September 16, 2013
The government’s revision of the criminal code currently underway comes amid a broader crack down on freedom of expression, assembly, religion, and association in Kazakhstan following the outbreak of violence between police and civilians in Zhanaozen in December 2011.
Hugh Williamson, Europe and Central Asia Director

 

Dear Prosecutor General Daulbaev,

I am writing on behalf of Human Rights Watch with regards to the draft criminal code currently under review by your office.

As you may know, Human Rights Watch is a nongovernmental organization that monitors and reports on human rights in about 90 countries worldwide. We have been reporting on the human rights situation in Kazakhstan for approximately 20 years. In this time we have communicated with the government of Kazakhstan on a range of human rights issues including freedom of religion, labor rights, freedom of speech, and child rights, for example.

It is in the spirit of this cooperation that would like to share several concerns and recommendations about several provisions in the draft criminal code.

We have identified key articles in the draft criminal code that, if adopted, would restrict fundamental freedoms in Kazakhstan, such as freedom of speech and expression, freedom of assembly, freedom of association, and freedom of religion.

Three of these articles in the draft code create new offences that do not comply with international human rights standards. They are:

  • Article 400 – Actions provoking continued participation in an illegal strike;
  • Article 403 – Leading, participating in the activities of an unregistered or banned public, religious association, as well as financing their activities;
  • Article 404 – Violating the law on religious activities and religious association;

Ten others amend corresponding articles in the existing criminal code.[1]

Human Rights Watch has expressed concerns about many of these articles in the past, as they do not meet international human rights standards regarding freedom of speech, assembly, association, and religion nor labor standards set out in international human rights and labor treaties ratified by Kazakhstan. They are:

  • Article 130 – Libel, corresponding to article 129 of the existing criminal code;
  • Article 131 – Insult, corresponding to article 130 of the existing criminal code;
  • Article 173 – Inciting social, national, clan, racial, or religious discord, corresponding to article 164 of the existing criminal code;
  • Article 180 – Calling for the forcible overthrow or change of the constitutional order, corresponding to article 170 of the existing criminal code;
  • Article 370 – Public insult of the honor and dignity of the first President, corresponding to article 317-1 of the existing criminal code;
  • Article 372 – Infringement on the honor and dignity of the President, corresponding to article 318 of the existing criminal code;
  • Article 373 – Infringement on the honor and dignity of deputies, corresponding to article 319 of the existing criminal code;
  • Article 375 – Insulting government officials, corresponding to article 320 of the existing criminal code;
  • Article 398 – Violating the order for organizing or holding gatherings, meetings, pickets, marches, and demonstrations, corresponding to article 334 of the existing criminal code;
  • Article 402 – Creating or participating in the activities of an illegal public or other association, corresponding to article 337 of the existing criminal code;

The government’s revision of the criminal code currently underway comes amid a broader crack down on freedom of expression, assembly, religion, and association in Kazakhstan following the outbreak of violence between police and civilians in Zhanaozen in December 2011. In the nearly two years since the Zhanaozen events, Kazakh authorities have imprisoned outspoken government critics and closed independent and opposition newspapers, claiming that their activities are “extremist” in nature. In some cases they have invoked some of the articles listed above to prosecute legitimate political expression and activities.

Human Rights Watch urges the Office of the Prosecutor General to take immediate action to remove or amend these articles in order to bring them into compliance with international human rights and labor standards to which Kazakhstan is party. We present our concerns in more detail below.

Freedom of Speech and Media

Freedom of speech and media are essential rights in a democratic society. The ability to practice journalism free from undue interference, to peacefully criticize government representatives, and to express critical views, whether about religion or society, are examples of the legitimate exercise of freedom of expression.

Incorporating into the new criminal code draft articles 130 and 131, corresponding to articles 129 and 130, respectively, of the existing criminal code; article 173, corresponding to article 164 of the existing criminal code; and articles 370, 372, 373 and 375, corresponding to articles 317-1, 318, 319 and 320, respectively, of the existing criminal code, which concern insulting or infringing upon the honor and dignity of the First President, president, deputies, and other government officials, would directly threaten principles of free speech and thereby undermine media and speech freedoms in Kazakhstan. Under these provisions, individuals may face criminal sanctions for expressing thoughts or opinions because others, including government officials, deem them offensive.

