CCPR/C/141/D/2548/2015

GE.24-14064 (E) 111224 131224

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communications

No. 2548/2015 and No. 2677/2015*, **

Communications submitted by:

Dias Koshkarbayev (communication

No. 2548/2015) and Dilnara Insenova

(communication No. 2677/2015), both

represented by counsel, Bakhytzhan Toregozhina

Alleged victims:

The authors

State party:

Kazakhstan

Date of communications:

2 September 2014 (initial submission)

(communication No. 2548/2015) and 19 May

2015 (initial submission) (communication

No. 2677/2015)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 23 January 2015

(communication No. 2548/2015) and

12 November 2015 (communication

No. 2677/2015) (not issued in document form)

Date of adoption of Views:

16 July 2024

Subject matter:

Sanctions for participating in a peaceful

assembly

Procedural issues:

Exhaustion of domestic remedies;

non-substantiation of claims

Substantive issues:

Freedom of expression; freedom of assembly

Articles of the Covenant:

14, 19 and 21

Articles of the Optional Protocol:

2 and 5

1.1

The authors of the communications are Dias Koshkarbayev (communication

No. 2548/2015) and Dilnara Insenova (communication No. 2677/2015), both nationals of

Kazakhstan and born in 1987 and 1972, respectively. They claim that the State party has

* Adopted by the Committee at its 141st session (1–23 July 2024).

** The following members of the Committee participated in the examination of the communications:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Mahjoub El Haiba, Laurence R. Helfer, Carlos Gómez Martínez, Marcia V.J. Kran, Bacre Waly

Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah

Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

United Nations

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

International Covenant on

Civil and Political Rights

Distr.: General

13 December 2024

Original: English

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

2

GE.24-14064

violated their rights under articles 14 and 21 of the Covenant. Ms. Insenova also claims that

the State party has violated her rights under article 19 of the Covenant. The Optional Protocol

entered into force for the State party on 30 September 2009. The authors are represented by

counsel.

1.2

On 16 July 2024, pursuant to rule 97 (3) of its rules of procedure, the Committee

decided to join communications No. 2548/2015 and No. 2677/2015, which had been

submitted by the same counsel on behalf of two different authors, for a joint decision, in view

of their substantial factual and legal similarity.

Facts as submitted by the authors

2.1

As regards communication No. 2548/2015, on 11 February 2014, the Government of

Kazakhstan announced that the national currency would be devalued by 30 per cent. After

the announcement, many persons from Almaty announced on social media that they would

gather in the city centre on 15 February 2014 to peacefully protest against the devaluation

measures. On 15 February 2014, Mr. Koshkarbayev was passing by the area when he saw

the protest and started to film it on his phone. He also spoke to some participants about the

reasons for their protest and, because he felt in solidarity with them, he decided to stay. He

was later detained by the police and charged with violating the legislation on organizing and

holding peaceful assemblies. Later the same day, the Specialized Inter-District

Administrative Court of Almaty found Mr. Koshkarbayev guilty of the cited administrative

offence and fined him 9,260 tenge. His appeal to the Almaty City Court was denied on

4 March 2014. His requests for a supervisory review were dismissed by the Almaty City

Prosecutor and by the Deputy Prosecutor General on 4 April and 14 July 2014, respectively.

2.2

As regards communication No. 2677/2015, on 15 July and 11 August 2014,

Ms. Insenova and about a dozen other borrowers protested against banks’ lending policies

near the building of the ATF bank and the Almaty city akimat (mayor’s office), after which

they were detained by the police and charged with violating the legislation on organizing and

holding peaceful assemblies. On 15 July 2014, the Specialized Inter-District Administrative

Court of Almaty found Ms. Insenova guilty of the cited administrative offence and fined her

92,600 tenge. Her appeal to the Almaty City Court was denied on 5 August 2014. Her

requests for a supervisory review were dismissed by the Almaty City Prosecutor and by the

Deputy Prosecutor General on 6 October 2014 and 4 December 2014, respectively. As to the

second protest, held on 11 August 2014, the Specialized Inter-District Administrative Court

of Almaty also found Ms. Insenova guilty of the cited administrative offence of violating the

legislation on organizing and holding peaceful assemblies and fined her 33,336 tenge. Her

appeal to the Almaty City Court was denied on 2 September 2014. Her requests for a

supervisory review were dismissed by the Almaty City Prosecutor and by the Deputy

Prosecutor General on 20 October 2014 and 28 November 2014, respectively.

