V. The Right to Freedom of Assembly

Legal Provisions

The right to freedom of assembly is enshrined in article 21 of the International Covenant on Civil and Political Rights. This provides that "no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre publique), the protection of public health or morals or the protection of the rights and freedoms of others."[125]

Kazakhstan's constitution also provides a protective framework for the right to freedom of assembly. Article 32 states that citizens have the right to gather peacefully for rallies, demonstrations, marches, and pickets. This right may be limited only "in the interests of state security, public order, protection of health, and the protection of the rights and freedoms of other people."[126] Article 39 says that "rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population."[127]

In practice, freedom of assembly is restricted by a 1995 presidential ordinance that was transformed in December 2004 into the Law "On the procedure for organizing and conducting peaceful assemblies, meetings, marches, pickets and demonstrations in the Republic of Kazakhstan." According to the law, demonstrations as small as a one-person picket must be registered with the mayor's office 10 days in advance, and "[t]he application must specify the goal, form, and location of the assembly or its route of movement, the time of its beginning and end, the estimated number of participants, the names of authorized persons [organizers] and persons responsible for public order, place of their residence and work [study], and the application date."[128] The authorities have five days to review and respond to the application.

If a gathering or meeting is held without permission, authorities may press administrative or criminal charges against organizers and participants. According to article 373 of the Code on Administrative Offenses, individuals violating the law on freedom of assembly can be fined or detained for up to 15 days.[129] Article 334 of the Criminal Code provides for up to one year in prison if individuals organize or participate in illegal gatherings or meetings.[130]

Both governmental and civil society bodies have criticized the current law on freedom of assembly. The 2007 "Baseline Report on Human Rights in Kazakhstan," published by the president's Human Rights Commission, criticizes the law for failing to comply with international standards and lists a number of problematic provisions such as the failure to define the term "gathering" or "meeting," such that the authorities can arbitrarily prosecute participants in any public coming together of people; the long application period that makes spontaneous protests impossible; and the room for arbitrary interpretation that article 10 of the law provides for the local authorities.[131] The report also notes that the law does not differentiate between participants in a gathering and monitors or passersby, often resulting in the arrest of the latter.[132] Between November 2005 and July 2006 the Charter for Human Rights, a Kazakh human rights organization, conducted a monitoring exercise on freedom of assembly in the country. In its 50-page report published in 2007 the Charter concludes that the nation's legislation "does not provide adequate protection of the right to freedom of assembly."[133] The report covered 48 gatherings in four cities over a period of eight months, arguing that the government's response to them demonstrated its arbitrary approach to granting permits and detaining demonstrators.

In September 2007 several Kazakh nongovernmental organizations submitted a draft law on freedom of assembly to the president's Commission on Human Rights.[134] The draft law incorporated international standards and best practices exemplified in the OSCE/ODIHR Freedom of Peaceful Assembly Guidelines,[135] excluding provisions that had permitted unnecessary restrictions on locations where demonstrations could be held. The group of NGOs presented the draft law to an expert council under the commission and asked the commission to send the draft law for review to the ODIHR and the European Commission for Democracy through Law (the Venice Commission) of the Council of Europe. To date, neither the parliament nor the government has reacted to the draft.[136]

Restrictions on the Right to Freedom of Assembly

Physical marginalization of protests

Article 10 of the law on freedom of assembly allows local authorities broad latitude

to "additionally regulate the procedure for conducting gatherings, meetings, marches, pickets and demonstrations with regard to local conditions." It is a virtual carte blanche to limit freedom of assembly. Going back to the 1995 presidential ordinance on which the 2004 law is based, the authorities have used this power to designate remote spaces as the only permissible sites for "opposition" gatherings; to manipulate or refuse access to those sites; to falsely accuse citizens of assembling when they are merely together on a street; and to harass those who monitor protests in an effort to document any abuses.

