(extracts)
- INTRODUCTION
Over the last number of years, in applying Article 50 of the Criminal Code of the Republic of Kazakhstan (“CCRoK”) the Kazakhstani courts have begun using an additional type of criminal sanction in the form of deprivation of the right to engage in public or religious activity for representatives of the political opposition, civil society activists, and religious leaders or believers who have been sentenced for committing various crimes, including those stipulated by the CCRoK Article 174 “Incitement to social, national, tribal, racial, class or religious discord” (before 2020 known as Article 174 “Agitation of social, national, tribal, racial, class or religious discord”), Article 405 “Organization of, and participation in, the activity of a public or religious association the activities of which has been banned by court judgment or which has been adjudicated to be liquidated for engaging in extremism or terrorism,” as well as other articles of the CCRoK which attribute the relevant activity to “terroristic” or “extremist” under sub-clauses 30) and 39) of Article 3 of the CCRoK. In certain cases, such additional criminal sanctions are applied to such persons even when a crime has been committed that has no relation whatsoever to either terrorism or extremism.
Below are the normative documents of the Republic of Kazakhstan that have been used in the analysis:
1. The Criminal Code of the Republic of Kazakhstan dated 3 July 2014
2. The Criminal-Procedure Code of the Republic of Kazakhstan dated 4 July 2014
3. The Code of the Republic of Kazakhstan on Administrative Offenses dated 5 July 2014
4. The Labour Code of the Republic of Kazakhstan dated 23 November 2015
5. The Civil Code of the Republic of Kazakhstan (General part) dated 27 December 1994
6. The Law of the Republic of Kazakhstan dated 15 July 1996 “On the Administrative Supervision over Persons Who Have Been Released from Penitentiaries”
7. The Law of the Republic of Kazakhstan dated 11 October 2011 “On Religious Activity and Religious Associations”
8. The Law of the Republic of Kazakhstan dated 27 June 2014 “On Trade Unions”
9. The Law of the Republic of Kazakhstan dated 31 May 1996 “On Public Associations”
10. The Law of the Republic of Kazakhstan dated 30 December 2016 “On Volunteering”
11. The Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 June 2015 No.4 “On Certain Issues Pertaining to the Use of Criminal Sanction”
12. The Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 8 December 2017 No.11 “On Certain Issues Pertaining to the Use by the Courts of the Legislation on Terrorist and Extremist Crimes”
13. The Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 31 May 2019 No.1 “On the Judicial Practice of the Use of the Legislation on Administrative Supervision”
The legal analysis was performed with regard to issues that arise when Article 50 of the CCRoK is applied, including when it is used in prescribing additional sentence in the form of deprivation of the right to engage in public, trade union, or religious activities, and was based on the legislation of the Republic of Kazakhstan that was in in effect on 26 April 2021, or prior to that date.
- LEGAL ANALYSIS
To perform legal analysis of the content and use of Article 50 of the CCRoK, we will cite the full text of the Article, below:
«Article 50. Deprivation of the Right to Hold Certain Position or Engage in Certain Activity
- Deprivation of the right to hold a certain position or to engage in a certain activity, shall consist in prohibition to hold certain positions at the state service, in the local government bodies, or to engage in certain professional or other activities.
- Deprivation of the right to hold certain positions or to engage in certain activity shall be established for a period from one year to ten years.
For committing economic crimes and crimes against interests of service in financial organizations by an executive employee of a financial organization, a banking and(or) insurance holding company, a major participant (a major shareholder) that is an individual, the head, a member of governing body, the head, a member of executive body, the chief accountant of a major participant (a major shareholder) that is a legal entity of the financial organization, which are provided for by part two of Article 238, part two of Article 239, part two of Article 250 of this Code, including persons that perform functions of governing body or executive body of the financial organization temporarily or under special authority specified in part two of Article 239 of this Code, the deprivation of the right to hold a certain position shall be established for a term of at least five years and up to a lifetime ban to hold the position of an executive employee of a financial organization, a banking and (or) insurance holding company and to be a major participant (major shareholder) of a financial organization.
For committing crimes against the sexual inviolability of minors and crimes provided for by parts two, three, four and five of Article 132, parts two and three of Article 133 of this Code, the deprivation of the right to hold certain positions or engage in certain activities shall be established on compulsory basis and it means a lifetime ban to hold pedagogical positions and positions related to the work with minors.
