The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ms. Fionnuala Ní Aoláin, conducted an official visit to Kazakhstan from 10-17 May 2019 at the invitation of the Government to assess Kazakhstan’s counter-terrorism laws, policies and practices, measured against Kazakhstan’s international human rights obligations.
The Special Rapporteur commends the constructive and cooperative way in which the Government facilitated her visit, which enabled a frank and open dialogue. The Special Rapporteur notes her particular thanks to the Ministry of Foreign Affairs for its well-organized and efficient engagement with her office. She thanks the OHCHR Regional Office for Central Asia in Bishkek, Kyrgyzstan and the Human Rights Officer as well as the OHCHR focal point in Kazakhstan for their excellent work in supporting this visit.
The Special Rapporteur met with the Human Rights Commissioner; the Deputy Prosecutor General; the Chairman of the Committee on Financial Monitoring of the Ministry of Finance; the Chairperson of the Committee of the Penitentiary System of the Ministry of Internal Affairs; the Deputy Minister of the Interior; the Deputy Minister of Foreign Affairs; the Head of Department of the National Security Committee; the Chairperson of the of the Anti-Terrorist Centre; the Chairperson of the Constitutional Council; the Chairperson of the Judicial Panel of the Supreme Court; the Chairperson of the Committee on International Affairs, Defence and Security of the Lower Chamber of the Parliament; the Minister of Information and Public Development; and the Deputy Minister of Justice. She also met with lawyers, civil society organizations and activists and had a chance to discuss with the United Nations Country Team. The Special Rapporteur visited a temporary detention facility in Taldykorgan, where she interviewed several prisoners convicted for crimes related to terrorism. The Special Rapporteur was particularly pleased to have the opportunity to visit the Aktau ‘adaptation centre’, where she was able to meet with returnees from zones of conflict in Syria, as well as officials and staff managing the centre.
While in Kazakhstan the Special Rapporteur travelled to Nur-Sultan, Almaty and Aktau.
The Special Rapporteur commends the Government of Kazakhstan for the return of approximately 278 mostly women and children from conflict sites in Syria and Iraq, with several repatriation operations in both January and on 7 and 9 May 2019 coinciding with her visit. She affirms that not only is this the positive implementation of Kazakhstan’s international obligations under Security Council resolution 2178, it is also a welcome humanitarian response to the plight of those women, men and children who are detained in overcrowded in North-eastern Syria in inhuman conditions. She notes the continued willingness of the Government to close the impunity gap from Syria and to prosecute those individuals against whom there is sufficient evidence of criminal behaviour. She wishes to thank the Government for providing her access to the camp in Aktau where the latest returnees are currently held.
Context in Kazakhstan
Kazakhstan has been independent for nearly thirty years and has made considerable economic progress in this time. Sustained economic development, infrastructure construction, urban growth and expansive policy planning has given the country an economic platform and an important regional and global voice. She notes particular emphasis on youth policy, employment, and education in line with the United Nations Sustainable Development Goals. Kazakhstan is a diverse multi-ethnic society with substantial human resources and capacity. Religious pluralism is a hallmark of Kazakhstan’s society traceable far back in history, including a long-standing tolerance for religious diversity specifically for established religious communities.1 The Special Rapporteur’s visit Kazakhstan coincides with a time of critical political transition as President Nazarbayev who has served as the country’s President since 1991 has stepped down, and Presidential elections are pending.
The Global Counter-Terrorism Index ranks Kazakhstan in a lower risk category for terrorism (2.23),2 with an average of 1.21 risk from 2002-2017. Officials from the National Security Committee confirmed that since 2016 Kazakhstan has been on the lowest level of its own national assessment of terrorism threat.3 Kazakhstan has experienced some distinct acts of terrorism such as in Atyrau in 2011 and Atkobe in 2016. The Ministry of Foreign Affairs listed 11 terrorist attacks carried out in the previous 7 years, and further prevention of 30 acts of terrorism but little information beyond these statistics were provided in respect of this data point. The return of foreign fighters poses recognized security, management and rehabilitation challenges.
