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Report on Monitoring of the Right to Freedom of Peaceful Assembly in the Republic of Kazakhstan in 2018 - 2020

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Report on Monitoring of the Right to Freedom of Peaceful Assembly in the Republic of Kazakhstan in 2018 - 2020 REPORT ON MONITORING OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY IN THE REPUBLIC OF KAZAKHSTAN IN 2018 - 2020 Kazakhstan International Bureau for Human Rights and the Rule of Law 1 December 2020 г. TABLE OF CONTENTS RESUME 4 INTRODUCTION 5 1. LEGAL CONTEXT OF EXERCISING THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY IN THE REPUBLIC OF KAZAKHSTAN 8 2. PRACTICE OF REGULATING PEACEFUL ASSEMBLY IN THE REPUBLIC OF KAZAKHSTAN 59 3. GENERAL RECOMMENDATIONS 125 This publication was released as part of the project "Preparation, publication and dissemination of a report on the situation with the right to peaceful assembly in 2018-the first half of 2020" with the financial / expert support of the Soros Foundation-Kazakhstan. The content of this publication reflects the point of view of the authors and does not necessarily coincide with the point of view of the Foundation 2 8 1.1. Republic of Kazakhstan and international law 10 1.2. Fundamental international standards to guarantee the right to freedom of peaceful assembly 13 1.2.1. Basic guiding principles regarding the right to freedom of peaceful assembly 14 1.2.2. Definition of assembly 15 1.2.3. Subjects of the right to peaceful assembly 15 1.2.4. Notification or authorization 17 1.2.5. Place and time of peaceful assemblies 19 1.2.6. Planning and publicizing of an assembly 19 1.2.7. Journalists and monitors 21 1.2.8. Restrictions on the right of peaceful assembly, use of force 27 1.2.9. The liability of organizers and participants of peaceful assemblies 28 1.3. Legal framework for ensuring the right to freedom of peaceful assembly in the Kazakhstan 31 1.3.1. Definition of assembly 33 1.3.2. Subjects of the right to peaceful assemblies 35 1.3.3. Notification or authorization 39 1.3.4. Place and time of peaceful assemblies 41 1.3.5. Planning and publicizing of an assembly 42 1.3.6. Journalists and monitors 44 1.3.7. Restrictions on the right of peaceful assembly, use of force 47 1.3.8. The liability of organizers and participants of peaceful assemblies 54 2.1. General overview of the practice of regulating peaceful assemblies in the Kazakhstan in 2010-2017 54 2.1.1. Introduction. General information 55 2.1.2. Dynamics of civic engagement (quantitative indicators) 57 2.1.3. Nature and direction of peaceful assemblies (qualitative indicators) 59 2.1.4. Citizens’ compliance with the law while exercising their right to peaceful assembly 63 2.1.5. Authorities’ response to unauthorized peaceful assemblies 63 2.1.6. Police behaviour during peaceful assemblies 65 2.1.7. Findings 67 2.2. Monitoring of regulation of peaceful assemblies in the Republic of Kazakhstan in 2018—2020 67 2.2.1. Discussions and planning around peaceful assemblies, including in social media, prior to holding them 68 2.2.2. Communications with authorities (filing applications for permit or notifications of peaceful assemblies) 70 2.2.3 Preventive detentions 77 2.2.4. Блокировка потенциальных организаторов и участников 78 2.2.5. Действия властей в местах предполагаемых мирных собраний (блокировка мест, задержания, обращение с представителями СМИ и независимыми наблюдателями) 83 2.2.6. Доставление и содержание задержанных, соблюдение их прав, в том числе на квалифицированную юридическую помощь 86 2.2.7. Судебные разбирательства 91 2.2.8. Отбывание административного ареста 95 2.2.9. Уголовное преследование 100 2.3. Общий обзор практики регулирования мирных собраний в РК в 2018-первой половине 2020 гг. 100 2.3.1. Введение 100 2.3.2. Общие результаты мониторинга 102 2.3.3. Динамика гражданской активности (количественные показатели) 103 2.3.4. Характер и тематика мирных собраний (качественные показатели) 107 2.3.5. Активность общественных организаций в проведении мирных собраний 108 2.3.6. Формы мирных собраний (качественные показатели) 110 2.3.7. Законопослушность граждан при реализации права на мирные собрания 113 2.3.8. Несанкционированные мирные собрания, организаторы которых привлекались к ответственности 115 2.3.9. Реагирование властей на проведение несанкционированных мирных собраний 115 2.3.10. Присутствие и действия полиции при проведении мирных собраний 118 2.3.11. Выводы 3 RESUME1 The right to freedom of peaceful assembly is proclaimed in Article 20 of the Universal Declaration of Human Rights2 and is guaranteed under Article 21 of the International Covenant on Civil and Political Rights (ICCPR)3 , which has been ratified by the Republic of Kazakhstan4. This Report offers an analysis of the legislation of the Republic of Kazakhstan, both in force prior to June 2020 and the current one, in terms of its compliance with international standards as set forth in, primarily, the Guidelines of the Organization for Security and Cooperation in Europe (OSCE) and the Venice Commission of the Council of Europe (2nd edition5, 2010, and 3rd edition6, 2019), and General comment No. 37 of the UN Human Rights