Over the last two years, Human Rights Watch has repeatedly called on the government of Kazakhstan to repeal or amend article 164, or “Inciting social, national, clan, racial, or religious discord,” of the existing criminal code, as it is vague, overbroad, and criminalizes behavior and speech protected under international human rights law. Rather than amend the article to clarify the nature and scope of the offense so as to bring it in line with international standards, however, article 173 of the draft criminal code, corresponding to article 164, expands the definition of incitement to include “class discord,” and significantly increases penalties associated with the charge, from a maximum prison sentence of 12 years to a maximum sentence of up to 20 years in prison.

Similarly, article 180 of the draft criminal code, “Calling for the forcible overthrow or change of the constitutional order,” corresponding to article 170 of the existing criminal code, is overbroad and vague. This article in its current or proposed wording offends the principle of legality, which, under international human rights law, requires that crimes be classified and described in precise and unambiguous language so that everyone is aware of what acts and omissions will make them liable so they can act in accordance with the law. Without addressing the incompatibilities of this law with international human rights standards, the draft provision further increases the maximum penalty from seven to 15 years in prison, with confiscation of property.

Laws that target speech that incites violence, discrimination, and hostility must respect the core right of free speech, and are thus considered compatible with human rights law only when such violence, discrimination, or hostility is imminent, and the measures restricting speech are absolutely necessary to prevent such conduct. As such, articles 173 and 180 should be further amended to bring them in line with human rights law.

Human Rights Watch has also called on the government of Kazakhstan to decriminalize libel, as criminal defamation laws, and in particular, the sanction of imprisonment as a punishment for defamation, are increasingly seen as inconsistent with the conditions set forth in international human rights law. Even where they are inspired by legislators’ genuine desire to encourage people to responsibly exercise their freedom of expression, criminal defamation laws pose a particularly significant risk of chilling legitimate free speech and of violating the principles of legality, proportionality, and necessity.

Kazakhstan’s draft criminal code not only continues to criminalize libel, but additionally increases penalties for the offense. For example, under part 1 of article 130, corresponding to part 1 of article 129, the draft code introduces a penalty of imprisonment for up to one year and increases the maximum fine from 100 to 200 monthly indices ($1135 USD to $2270 USD) to 1000 monthly indices ($11350 USD). Furthermore, under article 130 of the draft criminal code, journalists can be subject to criminal prosecution for defamatory remarks made in the mass media or “information-communication networks.”

In July 2011 the United Nations Human Rights Committee issued concluding observations concerning Kazakhstan’s compliance with the International Covenant on Civil and Political Rights (ICCPR), to which Kazakhstan is a party, and which the Human Rights Committee monitors. In those observations the committee expressed concern, among other things, about the provisions in the Criminal Code on defamation of public officials and about the Law on the Leader of the Nation. As you know, after the adoption of the latter, amendments to the Criminal Code introduced a new provision under article 317, part 1 [see below], that prohibits and punishes attacks on the honor and dignity of the president.

The committee recommended that: "The State party should ensure that journalists, human rights activists and other individuals are free to exercise the right to freedom of expression under the Covenant. In this regard, the State party should review its legislation on libel and insult, so that it is in full compliance with the provisions of the Covenant. Furthermore, the State party should refrain from using defamation laws solely for the purpose of harassment or intimidation of individuals, journalists and human rights defenders. In this regard, any restrictions on the exercise of freedom of expression must meet stringent requirements of paragraph 3 of Article 19. "

Under article 131, corresponding to article 130, “insult,” is similarly kept as a criminal offense. The draft code also continues to include specific provisions under articles 370, 372, 373, and 375, corresponding to articles 317-1, 318, 319, and 320, respectively, for “insulting” or “infringing upon the honor or dignity” of the first president (also carrying the title of ‘Leader of the Nation’), the president of Kazakhstan, deputies, and government officials, respectively. Draft articles 370 and 372 carry a maximum five year prison sentence, while draft article 373 carries a maximum three year prison sentence. Draft article 375 carries a maximum sentence of four months’ arrest.