The scope of criminalisation of terrorist and extremist offences
The Special Rapporteur has closely examined a range of provisions found in Kazakhstan’s Criminal Code pertaining to a range of offences including terrorism, financing of terrorism, membership of a terrorist organization and related offences. She notes that despite amendments to counter-terrorism and extremism legislation in January 2017, much of the domestic law regulating a range of terrorism-related offences is broad and ambiguously worded. In particular, the Special Rapporteur notes the language of ‘socially dangerous consequences’ (article 255 of the Criminal Code), the criminalisation of ‘propaganda of terrorism or public calls for commission of an act of terrorism” (article 256 of the Criminal Code) and of ‘propaganda or public calls for violation of the integrity of the Republic of Kazakhstan’ (article 180 of the Criminal Code) which lack sufficient element of intent but also contain extremely general terms that render them liable to arbitrary application to silence the legitimate expression of the media and journalists.4 Article 257 of the Criminal Code, which addresses creation, management and participation of/in a terrorist group has broader consequences when the group in question is designated as a religious association which has been designated as extremist or terrorist, creating a layered and overlapping set of categories which, in the Special Rapporteur’s view, may infringe upon religious freedom and have disproportionate elements in application. The Special Rapporteur is also of the view that the provision relating to the financing of terrorism (article 258 of the Criminal Code) is overly broad particularly in light of the substantial criminal, civil and administrative consequences that convictions of terrorism financing carry.
The Special Rapporteur notes her serious concern about the use of the terminology of ‘extremism’ in national law and practice.5 She points out that while there is acknowledgment of the challenges of “violent extremism” in some Security Council resolutions as evidenced in the Secretary-General’s 2016 Plan of Action to Combat Violent Extremism6 , some human rights treaty bodies have noted their concern in relation to the use of the term “extremist” activity,7 which her mandate shares. She takes the view that the term “extremism” has no purchase in binding international legal standards, and when operative as a criminal legal category is irreconcilable with the principle of legal certainty and is per se incompatible with the exercise of certain fundamental human rights. Her office has previously noted its concern when the term “extremism” is deployed, not part of a strategy to counter violent extremism, but as an offence in itself.8 She finds that all of these concerns are relevant to the exercise of Article 174, Article 179 and Article 405 and others of the Criminal Code.9
Article 174 of Kazakhstan’s Criminal Code on incitement to “social, national, ethnic, racial, class or religious hatred” which carries restrictions on liberty or imprisonment from two to seven years (more severe punishments exist for leaders of a public association, or groups, who face five to ten years’ imprisonment as well as a temporary ban on holding specified positions, or engaging in specified activities for up to three years) is the most commonly used article against civil society activists, and against religious organizations specifically. The provision broadly criminalises incitement of hatred on extremely vague grounds and fails to provide genuine protection to individuals from minority groups.
In the Special Rapporteur’s view, this article enables the authorities to target civil society groups and activists with judicial harassment and obstruct them from carrying out their work. Further, by referring to undefined terms such as “discord”, “insult to national honour and dignity or religious feelings”, and “propaganda of exclusivity, superiority, or inferiority of citizens” it fails to meet international freedom of expression standards by allowing limitations on extremely vague, subjective, discriminatory and disproportionate grounds. The Special Rapporteur also holds that what constitutes incitement under Article 174 makes references to characteristics requiring specific protection which are not found in Article 20(2) of the ICCPR.10
The Special Rapporteur is deeply concerned at the use of counter-terrorism and extremism law and practice to target, marginalize and criminalise the work of civil society. She notes that non-violent criticism of State policies can effectively constitute a criminal offence, as the provisions on extremism and terrorism have been applied to criminalise the peaceful exercise of freedom of expression and of thought, which is incompatible with a society governed by rule of law and abiding by human rights principles and obligations.11 She finds evidence that these articles are being used against members of religious minorities, civil society, human rights defenders and aimed at political opposition as well as specific political parties. The heavy-handed approach of the Government can be illustrated by the wave of arrests and detention in April and May 2019, which also led to charges under article 405. She is particularly alarmed at the chilling effect these measures have on religious minorities and all of civil society. The Special Rapporteur notes several emblematic incidents suggesting overly broad application of criminal punishment for displaying dissenting opinion, such as the cases of Max Bokayev and Talgat Ayan.
The Special Rapporteur has profound disquiet at the impingement on the absolute right of belief in the context of the broader right to freedom of religion and belief resulting from law and practice on extremism.12 She is concerned that both counter-terrorism and extremism provisions, whose wide-ranging and rights-limiting contents theoretically apply equally to all, appear to be invariably and unfortunately targeted at distinct groups and minorities in Kazakhstan. She points out that legal distinctions and discriminations against minorities and distinct social groups create patterns of anomie, exclusion and broader social discrimination, and has been recognized as part of the negative legal landscape that feeds violent extremism that may lead to terrorism.13 She highlights in this respect that the requirement to obtain “religious expertise” by the Committee on Religious Affairs of the Ministry of Information and Public Development can be particularly challenging for non-established religious groups.
