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Statement by the Special Rapporteur on the rights to freedom of peaceful assembly and of association at the conclusion of his visit to the Republic of Kazakhstan

Astanam, 27 January 2015

I would like to thank the Government of the Republic of Kazakhstan for inviting me to undertake this official mission here. The Government of Kazakhstan has standing invitations to Special Rapporteurs and I appreciate that it readily agreed dates for this visit. This is a positive step that I take as expressive of the Government’s willingness to engage in a constructive dialogue on the rights to freedom of peaceful assembly and of association, among other human rights. I am delighted to have had this chance to visit Kazakhstan and learn more about it.

I would also like to thank the people I met for the cooperation, kindness and hospitality extended to my team and I throughout the mission. They have confirmed Kazakhstan’s well-known tradition and reputation of warmth to visitors.
I thank the Government of Kazakhstan for its co-operation before and during this mission, including facilitating my visit to meet Mr. Vladimir Kozlov, the jailed leader of Alga! party who is serving a seven-and-a-half-year jail term.

I have met a variety of interlocutors including members of the executive, legislative and judicial branches and have had productive exchanges. I also met representatives of central authorities in Astana, representatives of regional and local authorities in Almaty City, Mangistau Oblast and Zhanaozen Town.

In addition I met with courageous human rights defenders including members of civil society organizations, and independent trade unions who are engaged in critically important work to strengthen the rule of law in Kazakhstan. I was moved by survivors and victims of grievous human rights violations, who remain focused and determined despite their losses during the Zhanaozen crisis of December 2011.

However, I must state that I am deeply disappointed by an incident that has left me very worried about the safety of individuals I met during my trip, and generally concerned about the situation of human rights in Kazakhstan.

While in Aktau city, I held a meeting with members of civil society on 23 January 2014. As we left the meeting venue, I learned that unknown persons, sitting in the back seat of a vehicle parked directly facing the entrance of the venue, were taking photographs of individuals leaving the building. They also took photographs of my driver. All this was done using equipment, and in a manner commonly associated with secret police surveillance.

I approached the men and demanded to know who they were and the purpose in taking the photographs; they then hurriedly drove off without responding.

I made a formal complaint to the Head of the Mangistau oblast Interior Department and provided details of the incident. I was assured that full investigations would be made. Prior to leaving Aktau on 24 January 2014, I received word that a suspect had been apprehended. I met with this person at Aktau airport but he is not the person I confronted in the parking lot.

I am deeply disturbed at this incident, but more so at the subsequent handling of the issue by the authorities in Aktau. They identified the wrong person, including presenting a “confession” purportedly written by this person. I am concerned that the handling of this incident is indicative of a general unwillingness to properly protect human rights in the country, and of a sense of impunity by some officials. I believe that the local authorities know who was taking the pictures of the people leaving the meeting, and that this incident was calculated to instill fear and intimidation.

The authorities must ensure the safety of all the individuals I met with and guarantee that they will not be subjected to any form of reprisals – including threats, harassment, punishment or judicial proceedings as required by Human Rights Council Resolutions 24/24 and 12/2 and in the Terms of Reference for country visits by Special Procedures of the Council. I have asked all the human rights defenders I have met, and I ask them again today, to report any cases of reprisals to me and to the UN system if they occur. I have raised this issue with government authorities in Astana, and I have been assured that no reprisals will occur and that they will look into this and other incidents of deliberate intimidation. I will hold them to their word.

Kazakhstan has been independent for 23 years and has made admirable progress since. The level of economic growth and infrastructural development, not least of which is the construction of the new capital in Astana, is impressive. Kazakhstan aspires to join the top 30 developed countries by 2050 and has marshalled its potential and resources – natural, human and financial – towards this a worthy goal.

I commend the people and the Government of Kazakhstan on their economic progress so far. And I have no doubt that with the energy and commitment I have witnessed during my visit, Kazakhstan can become, with the necessary political reforms, a beacon of democracy and development not just in the Central Asia region, but globally.