For committing corruption crimes, it is obligatory to deprive of the right to hold a certain position or engage in a certain activity, which means a lifetime ban to hold civil service positions, to be a judge, to hold positions in local government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for the regulation, control and supervision of the financial market and financial organizations, government organizations and quasi-public entities.
For committing transport crimes provided for by part four of Article 345-1 and Article 346 of this Code, the deprivation of the right to engage in a certain activity means a lifetime ban on the right to drive a vehicle.
- Deprivation of the right to hold certain positions or to engage in a certain activity as an additional type of punishment may be also imposed in the case in which it is not stipulated by the relevant article of the Special Part of the present Code as punishment for the relevant crime, if, subject to the character and degree of public danger of a committed crime, and personality of the convict, a court recognises it as impossible for him/her to retain the right to hold certain positions, or to engage in certain activities.
- In imposition of this punishment as an additional to restriction of freedom, arrest, it shall apply for the entire time of serving said main types of punishment, but, in this respect, its term shall be calculated from the moment serving begins. In case of imposition of deprivation of the right to hold certain positions or to engage in certain activities as an additional type of punishment to the other main types of punishment, as well as in a case of a suspended conviction, its term shall be calculated from the moment of the entering of a given sentence into legal force».
Analysis of the legal norms contained in Article 50 of the CCRoK, and of the relevant provisions contained in the Special Part of the CCRoK, gives rise to a number of questions which, I believe, do not yet have satisfactory answers, if we consider the law enforcement practice that has formed in the country over the course of the last number of years.
Deprivation of the right to engage in a certain activity (other activity)
Deprivation of the right to engage in a different, non-professional, activity, seems to pose the most complex question of all, from the point of substantiating such a punishment in a situation when the legislation provides no clear conceptual construct or criteria.
In other words, what we need to ascertain is what particular other activity we are talking about. Does such a definition mean that additional punishment may be prescribed for any activity, and a court ascribes certainty to it? An activity that a court prohibits, does it constitute that same certain activity?
However, Article 50 of the CCRoK does not talk about prohibiting any activity which a court may determine, it only talks about deprivation of the right to engage in a certain activity. In other words, one can assume that the article discusses the deprivation of the right to engage in a certain activity for which a license, a certificate or some other special permit has been granted, or which directly relates to a position (held by the person who has committed a crime and has been sentenced). For instance, deprivation of the right to work as an attorney, or as an educator (pedagogue), or as a doctor, or deprivation of the right to drive a car, etc.
A similar interpretation follows also from section 3 of Article 50 of the CCRoK, which states that, depending on the nature and degree of public threat posed by the crime, and based on the personality of the person perpetrating the crime, a court may find it impossible to have such person retain his/her right to engage in a certain activity. However, in order to retain a right to engage in a certain activity or, respectively, to deprive a person of such right, the right in question must exist not as intrinsic but as extrinsic right. Otherwise, if we take it to an absurd extreme, one can assume that a court may prohibit a person from engaging in any activity that is in the essence a specific form of active human perception of an objective world, or from carrying out any work, or any activity, in any given field.
Since it is a very broad concept, we need to make sure we strictly follow the internationally recognized principle of juridical (legal) certainty and predictability whereunder any normative legal provision may only serve as a source of law when it has the attribute of certainty and the used legal definitions are clear, precise and allow to easily discern between lawful and unlawful behaviours, including when human rights are concerned. Generally speaking, following the principle of legal certainty and predictability allows restricting, from the point of view of possibility and reason, the discretionary authority of the government, and guaranteeing the rights of the person who is being held legally accountable.
Regrettably, the matter of certainty of the concept “deprivation of the right to engage in certain activities” in general and, in particular, in the part of depriving of the right to engage in a different—in this case, public, trade union or religious activity—is not sufficiently clarified either in the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 June 2015 No.4 “On Certain Issues Pertaining to the Use of Criminal Sanction” or the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 8 December 2017 No.11 “On Certain Issues Pertaining to the Use by the Courts of the Legislation on Terrorist and Extremist Crimes.”