The Special Rapporteur is also very concerned at the adverse impact of the use of extremism in the context of religious belief. Freedom of religion and belief is a universal right, an intrinsic aspect of a person’s humanity, which allows everyone to practice their religion or belief, individual and in community with others, in private or in public. Such a right exists independently of administrative approval.14 Limitations do not apply to belief per se and where applied under Article 18(3) of the International Covenant on Civil and Political Rights they must be legally prescribed, clearly necessary (i.e. as a last resort), pursue a legitimate aim, be proportionate (i.e. minimal degree of interference) and non-discriminatory in intention or effect. Kazakhstan’s counter-terrorism legislation and administrative practice that normalizes the diminution of rights for certain groups has long-term costs, increasingly affirmed by practitioners and experts in the field of countering and preventing violent extremism. Extremism law and practice that function to limit rights in a de facto permanent manner are not a shortcut worth taking if States are genuinely committed to taking on the conditions that produce and sustain extremism and mobilization.15 She notes heightened concerns in the following cases: Teymur Akhmedov, Saken Tulbaev (whom she met during the course of her visit), Zhanna Umirova and others.
Given the overly broad nature of the offences of terrorism and extremism, the Special Rapporteur is particularly concerned that the national terrorism sanctions list automatically includes, in addition to individuals convicted for terrorism financing offences, individuals convicted of other (non-financing) related terrorism offences, individuals convicted of extremism offences, as well as persons against whom there is suspicion of involvement in these crimes but against whom there is insufficient evidence for prosecution. There is extreme disquiet at the hardship created for family members and dependents given the impact of inclusion (asset freezing, prohibition of engaging in a number of commercial and notarial acts) and the breadth of this listing capacity, resulting in independently undermining the rights of women and children under the Covenant on Economic, Social and Cultural Rights,16 and which may obfuscate the listing basis contained in United Nations Security Council Resolution 1373 mandating the domestic listing for terrorism financing. Regarding list inclusion, the Special Rapporteur notes that inclusion under Article 12-4(6) of the Law on “On Countering the Legalization (Laundering) of Income Obtained through Criminal Means and the Financing of Terrorism” is based on data obtained from law enforcement and special state bodies compiled by the General Prosecutor’s Office is a non-judicially created list, inclusion upon which appears both arbitrary and lacking in oversight. She also notes that while there is a procedure for individuals to request to be taken off the list, the transparency of the listing process is unclear for those individuals who have not been convicted of a criminal offence, and who, further, can only be delisted if the circumstances surrounding their initial inclusion have changed. This procedure cannot lead to a robust and rights compliant review, as a wrongful initial inclusion in the list is not a ground for de-listing. Moreover, she identifies a lack of legal certainty and due process in the management and oversight of the Al-Qaida Sanctions lists. The Special Rapporteur stresses that Security Council resolutions on counter-terrorism are not a carte blanche for the denial of human rights nor are they cover for nefarious political action unrelated to the specific content of the resolutions.
A number of security-related practices premised on countering terrorism or extremism but whose aim appears to simply instil fear amongst activists and extinguish civil society capacity, silence human rights defenders, journalists and others who do not share the Government’s opinions, are deeply worrying. Some individuals reported being followed, having their photographs taken by the intelligence services, knowing that they were under prolonged surveillance and sometimes receiving direct or indirect threats to their or their family’s well-being. Some were afraid to meet or speak freely and openly with the Special Rapporteur. The Government has an obligation to protect civil society against acts of harassment and intimidation and bring all those responsible to justice. Counter-terrorism cannot be used as a mantra to provide justification for closing down independent civil society’s operations and contributions. The Special Rapporteur, in particular, expresses very serious concern about the climate of fear that independent human rights lawyers working pro bono on terrorism and extremism cases live in. She notes consistent testimony and reports of being in constant pressure of engagement with the state’s security services, that they are kept under frequent surveillance and are subjected to threats and intimidation by the Government, including threats that their licences may be revoked. The Special Rapporteur is clear that these practices have grave consequences, as they seriously undermine the trust that society places not only in the State and its judicial system but also, ultimately, the rule of law.17 In this regard, the Special Rapporteur recalls States’ obligations in accordance with Human Rights Council resolution 36/21 to take all appropriate measures to prevent the occurrence of acts of intimidation or reprisal in order to effectively protect those who cooperate with the United Nations, its representatives and mechanisms in the field of human rights from any act of intimidation or reprisal and to ensure accountability for such acts. The Special Rapporteur will continue to pay close attention to individual cases brought to her attention.