2.3

The authors submit that they have exhausted all available domestic remedies.

Complaint

3.1

The authors claim that, by imposing fines on them, the State party has violated their

right of peaceful assembly under article 21 of the Covenant. They argue that the State party

has failed to provide any justification as to why it was necessary to restrict that right.

3.2

Ms. Insenova claims, moreover, that the State party has violated her right to freedom

of expression under article 19 of the Covenant.

3.3

Ms. Insenova also claims that the State party has violated her right to a fair trial under

article 14 of the Covenant because, from the very beginning of the consideration of her cases,

the courts took the position of the prosecution and did not take into account her arguments,

which were based on domestic and international law. She further claims that the consideration

of her cases in appellate courts did not meet the criterion of impartiality, as the courts acted

in the interests of the police.

3.4

Mr. Koshkarbayev claims that the State party violated his rights under article 14 (3) (d)

and (g) of the Covenant because the police and the Specialized Inter-District Administrative

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

GE.24-14064

3

Court of Almaty refused to provide him with counsel and to allow journalists to attend his

court hearing.

3.5

The authors request that the Committee recommend that the State party: (a) bring to

justice those responsible for the violation of their rights; (b) provide them with compensation,

including legal costs; (c) take measures to lift the existing restrictions on the right of peaceful

assembly and the right to a fair trial in the legislation of Kazakhstan that are contrary to

articles 14 and 21 of the Covenant, respectively; and (d) ensure that conducting peaceful

protests does not entail unwarranted interference by the authorities or persecution of

organizers and participants.

State party’s observations on the admissibility of communication No. 2677/20151

4.1

In a note verbale dated 23 December 2015, the State party submitted its observations

on the admissibility of communication No. 2677/2015. The State party notes that, while

asking for remedies in her communication, Ms. Insenova requests that those responsible for

the violation of her rights be brought to justice. The State party refers to the Committee’s

Views in H.C.M.A. v. Netherlands, in which it was held that the Covenant did not provide

for the right to see another person criminally prosecuted.2 In the State party’s view, this

makes the communication incompatible with the provisions of the Covenant, under article 3

of the Optional Protocol. Similarly, the State party argues that the remaining remedies

requested by Ms. Insenova are also incompatible with the provisions of the Covenant.

According to the State party, the remedies requested would require the Committee to exceed

its competence and to amend domestic laws of the State party, thus interfering in the internal

affairs of a sovereign State.

4.2

The State party submits that Ms. Insenova has failed to substantiate how the domestic

legislation violates her rights under articles 14 and 19 of the Covenant. The State party refers

to the Committee’s Views in E.Z. v. Kazakhstan, in which the Committee found the

communication inadmissible because the author had not substantiated his claims under

article 14.3 Therefore, the State party argues that Ms. Insenova’s communication should be

declared inadmissible in accordance with article 3 of the Optional Protocol, rule 99 (d) of the

rules of procedure and the Committee’s jurisprudence.

4.3

Lastly, the State party challenges the admissibility of the communication owing to the

failure to exhaust the available domestic legal remedies. The State party notes that, after

Ms. Insenova’s requests for a supervisory review were rejected by the Deputy Prosecutor

General on 28 November 2014 and 4 December 2014, she was entitled to submit a request to

the Prosecutor General for a supervisory review. The State party refers to the Committee’s

Views in J.B. and H.K. v. France, in which the Committee held that mere doubts about the

effectiveness of domestic remedies did not absolve an author from pursuing them.4 The State

party gives the example of a domestic case, Filatova and Kuzmintsev, in which the akimat of

Almaty had unlawfully denied permission for two individuals to carry out a hunger strike in

their apartment. A request for a supervisory review to the Prosecutor General resulted in a

new court decision in favour of the defendants and full restoration of their rights and

freedoms. Therefore, the State party argues that communication No. 2677/2015 should be

declared inadmissible in accordance with articles 2 and 5 of the Optional Protocol, rule 99 (f)

of the rules of procedure and the Committee’s jurisprudence.

