Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, KAZAKHSTAN; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.26-05196 (E) 230426 240426
Human Rights Committee
Views adopted by the Committee under the
Optional Protocol, concerning Communication
No. 3250/2018*, **, ***, ****
Communication submitted by:
Max Bokayev and Talgat Ayanov (represented by
the
World
Organisation
against
Torture,
non-governmental organization Kadyr-Kassiyet
and the Kazakhstan International Bureau for
Human Rights and Rule of Law)
Alleged victims:
The authors
State Party:
Kazakhstan
Date of communication:
3 September 2018 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to the
State Party on 5 October 2018 (not issued in
document form)
Date of adoption of Views:
13 March 2026
Subject matter:
Incarceration in a remote penal facility
Procedural issues:
Exhaustion of domestic remedies; lack of
substantiation
Substantive issues:
Torture; arbitrary detention; conditions of
detention; fair trial; family rights; freedom of
expression; freedom of assembly; discrimination
Articles of the Covenant:
7, read alone and in conjunction with 2 (3), 9 (1),
10 (1), 14 (3) (b), (d) and (e), 17 (1), 19, 21 and
26
Articles of the Optional Protocol:
2, 3 and 5 (2) (b)
* Adopted by the Committee at its 145th session (2–19 March 2026).
** The following members of the Committee participated in the examination of the communication:
Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Carlos Ramón Fernández
Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye, Hernán Quezada
Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Tijana Šurlan, Teraya Koji, Hélène
Tigroudja and Imeru Tamerat Yigezu.
*** Individual opinions by Committee members Laurence R. Helfer (concurring), Carlos Ramón
Fernández Liesa (partially dissenting) and Hélène Tigroudja (partially dissenting) are annexed to the
present Views.
**** The annexes are being circulated in the language of submission only.
United Nations
CCPR/C/145/D/3250/2018
International Covenant on
Civil and Political Rights
Distr.: General
24 April 2026
Original: English
CCPR/C/145/D/3250/2018
2
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1.
The authors of the communication are Max Bokayev and Talgat Ayanov, nationals of
Kazakhstan, born in 1973 and 1984, respectively. They claim that the State Party has violated
their rights under articles 7, read alone and in conjunction with 2 (3), 9, 10 (1), 14 (3) (b) (d)
and (e), 17 (1), 19, 21 and 26 of the Covenant. The Optional Protocol entered into force for
the State Party on 30 September 2009. The authors are represented by counsel.
Facts as submitted by the authors
2.1.
Mr. Bokayev is the head of a local non-governmental organization in the city of
Atyrau in western Kazakhstan and a human rights defender working on various issues,
including the protection of environment, freedom of expression and combating torture.
Mr. Ayanov is a lawyer and activist from Atyrau. In 2016, the authors regularly criticized the
Government on social media for its reform of the Land Code and made calls to the public to
also voice its dissent. Between April and May 2016, several protests were held in Kazakhstan,
calling for the abolition of the 2015 amendments to the Land Code aiming at facilitating the
lease of agricultural lands to foreigners. During these protests, many participants were
detained by the police and sentenced to administrative punishment on charges of
“participating in unauthorized assemblies” and “hooliganism”.
2.2
On 14 April 2016, the authors submitted a request to the mayor’s office of Atyrau to
hold a peaceful assembly on 24 April 2016. On 19 April 2016, the request was denied with
the explanation that Isatay-Makhambet Square, where the assembly was supposed to take
place, was not an suitable place for holding demonstrations. The authors note that
Isatay-Makhambet Square had previously often been used by various government agencies
to hold State-sponsored meetings and rallies. The authors were also warned that they could
be prosecuted if they were to organize an unauthorized assembly. Despite the warning, on
24 April 2016, around 4,000 people attended the assembly, including the authors. It was also
attended by the governor of the Atyrau region who told the participants that no one would
face criminal prosecution for attending the assembly.
2.3
On 5 May 2016, the President of Kazakhstan created a special commission with the
task of discussing the amendments to the Land Code and Mr. Bokayev was included in the
commission as one of the representatives from the Atyrau region. On 6 May 2016,
Mr. Bokayev sent a request to the mayor’s office of Atyrau to hold another assembly on
21 May 2016 in the same place, with the purpose of strengthening social consensus around
the amendments to the Land Code. On 16 May 2016, the request was denied, with the same
explanation given that Isatay-Makhambet Square was not an adequate place for holding
demonstrations. Mr. Bokayev was again warned that he could be prosecuted if he were to
organize an unauthorized assembly.