Torture and Ill-Treatment
The Special Rapporteur is encouraged by Kazakhstan’s declared commitment to a zero-tolerance policy vis-à-vis torture and ill-treatment, the establishment of a national mechanism to prevent torture and other cruel, inhuman and degrading treatment which carried out 2,407 visits (both preventive and special) in the last 5 years including 488 in 2018, and the designation of the Ombudsperson (human rights commissioner) as the national preventive mechanism, operationalised by the Co-Ordination Council. However, she has ongoing concerns about the implementation and rigor in practice of the prohibition on torture, inhuman and degrading treatment for persons charged and convicted of such offences. She identifies the weakness of the Ombudsperson’s Office, its lack of regional presence and its location within heavily fortified and security laden governmental offices. While the Special Rapporteur acknowledges the fact of a phone on the corridor outside the prisoners’ cells in Taldykorgan, and the complaint boxes on each corridor (a practice we were told is replicated in all prison custodial settings), she remarks that it is quite unlikely in practice that these will be extensively used, particularly if ill-treatment is being carried out in-situ. She notes that several systemic improvements must be made to these mechanisms to ensure that they are able to fulfil their preventive and protective role. This includes ensuring that clear systems are put in place to ensure the confidentiality of complaints and their effective processing. Further, she observes that although there have been some cases where perpetrators were sanctioned, which is much welcomed, she did not receive a clear response from any Government ministry either on the exact number of convictions or on what concrete and practical remedies were directly available to ill-treated prisoners, including but not limited to rehabilitation.
During her visit, the Special Rapporteur visited Taldykorgan Prison, a mixed pre-trial detention facility, where she was given the opportunity to both inspect cells and meet privately with inmates convicted for acts of terrorism. She noted that some inmates were distressed and feared reprisals for speaking with her. The Special Rapporteur received consistent reports that prior to their transfer to the Taldykorgen facility some of the prisoners interviewed had experienced ill-treatment in custody, notably “welcome” beatings during quarantine detention. The Special Rapporteur personally observed residual marks, which were consistent with testimony of ill-treatment in respect of one individual interviewed.
Terrorism and Extremism Trials
The Special Rapporteur is also deeply concerned that she has received consistent information about various practices that seriously undermine the protection of the right to a fair trial in both terrorism and extremism cases. She underscores the profound lacunae with regard to terrorism trials, but also some extremism cases, whereby trials are covered by specific rules and specific practices relating to State security. These include the use of evidence including expertise, as well as what appears to be a selective approach to the classification of and access to evidence, and privileging of access to certain lawyers based on security clearance for State secrets. Many trials are shrouded in secrecy, as some proceedings are closed, and the decisions are not made public. Even where trials are open the operation of evidential rules related to State secrets and intelligence information may render such trials de facto inaccessible. Such opacity raises serious concerns about the fairness of the proceedings. These trials appear to be exceptional in nature. Further, in relation to both terrorism and extremism cases, the Special Rapporteur has repeatedly heard of the use psychological pressure from the investigating authorities on the accused, including threats to family members, with a view to obtaining a confession of guilt at the outset of the investigation. The Special Rapporteur has also heard consistent accounts of the use of anonymous witnesses and of reliance on Government experts to “prove” the extremist nature of statements or individuals whose testimonies carry much more weight in practice than any counter-expertise that would be presented by the defendant. The weight given to evidence analysis per se violates the equality of arms principle through the means and basis of its production and has profound fair trial implications. The Special Rapporteur is also concerned that many individuals accused of terrorism and extremism are provided with legal aid counsels in whom they place little trust that they are fully independent and will be effective in their representation. In parallel, legal counsel of choice in such cases have noted that, when provided with case documents and evidence, this was done at a very late stage in the investigation or during the course of the trial proceedings, which failed to provide adequate time and facilities for the preparation of their defence, again seriously undermining the principle of equality of arms during the proceedings. These practices, taken individually, all amount to violations of the provisions of the right to a fair trial protected by Article 14 of the International Covenant on Civil and Political Rights. But in the general climate of fear and distrust of the Government from many key segments and constituents of society that the Special Rapporteur has examined, taken together, these practices may amount to manifest breaches of fair trial and characterize such courts as exceptional courts that are below international standards of justice, and highly concerning in cases where the defendant may be subject to the death penalty under the law or the most lengthy jail sentences.