Author’s comments on the State party’s observations on the admissibility of

communication No. 2677/2015

5.1

By letter dated 5 January 2016, Ms. Insenova provided her comments to the State

party’s observations. She reiterates that the State party has violated her rights under

articles 14, 19 and 21 of the Covenant and that her attempts to obtain a remedy through

national courts and the prosecutor’s office have been unsuccessful.

1 The State party did not submit observations on the admissibility of communication No. 2548/2015.

2 Communication No. 213/1986, para. 11.6.

3 CCPR/C/113/D/2021/2010, para. 7.5.

4 Communications No. 324/1988 and No. 325/1988, para. 3.3.

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

4

GE.24-14064

5.2

With regard to the exhaustion of domestic remedies, Ms. Insenova submits that

recourse to the Prosecutor’s Office is not an effective remedy that needs to be exhausted for

the purposes of article 5 (2) (b) of the Optional Protocol. Nevertheless, she filed requests to

the Almaty City Prosecutor and to the Prosecutor General’s Office to initiate supervisory

review proceedings in her administrative cases, but those requests were rejected. Therefore,

all available and effective domestic remedies have been exhausted. She notes that, in Filatova

and Kuzmintsev, mentioned by the State party in its submission, the rights of one of the

plaintiffs have not been restored and she has not been paid legal costs. The new ruling by a

domestic court did not provide for a mechanism to restore the plaintiffs’ rights. In addition,

the akimat of Almaty city refused to pay moral and material damages to the plaintiffs, or to

punish the employee responsible for the unlawful ban on a hunger strike by the plaintiffs in

the case. Therefore, Ms. Insenova submits that the State party’s use of the above-mentioned

case as an example is inappropriate.

State party’s observations on the merits of communications No. 2548/2015 and

No. 2677/2015

6.1

In a note verbale dated 16 August 2022, the State party submitted its observations on

the merits of both communications. The State party submits that article 21 of the Covenant

protects the right of peaceful assembly, which cannot be restricted unless the restrictions are

imposed in conformity with the law and are necessary in a democratic society in the interests

of national security or public safety, public order, the protection of public health or morals

or the protection of the rights and freedoms of others. The State party submits that the

provisions of article 21 of the Covenant are fully reflected in the domestic legislation of

Kazakhstan. The State party notes that, in accordance with article 2 of the law on the

procedure for organizing and holding peaceful assemblies, meetings, marches, pickets and

demonstrations, authorization must be obtained from a designated State body prior to

conducting such events. Furthermore, in accordance with article 9 of the above-mentioned

law, persons who violate the prescribed procedure bear responsibility under the law. The

State party notes that, since both authors participated in peaceful assemblies that were held

without prior authorization, they were sanctioned in accordance with the Code of

Administrative Violations.

6.2

With regard to the claim under article 19 by Ms. Insenova, the State party submits that

article 19 (2) of the Covenant guarantees freedom of expression, which includes the freedom

to seek, receive and impart information. At the same time, article 19 (3) allows for certain

restrictions as provided by law and necessary for respect of the rights and reputations of

others and for the protection of national security, public order or public health or morals. The

State party notes that, contrary to what is being claimed by Ms. Insenova before the

Committee, she was held responsible under the administrative procedure not for exercising

her rights to freedom of expression and of peaceful assembly, but rather for violating the

requirements established in national legislation for the exercise of these rights.

6.3

With regard to the authors’ claims under article 14 of the Covenant, the State party

submits that, during their court hearings, the authors were provided with all the rights and

guarantees provided for by law. As to the allegations of Mr. Koshkarbayev that the police

and the Specialized Inter-District Administrative Court of Almaty refused to provide him

with counsel and to allow journalists to attend his court hearing, the State party notes that he

participated in all court hearings and was informed in writing by the courts about the right to

counsel, which he did not exercise.