Kazakhstan’s population is ethnically and culturally diverse, adhering to various religions but all living in relative harmony. I applaud the Government’s efforts to ensure stability and cohesion, particularly in relatively challenging and complex geopolitical circumstances.

It is nevertheless crucial to emphasize that maintaining stability is often misused to wrongfully curtail the rights to freedom of peaceful assembly and of association. This approach is misguided. The robust exercise of human rights and the maintenance of peace and harmony are mutually reinforcing goals. Indeed, the best guarantor of stability is ensuring that all people living in Kazakhstan fully enjoy their rights as endorsed by the Government through its voluntary ratification of international human rights law.

Various government officials that I met with mentioned the necessity of limiting peaceful assembly for fear of a revolution such as the recent Maidan events in Ukraine. While I understand the significant challenges that facilitating an assembly as large as Maidan may pose, I do not accept this as a legitimate ground for restricting the right. The circumstances in Ukraine were vastly different from those prevailing in Kazakhstan, which has a government that enjoys significant popular legitimacy and approval.

It is, in fact, in the Government’s interest to allow freedom of peaceful assembly as a safety valve that protects against more serious turmoil in society. People who are not allowed to air their grievances peacefully are more likely to air them violently, or find succor in extremist ideologies.

The free exercise of peaceful assembly and association rights presents authorities with unique insights into the challenges that people are facing. This is especially important in a country as large as Kazakhstan: There is no better way to understand the needs of people far from Astana, and no better check and balance to local authorities.

Human rights and in particular the rights to freedom of peaceful assembly and of association foster Government accountability, ethnic equity, cultural diversity, tolerance, participation and good governance. I have no doubt that more tolerance and openness to free expression, especially of criticism, dissent and opposition, will serve to build a more just and stable society and strengthen the foundations of the vision of development espoused by the people and Government. This would be a fitting legacy for generations to come – one that would resonate until 2050 and beyond.

I would like to highlight some persistent challenges that I have identified with respect to the rights to Freedom of Assembly and Association.

There is very limited space for the expression of dissenting views. There is a general fear of engaging in oppositional political activity or expression within the population for various reasons, including through legislation that seeks to control the civil society sector, imposes serious punishments for organizing and participating in peaceful assemblies, stigmatizes and criminalizes dissent, facilitates the imprisonment of opposition political figures, and in general perpetuates a narrative that portrays critical political expression as threatening the stability of the State. There is a distinct lack of confidence and trust in the judiciary.

Although authorities repeatedly make reference to the “rule of law”, the practice in Kazakhstan reflects strong adherence to “rule by law,” perhaps a holdover from the past Soviet era. Law is meant to serve people, rather than people serving the law, with the guiding spirit being one that supports the dignity of the person as the key subject of the law. I strongly urge the government to not only pay attention to the technical requirements of its human rights obligations, but also the conceptual framework that informs these obligations.

Indeed it was remarkable that in many of the meetings I had with Government officials, the emphasis was on the restrictions to the rights rather than the rights themselves. This is a misconstruction of human rights, where the focus must be on facilitating and enjoying the right first and foremost, before restrictions which need to be interpreted narrowly.
I have emphasized that I remain at the disposal of the Government should it require technical assistance in fulfilling its international human rights obligations. It would be my honor and privilege to assist in any way I can.

With these broader concerns and in a spirit of cooperation and constructive dialogue, I wish to make more specific preliminary observations and recommendations.

Freedom of Association:

The Constitution of Kazakhstan protects the right and freedom to form associations. However, from my observations and discussions with various interlocutors, this right is severely constrained by various laws that affect the establishment and operation of associations and also in practice. This is true for political parties, public associations, trade unions and religious associations.