Detention and Prison Regimes
Kazakhstan’s prison infrastructure has experienced substantial changes since the establishment of the State. Having inherited a Soviet prison infrastructure, including extremely high levels of incarceration, Kazakhstan has moved in its general penal practice to significantly decrease its prison population, expand conditional and early release, bring rehabilitation strategies to the prison population via employment opportunities while in prison, family unification, and socialisation for return to ordinary life.18
The Special Rapporteur was informed that, previously, terrorism and extremism convicted prisoners were held in centralized locations, in which a range of sentence stipulations were available to them (including family visits) but a change of practice in 2017 had distributed these categories of prisoner to pre-trial detention centers of mixed regime. Overall, the Special Rapporteur is concerned that the detention and prison regimes of individuals accused or convicted of acts of terrorism are de jure (via the applications of exemptions and permitted discretion) and de facto subject to exceptional rules. She underscores that offences of terrorism are not subject to bail provisions or early release. Further, although according to the law individuals convicted of acts of terrorism are subject to the same rules as individuals convicted of other crimes, in practice, the decision to engage them in a deradicalization programme and thus keep them separate from the regular prison population dictates the detentions centers in which they carry out their sentences. Moreover, it is extremely concerning to the Special Rapporteur that the prison regime to which they are subjected reduces privileges such as family visits, recreation and exercise periods, and follows from a categorization of “detrimental trajectory”, which is separate from their willingness to openly and assiduously take part in the deradicalization programmes.
In the view of the Special Rapporteur, both the exceptionality of the regime and the withdrawal of privileges based on a subjective evaluation are not compliant with international law standards. She is troubled that religious beliefs and practices are being used in actual fact as a placeholder for radicalization classification. As the prisoner cannot materially rebut the assigned classification or challenge the criteria used to define radicalization, this may amount to both direct and indirect discrimination on the protected ground of religious belief. The Special Rapporteur noted both in discussions with legal representatives and prisoners that the change of regime had adverse material consequences, and is in contravention of the formal legal entitlements that prisoners may have as a consequence of their sentence specifying the material conditions of incarceration (Article 46 Criminal Code, and the Criminal Corrections Code 88). These consequences appear to contravene the Mandela Rules and Article 9 of the International Covenant on Civil and Political Rights.19 The Special Rapporteur also received credible information on the regularized use of solitary confinement for prisoners charged with these offences. The Special Rapporteur notes that the medical, social and psycho-social effects of prolonged isolation can be severe.
In Taldykorgan Prison, the Special Rapporteur was shown parts of the prison and met with a number of prisoners charged with a variety of offences related to terrorism and extremism under the criminal code. The prison staff were welcoming and enabled the visit in a positive spirit.
The prisoners visited were held in a specific wing of the prison which appears to accommodate only these categories of crimes. Overall the prison was orderly, clean and freshly painted. Sleeping provision was adequate, books were present in the cells. The toilet facility in each cell was poor, and she notes that no toilet paper appeared to be available in any of the sanitary facilities inspected. Outdoor access and exercise space for the prisoners visited was highly constrained; a small enclosed concrete space with no green access and no meaningful capacity to exercise. Prisoners confirmed that they were able to pray. Only some of the prisoners had family visits during the period of their stay, the length of which in some cases was extensive. All were equally distressed at the absence of consistent, regular and sufficient duration of visits affecting their familial and parental relationships.
Preventing and Countering (Violent) Extremism
Significant international efforts are being made to counter and prevent violent extremism, shaped by the Secretary-General’s Plan of Action, and supported by various global entities including UNDP, UNODC, UNCCT, UNOCT and UNCTED. The Special Rapporteur is also deeply engaged in these issues through the Global Counter-Terrorism Coordination Compact, to which her office is a signatory. The Special Rapporteur was made aware of multiple initiatives in Kazakhstan to address deradicalization in the context of “extremism”. These include initiatives in prison, with youth, in socially marginalized and remote areas, economically vulnerable cities with plans to expand to other arenas including education, health and law enforcement. At this point, prison deradicalization appears to be a key initiative in terms of programming and developing methodologies.