Authors’ comments on the State party’s observations on the merits of

communications No. 2548/2015 and No. 2677/2015

7.

By letter dated 23 October 2023, the authors reiterated that they considered their rights

under articles 14, 19 and 21 of the Covenant to have been violated by the State party.

State party’s additional observations

8.1

By note verbale dated 16 January 2024, the State party submitted its additional

observations on both communications. It notes that domestic legislation does not limit the

rights of citizens to express their opinions, but only establishes conditions for peaceful

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

GE.24-14064

5

assemblies in order to ensure the public order and safety of all members of the public. The

State party reiterates that the authors’ rights under articles 19 and 21 of the Covenant were

not violated since they did not have permission from the local executive body to hold the

event, meaning that their actions were against the law. It notes that the authors’ actions could

have led to mass violations of public order and endangered the health and safety of

participants and the public.

8.2

The State party submits that a new law on the procedure for organizing and holding

peaceful assemblies in Kazakhstan entered into force on 6 June 2020. It was adopted taking

into consideration the recommendations of civil society, including on the notification

procedure relating to the holding of public assemblies, whereby the local executive bodies

must render their decision on requests for public assembly within three working days. The

State party notes that the new law provides a general presumption in favour of holding

peaceful assemblies and sets out an exhaustive list of grounds on which local executive

bodies may refuse to authorize the holding of an assembly. Such grounds include violation

of the integrity of Kazakhstan; undermining the security of the State; inciting social, racial,

national, religious, class or tribal discord; violation of other provisions of the Constitution of

Kazakhstan, laws or other normative legal acts of Kazakhstan; the existence of a threat to

State security; and violation of public order or the life and health of other persons.

8.3

The State party notes that the previous law restricted the possibility of holding

peaceful assemblies, including single pickets, to places determined by local municipalities.

The new law establishes that picketing can be held anywhere, except for at mass graves,

strategic and military facilities or spaces adjacent to the residences of the President of

Kazakhstan. Thus, single pickets can be held in any place, near any landmark or facility,

including buildings of central State bodies or local executive bodies, which will allow citizens

to be heard by the authorities. The State party also notes that the previous law did not

distinguish between participants and organizers, did not define their rights and obligations

and only established prohibitions. In this regard, the new law defines the status, rights and

obligations of organizers and participants.

8.4

On the basis of the above, the State party concludes that its legislation regulating the

organization and conduct of peaceful assemblies currently corresponds to generally and

internationally accepted practice. It submits that, since 2020, more than 800 meetings and

pickets on various issues have been held in Kazakhstan by civil activists and

non-governmental organizations.

Issues and proceedings before the Committee

Consideration of admissibility

9.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

9.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

9.3

The Committee notes the State party’s argument that the remedies requested by

Ms. Insenova require the Committee to exceed its competencies and to amend domestic laws

of the State party, thus interfering in the internal affairs of a sovereign State, which makes

the communications incompatible with the provisions of the Covenant, pursuant to article 3

of the Optional Protocol. However, the Committee points out that, under the procedure

established by the Optional Protocol, when it finds violations of the Covenant, it is competent

to determine the reparation measures that the State party should take in order to remedy the

harm caused and prevent future violations. Thus, there is nothing to prevent the authors from

requesting or proposing measures of redress, although the Committee is not bound by any

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

6

GE.24-14064

such requests.5 The Committee therefore considers that it is not precluded under article 3 of

the Optional Protocol from examining the communications.

9.4

The Committee also notes the State party’s argument that Ms. Insenova has failed to

exhaust domestic remedies because she did not file a request for supervisory review with the

Prosecutor General. The Committee further notes that, on various dates, Ms. Insenova did

submit requests to initiate supervisory review proceedings to the Almaty City Prosecutor and

to the General Prosecutor’s Office, and that they were all dismissed. The Committee recalls

its jurisprudence, according to which petition to a prosecutor’s office and depending on the

discretionary power of the prosecutor for supervisory review of court decisions that have

taken effect does not constitute a remedy that has to be exhausted for the purposes of

article 5 (2) (b) of the Optional Protocol.6 Accordingly, the Committee finds that it is not

precluded by article 5 (2) (b) of the Optional Protocol from examining communication

No. 2677/2015.