Committee on Article 21 of the ICCPR adopted in 20207. The Report also provides an overview of the practice of regulating peaceful assembly in the Republic of Kazakhstan in 2010-2017, as monitored by the Kazakhstan International Bureau for Human Rights and the Rule of Law (KIBHR), and the results of monitoring of peaceful assembly in Kazakhstan in 2018—first six months of 2020, which was conducted by KIBHR as part of the project “The right to freedom of peaceful assembly in the context of prevention of extremism and terrorism” supported by the Norwegian Helsinki Committee. As the work on the Report was finished in December 2020, it included information and references to a number of documents which had come around in the period from July through December 2020. The Report pays particular attention to various stages of preparation, organization and holding of peaceful assemblies by civil activists and the relevant actions by the authorities, in particular: - discussion and planning of peaceful assemblies, including on social networks, prior to holding them; - communications with the authorities (submitting applications for permits, or notifications on peaceful assemblies); - preventive detentions and blocking of potential organizers and participants; - actions by the authorities in venues of supposed peaceful assembly (blocking of places, detentions, treatment of media representatives and independent observers); - bringing-in and keeping detainees, observance of their rights, including the right to professional legal assistance; - legal proceedings and serving an administrative arrest; - criminal prosecution. The final part of the Report contains principal recommendations which, in brief, speak of the need for a top-down review of legislation and law enforcement practice in order to make sure the right to freedom of peaceful assembly is respected and bring both in line with international standards and obligations of the Republic of Kazakhstan. The Report has been prepared by the KIBHR staff team and participants of the project “The right to freedom of peaceful assembly in the context of prevention of extremism and terrorism”: Yevgeny Zhovtis (editor), Marzhan Aspandiyarova, Andrey Grishin, Sergey Duvanov, Sholpan Zhumakova, Yerlan Kaliyev, Rysbek Sarsenbay, and Dmitry Tikhonov. 1 This Report has been drafted with the support of the Norwegian Helsinki Committee and Soros-Kazakhstan Foundation. The opinions and conclusions contained in this Report may not reflect the official views of these organizations. 2 Universal Declaration of Human Rights. Adopted by Resolution 217 A (III) of the UN General Assembly dated 10 December 1948 // website of the United Nations. URL: http://www.un.org/ru/documents/decl_conv/declarations/declhr.shtml. 3 International Covenant on Civil and Political Rights. Adopted by Resolution 2200 А (XXI) of the UN General Assembly dated 16 December 1966 // Website of the United Nations. URL: http://www.un.org/ru/documents/ decl_conv/conventions/pactpol. shtml. 4 Law of the Republic of Kazakhstan dated 28 November 2005 No.91 “On The Ratification Of The International Covenant On Civil And Political Rights” // Information and Legal Systems of Regulatory Acts of the Republic of Kazakhstan “Adilet”. URL: http://www.un.org/ru/ documents/ decl_conv/conventions/ pactpol.shtml. 5 Guidelines on Freedom of Peaceful Assembly (2nd edition), OSCE/ODIHR and the Venice Commission of the Council of Europe, 2010 // Website of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe. URL: http://www.osce.org/ru/odihr/83237. 6 Joint guidelines on freedom of peaceful assembly (3rd edition), European Commission for Democracy through Law (Venice Commission) OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), CDL-AD(2019)017-e, 8 July 2019 // Website of the Council of Europe. URL: https://www.venice.coe.int/ webforms/documents/?pdf=CDL-AD(2019)017-e. 7 General Comment No. 37. Article 21: Right of Peaceful Assembly // Website of the Office of the United Nations High Commissioner for Human Rights. URL: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno =CCPR% 2fC%2fGC%2f37&Lang=ru 4 INTRODUCTION Freedom of peaceful assembly is a fundamental human right and one of the most important elements of effectively functioning democratic systems, along with freedom of expression, freedom of association and the right to participate in governing one's country. Freedom of peaceful assembly is a fundamental human right that can be enjoyed and exercised by individuals and groups, legal entities, registered and unregistered associations and other political and public organizations. Assemblies may serve many purposes, including the expression of protest, diverse, unpopular or minority opinions. The protection of the freedom to peacefully assemble is crucial to creating a tolerant and pluralistic society in which groups with different beliefs, practices or policies can exist peacefully together. As noted in the OSCE Handbook on Monitoring Freedom of Peaceful Assembly8: «Public assemblies can be particularly important and prominent at times of political tension or when citizens are making demands for social change.
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