On 1 January 2015, a new Criminal Code and Code on Administrative Offences, entered into force – both of which contain broad provisions that could potentially criminalize and penalize legitimate activities of associations and their members. Of particular concern is article 174 on incitement of discord – which also existed under the previous Criminal code and was used against individuals exercising their legitimate rights to freedom of expression, association and peaceful assembly. The new provision also increased the maximum penalty from 12 years to 20 years imprisonment.

The law regulating the establishment of political parties is problematic as it imposes onerous obligations prior to registration, including high initial membership requirements that prevent small parties from forming and extensive documentation that requires time and significant expense to collect. I am also concerned by the broad discretion granted to officials in charge of registering proposed parties. The process lacks transparency and, disturbingly, the law allows for perpetual extensions of time for the government to review the party’s application.

It is also of concern that it is the Executive that has responsibility to register political parties that will ultimately compete with it for power. It is not surprising then that independent and critical parties find it impossible to get this registration from a competitor.

For example, People’s Party Alga! tried unsuccessfully to register for seven years, ostensibly because membership of the party was never certified by authorities. Alga! was later banned for allegedly being an “extremist” organization though this definition is not clearly spelled out.

I urge the establishment of a body independent of Executive, legislative and judicial control that can be entrusted with the responsibility for registration and regulation of political parties.

The concern over extremism has hampered the association rights of religious groups as well. Interlocutors informed me that authorities exercise close and excessive control on the activities of religious organizations. Thus they are subjected to mandatory re-registration leading to many religious groups being denied registration. Small religious groups with membership of less than 50 individuals cannot obtain registration, and cannot engage routinely in religious observances as a result, even when held in private venues.

The Law on Religious Activities and Religious Associations as well as recent amendments to the laws on counteracting extremism and terrorism also warrant mention, as does the 2014 law on trade unions, which imposes mandatory affiliation of trade unions to regional or sectoral federations, thus limiting the freedom to form independent trade unions.

I was informed of several associations that have been denied registration despite several attempts based on what appear to be flimsy reasons, such as mistakes in completing the application, or discrepancies in translation of the Kazakh-Russian texts. In some cases, associations were refused registration on the grounds that an association with similar objectives already existed. I am troubled by such justifications. Would the authorities deny a business license to a new restaurant because another restaurant already exists in the same town?

I urge the government to engage in a thorough review of the broad legal framework that regulates and guides the implementation of the right to freedom of association with a view to bringing it into compliance with international human rights standards, and with its aspirations to be a top nation in the next years. Provisions that violate the presumption in favor of the freedom of association and other core elements of the right should be repealed or amended.

Freedom of peaceful assembly

Although the right to freedom of peaceful assembly is guaranteed by Kazakhstan’s Constitution, the Government’s approach to regulating assemblies deprives the right of its meaning. First, all assemblies must be authorized by local authorities. Second, these authorized assemblies can only be held at specific designated sites, preventing organizers and participants from choosing venues they consider appropriate to express their views and grievances.

In Almaty, for example, I visited “Sari Arka” square, which is the only site in the city where gatherings are allowed. The location deprives participants of the right to express their views and opinions within “sight and sound” of their targeted audience. Moreover, the square is located a considerable distance from the city center and in a residential area, which may actually put the safety of demonstrators, bystanders and inhabitants at risk.

In rationalizing these restrictions, authorities frequently cited traffic issues and concerns about assemblies being disruptive and impairing “the rights of others.” These are legitimate concerns, but should not supersede the right. To be sure, the right to freedom of peaceful assembly may be subject to certain limitations. But international human rights law is clear that limitations on this right cannot impair the essence of the right itself. The right must come first before the limitations, and only narrowly then. Unfortunately, in Kazakhstan today the freedom of assembly is treated as a privilege, or a favor, rather than a right.

Cities around the world—in both rich and poorer countries--manage to host public peaceful assemblies and marches every day without seriously restricting people’s rights. No doubt it is a challenging task. But I am confident that Kazakhstan can manage this well given its achievements and capacity. And I remain at the Government’s disposal for further co-operation on this issue should the Government deem it necessary.