While recognizing the value of such preventive work, the Special Rapporteur wishes to highlight a number of concerns related to the broader findings of this Report. Recalling the broad and vague definitions of extremism under the law, the issues of fair trial, and the impingement on fundamental rights of freedom of expression, association, religion, belief and assembly she notes that deradicalization work in Kazakhstan is being advanced with persons convicted of “extremism” and not person convicted under the law of violent extremism. Therefore, it is unclear as a legal matter how international programming addressing violent extremism being undertaken in Kazakhstan is selecting its target group, if such selection is subject to fair and accessible legal criteria, accessible to judicial review or appeal, and overseen in a transparent manner. She cautions to the legal jeopardy of creating an informal and highly stigmatizing category of violent extremism within prisons when no such legal category exists under the law. Moreover, as regards existing work within prisons and with other groups, the criteria for what constitutes a “radicalized” status are unclear, and as noted above may be overlapping with protected international legal categories of speech, assembly and belief. The reliance on religious experts who are not independent of the state in the evaluation process has additional due process concerns. She urges human rights complaint review and oversight of deradicalization programmes, both by the Government of Kazakhstan and by international entities and programmes. United Nations entities must pay particular attention to their due diligence obligations.
Another area of concern relates to the structure and prominence of the security sector. Although there have been several acts of terrorism carried out in the country since 2011, notably in Aktobe in 2016, and a number of Kazakhstani citizens have joined ISIL forces, according to the Government’s own assessment, the threat level is at its lowest, and has been for the past three years. Despite this, the Government’s counter-terrorism apparatus, headed by the National Security Committee and operationalized through the Anti-Terrorism Centre and its regional offices, has more than 409 offices (205 commissions for the prevention of terrorism and 204 counter-terrorism operational headquarters) throughout the territory. The wholesale barriers to freedom of expression and assembly premised on extremism and terrorism threat appear disproportionate to the scale and actuality of threat, and a danger that the practices of securitization may be embedded in state practice limiting the overall capacity for rule of law and human rights protection across multiple spheres.
The investigation of terrorism and extremism crimes is carried out both by the NSC and the police, which have similar law enforcement powers according to the legislation. Broadly, the NSC aims to “detect” terrorist and extremist crimes, while the police aim to “respond” to crimes of this nature. In practice, “detection” includes the use of increased surveillance powers by the NSC. While assured that no secretive measures of detection can be used absent a judicial authorisation, the Special Rapporteur is concerned at the repeated allegations she received of the use of special investigative techniques, including “agents provocateurs”, in both terrorism and extremism cases; the rate of investigations initiated which, albeit closed before charges are pressed, point to an overzealousness to identify individuals, who might have committed one of the offences of terrorism or extremism; as well as the use of official warnings served on individuals against whom there is not sufficient evidence to prosecute, that can act both as a threat and deterrent to the legitimate exercise of fundamental freedoms.
During her stay, the Special Rapporteur’s visit was impacted by numerous blockages to the Internet. She was informed that on 9 May – the day of her arrival – several independent news outlets (e.g. Azattyq) as well as Facebook and other social media services were temporarily unavailable in some parts of the country. According to the government, in 2017 and 2018 only, 317,000 web items were removed by site administrators upon the request of the General Prosecutor.
Furthermore, during the same time period access to more than 19,000 web sites was restricted by court order or injunction by the General Prosecutor or other relevant state body. In addition, she was made aware of independent research indicating blockings of up to 29,458 web sites. In the course of her meetings and information provided by the government, it is clear that certain websites, including social media, music streaming and others, could be and were blocked in their entirety by the Government on order of the Prosecutor General on very broad grounds such as “criminal purposes detrimental to the interests of the individual, society and the state”, “disseminating information which calls for the implementation of extremist and terrorist activities”, “mass riots” and “participation in mass (public) events held in violation of the established procedure”. Given the already very challenging environment in which activists, civil society and human rights defenders are made to operate in Kazakhstan, the apparent lack of proportionality in the adoption of such wholesale measures premised on broad terrorism and extremism threats is, in the view of the Special Rapporteur, very concerning.
It is of further concern that, despite several provisions in the law relating to this issue, the Government itself was wholly unclear about the legal basis, the procedure and the responsibility for the adoption of these measures. It is clear that the use of information and communications technology for the purpose of radicalizing to terrorism, recruiting and inciting others to commit terrorist acts is a serious concern for States. However, given both the role played by information and communication technology in fostering the enjoyment of human rights, as well as the very negative impact on the free exchange of ideas and information that measures to limit access can have, removals, takedowns, deletions and blockages of entire websites, web pages, blogs, videos, articles or social media posts must never be arbitrary and comply with the principles of legality, proportionality, necessity and non-discrimination, and provide an effective remedy.