However, in clause 22 of the Normative Resolution of the Supreme Court dated 25 June 2015 No.4 it says that “Article 50 of the Criminal Code, in each case a person commits a crime which is associated with such person’s discharge of his/her professional duties or engagement in a particular activity, the court, while taking into consideration the nature of the crime, must discuss the matter of depriving the accused of the right to hold certain positions or engage in certain activities. The dispositive part of the sentence must contain a specific mention of a position or type of activity…”
What follows from the above is that additional punishment in the form of deprivation of the right to hold a certain position or engage in a certain activity is prescribed for crimes that are related to the perpetrator’s discharging his/her professional duties, or engaging in that certain activity.
Based on this, it should be assumed that the certain type of activity the right of which may be deprived must be directly linked to the crime committed, and specifically mentioned in the guilty sentence.
Clause 22 of this Normative Resolution also says, “if depriving of the right to hold certain positions or engage in certain activities is not stipulated by a relevant article of the Special Part of the Criminal Code, then the court, based on the nature and level of public threat posed by the crime committed, as well as the personality of the perpetrator, must discuss the matter of prescribing such additional punishment as stipulated by section three of Article 50 of the Criminal Code.”
However, as noted above, section three of Article 50 of the Criminal Code states that based on the nature and level of public threat of the crime committed, as well as the personality of the perpetrator, the court may find it impossible to allow the person to retain his/her right to engage in a certain activity. In other words, if the wording of the law is followed strictly, we are talking about the type of activity that is related to the crime committed, and the presence of a right to engage in such activity, which the court of law may decide to deprive the person of.
However, if the current legislation does not clearly define the types of activities the right to engage in which may be deprived by a court of law, then we have legal gaps, with the court having such broad discretionary authority that essentially renders the citizens unable to understand which punishment and why is prescribed for a particular crime.
This matter is not sufficiently covered in the Commentary to the 2014 Criminal Code of the Republic of Kazakhstan either.[1]
This Commentary indicates that the deprivation of the right to engage in an activity may be applied to persons that are engaged in professional activity at organizations and enterprises of any form of ownership, and the content of such crimes indicates a specific feature of the subject of the crime—the person’s professional affiliation. In other words, depriving of this right presumes a ban on engaging in a particular activity, e.g. a pedagogue, a doctor, a professional driver, etc., and has to do with the person committing a certain crime which is directly or indirectly related to him/her discharging his/her professional duties.
Another possible ban on engaging in certain types of activity, according to the Commentary, has to do with other types of activity that are not related to a particular profession but which assume the presence of a license or a special permit, e.g. being an attorney, working as a notary, engaging in a certain individual professional activity, driving a private car, hunting or fishing.
The cited Commentary also indicates that the guilty sentence in relation to the banning to engage in certain types of activity is enforced, including by the bodies that are authorized to issue or revoke permits for various types of activity, and takes the form of seizing the document that grants such permit.
Several articles of the CCRoK directly point at positions or types of activity which the convicted person may be deprived of the right to carry out. In other cases, a position or type of activity are determined based on the particulars of the crime.
It should also be noted that, as the analysis demonstrates, practically all the articles in the Special Part of the Criminal Code which speak of this type of additional punishment which consists of two parts—depriving of the right to hold a certain position or engage in a certain activity, i.e., those which specify alternative punishments—practically none of them indicate only one alternative, even when they discuss a malfeasant in office or, conversely, when a crime is not a malfeasant in office altogether.
In other words, questions arise both as to how the concept of “certain activity” is concretized and what kind of relation there is between it and the activity carried out by a certain “official,” what is the “certain activity,” and whether banning a certain activity essentially constitutes a prohibition to carry out certain actions. Finally, in what cases can a court apply this additional punishment if it is not specified in the relevant article of the Criminal Code? Should it (the punishment) be related to the committed crime?
Depriving of the right to engage in public, trade union, or religious activity
The most acute issues relate to administering this additional punishment when applying the articles of the CCRoK which, mostly, do not touch on a person holding a certain position or engaging in a certain professional or other activity (under a special permit), and instead related to offenses that involve alleged abuse when citizens realize their political rights and civil liberties.