During my visit, individuals from around the country announced plans to organize peaceful public assemblies in eight cities between 24 and 27 January 2015. According to the information I received, the local authorities rejected the requested location of these assemblies, while some people were held in preventive detention, preventing them from even seeking to exercise their rights. A few assemblies eventually took place in designated areas.

During my visit, I noted with appreciation that the few assemblies that have been allowed to take place in recent years were carried out peacefully with limited use of force by law enforcement officials. I believe this illustrates a high degree of responsibility by all sides, which the authorities should build on to further widen the democratic space.

But, I would also like to underline that the provisions of the Law on Public Gatherings, where organizers are held responsible for public safety, should be amended, as the duty to maintain public order lies exclusively with authorities.

The Government of Kazakhstan is well aware of the challenges I am highlighting, as it committed to revise its legislation governing assembly on the occasion of its Universal Periodic Review before the UN Human Rights Council in 2010. This commitment is commendable, but it is now time to turn from words to action. A few weeks ago, the UN Human Rights Committee also ruled that Kazakhstan was under the obligation to “review its legislation, in particular the Law on the Order of Organization and Conduct of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations”.

I am pleased that the Government recently formed a collaborative Human Dimension Dialogue Platform to guide the law reform efforts. I urge the Government to not only take account of the Platform’s technical recommendations but also the conceptual framework that guides these recommendations. I would like to reiterate that I stand ready to assist the Government of the Kazakhstan in any way it would deem it useful.

Zhanaozen Crisis:

Few issues illustrate the challenges facing human rights in Kazakhstan as the crisis in Zhanaozen. I visited the town and met with victims and survivors. The pain and anger is still raw, despite efforts by authorities to mitigate some of the fundamental reasons that led to the strike. I commend the Government for increasing resources to the region--and making sure that the resources get there--as well as for ensuring that most of the striking workers are now gainfully employed.

I discussed the tragic crisis of December 2011 with the Office of the General Prosecutor, the relatives of those who lost their loved ones, and with numerous workers who were peacefully assembled on December, 16th 2011 as well as by-standers. I also met with Rosa Tuletaeva. There is conflicting information about the events on that day, in particular the actions of the workers, possible agent provocateurs, and police actions. Indeed to this day, survivors and victims do not believe that justice was done, nor seen to be done.

Three years after the crisis, I am deeply troubled that the wounds have not healed. I therefore join the call of the UN High Commissioner for Human Rights for an independent international inquiry into the crisis. Only an independent investigation can comprehensively shed light into the crisis, restore trust in the justice system and allow healing the victims, including through compensation and construction of appropriate memorials.

I also received credible information of torture in detention of the striking workers, bystanders and others arrested on and after December 16, 2011. I am disturbed by these allegations, and also by the fact that these allegations were not promptly and effectively investigated. I am especially disturbed about the situation of Maksat Dosmagambetov who has developed cancer.

It is worth noting that Kazakhstan recently adopted a zero-tolerance policy towards torture. This is commendable, and should be implemented retroactively to ensure that the convictions of the striking workers were not based on coerced evidence, and that those tortured but not charged get justice. I strongly encourage the Office of the General Prosecutor to investigate the allegations of torture and take appropriate follow up action to ensure that the right to a fair trial of those convicted has not been violated.

The tragic events in Zhanaozen have had a profound impact on the perception of peaceful protests in the country. However, in the process of democratization and liberalization envisaged by State authorities, encouraging disparate or opposing views will be seen as a sign of a dynamic and democratic society. I have no doubt that such an approach will positively contribute to social peace and harmony and to accelerated economic growth in the country, and ultimately will benefit the people in Kazakhstan. I have no doubt that the success that Kazakhstan has had in implementing economic reforms can similarly be directed towards civil and political rights reform. I am confident that with the requisite political will this shift can be made.

I thank you for your attention.