Under international human rights law, a government may not impose criminal sanctions for expressing thoughts or opinions merely because others, including government officials, deem them offensive.

General Comment 10 on Article 19 of the International Covenant on Civil and Political Rights states: "Paragraph 3 expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole. However, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself."

The UN special rapporteur on freedom of expression has emphasized that states should take particular care to ensure that defamation laws—civil or criminal—are not used by public officials regarding matters that relate to their actions in public office, as defamation laws “should never be used to prevent criticism of government,[2]” and “should reflect the principle that public figures are required to tolerate a greater degree of criticism than private citizens.[3]

The draft code appears to attempt addressing this concern by introducing an accompanying explanatory note (‘primechaniya’) at the end of each of the following articles - 372, 373 and 375 - stating “Public speech which contains criticism of [the policies of the President of Kazakhstan (art. 372); of the parliamentary activities of the members of parliament (art. 373); and the professional performance of representatives of government (art. 375)] does not entail criminal responsibility under this article.”

However, even with the inclusion of these clarifying notes under articles 372, 373 and 375 of the draft criminal code, these articles allow too much scope for criminal liability for speech that is merely “insulting,” and provide no legal justifications for criminalizing this type of speech. Furthermore, article 370, or “Publicly insulting or infringing upon the honor and dignity of the First President of the Republic of Kazakhstan – the Leader of the Nation; Insulting the image of the First President of the Republic of Kazakhstan, and impeding the lawful activities of the First President of the Republic of Kazakhstan, Leader of the Nation,” does not include such a clarifying note.

The present wording of articles 130, 131, 370, 372, 373, and 375, continues to put journalists and others at risk of criminal prosecution for conducting investigative reporting into sensitive issues, such as corruption, human rights abuses, and general criticism of the government or high-ranking politicians. As such, articles 130, 131, 370, 372, and 375 of the draft criminal code are likely to have a chilling effect on Kazakhstan’s journalists and media outlets by leading to and encouraging self-censorship by journalists and editors.

While not binding on Kazakhstan, European Court of Human Rights jurisprudence on Article 10 concerning freedom of speech states that where there is a conflict between the protection of honor and reputation of politicians and the freedom of press, courts should refrain from applying criminal sentences, in particular imprisonment. Such sentences endanger the very core of the freedom of expression, function as censorship for the entire media, and obstruct the press from acting as a public watchdog.

Given the incompatibility of the aforementioned articles of the existing criminal code and of their corresponding articles in the draft criminal code with international standards, such as article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Kazakhstan has pledged to respect, we urge the Prosecutor General’s office to remove or amend the aforementioned articles to ensure that Kazakhstan’s criminal code is in line with international human rights law before the draft is submitted to parliament for review.

Freedom of Association Affecting Workers’ Rights

Kazakhstan has an obligation to promote and protect freedom of association, including the right to form and join trade unions, religious associations, or political parties. At present these groups face restrictions on their right to freedom of association in Kazakhstan that are inconsistent with international norms.

Human Rights Watch is concerned that under article 400, concerning the right to strike, and article 402, corresponding to article 337 in the existing criminal code, concerning the right to form and participate in public associations, the draft criminal code continues to be incompatible with the core principle of freedom of association under international human rights and labor laws.

Article 402 of the draft criminal code, “Creating or participating in the activities of an illegal public or other association,” penalizes individuals for creating or participating in, among other things, “trade unions financed through means deemed illegal by Kazakh law.” The draft code significantly increases the fine for violating this provision, from 200 to 500 monthly indexes ($2270 USD to $5675 USD) to up to 6000 monthly indexes, which is approximately $68,000 USD.

Of particular concern to Human Rights Watch, based on our recent research into labor rights violations in Kazakhstan’s oil sector, is how this provision violates workers’ and trade unions’ right to freedom of association. Kazakhstan’s constitution stipulates that it is illegal for non-Kazakh legal entities, such as international organizations or unions, or individuals, to provide financial support to trade unions in Kazakhstan. This provision violates the right to freedom of association under international human rights and labor standards.