Such criminal offenses, in particular, include the following:
– incitement to social, national, tribal, racial, class or religious discord (Article 174 of the CCRoK);
– creation and leadership in an extremist group or participation in the activity of such group (Article 182 of the CCRoK);
– giving consent for publication in the mass media of extremist materials (Article 183 of the CCRoK);
– actions that provoke continued participation in a strike that a court has recognized as illegal (Article 402 of the CCRoK);
– illegal interference by members of public associations with the work of state bodies (Article 402 of the CCRoK);
– creation, leadership and participation in the activity of illegal public and other associations (Article 402 of the CCRoK);
– organization and participation in the activity of a public or religious association the activities of which has been banned by court judgment or which has been adjudicated to be liquidated for engaging in extremism or terrorism (Article 405 of the CCRoK).
It is precisely those articles under which additional punishment in the form of deprivation of the right to engage in public, trade union or religious activity, are administered. Truth be told, in several cases this type of punishment has been prescribed for civil society activists and under completely different articles that are not related to public or political activity.
It should be noted here, that the current legislation of the Republic of Kazakhstan only has a legal definition of religious activity (which is extremely wide) which, according to sub-clause 2 of Article 1 of the Law of the Republic of Kazakhstan “On Religious Activity and Religious Associations,” includes “activity aimed at satisfying the religious needs of believers.” Further, Chapter 3 of this Law, titled “Religious activity in the Republic of Kazakhstan,” lists various forms and types of such activity.
Based on the above, it should be presumed that when administering an additional punishment in the form of deprivation of the right to engage in a religious activity, a court prohibits:
– carrying out any religious rituals and ceremonies, including visits to cult buildings (premises), places of worship, establishments of religious associations, cemeteries and crematoriums, participation in religious congregations;
– missionary activity;
– purchase, use and distribution of religious literature, other information materials of religious nature, religious items;
– religious charitable activity;
– establishing connections and contacts, including international ones, with other believers and religious associations.
However, obviously a court cannot prohibit people from worshipping and visiting cult buildings or cemeteries, or from reading religious literature (unless it is banned); similarly, a court may not prohibit people from communicating with their fellows in faith, unless a person is kept in isolation and/or the religious association is banned.
In other words, even when the definition of “religious activity” is spelled out in the legislation, when certain criminal offenses are committed, only concrete types of such activity, or certain concrete actions, may be prohibited. For instance, the right to lead a religious association, to read a sermon, or to carry out a missionary activity.
It is especially worth noting that, depending on the gravity of a crime, besides the additional punishment those articles also stipulate serious criminal sanctions, including long prison sentences when a person will be kept in isolation from society and, accordingly, will be deprived of the right to engage in a religious activity.
As for trade union activity, it is not even defined in the current legislation. It should be assumed to signify the activity of trade unions, it seems. But then again, which right to engage in a trade union activity a court of law may deprive a person of? To lead a trade union, to hold a position in a trade union during the term defined in the verdict? It is possible and logical, provided certain criminal offences are committed.
But what about being a member in a trade union, or having the right to participate in the trade union’s meetings, to vote, to participate in strikes – does it mean that a person may be deprived of a whole host of his/her labour rights?
Again, questions arise as to the definition of a concrete type of activity the right to engage in which a court may deprive a person when a certain crime has been committed which related to a trade union activity.
As for the deprivation of the right to engage in public activity, the situation here is even less clear. The Law of the Republic of Kazakhstan “On Public Associations” does not contain a definition of a “public activity;” however it does contain a definition of “activity” of a public association, one which is carried out with the aim of realization and protection of political, economic, social and cultural rights and liberties, development of citizens’ activity and self-determination; satisfying professional and amateur interests; development of scientific, technical and artistic arts, protection of public life and health; protection of the environment; participation in charitable work; carrying out cultural-educational and sports-health promotion work; protection of historical and cultural monuments; patriotic, legal and humanistic education; expanding and strengthening international cooperation, etc.
In other words, this is the activity that is aimed at satisfying the various societal needs and carried out by such types of legal entities as a non-commercial organization in the organizational and legal form of a “public association.” However, this is something both the state, commercial organizations, as well as other non-commercial organizations, are engaged in.
Sub-clause 5 of Article 1 of the Law of the Republic of Kazakhstan “On Volunteering” has this definition: “a volunteering activity is a volunteer, socially aimed, mutually agreed, socially useful activity that is carried out on a free of charge basis in the interests of individuals and/or legal entities.”
This type of activity has two key features: “social usefulness” and “free of charge.” It is obviously absurd to prohibit an activity that is socially-useful and free-of-charge.