2.4
On 17 May 2016, the authors were arrested in Atyrau after announcing on social
media that, despite authorization having been refused, they intended to participate in the
event planned for 21 May and encouraging others to do so as well. On the same day, Atyrau
specialized inter-district administrative court sentenced the authors to 15 days of
administrative arrest for “organizing an unauthorized assembly” (art. 488 of the Code of
Administrative Offences). On 23 May 2016, Atyrau Regional Court rejected the authors’
appeal.
2.5
On 31 May 2016, one day before the end date of the authors’ administrative arrest,
the National Security Committee charged the authors with “preparation of a crime” and
“propaganda or public calls for seizure of power or retention of power or violent change of
the constitutional order” under articles 24 (1) and 179 (3) of the Criminal Code. On 3 June
2016, Atyrau City Court No. 2 placed the authors in pretrial detention, finding them to be a
flight risk.
2.6
On 21 July 2016, the charges of “preparation of a crime” and “propaganda or public
calls for seizure of power or retention of power or violent change of the constitutional order”
were changed to “agitation of social discord” (art. 174 of the Criminal Code), “dissemination
of knowingly false information” (art. 274) and “violation of the procedure of the organization
and holding of meetings, rallies, pickets, street processions and demonstrations” (art. 400).
2.7
On 28 November 2016, Atyrau City Court No. 2 found the authors guilty of the
above-mentioned crimes and sentenced each of them to five years of imprisonment and a fine
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of 530,250 tenge (approximately 1,466 euros) and prohibited them from engaging in public
activities for three years. The court also ordered the defendants to pay procedural costs
incurred by forensic examinations of 259,000 tenge (approximately 716 euros).
2.8
On 20 January 2017, the Criminal Division of Atyrau Regional Court upheld the
decision of the trial court. Although, the law requires that convicted persons serve their
sentences in prisons near their relatives and their own permanent place of residence, on
25 January 2017, the Prison Administration Office of the Ministry of Interior decided that
the authors would serve their sentences in a prison in Petropavl in order “to prevent them
from committing new offences”. The transfer took approximately one month and the authors
went through Aktobe, Almaty and Karaganda pretrial detention facilities. The prison in
Petropavl is situated more than 1,500 km from Atyrau, the home city of the authors. There is
no direct air or railway connection between Atyrau and Petropavl. The flights to and from
Petropavl are operated three times a week and only through Astana, Almaty and Shymkent,
which made it difficult for the authors’ family and lawyers to visit. Each time it took them
two to three days to reach the authors.
2.9
In February 2017, the authors were placed on the list of persons linked to terrorist and
extremist activities in Kazakhstan, in accordance with article 12 of the Kazakh anti-money
laundering and counter terrorism law. This precludes them from performing any financial
transactions, resulting, inter alia, in restrictions in opening and using bank accounts and
insurance services.
2.10
On 13 April and 4 May 2017, the Supreme Court dismissed the authors’ appeals for a
review in cassation.
2.11
On an unspecified date, the authors submitted a communication to the Working Group
on Arbitrary Detention. On 21 April 2017, the Working Group concluded that the deprivation
of liberty of the authors, being in contravention of articles 9, 10, 19 and 20 of the Universal
Declaration of Human Rights and of articles 9, 14, 19, 21 and 26 of the Covenant, was
arbitrary and fell within categories II, III and V.1 The Working Group requested the State
Party to take the steps necessary to remedy the situation of the authors without delay and
bring it into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights and the Covenant. The Working Group considered
that, taking into account all the circumstances of the case, the appropriate remedy would be
to release the authors immediately and accord them an enforceable right to compensation and
other reparations, in accordance with international law. The authors submit that they have
not been granted reparations for their arbitrary detention, as recommended by the Working
Group on Arbitrary Detention
2.12
On 11 May 2017, Mr. Bokayev’s sister filed a civil lawsuit with Almatinsky District
Court of Astana against the Prison Administration Office of the Ministry of Interior, claiming
that Mr. Bokayev’s transfer to the prison in Petropavl was unlawful and requesting that he be
moved closer to his family. On 12 June 2017, the court recognized the transfer of
Mr. Bokayev to Petropavl as legitimate and denied the request to transfer him closer to
Atyrau. On 29 August 2017, Astana City Court upheld the decision of the district court. On
12 March 2018, the Supreme Court of Kazakhstan denied Mr. Bokayev’s appeal for a
supervisory review of the case.