For example, in May 2002 the municipal council of Astana designated the area near the Joint Stock Company "Okan Atriko" and the area near the "Gazservice" at Vtoraya Nagornaya Street for demonstrations. Both places are outside the city center and hard to reach by public transport. In July 2005, the Almaty municipal council designated the area behind the cinema Sary-Arka "to hold nongovernmental activities of a social and political nature."[137] It takes at least 40 minutes from the city center to reach this location by public transport. In Karaganda, the designated area for gatherings is also at the outskirts of the city.  The local council of Taldy-Korgan, in eastern Kazakhstan, issued a recommendation to the local government to require all public demonstrations to take place outside the city limits. The ruling is currently being challenged in court.[138]

The character of a gathering often determines where it can take place. Civil society representatives told Human Rights Watch that it is not unusual that groups having "connections" to the authorities may be given permission to gather in the city center, while NGOs or "oppositional parties" frequently are refused permission to gather publicly.[139]

"We have to ask for permission all the time and they decline our applications all the time," civil society activist Zauresh Battalova told Human Rights Watch. "The refusals usually refer to the decision of the [Astana] municipal council from 2002. They either tell us somebody else will be holding a meeting at that time in that place, or there is construction in progress." She recounted an incident in December 2007, when workers of the company KOAT in Astana had planned to organize a picket because they had not received their salaries for more than eight months. On their behalf Battalova applied for permission to gather, as required, 10 days in advance of the tentative date, but was refused on the grounds that a youth group had already been given permission. Later she and the workers learned that the youth group had applied for their assembly permission after Battalova had.[140]

Demonstrations and pickets are not only banished to the outskirts of the cities-they are also generally ignored by the local media. Ainur Kurmanov, an activist from Almaty, commented, "If a protest addresses social issues the local press might write about it, but if the event is organized by the opposition or addresses political issues, the media will not cover it."[141]

Sanctions for defying regulations 

Despite article 10, many people decide to hold their demonstrations in the city center or close to the offices of the authorities they are addressing. Police regularly detain protesters during unsanctioned meetings and demonstrations. Zhanna Baitelova, of Opposition Youth, told Human Rights Watch in July 2008 that she could not recall a single demonstration by her group that had not ended in arrests. She noted that sometimes-but not always-a representative of the prosecutor's office reads a statement informing the participants that the demonstration is illegal and then police start arresting people. "Of course they have the right [under the law] to detain us, but it is a stupid law [on freedom of assembly]."[142]

On March 25, 2008, a group of 60 people organized a picket near the Almaty municipal building to protest the expropriation of their houses. Ainur Kurmanov of the Social Resistance Group described what followed:

When they arrived, the police were already prepared. Police and Special Forces were waiting for them in buses. A representative from the prosecutor's office came out and read his traditional statement [that the gathering was illegal], and on his command the arrests started. Police grabbed the banners and arrested the most active participants. They arrested 11 people. The next day, they were sentenced during an administrative court hearing."

Alternatively, as Kurmanov noted, "It can also happen that nobody is arrested during the event and then the police come to your home in the evening, detain you, take you to a court hearing and then have you pay a fine or you end up in detention."[143] On November 7, 2007, a group of approximately one hundred protesters gathered in Panfilov Park in Almaty and then marched to the administrative court building to protest a legislative initiative to provide firearms to staff of the administrative court and marshals. (Previously, the marshals had been involved in implementing mass evictions: when homeowners resisted leaving their houses the marshals had often beaten them with truncheons.) The demonstration reached the administrative court and Kurmanov read a petition outside the building. Nobody was arrested at the scene, but a week later police came to Kurmanov's workplace, arrested him, and drove him to the court, where he was sentenced to seven days' administrative detention.[144]

In September 2007, 36 individuals, including elderly and disabled persons and children, were waiting outside the main gate of the presidential administration in Astana for two officials to exit the building.  The officials were presidential administration staff responsible for reviewing letters from the public; those gathered had sent a letter to the National Security Council seeking redress on compensation for land that had been seized. Anara Ibraeva, of the Kazakhstan International Bureau for Human Rights and Rule of Law, described what happened: "They did not protest. They did not have any banners and were not shouting any slogans. They just waited for these two individuals to come out and give them an answer as they had promised in a letter. Presidential administration guards called the police, who came [on buses, bringing dogs with them], and the people were all hauled off to the police station. They were kept until the evening and were denied access to a lawyer. Finally, they were informed that they had allegedly staged an unsanctioned meeting although they were just standing and waiting on a public square."[145]

