Criminal Proceedings against Activists in Kazakhstan: Criminalization of Peaceful Protest and Absence of Fair Trial Standards

On 20 January 2017, five-year sentences of Max Bokayev and Talgat Ayanov, two land rights activists in Kazakhstan, were upheld by the Atyrau Oblast Court. Bokayev, a human rights defender, and Ayanov, an activist, were sentenced to five years imprisonment and banned from engaging in public activities for three years for their alleged roles in organizing peaceful demonstrations. A number of fundamental rights of Bokayev and Ayanov were violated, such as the right to freedom of expression, the right to freedom of assembly, the right to liberty and the right to a fair trial.

Trial observation revealed a number of procedural shortcomings, contradicting Kazakhstan’s obligations under international law. Articles 10 and 11 of the Universal Declaration of Human Rights (UDHR) and article 14 of the International Covenant on Civil and Political Rights (ICCPR) protect the equality of arms, including the right to a public hearing and the presumption of innocence. In the case of Bokayev and Ayanov, several fair trial guarantees were violated, including:

• limited access to a lawyer to prepare hearings and inefficient legal assistance during the trial;
• violation of equality of arms by refusing to examine the defense evidence for no apparent reason and to challenge incriminating evidence;
• violation of the right to a fair and public hearing by limiting access to the courtroom and live coverage of the trial in another room;
• violation of the right to free assistance of an interpreter by ignoring insufficient or lacking knowledge of the accused and the witnesses of the court language and the low quality of translations during the proceedings.

Moreover, the proceedings humiliated the accused that were kept in a glass cage. Such treatment amounts to degrading and inhumane treatment according to article 7 of the ICCPR.

Legal provisions under which Bokayev and Ayanov were convicted allow an over-broad prohibition of the freedoms of expression and assembly. The charges and convictions against the activists were used as a tool of repression in retaliation for their legitimate activities. The Helsinki Foundation for Human Rights (HFHR) and the Netherlands Helsinki Committee (NHC) draw the conclusion that Bokayev and Ayanov should have never been imprisoned.

The NHC and the HFHR call on the governments of the Netherlands and Poland, the European External Action Service, the Organisation for Economic Co-operation and Development, the Extractive Industries Transparency Initiative and other international agencies and bodies in dialogue with the government of Kazakhstan, its branches or officials to:

• include the case and the call for the release of Max Bokayev and Talgat Ayanov in all bilateral talks with the government or relevant public officials of Kazakhstan, in particular, with the judiciary, the prosecutors, officials responsible for economic cooperation, trade and investment;
• condemn criminalization of dissenting opinions and peaceful assembly by the government of Kazakhstan;
• call for the revision of restrictive legislation by Kazakhstan.

The HFHR and the NHC call on the UN Special Rapporteur on the Situation of Human Rights Defenders and the UN Special Rapporteur on the Right to Peaceful Assembly and Association to:

• monitor the conditions of detention of Max Bokayev and Talgat Ayanov and call for their release;
• ensure that legal provisions that limit the right to freedom of peaceful assembly in Kazakhstan are aligned with international human rights law; ensure that peaceful assembly is no longer subject to permission by the authorities and prior notification is accepted as sufficient.

The HFHR and the NHC call on the government of Kazakhstan to:

• immediately and unconditionally release Max Bokayev and Talgat Ayanov;
• and all forms of harassment, including legal, administrative and tax harassment, of human rights defenders in Kazakhstan and enable them to carry out their work without excessive state interference;
• ensure consistency of government policies with the provisions of the UN Declaration on Human Rights Defenders and the International Covenant on Civil and Political Rights;
• revise legal provisions that limit the right to freedom of peaceful assembly, ensuring that this right is no longer subject to permission by the authorities and prior notification is accepted as sufficient;
• revise legal provisions that limit the right to freedom of expression, including the vague and broad definition of the offence of incitement to “social, national, clan, class or religious discord” in article 174 of the Criminal Code;
• facilitate very limited application of the restrictive legislation by the courts;
• invite international experts such as the Venice Commission to provide advice on how the legislation applied can be better adapted to international human rights standards.

Download the statement and a detailed monitoring report by the HFHR and the NHC here.