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. ULKEN RAKHMET.
SOURCE:
United Nations Special Rapporteur’s site
http://freeassembly.net/rapporteurpressnews/statement-kazakhstan/