Anti-Terrorist Operations and Emergency Regimes
The Special Rapporteur notes that the law on anti-terrorism operations is extensive and functions as an emergency power within the domestic legal framework. The Special Rapporteur has concerns with legal provisions that may enable impunity for violations committed during counter-terrorism operations. She notes that in the case of a declaration of counter-terrorism operation, authorities are given broad, increased powers to stop and search, detain and arrest any individual without a warrant. Worryingly, these provisions also allow for the use of force, including lethal force, against any individual determined to be ‘terrorist’. Such provisions are contrary to the strict provisions under international human rights law on the right to life and the use of force by law enforcement officials, which make it clear that use of force must be proportional and that the use of lethal force, as the ultima ratio, must be used solely in self-defence and when all other means have been exhausted, including non-lethal force. Such provisions also run contrary to the principle of presumption of innocence. Further, the legislation provides for an overreaching immunity clause for law enforcement officials, which entirely shields them from accountability in such circumstances. The Special Rapporteur notes that according to information received, the last time such a declaration was made was in Aktobe in June 2016, in which 7 victims were killed and 31 injured, according to the Government. The Special Rapporteur understands that the ensuing counter-terrorism operation resulted in 18 suspected attackers being killed and 9 being arrested. The Special Rapporteur is struck by the secrecy that surrounds this operation. She heard of the impossibility for journalists and civil society to investigate what happened, and she, herself, was unable to get information from official sources. There is increasing evidence that excessive use of force by security services and ensuing impunity in the course of countering terrorism can in itself be a contributing factor to increased violent extremism that can lead to terrorism. The Special Rapporteur is clear that when law enforcement use lethal force, whether against innocent individuals or individuals suspected of terrorism, there needs to be an independent, impartial, effective and public investigation carried out by the authorities to determine the legality of the use of force, and ensure that there is full accountability.
Non-Refoulement and Xinjiang Uyghur Autonomous Region
During her visit, the question of the risks faced by ethnic Kazakhs who find themselves on the territory of Kazakhstan from the Xinjiang Uyghur Autonomous Region in China was brought to the attention of the Special Rapporteur. She notes that at the 40th session of the Human Rights Council, the UN High Commissioner for human rights has called for independent assessment of the continuing reports pointing to wide patterns of enforced disappearances and arbitrary detentions. In this respect, and without pre-judging the situation which would be outside the scope of her mandate, the Special Rapporteur recalls that in any request to expulse, return or extradite a person to another State where there are substantial grounds for believing that he or she would face the risk of being tortured, the principle of non-refoulement must be fully respected, as an absolute principle of international law and customary law.
Deprivation of citizenship
The Kazakhstan Constitution (Article 10(2)), Criminal Code (Article 40, 50-1) and the recently amended Law on Citizenship (Article 19) collectively allow for the stripping of citizenship for terrorism related offences. Specifically, the Law of the Republic of Kazakhstan on Citizenship provides for the loss of citizenship “due to the participation of a person in foreign armed conflicts, extremist and (or) terrorist activities in the territory of a foreign state” (Article 21). Citizens of Kazakhstan are only legally permitted to carry one nationality.
The Special Rapporteur recalls the provisions of Article 8(1) of the 1961 UN Convention on the Reduction of Statelessness and the requirements to provide concrete safeguards, prevent discrimination and avoid statelessness. The Special Rapporteur notes that respecting the safeguards around the prohibition of arbitrary deprivation of nationality is imperative as loss of nationality may have serious human rights consequences. Under international law, States may deprive individuals of nationality when they have conducted themselves in a manner “seriously prejudicial to the vital interests of the state”20 provided the measure complies with requisite safeguards, including the opportunity to effectively challenge decisions before an independent body, ideally of judicial nature.21 Decisions must respect the absolute prohibition on non-refoulement22 and take due consideration of the impact on human rights, including the right to private and family life. The Special Rapporteur was informed that the provisions on deprivations of citizenship have not been invoked in terrorism cases and would encourage the Government to be mindful of these international law standards.
Foreign Fighters and their Family Members
It is estimated that 278 Kazakhstani citizens travelled to zones of conflict in Syria, Iraq and elsewhere over the past decade. The Special Rapporteur is mindful of the challenges related to the return of such fighters from conflict zones, including individuals who may have committed terrorist acts or other crimes under international law. Kazakhstan has also grappled with the return of other citizens accompanying foreign fighters, including spouses and minors.