Wikipedia contains the following definition of a “public figure”: it is someone who is engaged in a public activity, i.e. an activity to service the political, cultural and professional needs of the society on a voluntary basis. A commentary to the Criminal Code of the Russian Federation, for instance, defines it in a more concrete way: “public figures are the managers and recognized functionaries within political parties, other public associations, mass movements, professional, religious organizations, other public associations of a federal or regional significance. Based on their functional-political features, public figures may include well-known and influential representatives of mass media, culture, science, education.”[2]
Academic dictionaries do not provide a definition of a “public activity,” even though they do define a “political activity.”
There is a generally accepted definition that a public activity is an activity that is not related to any particular profession, is performed on a voluntary and gratuitous basis, in free time, and aimed at some socially useful purposes.
Then a natural question arises: what does the court mean when it administers an additional punishment in the form of deprivation of the right to engage in a public activity? Even more so, when no one grants the right to engage in a public activity? This right exists naturally and is realized on a voluntary basis.
It is precisely because no legal definition of “public activity” exists that the Kazakhstani courts exercise absolute arbitrariness in administering such additional punishment, thereby essentially depriving the citizens of a widest number of political rights and civil liberties.
I will give you a few examples.
By a sentence of the Uralsk City Court dated 26 September 2018 (Judge K. Uteshev), the civil society activist B. Khalelova, for participating in the activity of a public association that had been banned for extremism (Article 405 of the CCRoK), was sentenced to a restriction of freedom for a period of one year, with the following duties to be performed (a quote from the text of the sentence follows):
“not to visit the places of protest actions (meetings, piquets, marches etc.), to limit participation in round tables, meetings, seminars-trainings that have political, environmental, social themes, are organized by or held with the participation of international non-government organizations as well as public and political parties and movements;
– not to make publications, comments and reposts in mass media and social networks (either under her real name or under a nickname) that would be aimed at discrediting the authorities or related to political, social-welfare, economic and environmental issues;
– not to hold meetings and flashmobs under the pretext of solving political, social-welfare, economic and environmental issues.”
By a sentence of Court No.2 for the Almaty district in the city of Astana dated 7 April 2017 (Judge A. Kulbayeva), N. Kushakbayev, a labour inspector at a trade union, for his actions that provoked continued participation in a strike that a court had find illegal (Article 402 of the CCRoK), was sentenced to two and a half years of imprisonment and banned from engaging in public and trade union activity for a period of two years.
By a sentence of Court No.2 for the Almaty district in the city of Astana dated 16 May 2017 (Judge G. Ubasheva), A. Yeleusinov, a trade union figure, for appropriation or embezzlement of other people’s property in especially large amounts (Article 189 of the CCRoK), insult of a government official made publicly or with the use of mass media or telecommunications networks (Article 378 of the CCRoK), disobedience to a government official (Article 379 of the CCRoK) and violence against a public official (Article 380 of the CCRoK), was sentenced to two years of imprisonment and a five-year ban to engage in public and trade union activity.
By a sentence of the Auezov district Court No.2 for the city of Almaty dated 9 January 2019, the civil society activist D. Insenova, for committing a crime stipulated by Article 189 of the CCRoK “Appropriation or embezzlement of other people’s property,” was sentenced to two years of restriction of freedom and banned from engaging in public activity for the same term.
By a sentence of Court No.2 for the city of Aktobe dated 19 November 2020 (Judge Ye. Abdykalykov), for participating in the activity of a public association that had been banned for extremism (Article 405 of the CCRoK), the civil society activist B. Sarkulov was sentenced to one year of restriction of freedom with the following duties (quote from the text of the sentence): “not to publish (not to place) information and materials (any kind of audio/video messages, commentary, reposts, support etc.) in public projects, programs in the internet and other mass media, in telecommunications networks, social networks, messengers and video hostings.”
By a sentence of Court No.2 for the city of Semey dated 8 December 2020 (Judge T. Kudaibergenova), for participating in the activity of a public association that had been banned for extremism (Article 405 of the CCRoK), the civil society activist K. Uvaliyev was sentenced to one year of restriction of freedom and banned from engaging in “public and political activity, including that which uses mass media and telecommunications networks, for a period of three (3) years.” (quote from the text of the sentence).