9.5

The Committee further notes Mr. Koshkarbayev’s claim that the State party has

violated his rights under articles 14 (3) (d) and (g) of the Covenant because the police and

the Specialized Inter-District Administrative Court of Almaty refused to provide him with

counsel and to allow journalists to attend his court hearings. The Committee notes the State

party’s submission that Mr. Koshkarbayev participated in all court hearings and was

informed in writing by the courts about the right to counsel, which he did not exercise. The

Committee also notes Ms. Insenova’s claim that the State party has violated her right to a fair

trial under article 14 of the Covenant because, during the consideration of her cases, the courts,

from the beginning, took the position of the prosecution and did not take into account her

arguments, which were based on domestic and international law, and that the appellate courts

acted in the interests of the police. In the absence of any other information or explanation of

pertinence on file from the authors, the Committee considers that the authors have failed to

sufficiently substantiate these allegations for the purposes of admissibility, and finds them

inadmissible under article 2 of the Optional Protocol.

9.6

The Committee considers that the authors have sufficiently substantiated the

remaining claims that raise issues under article 21 of the Covenant in respect of both authors,

and under article 19 of the Covenant in respect of Ms. Insenova. It therefore declares those

parts of the communications admissible and proceeds with its consideration of the merits.

Consideration of the merits

10.1

The Committee has considered the communications in the light of all the information

submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

10.2

The Committee notes the authors’ claims that the State party has violated their right

of peaceful assembly under article 21 of the Covenant by sentencing them to fines for

participating in peaceful protests on 15 February 2014 (Mr. Koshkarbayev) and on 15 July

and 11 August 2014 (Ms. Insenova). The Committee also notes the claim by Ms. Insenova

that the State party has violated her right to freedom of expression under article 19 of the

Covenant. The authors do not consider that the restrictions imposed on their rights are

necessary, or that they fall within the permissible restrictions enshrined in articles 19 and 21

of the Covenant. The Committee further notes that the State party acknowledges that the

authors’ rights under articles 19 and 21 of the Covenant were restricted but considers that the

restrictions were compatible with the Covenant.

10.3

The Committee refers to its general comment No. 37 (2020) on the right of peaceful

assembly and recalls that the right of peaceful assembly, as guaranteed under article 21 of

the Covenant, is a fundamental human right that is essential for the public expression of an

individual’s views and opinions and indispensable in a democratic society. Assemblies may

take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins,

candlelit vigils and flash mobs. They are protected under article 21 whether they are

5 Delgado Burgoa v. Plurinational State of Bolivia (CCPR/C/122/D/2628/2015), para. 10.3.

6 Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Zhagiparov v. Kazakhstan

(CCPR/C/124/D/2441/2014), para. 12.3; and Poplavny and Sudalenko v. Belarus

(CCPR/C/118/D/2139/2012), para. 7.3.

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

GE.24-14064

7

stationary, such as pickets, or mobile, such as processions or marches.7 No restriction to this

right is permissible, unless it is: (a) imposed in conformity with the law; and (b) necessary in

a democratic society in the interests of national security or public safety, public order (ordre

public), the protection of public health or morals or the protection of the rights and freedoms

of others. When a State party imposes restrictions with the aim of reconciling an individual’s

right to assembly and the aforementioned interests of general concern, it should be guided by

the objective of facilitating the right, rather than seeking unnecessary or disproportionate

limitations to it.8 The State party is thus under the obligation to justify the restriction of the

right protected by article 21 of the Covenant, and to demonstrate that such restriction does

not serve as a disproportionate obstacle to the exercise of the right.9

10.4

The Committee has consistently observed that authorization regimes that require

individuals wishing to assemble or participate in an assembly to apply for permission (or a