Threats to deter protests

Kurmanov and other activists told Human Rights Watch that the authorities sometimes use pressure through parents or universities to discourage activists from organizing or participating in protests. Both Ainur Kurmanov of the Social Resistance Group and Zhanna Baitelova, of Opposition Youth, said they knew cases where students were denied their certificates or were otherwise harassed because they had participated in demonstrations. For example, Dmitry Tikhonov, an activist with the student movement in the southern city of Taraz, had applied to hold a protest against a price increase for public transport. After he had registered the application on July 1, 2008, he was called before the university authorities and questioned about his political ideas and party affiliation. The authorities urged him to cancel his application and threatened him with expulsion. Afterwards he was summoned for a "chat" with the municipality Department for Political Issues, which served as a subtle warning, and police came to his home several times. On the evening of July 8, an unknown assailant beat him up in the entryway to his house. "Only when we threatened the authorities to hold solidarity pickets all over the country and in Moscow the harassment stopped," said Kurmanov.[146] Meanwhile, the municipality banned the demonstration Tikhonov had tried to register.

Harassment of monitors

Not only participants but also monitors of unsanctioned gatherings are at risk of arrest, especially when they are already known to the police. The journalists or activists who arrive to monitor a gathering stand 15 to 20 meters from the demonstrators; they have still and video cameras, which are openly displayed; they show identification to the organizers and police before the event.

Zhanna Baitelova told Human Rights Watch about a picket against building an underground parking lot at the Central Square in Almaty on March 1, 2008: "Very often we do not participate but just monitor. [But] the moment we arrive, the police think, 'Aha, the organizers,' and strike.… On March 1, there were people with banners and slogans, and Denis [Alimbekov, a human rights defender and lawyer and one of the monitors] left his car and stood in the sun to warm up. At that moment the police ran towards him and arrested him."[147]

Zauresh Battalova, was also arrested when she monitored the youth demonstration authorized to take place when her own workers' protest had been refused (see above). On December 15, 2007, after her own application to hold a demonstration that day was declined,[148] she and four others decided to monitor a students' demonstration. The police detained Battalova without an arrest warrant, while she was monitoring the demonstration, and held her at district police quarters for three hours without informing her about her rights and without allowing her to contact her lawyer. At the court hearing on December 22, in which Battalova and the four others were charged with holding an "unsanctioned picket," Battalova was given just five minutes with her attorney to prepare a defense statement. Three defendants were given a warning, one received a fine of five times the monthly minimum pay, and Battalova was sentenced to 20 times minimum pay.[149]

Coping with restrictions on assembly

Since the law on assembly hardly allows citizens to gather and protest, civil society activists have had to become quite creative. For example, Zauresh Battalova told Human Rights Watch, "In our society there is an understanding that organizing a demonstration or gathering is an anti-governmental or anti-presidential activity. Therefore in our applications we have now started to call the aim of our demonstrations, for example, 'Demonstration for housing rights' instead of 'Demonstration against the violation of housing rights.'" Presumably the former would be viewed as less threatening and more likely to receive approval by the authorities.

Another strategy is to organize open-air "citizens' gatherings" on private land and thereby avoid the requirement to seek a permit. In April 2008 Battalova and like-minded activists started a series of events regarding housing issues. While the authorities in Astana permitted the first demonstration on April 6, they refused to permit the demonstrations for all months to follow. "We started to hold citizens' gatherings. Of course we are surrounded by staff from the prosecutor's office and the Department for Internal Affairs, and everything is videotaped," said Battalova. "But we make sure that this is a gathering and not a demonstration. We do not have slogans, banners or demands. Instead we have a chair and secretary of the gathering and write up minutes."[150]

The government still tried to keep people from participating in those meetings, she said. "For example, on July 6, they changed the route of buses or stopped mashroutkas (shared taxis) and sent them back. They also gathered people at their workplaces and told them not to participate in the meeting. When people came in their private cars, traffic police stopped them asking, 'Where are you going? You'd better turn around, otherwise we need to write down your license plate and next time you might face even more problems.' And of course some people were scared and drove home. Normally, around 2,000 or 2,500 people attend the monthly meeting, but that day only 400 came. July 6 is the birthday of the president and we had around 4,000 police in town."[151]