On 7 April 2021, the Talgar district court sentenced the civil society activist Ye. Sabanshiyev under Section 2 of Article 405 of the CCRoK to one year of restriction of freedom, and additionally banned him from holding festivities, meetings, participating in conferences, debates, peaceful assemblies, citizens gatherings, marches and piquets, from visiting public venues, using social networks, making publications, going on the air, etc.
By a sentence of Court No.2 for the city of Atyrau dated 28 November 2016 (Judge G. Dauleshova), civil society activists M. Bokayev and T. Ayan were sentenced to five years of imprisonment and a three-year ban to engage in public activity for inciting social discord (Article 174 of the CCRoK).
On 2 February 2021, Judge Dauleshova “made clarifications” (as stated in her resolution on M. Bokayev) on additional punishment in the form of the ban to engage in public activity.
Essentially, the judge prohibited Mr. Bokayev from engaging not in an activity but from committing a number of actions which she understood as part of a “public activity,” including (quoted from the ruling):
“– organization, holding and/or participation in various conferences, debates, telebridges, TV programs, including in mass media, social networks and other telecommunications networks;
– organization, holding and/or participation in various meetings and citizens’ gatherings, excluding memorial events;
– organization, holding and/or participation in strikes;
– organization, holding and/or participation in peaceful assemblies, meetings, demonstrations, marches and piquets;
– membership and participation in the activity of public organizations, including political parties, religious organizations, public movements, trade unions, self-governed organizations based on voluntary membership (participation);
– creation and participation in the activity of non-commercial organizations;
– organization and participation in sponsorship activity aimed at providing charitable or other assistance;
– organization and participation in volunteer activity, initiating and/or supporting (signing, joining) various petitions;
– creation and participation in the activity of mass media, including in the capacity of a journalist;
– placing, going on the air, distribution in mass media, social networks and other telecommunications networks of publications, reportage, various video materials with social-economic, public-political themes;
– engaging in other public activity by way of performing works and providing services.”
In addition to that, on 18 February 2021 Court No.2 for the city of Atyrau banned M. Bokayev from performing a number of actions as part of administrative supervision, including “showing up in the streets, in the squares, parks, entertainment establishments and other public venues with the purpose of discussing and expressing an opinion on socially meaningful matters, actions (inaction) of persons (administrative, state, political, authorized to perform public functions, or equated thereto) and/or bodies, organizations of any form of ownership.”
It is noteworthy that under Article 7 of the Law of the Republic of Kazakhstan on administrative supervision “with respect to persons who have been placed under administrative supervision the following restrictions, in the form of a ban, may be applied in full or partially, depending on such persons’ lifestyle, behaviour in family and at their place of residence, or other circumstances that characterize their personality:
(a) to leave their place of residence during hours that are determined by the relevant law enforcement bodies;
(b) to visit places in the district (city) as determined by the law enforcement bodies;
(с) leave the limits of the city (district) without permission from the law enforcement body that performs the supervision;
(d) search for, visit, engage in telephone conversations, or otherwise communicate with minors without the consent of their parents or legal guardians;
(e) consume alcoholic drinks, drugs, psychotropic substances.”
Obviously, every such restriction is directly linked to the relevant crime committed, or to the anti-social behaviour.
As for Mr. Bokayev, as part of his administrative supervision he was restricted from showing up at any public venues if such visit has the objective to engage in a debate on socially meaningful matters and actions of public officials.
By a sentence of District Court No.2 for the Medeu district in the city of Almaty dated 22 June 2020 (Judge Z. Makharadze), for disseminating false information about the ruling party “Nur-Otan” during a state of emergency (Article 274 of the CCRoK), civil society activist A. Ilyashev was sentenced to three years of restriction of freedom and banned from “engaging in social and public activity of voluntary servicing the political, cultural, professional needs of society, creating and participating in the activity of political parties, public associations, foundations – for a period of five (5) years” (quote from the text of the verdict).
In their turn, the Office of Public Welfare in the city of Almaty, a body Mr. Ilyashev contacted in search of employment in one of his professions—lawyer, pedagogue-psychologist, specialist in corporate management, religious scholar—in their response dated 16 April 2021 indicated that all those professions “may fall under the definition of voluntary service of political, cultural, professional needs of society” and, therefore, in the Office’s opinion, Mr. Ilyashev was restricted in his ability to engage in any of those activity based on the court’s sentence.