permit) from the authorities prior to doing so undercut the notion that peaceful assembly is a

basic right. 10 Where such regimes exist, they must in practice function as a system of

notification, with authorization being granted as a matter of course in the absence of

compelling reasons to do otherwise.11 Such regimes should not be overly bureaucratic12 and

must not in practice function as authorization systems.13

10.5

The Committee notes that the State party invokes the provisions of the previous law

on the procedure for organizing and holding peaceful assemblies, meetings, marches, pickets

and demonstrations. Said law required an application to be made and the authorization by the

local executive authorities to be received prior to the intended event, which constituted

restrictions to the right of peaceful assembly. The Committee recalls that the right of peaceful

assembly is a right, not a privilege. Restrictions on this right, even if authorized by law, must

also meet the criteria set out in the second sentence of article 21 of the Covenant. In this

connection, the Committee observes that restrictions imposed for the protection of the rights

and freedoms of others may relate to the protection of Covenant rights and other human rights

of people not participating in the assembly. At the same time, assemblies are a legitimate use

of public and other spaces, and since they may entail by their very nature a certain level of

disruption to ordinary life, such disruptions have to be accommodated, unless they impose a

disproportionate burden, in which case the authorities must be able to provide detailed

justification for any restrictions.14 The Committee also observes that “public order” refers to

the sum of the rules that ensure the proper functioning of society, or the set of fundamental

principles on which society is founded, which also entail respect for human rights, including

the right of peaceful assembly. States parties should not therefore rely on a vague definition

of “public order” to justify overbroad restrictions on the right of peaceful assembly. Peaceful

assemblies can in some cases be inherently or deliberately disruptive and require a significant

degree of toleration. “Public order” and “law and order” are not synonyms, and the

prohibition of “public disorder” in domestic law should not be used unduly to restrict peaceful

assemblies.15 In the present communications, the Committee notes that the State party has

not provided any specific information as to the nature of the disturbance occasioned by the

assemblies in question.

10.6

The Committee recalls that article 21 of the Covenant provides that any restrictions to

the right of peaceful assembly must be “necessary in a democratic society”, meaning that

they must be both necessary and proportionate in the context of a society based on democracy,

7 General comment No. 37 (2020), para. 6.

8 Ibid., para. 36.

9 Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 8.4.

10 CCPR/C/MAR/CO/6, para. 45; and CCPR/C/GMB/CO/2, para. 41. See also African Commission on

Human and Peoples’ Rights, “Guidelines on freedom of association and assembly in Africa”,

para. 71.

11 General comment No. 37 (2020), para. 73.

12 Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 8.3.

13 General comment No. 37 (2020), para. 73.

14 Sambetbai v. Kazakhstan (CCPR/C/130/D/2418/2014), para. 12.5; Stambrovsky v. Belarus

(CCPR/C/112/D/1987/2010), para. 7.6; and Pugach v. Belarus (CCPR/C/114/D/1984/2010),

para. 7.8.

15 General comment No. 37 (2020), para. 44.

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

8

GE.24-14064

the rule of law, political pluralism and human rights, as opposed to being merely reasonable

or expedient.16 Such restrictions must be appropriate responses to a pressing social need,

related to one of the permissible grounds in article 21 of the Covenant.17 They must also be

the least intrusive among the measures that might serve the relevant protective function.18

Moreover, they must be proportionate, which requires a value assessment, weighing the

nature and detrimental impact of the interference on the exercise of the right against the

resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit,

the restriction is disproportionate and thus not permissible.19

10.7

The Committee observes that the State party has not demonstrated that sanctioning

the authors with fines for participating in a peaceful assembly was necessary in a democratic

society to pursue a legitimate aim or was proportionate to such an aim in accordance with the

requirements article 21 of the Covenant. The Committee recalls that any restrictions on

participation in peaceful assemblies should be based on a differentiated or individualized

assessment of the conduct of the participants and the assembly concerned. Blanket

restrictions on peaceful assemblies are presumptively disproportionate.20 For these reasons,

the Committee concludes that, notwithstanding its arguments under the 2020 law, which in

any event was not applied to the authors, the State party has failed to justify the restriction

on the authors’ right of peaceful assembly and has thus violated article 21 of the Covenant.