Kazakhstan has been engaged in a continued dialogue at all levels of Government aimed at finding the optimum approach to addressing challenges related to returning its foreign fighters and their families. Kazakhstan is also deeply and positively engaged on these issues at the international level. In particular, the decision of Kazakhstan to engage positively, definitively and actively to ensure the return of its citizens from conflict zones is to be commended as good practice for other States and demonstrates leadership, which is solely absent on this issue from other States. The return of foreign fighters and their families is consistent with the spirit of international solidarity and cooperation as required by Security Council resolutions 2178 and 2396 and in the long-term interest of international peace and security. Kazakhstan has demonstrated how to optimize partnerships with other States and international entities in tracing, identifying, and delivering the practical means to extract individuals from territories under the control of non-state actors and ensure their safe return to countries of nationality. The Special Rapporteur affirms that this approach is not only in line with Kazakhstan’s human rights obligations but also considerate of its long-term security interests. To date 47 individuals were returned in January 2019, a further 231 in May 2019, and the Government anticipates that additional efforts will be made to locate and return other nationals who remain in conflict zones. Kazakhstan’s efforts in this regard are extensive, sustained and consistent and commended by the Special Rapporteur.
The Special Rapporteur notes that returnees are subject to a rigorous security process to establish potential criminal culpability. The Special Rapporteur urges the Government to ensure that security measures preserve the legal rights of returnees in confirming with national and international law and enable fair trial for any crimes that may be subsequently charged. The Special Rapporteur had the opportunity to meet with several returnees through the system of established family centers operated to broadly support family and child welfare in Kazakhstan (“Shans” Center in Kaskelen). She notes and welcomes the emphasis on integration and rehabilitation in the efforts of the Government. Such centers provide legal and other advice to ensure normalization of status for women and their children. She notes the emphasis on religious “normalization” in such programming and would stress, consistent with the overall findings of this preliminary report, that the right to freedom of religious belief should be firmly protected by the Government particularly in respect of minority and non-established religious groups.23 She voices unease at theological criteria being used as a ‘stand-in’ for a broader and scientifically based understanding of rehabilitation. She also notes the dangers of ethical compromise for professionals providing medical, social services, educational and child services to this group being elided into a security outpost for the State, thereby compromising the provision of fundamental economic and social rights to highly vulnerable individuals.24 Broadly, she holds the work being done by such Centers as humanitarian and supportive in nature, necessary to enable the practical integration back to society for women and children, who have travelled to or been born in conflict zones overseas.
The Special Rapporteur thanks the Government for facilitating her visit to Kazakhstan and looks forward to an ongoing and productive dialogue on these issues.
1/ A/HRC/28/66/Add.1 para 3.
3/ The national risk categorization scheme, which is publicly shared includes no rating, yellow, orange and red (with red being the highest risk and no rating indicating the lowest risk level).
4/ These provisions also contain aggregated elements including harsher punishment for leaders of public associations as well as aggravated elements for use of the mass media and foreign funding.
5/ SR HRCT, A/HRC/31/65, para. 21
6/ https://www.un.org/counterterrorism/ctitf/en/plan-action-prevent-violent-extremism; See also UN General Assembly Resolution A/RES/70/291
7/ CCPR/C/CG/34 para 46
8/ A/HRC/31/65, para. 21
9/ Specifically articles 180, 181, 182, 184, 258, 259, 260, 267, and 404.
10/ In particular, this relates to the categories “social” and “class”.
11/ A/HRC/37/52 para 47.
12/ Article 18(1), International Covenant on Civil and Political Rights
13/ UNDP, Journey to Extremism in Africa https://journey-to-extremism.undp.org/content/downloads/UNDP-JourneyToExtremism-report-2017-english.pdf; A/HRC/40/52
14/ A/HRC/28/66/Add.1 para 19 and para 26.
15/ AHRC/37/52 para 61
16/ The Special Rapporteur takes the view that existing humanitarian provisions in this regard are insufficient to safeguard the totality of relevant social and economic rights.
17/ Basic Principles on the Role of Lawyers (welcomed by General Assembly resolution 45/166, 1990)
19/ The Standard Minimum Rules for the Treatment of Prisoners were first adopted in 1957, revised in 2015.
20/ Convention on the Reduction of Statelessness, Article 8(3).
21/ A/HRC/25/28, paras. 31–34; A/69/10, p. 32.
22/ A/62/263, paras.50–51.
23/ Report of the Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt (23 December 2014) A/HRC/28/66/Add.1
24/ Committee on Economic, Social and Cultural Rights, General Comment No.3: The Nature of States Parties’ Obligations, 14 December 1990, E/1991/23.