The Committee of Experts on the Application of Conventions and Recommendations (CEACR), the legal body responsible for the examination of compliance with the International Labour Organization (ILO) conventions and recommendations, has repeatedly stated in its individual observations on Kazakhstan that “legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers.[4]

In addition, the CEACR has stated that “all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers, respectively, whether they are affiliated or not to the latter.”

Thus, criminalizing the receipt of funds by trade unions in Kazakhstan from non-governmental sources outside Kazakhstan, fails to comply with international labor and human rights laws to which Kazakhstan is party.

Article 400 of the draft criminal code is similarly problematic. Kazakhstan’s constitution and labor code guarantee the right to strike, a core component of freedom of association. However, there is a broad prohibition on the right to strike in Kazakhstan, including in the railway, transport, and petroleum industries, and workers are required to exhaust the cumbersome and lengthy mediation procedures for a strike to be considered legal.

Under article 400 of the draft criminal code, “Actions provoking continuation of an illegal strike,” a new addition to the existing criminal code, authorities may criminally sanction workers, including by imprisonment for up to two years, for encouraging others to continue to participate in a strike that has been declared illegal by a court. Given the broad prohibition on the right to strike and the burdensome collective bargaining requirements as outlined in Kazakhstan’s labor code, it is difficult to stage a legal strike some sectors of the economy in Kazakhstan and impossible in others.

Imposing criminal sanctions on individuals whose actions are deemed by the authorities to “provoke continuation of an illegal strike” is not in line with Kazakhstan’s international human rights and labor rights commitments. International law insists that penalties be proportionate to the offense committed. The ILO has stated that “the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.” The ILO has also determined criminal sanctions for those who participate in peaceful strikes to be excessive punishment.

Thus, Human Rights Watch urges the Prosecutor General’s office to exclude this article from the new criminal code, and further to bring legislation regulating the right to strike under Kazakhstan’s labor code in line with international norms.

Freedom of Assembly

The right to freedom of assembly is enshrined in international law and 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."

However, freedom of assembly in Kazakhstan is heavily restricted. People must apply for permission with the local authorities for demonstrations as small as a one-person picket. Individuals are further required to 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."

Consequences for organizing or participating in gatherings or meetings that are held without permission are severe. Under the existing criminal code, individuals can be imprisoned for up to one year; suggested amendments in the draft criminal code would reduce sanctions. Under article 398 of the draft criminal code, “Violating the order for organizing or holding gatherings, meetings, pickets, marches and demonstrations,” which corresponds to article 334 of the existing criminal code, criminal penalties under this charge are reduced to imprisonment for up to four months, with alternative sanctions in the form of a fine of up to 300 monthly indices ($3400 USD), corrective labor, or community service of up to 200 hours.

However, given the underlying incompatibilities with international standards of the law on public assemblies such as a) the failure to define the term "gathering" or "meeting," such that the authorities can arbitrarily prosecute participants in any public gathering of people, or b) the long application period that makes spontaneous protests impossible, any criminal sanctions, even of a reduced nature, still violate international laws to which Kazakhstan is party.

The proposed amendments leave intact wholly disproportionate and unjustified harsh criminal punishment on individuals who wish to express themselves through peaceful public protest.

Freedom of Religion

Kazakhstan’s law on religion, adopted in 2011, has been widely criticized by various human rights groups and international bodies for being overly restrictive and not in conformity with international rights standards. Article 18 of the International Covenant on Civil and Political Rights guarantees individuals' right to hold and to manifest their religious beliefs, and provides that "freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

The 2011 law outlaws any practice of religion in association with others without state permission, requires missionaries to be registered, and forbids the distribution of religious literature outside religious institutions, religious schools, and other specially designated areas. It also required all religious communities in Kazakhstan to undergo compulsory reregistration within one year of its adoption, which according to Forum18, an independent international religious freedom monitoring group, resulted in the closure of many of Kazakhstan’s smaller religious groups last year.[5]

New provisions to the draft criminal code introduce criminal sanctions for peacefully practicing religion in Kazakhstan, a further, significant step backwards.