2.13
In August 2017, Mr. Ayanov was transferred from Petropavl to a prison in the city of
Aktobe, which is closer to his home city of Atyrau. On 28 April 2018, he was released from
prison after paying the court-ordered fine.
2.14
On several occasions between December 2017 and January 2018, Mr. Bokayev
refused to participate in mandatory morning outdoor exercises due to extreme low
temperatures (down to -27 degrees Celsius) citing his poor health and pain in his back and
legs. In accordance with his doctors’ recommendations to avoid exposure and physical
activities, Mr. Bokayev requested in writing and in advance to do the daily exercises indoors
instead of outdoors because of the detrimental effects this would have on his fragile state of
1 Working Group on Arbitrary Detention, Opinion No. 15/2017 concerning Max Bokayev and Talgat
Ayanov (Kazakhstan), A/HRC/WGAD/2017/16.
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health. Each time for refusing to exercise, he was reprimanded by being placed in a
disciplinary detention ward, which is a small cell the size of a double bed for 24 to 48 hours.
During the day, the bed was folded up against the wall and inmates were forced to stay on
their feet and were not allowed to leave the cell. The cell itself was very cold, the windows
had gaps, there was no ventilation and the light was on 24 hours a day. Periodically, prison
guards carried out body searches of inmates while making them stand in communal corridors,
requiring everyone to take off all their clothes, which was humiliating for Mr. Bokayev. He
appealed each of his placements in a disciplinary detention ward to Petropavl City Court;
however, the court transferred his appeals to the Northern Kazakhstan Regional Prosecutor’s
Office for investigation, which replied that there were no grounds for the complaint.
2.15
Because he was reprimanded several times, on 16 January 2018, Mr. Bokayev was
placed under the regime of strict conditions of detention for a period of six months. Inmates
under this regime are not allowed to call their lawyers and family unless there is an
emergency (death or serious illness in family etc.), their right to receive parcels or to access
information from outside is very limited and they cannot be paroled or transferred to another
facility. Because of these limitations, Mr. Bokayev was not even allowed to make a phone
call to his family and lawyers to tell them that he was going to be placed under strict
conditions of detention.
2.16
Mr. Bokayev has submitted several complaints to domestic courts and the
prosecutor’s office about forced outdoor exercise at low temperatures, reprimands, restriction
of his rights to contact his lawyer and access information and conditions of detention.
However, he claims that the national authorities have not taken any steps to remedy the
violations. On 20 February 2018, Mr. Bokayev’s lawyer submitted a complaint to the Office
of the Prosecutor General about the inaction of the Regional Prosecutor’s Office in Petropavl
with regard to Mr. Bokayev’s complaints. After this complaint, there was a formal inquiry
launched by the Internal Investigations Department of the Ministry of the Interior concerning
the author’s conditions of detention; however, to date there has been no impartial
investigation conducted into the matter.
2.17
On 28 March 2018, Mr. Bokayev paid the fine ordered by the court as part of his
sentence; however, despite being entitled to early release, he remained in the penal colony in
Petropavl at the time of the submission of the present communication.2
2.18
The authors submit that they have exhausted all available and effective domestic
remedies with regard to the present communication.
Complaint
3.1
The authors claim that they were arrested prior to the demonstration that they had
organized. The arbitrary character of the arrest was confirmed by the Working Group on
Arbitrary Detention. They further claim that their pretrial detention on criminal charges was
also arbitrary, as the State Party had not shown that their remand in custody was necessary
and justified. The authors submit that they were kept in pretrial detention because the court
considered that the fact they had friends abroad represented a flight risk, without presenting
any proof thereof. In view of the above, the authors claim that the State Party has violated
their rights under article 9 of the Covenant.
3.2
The authors claim that the conditions of their detention in Petropavl amount to a
violation of article 10 (1) of the Covenant. They note that both the Committee against Torture
and the Kazakh National Preventive Mechanism have expressed concerns about the poor
material conditions and infrastructure of detention facilities in Kazakhstan.3
3.3
The authors also claim that, when they were arrested on 17 May 2016, they were not
granted access to legal counsel and, if not for Mr. Ayanov’s father, who is a licensed lawyer
2 See para. 7 below.
3 The authors refer to CAT/C/KAZ/CO/3, para. 17, and to the consolidated report of the members of
the Kazakh National Preventive Mechanism on the preventive visits carried out in 2016 (not available
online).
