblies should be based on a differentiated or individualized assessment of the conduct of the participants and the assembly concerned. Blanket restrictions on peaceful assemblies are presumptively disproportionate. For these reasons, the Committee concludes that the State party has failed to justify the restriction on the author’s right, especially since the author was not an organizer of the event, and thus the State party has violated article 21 of the Covenant.

12.7The Committee also notes the author’s claim that his right to freedom of expression under article 19 of the Covenant was violated. The Committee must therefore decide whether the limitations imposed on the author are allowed under one of the permissible restrictions laid out in article 19 (3) of the Covenant.

12.8The Committee notes that sanctioning the author for expressing his views through participation in a public protest interfered with his right to impart information and ideas of any kind, as protected under article 19 (2) of the Covenant. The Committee recalls that article 19 (3) of the Covenant allows certain restrictions, but these shall only be such as are provided by law and are necessary for respect for the rights or reputations of others and for the protection of national security or of public order (ordre public) or of public health or morals. The Committee refers to its general comment No. 34 (2011), in which it stated that the freedoms of opinion and expression were indispensable conditions for the full development of the person and were essential for any society. Those freedoms constitute the foundation stone for every free and democratic society. Any restriction on the exercise of those 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 were predicated. The Committee recalls that it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 were necessary and proportionate.

12.9Regarding the restriction on the author’s freedom of expression, the Committee recalls that political speech enjoys a heightened level of accommodation and protection as a form of expression. The Committee notes the author’s claim that the assembly was held to protest against recently conducted elections and to commemorate the victims of the Zhanaozen massacre of 16 December 2011. In the absence of any pertinent information from the State party explaining how the restriction was in line with the provisions of article 19 (3) of the Covenant, the Committee concludes that the author’s rights under article 19 (2) of the Covenant have been violated.

13.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 articles 19 (2) and 21 of the Covenant.

14.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 take appropriate steps to provide the author with adequate compensation and reimbursement of any legal costs incurred by him. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring 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 with a view to ensuring that the rights under articles 19 (2) and 21 of the Covenant, including organizing and conducting peaceful assemblies, meetings, processions, pickets and demonstrations, may be fully enjoyed in the State party.

15.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 disseminate them widely in the official languages of the State party.