№ -7-/34328
September 20 2022
Regarding Ruslan Dzhumabayev's communication to the Human Rights Committee №2544/2015
Guided by a Joint Order, the Interdepartmental Working Group, having considered the message R.Dzhumabayev No. 2544/2015, reports the following.
А. The composition of an administrative offense
According to the requirements of Article 21 of the International Covenant on Civil and Political Rights (hereinafter – the Covenant), the right to peaceful assembly is recognized. The exercise of this right is not subject to any restrictions other than those imposed in accordance with the law and which are necessary in a democratic society in the interests of State or public security, public order, the protection of public health and morals or the protection of the rights and freedoms of others.
The Constitution of the Republic of Kazakhstan guarantees the rights of its citizens to assemble peacefully and without weapons, to hold meetings, rallies and demonstrations, marches and picketing. The exercise of this right may be restricted by law in the interests of State security, public order, health protection, protection of the rights and freedoms of others. The form and procedure for expressing public, group or personal interests in public places, as well as certain restrictions are established by national legislation.
In accordance with Articles 2, 4 of the Law of the Republic of Kazakhstan "On the Procedure for organizing and Holding Peaceful Assemblies, Rallies, Marches, Pickets and Demonstrations in the Republic of Kazakhstan" (in force at the time of the offense, hereinafter referred to as the Law), an application for holding public events is submitted to the local executive body, which in turn issues a permit. According to Article 9 of the Law, persons who violate the established procedure for organizing and holding public events are liable in accordance with the legislation of the Republic of Kazakhstan. Taking into account the lack of permission of the local executive body, the organization and participation in illegal public events is considered in accordance with Article 373 of the Code of Administrative Offences of the Republic of Kazakhstan.
These requirements of the Law were violated by R.Dzhumabayev when participating in an unauthorized rally on February 15, 2014 in Almaty. Thus, by the resolution of the Specialized Inter-district Administrative Court of Almaty dated February 15, 2014, R.Dzhumabayev was prosecuted under Part 1 of Article 373 of the Administrative Code, with a fine of 3 MCI (Monthly Calculation Index) in the amount of 5 556 tenges.
The above-mentioned laws do not restrict the right of citizens to express their opinions, but only in order to ensure public order of other citizens, it consolidates the conditions for peaceful public events.
Arguments about infringement of the rights to freedom of expression and holding rallies also do not find their confirmation, since the action as a whole was illegal, the organizers and participants did not have the appropriate permission of the local executive body to hold the event.
In order for public socio-political events not to be chaotic, disorderly and not to go beyond the legal field, in order to exclude prerequisites for mass violations of public order and other negative consequences, the state has taken a number of legislative measures aimed at ensuring the safety of both the participants of the actions themselves and the surrounding citizens.
Related to this is the need to streamline the conduct of such events, including by obtaining appropriate permits from territorial authorities.
When assessing the illegal actions of the R.Dzhumabayev, it should be borne in mind that holding such spontaneous, unauthorized actions in unsuitable public places, which are a place of rest for citizens, where busy traffic flows, loud shouting of slogans, imposing one's point of view on others, can cause opposition to such behavior, provoke active illegal behavior of other members of society, violate peace and security of others, normal functioning of transport and infrastructure facilities.
It is noted that the action in which the R.Dzhumabayev participated could lead to massive violations of public order, endanger the health and safety of both other persons and the applicant himself, and damage public safety.
В. The author's arguments about an unfair trial
The author's arguments about the violation of his rights to a fair trial are unacceptable in accordance with the requirements of article 14 of the Covenant. According to this norm, the right to a fair trial is recognized, i.e. this right provides the author with a fair and public hearing of the case by a competent, independent and impartial court established on the basis of law.
Justice in Kazakhstan is carried out only by the court. Judicial power belongs only to the courts represented by permanent judges. No other bodies and persons have the right to appropriate the powers of a judge or the functions of the judiciary. The question of responsibility for violation of the legislation on peaceful assemblies is raised in exceptional cases and only by the court.
The principle of independence of the court is reflected in national legislation, in particular in the Constitution of the Republic of Kazakhstan and procedural codes. In addition, a number of articles of the Code of Judicial Ethics are aimed at the impartiality of the court when considering cases and in relations with parties and other persons.