10.8

The Committee takes note of the claims made by Ms. Insenova that the State party

has violated her right to freedom of expression under article 19 of the Covenant. The

Committee must therefore decide whether the restrictions imposed on Ms. Insenova are

allowed under any of the permissible restrictions laid out in article 19 (3) of the Covenant.

10.9

The Committee notes that sanctioning Ms. Insenova for expressing her views through

participation in a public event interfered with her right to impart information and ideas of any

kind, as protected under article 19 (2) of the Covenant. The Committee recalls that

article 19 (3) of the Covenant allows certain restrictions, but these are only such as are

provided by law and necessary for respect of the rights or reputations of others or for the

protection of national security, public order (ordre public) or public health or morals. The

Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and

expression, in which it states that those freedoms are indispensable conditions for the full

development of the person and essential for any society. They constitute the foundation stone

for every free and democratic society (para. 2). Any restriction on the exercise of these

freedoms must conform to the strict tests of necessity and proportionality. Restrictions must

be applied only for those purposes for which they were prescribed and must be directly

related to the specific need on which they were predicated (para. 22). The Committee recalls

that the onus is on the State party to demonstrate that the restrictions on the authors’ rights

under article 19 were necessary and proportionate.21

10.10 The Committee observes that sentencing Ms. Insenova to fines for participating in

peaceful albeit unauthorized events raises serious doubts as to the necessity and

proportionality of the restrictions on the authors’ rights under article 19 of the Covenant. The

Committee also observes in this regard that the State party has failed to invoke any specific

grounds to support the necessity of such restrictions, as required under article 19 (3) of the

Covenant. Nor did the State party demonstrate that the measures selected were the least

intrusive in nature or proportionate to the interest that it sought to protect. The Committee

considers that, in the circumstances of the cases, the restrictions imposed on Ms. Insenova,

although based on domestic law, were not justified pursuant to the conditions set out in

16 Ibid., para. 40.

17 Arkhangelskiy et al. v. Kazakhstan (CCPR/C/137/D/2538/2015), para. 8.6.

18 Toregozhina v. Kazakhstan (CCPR/C/112/D/2137/2012), para. 7.4.

19 General comment No. 37 (2020), para. 40.

20 Ibid., para. 38.

21 Pivonos v. Belarus (CCPR/C/106/D/1830/2008), para. 9.3; Olechkevitch v. Belarus

(CCPR/C/107/D/1785/2008), para. 8.5; Sambetbai v. Kazakhstan, para. 12.8;

Kurtinbaeva v. Kazakhstan (CCPR/C/130/D/2540/2015), para. 9.9; Nurlanuly v. Kazakhstan

(CCPR/C/130/D/2546/2015), para. 9.9; and Kulumbetov v. Kazakhstan (CCPR/C/130/D/2547/2015),

para. 8.9.

CCPR/C/141/D/2548/2015

CCPR/C/141/D/2677/2015

GE.24-14064

9

article 19 (3) of the Covenant. The Committee therefore concludes that her rights under

article 19 of the Covenant have been violated.

11.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the facts before it disclose a violation by the State party of the rights of both authors under

article 21 of the Covenant, and of the rights of Ms. Insenova under article 19 (2) of the

Covenant.

12.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to

provide both authors with an effective remedy. This requires it to make full reparation to

individuals whose Covenant rights have been violated. Accordingly, the State party is

obligated to take appropriate steps to provide the authors with adequate compensation and

reimburse the fines imposed and any legal costs incurred by them. The State party is also

under an obligation to take all steps necessary to prevent similar violations from occurring in

the future.

13.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective remedy when it has been

determined that a violation has occurred, the Committee wishes to receive from the State

party, within 180 days, information about the measures taken to give effect to the

Committee’s Views. The State party is also requested to publish the present Views and to

have them widely disseminated in the official languages of the State party.