Analysis of the text of aforementioned sentences as well as other sentences and rulings which prescribed additional punishment in the form of deprivation of the right to engage in social, trade union or religious activity, has demonstrated that the court practice absolute arbitrariness and political bias in rendering their decisions in applying this kind of penalty. A number of sentences fail to explain in detail what precisely the court understands to constitute a deprivation of the right to engage in a social, trade union or religious activity and, apparently, assume that the court will explain it later (as in the case of M. Bokayev) or that an interpretation will be given by the bodies that execute the punishment.
In some cases, sentences cause doubt in terms of their legal quality.
For instance, for the lack of a legal definition of “public activity” the Judge Z. Makharadze and the Office of Public Welfare in the city of Almaty use the one provided in Wikipedia.
Judge G. Dauleshova banned M. Bokayev from being a member in public organizations, including political parties, religious organizations, public movements, trade unions, self-governing organizations and—separately—non-commercial organizations, even though under Chapter VII of the Civil Code all those listed organizations are non-commercial in terms of their legal form, and there is no such organizational and legal form as “a public organization” or “a public movement” in the current legislation of Kazakhstan.
Those who have been sentenced to this additional punishment, essentially, are deprived in various combination from the following:
– expressing their opinion on political, social, environmental and even household matters;
– being members and participating in the activity of political parties, trade unions, public associations;
– engaging in social and public activity of voluntary servicing the political, cultural, professional needs of society;
– organizing and/or participating in any assemblies, meetings, marches, piquets, even showing up on the streets, in the squares, parks, entertainment establishments and other public venues in order to engage in a discussion or express an opinion on socially meaningful matters and actions by the authorities;
– participating in roundtables, trainings, conferences, meetings;
– engaging in volunteering activity;
– making publications, commentary and reposts in mass media and social networks on the internet (both under their actual names and nicknames) that are aimed at discrediting the actions by the authorities and pertaining to political, social-welfare, economic and environmental matters;
– engaging in other public activity by way of performing works and providing services.
Obviously, these restrictions do not meet the criteria of permissibility of restrictions on rights and freedoms which may pursue only four legal objectives: state (national) and/or public security; public order; protection of health and morals or protection of the rights and freedoms of others; must be established by law, be necessary in a democratic society, and be proportional to the existing threats.
Restrictions of the rights of convicts who have been prescribed additional punishment in the form of deprivation of the right to engage in a public activity have been applied on such a massive scale that we can talk about the citizenry being deprived as a whole of its fundamental political and civil rights.
The majority of the crimes for which such additional punishment has been prescribed fall under the category of the so-called “extremist” crimes (Sub-Clause 39 of Article 3 of the CCRoK), and this kind of law enforcement practice may be explained by the fight against extremism.
However, in her report on her visit to Kazakhstan in 2019, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Fionnuala Ni Aolain noted[3]: «While there is acknowledgment of the challenges of violent extremism leading to terrorism in some Security Council resolutions, as evidenced in the Secretary-General’s 2016 Plan of Action to Combat Violent Extremism, human rights treaty bodies have articulated concern about the use of the term “extremist activity”, which she shares.
She holds that the term “extremism” has no purchase in binding international legal standards and, when employed 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. A former Special Rapporteur noted his concern when the term “extremism” was deployed, not as part of a strategy to counter violent extremism, but as an offence in itself (A/HRC/31/65, para. 21).
She finds that all of these concerns are relevant to the exercise of articles 174, 179 and 405, among others, of the Criminal Code13. Article 174 of the Criminal Code, the most commonly used article against civil society activists in Kazakhstan, broadly criminalizes incitement to social, national, tribal, class, racial or religious discord, all of which are extremely vague grounds, and fails to provide genuine protection to individuals belonging to minority groups. Prison sentences for those successfully convicted are significant, particularly for leaders of public associations.
The Special Rapporteur notes that, in the last five years, dozens of civil society activists, bloggers and religious figures have been held criminally liable and dozens more arrested and detained under the provisions on extremism, suggesting overly broad application of criminal punishment for displaying dissenting opinion, such as the cases of Max Bokayev and Talgat Ayan, who were arrested for peacefully protesting against amendments to the Land Code in May 2016…».
In other words, a leading UN expert in human rights in the fight against terrorism cast doubt on the use of the term “extremism” in the legislation of the Republic of Kazakhstan and highlighted the legal uncertainty of several articles of the Criminal Code.
