Information regarding the regulatory resolution of the Constitutional Court
(№ 61 of 20 January 2025)
The Constitutional Court considered the appeal of a citizen on verification of the compliance with the Constitution of the Republic of Kazakhstan of subparagraphs 2) and 3) of the first part of paragraph 1 of Article 11 and subparagraph 10) of paragraph 1 of Article 14 of the Law of the Republic of Kazakhstan ‘On the procedure for organizing and holding peaceful assemblies in the Republic of Kazakhstan’ (hereinafter - the Law).
In February 2023, following a review of the notification, the Astana City Akimat refused to organise and hold a peaceful assembly at the place and time proposed by the subject of the appeal to express his position on the adoption of the Law of the Republic of Kazakhstan ‘On Mass Media’. The Akimat's refusal was justified by reference to the previously agreed holding of another event in the specified place and at the same time.
In the opinion of the subject of the appeal, the contested provisions of the Law allow local executive bodies to arbitrarily refuse to organise such an event without first sending its organiser an alternative proposal to change the place and (or) time of the event.
The current provision of the Law, as the applicant considers, does not resolve the problem of proportionality of the refusal and the degree of possible threat in holding such a peaceful assembly.
Following the verification of subparagraphs 2) and 3) of the first part of paragraph 1 of Article 11 of the Law, the Constitutional Court concluded that these norms are in conformity with the Constitution in terms of empowering the local executive body: 1) to propose to the organiser of the peaceful assembly to change the place and (or) time of its holding; 2) to refuse to hold such an event in accordance with the provisions of the Constitution in cases expressly provided for by the Act itself.
Regarding subparagraph 10 of paragraph 1 of Article 14 of the Law, which provides for the refusal to hold a peaceful assembly if other events or construction and installation works are planned at the time and place indicated by the organiser, the Constitutional Court has interpreted it in accordance with the Constitution. In particular, the Court emphasised that any legislative restrictions on human rights and freedoms must be adequate to legitimate aims and meet the requirements of fairness, proportionality and commensurability.
In its judgement, the Constitutional Court indicated that the right to peaceful assembly is not absolute and can be legally conditioned as stated in the Constitution. Information on the employment of specialised venues posted on the internet resource of the local executive body should give citizens a clear idea of at least the planned events, the place and date of their holding, the time of their start and end, and the expected number of participants.
In this regard, the Constitutional Court noted that the Law contains an imperative requirement that the decision to refuse peaceful assemblies must be reasoned and motivated and may be appealed in a legislative procedure. Therefore, on a case-by-case basis, the decision not to hold a peaceful assembly should be based on a thorough analysis of all available circumstances and possible risks, taking into account the objectives, relevance, public importance and scale of the event, as well as other objective factors.
The Constitutional Court stated that the instruments provided for by the Law (in particular, the proposal to the organiser of a peaceful assembly to change the place and (or) time of the assembly) are implemented within the framework of conciliation procedures between the organiser of the peaceful assembly and the local executive body.
Thus, the Constitutional Court held that before taking a decision to refuse to hold a peaceful assembly on the above-mentioned grounds, the local executive body is obliged to send a preliminary proposal to the organiser of such an event to change the place and (or) time of its holding.