It should be noted that in the process of drawing up the administrative protocol and the trial, R.Dzhumabayev did not apply for the provision of a lawyer for him, as well as for the admission of his representatives to the court session, which is his right, and does not prevent further administrative proceedings. The guilt of R.Dzhumabayev in the commission of an administrative offense has been proven and confirmed by the protocol on an administrative offense of February 15, 2014, the testimony of the offender himself, as well as other materials examined during the consideration of the case.
The author appealed the decision of the court of first instance. By the ruling of the Almaty City Court, the decision of the court of first instance was left unchanged. An appeal was also filed to the Prosecutor General's Office with a complaint against judicial acts. Based on the results of the examination, the applicant was given an answer signed by the Deputy Prosecutor General dated June 10, 2014 (№2-012827-14-31183) on the absence of grounds for challenging judicial acts. Having received a response signed by the Deputy Prosecutor General, the said person could apply again, since no response signed by the Prosecutor General was received.
The judicial act was not challenged in higher courts. According to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 "On certain issues of application of the legislation on administrative offenses by courts", the author has the right to appeal to the courts of cassation and supervisory instances.
The State party, referring to the amendments to the Code of Administrative Offences of the Republic of Kazakhstan, notes that the revision of judicial acts that have entered into force in the Supreme Court is possible at the request of a person brought to justice (part 4 of Article 851 of the Administrative Code). Cases may be reviewed (except for the protest of the Prosecutor General's Office) according to the representations of the Chairman of the Supreme Court and the Chairman of the judicial board of the Supreme Court (Part 1 of Article 851 of the Administrative Code). In this regard, the author has the right to apply to the highest court. Taking into account the above, it is noted that the author did not use the domestic remedies provided by national legislation.
Thus, the right of R.Dzhumabayev to a fair trial provided for in Article 14 of the Covenant was not violated.
С. Legality of actions of law enforcement officers during the administrative detention of protesters
It should be noted that in accordance with paragraph 1 of Article 618 of the Administrative Code (in force at the time of the offense) in order to prevent an administrative offense, identify a suspect in its commission, draw up a protocol on an administrative offense when it is impossible to draw it up at the place of the commission of an administrative offense, ensure timely and proper consideration of the case and execution of the decision adopted in the case, the authorized official has the right, within the limits of his powers, to apply administrative detention against an individual to ensure the proceedings in the case of an administrative offense.
In accordance with paragraph 1 of Article 620 of the Administrative Code, administrative detention may be carried out by internal affairs bodies (police) - when violating the procedure for organizing and holding meetings, rallies, marches, picketing and demonstrations and actively participating in them.
Consequently, the actions of law enforcement agencies are legitimate, violations of the norms of the current legislation in the suppression of an administrative offense are not committed.
Since June 6, 2020, a new Law "On the procedure for organizing and holding peaceful assemblies in the Republic of Kazakhstan" dated May 25, 2020 has been in force on the territory of the country. Civil activists and representatives of non-governmental organizations took part in the development of this Law. All their recommendations, including the notification procedure for public actions, are taken into account when improving the law on rallies. The local executive body reviews notifications on holding a peaceful assembly and makes a decision (on holding, refusal, proposal to change the place and time of the meeting) within three working days. An exhaustive list of grounds has been established for which local executive bodies may refuse to hold an action.
Positive innovations in the Law can also be called such as the extension of citizens' rights, the provision of up to two hours for picketing, the introduction of a presumption to hold a peaceful assembly and a reduction in the time for consideration by the local executive body of the notification.
Thus, the legislation of the Republic of Kazakhstan, which regulates the organization and conduct of peaceful assemblies, complies with generally accepted world practice and is not excessively harsh. The right to hold such public events is provided on condition that their organizers and participants comply with the requirements of the current legislation.
Taking into account all the arguments given, as well as in view of the following grounds, the message of R.Dzhumabayev is subject to rejection, since it is unacceptable and unfounded:
1. All available domestic remedies have not been exhausted in accordance with Articles 2, 5 of the Optional Protocol to the Covenant and in combination with paragraph 1 of the rule 100 of the Rules of Procedure of the UN Human Rights Committee;
2. The communication is submitted in violation of the Rules of Procedure of the UN Human Rights Committee (rule 96), since the communication must be submitted to the Committee by the person himself or his representative, in case of incapacity of the alleged victim.
The Interdepartmental Working Group on consideration of requests and views of human rights treaty bodies whose competence has been recognized by the Republic of Kazakhstan