Obviously, if such a discrepancy is established with regards to the definitions of criminal offences, it is even more the case for additional punishment such as a ban on engaging in public activity.
Banning from expressing one’s opinion, or being a member in a trade union or a public association, or attend trainings and conferences, or engage in volunteer activity, is often absurd and screams for being brought in line with the criteria of admissibility of restrictions on human rights, proportionality, and reason.
- CONCLUSIONS AND PROPOSALS
Based on the analysis performed, a number of conclusions can be made, as well as the following recommendations:
1. The current legislation of the Republic of Kazakhstan does not contain a clear definition of “an official” and “a position” which a convicted person may be deprived the right to hold. In the context of application of, say, Article 50 of the CCRoK which lists the positions which, if found guilty of committing a crime at public service, may be prohibited from positions being held in a public office, at local executive bodies and financial organizations—indeed, based on the provisions of the Special Part of the Criminal Code, this type of additional punishment may be applied with respect to officials at non-government commercial and non-commercial organizations and establishments, and legal entities in general. The same legal uncertainty exists in the legislation on administrative offences.
In this respect, the following is recommended: the criminal legislation and the legislation on administrative offences should provide more detailed definitions of the notion of a “position,” an “official” in order to determine the special subject of concrete crimes to which Article 50 of the Criminal Code may be applied in part of prohibition to hold certain positions, and also administrative offences.
2. The current legislation of the Republic of Kazakhstan does not contain a clear definition of “professional activity” for the purpose of application of additional punishment in the form of deprivation of the right to engage in such activity by the person who has been convicted for a concrete criminal offence. The same legal uncertainty exists in the legislation on administrative offences.
In this respect, the following is recommended: for certain types of professional activity the right to engage in which may be deprived as punishment for committing a relevant crime, include in their number a clearly defined, legislatively established range of professions and specialties with clearly determined limits, qualitative characteristics and parameters for such deprivation.
3. The current criminal legislation of the Republic of Kazakhstan does not contain clear definitions of the terms of “trade union activity” and “public activity” for the purpose of application of additional punishment in the form of deprivation of the right to engage in such activity by the person who has been convicted for a concrete relevant offence, whereas the definition of “religious activity” in the legislation on religious activity and religious association is way too broad. The Special Part of the Criminal Code does not specify the concrete activity or activities the right to engage in which may be deprived for the person who has been convicted. Practically all of the articles in which this type of additional punishment is mentioned, define it as “deprivation of the right to hold certain positions and engage in certain activities.”
The Kazakhstani courts, in violation of the principle of juridical (legal) certainty and predictability, essentially prescribe punishments in the form of deprivation of the right to engage in an activity as certain types of activity or a ban on certain actions, whilst doing it in a rather arbitrary interpretation.
Besides, those additional punishments, under Section 3 of Article 50 of the CCRoK, may be prescribed even when the relevant article does not even specify this kind of additional punishment.
In this regard, the following is recommended:
– an analysis should be performed of the articles of the Criminal Code of the Republic of Kazakhstan which stipulate criminal liability for extremist crimes, against their compliance with the principle of juridical (legal) certainty and predictability, and with the criteria of admissibility of restrictions on human rights;
– under certain articles of the Criminal Code, the additional punishment should be defined as a deprivation of the right to engage in certain types of activity by way of depriving a specific right, permit or suspension thereof, and also a ban on certain actions;
– each relevant article of the Criminal Code should specify a concrete type of additional punishment in the form of deprivation of a special right, permit or suspension thereof, and also a ban on certain actions that are directly related to the crime committed.
Yevgeny Zhovtis, lawyer,
Director of Kazakhstan International Bureau for Human Rights and the Rule of Law
May 2021
[1] I.Sh.Borchashvili. Commentary to the Criminal Code of the Republic of Kazakhstan. General part (volume 1), edited by A.K. Daulbayev, General Prosecutor of the Republic of Kazakhstan, 2015.
[2] A.V. Brilliantov, S.I. Kurganov. Commentary to the Criminal Code of the Russian Federation (clause-by-clause) / edited by A.V. Brilliantov. — Moscow, Prospect, 2011. — 416 p.
[3] Report of the Special UN Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Fionnuala Ni Aolain. Visit to Kazakhstan. Published 22 January 2020, A/HRC/43/46/Add/1