Under article 403 of the draft criminal code, “Leading, participating in the activities of an unregistered or banned public, religious association, as well as financing their activities,” individuals may be fined up to 200 minimum indices ($2270 USD), subjected to correctional labor, or imprisoned for up to three months for leading the activities of an unregistered public religious association. For “participating” in an unregistered association, individuals can be imprisoned for up to two months, and for “financing” such associations, imprisoned for up to three months.

Under article 404, “Violating the law on religious activities and religious associations,” individuals may be imprisoned for up to four months for conducting missionary activity without registration or using religious literature that has not been approved by the state religious board, if these activities take place within one year of an administrative penalty for the same.

These articles violate international law and gravely encroach on freedom of thought, conscience, and religion in Kazakhstan by imposing criminal sanctions for the peaceful expression of religious beliefs, and, if adopted, would violate Kazakhstan’s obligations as a party to the ICCPR.

As the UN Human Rights Committee has noted, “Article 18.3 [of the ICCPR] permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18.”[6]

Extremism

Furthermore, under parts 4 and 5 of article 403, individuals can be imprisoned for up to six years for “organization of and participation in activities of  public or religious associations or other organizations after a court decision banning their activities or [ordering their] liquidation in connection to their practice of extremism and terrorism has entered into force.” This provision corresponds to article 337-1 of the current criminal code.

In 2005, Kazakhstan adopted the Law on Extremism, which criminalizes membership in prohibited extremist organizations. According to article 1, part 5, extremism is defined as "the organizing and/or the carrying out of actions by a person, group of people or organization acting in the name of organizations formally recognized as extremist." The provision lists activities that are extremist in nature, including “violently overthrowing the constitutional order,” “violating the sovereignty of the Republic of Kazakhstan,” and “inciting social [or] class hatred (political extremism),” amongst others.

The lack of a clearly articulated definition of extremism in Kazakh law means that authorities can claim that non-violent religious and other groups and associations are “extremist,” and they have done so in practice. A case in point is the ban of the Alga! opposition group by an Almaty court in December 2012. On the basis of psycho-philological expert analysis, the court found that the activities of Alga! led to inciting social discord and calling for the overthrow of the constitutional order, which undermined Kazakhstan’s national security. Court materials cite article 1, part 5 of the “Law on Extremism” to justify the ban, given that these activities qualify as “extremism” under this provision.

As described in detail above, the charges of “inciting social [or] class discord” is vague and overbroad and fails to classify and describe in precise and unambiguous language what acts and omissions will make individuals liable so they can act in accordance with the law.

Qualifying this activity as “extremism” is wholly incompatible with international human rights standards. Human Rights Watch believes the definition of extremism must be crafted narrowly and interpreted conservatively to limit the scope for arbitrary and discriminatory enforcement. As stated above, international human rights law requires that any law creating a criminal offense must be clear and precise enough for people to understand what conduct is prohibited and to regulate their behavior accordingly.

If adopted without further amendment, the articles in the draft criminal code described above will violate Kazakhstan’s obligations under international human rights law and the rights of criminal defendants. They will also have a chilling effect on the rights to freedom of expression and assembly, freedom of religion and freedom of association, and therefore a chilling effect on legitimate dissent.

We urge the Prosecutor General’s office, taking into consideration the aforementioned concerns and recommendations, to amend the draft provisions of the country’s criminal code that violate human rights and to introduce new legislation that is in line with its international legal obligations for the administration of justice.

Thank you for your attention to this letter.

Sincerely,

Hugh Williamson
Executive Director
Europe and Central Asia Division
Human Rights Watch


[1]Criminal Code of the Republic of Kazakhstan, No. 167-I, July 16, 1997, with changes and amendments as of July 4, 2013.

[2]UN Commission on Human Rights, Report of the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression, Mr. Abid Hussain, UN Doc. E/CN.4/1999/64, January 29, 1999, para. 28(a).

[3]Ibid., para 28(b).

[4]CEACR: Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Kazakhstan (ratification: 2000), adopted 2011, published 101st ILC session (2012), https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:2972561075882633::NO:13100:P13100_COMMENT_ID:2698737:NO.

[6]See General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights. The Comment goes on to state: “The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint. States parties' reports should provide information on the full scope and effects of limitations under article 18.3, both as a matter of law and of their application in specific circumstances.”

 

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