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in Kazakhstan, they would not have had legal representation during their trial on
administrative charges, which represents a violation of article 14 (3) (b) of the Covenant.
3.4
The authors further claim that they did not have enough time to properly analyse all
the criminal case materials. They did not have the opportunity to study electronic materials,
such as sound recordings, video recordings, slides and other media in electronic form, since
they were in pretrial detention and electronic devices are not allowed in pretrial detention
facilities. The authors submit that they complained about this to the prosecutor’s office, but
their complaints were denied. The authors claim that, owing to the lack of access to the
materials of the criminal case, they were deprived of sufficient opportunity to prepare their
defence and to refute the charges, in violation of article 14 (3) (b) of the Covenant.
3.5
The authors submit that, during their criminal trial, the witnesses for the prosecution
were allowed to testify via videoconference from a court in Astana, despite motions filed by
the defence lawyers requesting that those witnesses be brought to Atyrau. The authors submit
that, owing to the poor quality of the sound, they could not clearly hear what the witnesses
were saying. The authors claim that, in violation of article 14 (3) (e) of the Covenant, they
were de facto unable to react to the witnesses’ statements and properly contest the arguments
of the prosecutor.
3.6
According to the authors, the Supreme Court’s refusal to examine their appeal in
cassation without providing substantial grounds for this decision violates their right to appeal
as established in article l4 (5) of the Covenant.
3.7
The authors submit that they were prosecuted for exercising the rights to freedom of
expression and assembly, in violation of articles 19 and 21 of the Covenant. They claim that,
in 2016, the Committee had already found that the Kazakh laws and practices concerning
freedom of expression and assembly do not comply with the principles of legal certainty,
necessity and proportionality as required by the Covenant and that there is a risk of legitimate
activities being criminalized under these provisions.4 The authors note that they were arrested
prior to the planned peaceful assembly and that such arrests have a chilling effect on the
exercise of the right to freedom of assembly not only for the persons concerned, but also for
the civil society at large.
3.8
Lastly, the authors submit that, since their conviction, they have been placed on the
list of persons linked to terrorist and extremist activities in Kazakhstan. They submit that, by
doing this, the State Party’s authorities are trying to silence and criminalize people with
dissenting political views. They claim that several other activists in Kazakhstan have been
charged with similar crimes and have also been included on the list of terrorists. Now they
are precluded from performing any financial actions, including opening bank accounts or
starting their own businesses. This severely limits their ability to conduct their legitimate
human rights work and makes it impossible for them to lead a normal life in Kazakhstan. The
disproportional assertion and claims of terrorism as a response to the authors’ peaceful
assemblies to protect human rights underscores the State’s motivation to obstruct their
legitimate work as human rights defenders and represents a blatant violation of their right to
equality before the law. They claim that, throughout their arrest, legal proceedings and
subsequent detention, they have faced discrimination motivated by a desire to limit their
dissenting voice on land issues, which therefore also represents a violation of article 26 of
the Covenant.
3.9
Mr. Bokayev suffers from chronic hepatitis C and, while in detention, he did not have
access to antiviral therapy. He has developed further health complications in the form of an
intervertebral disc herniation, which consequently caused pain in his lower back and legs. He
submits that the State Party is under an obligation to comply with certain minimum standards
for the treatment of prisoners, including the provision of medical care for sick prisoners, as
provided for in rule 24 of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules). Mr. Bokayev claims that, throughout his detention,
he suffered from the lack of access to the specialized medical services that he needed, in
violation of article 7 of the Covenant.
4 CCPR/C/KAZ/CO/2, paras. 49, 53 and 54.
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3.10
Mr. Bokayev further submits that he was subjected to disciplinary isolation due to
refusing to do outdoor exercises. He notes that confinement in isolation should only be
resorted to in exceptional circumstances, since it has serious psychological consequences for
detainees. He notes that he asked in advance and in writing for permission to do the daily
exercises indoors due to the extreme weather conditions and their effect on his already fragile
state of health. However, he was reprimanded by being placed in the disciplinary detention
ward and under strict conditions of detention regime for a period of six months. Moreover,
Mr. Bokayev perceives the restrictions placed on contacting the outside world when held
under strict conditions of detention to have been an additional punishment. He also notes that,
instead of promptly and impartially investigating his complaints about the disciplinary
measures against him, the local courts merely transferred them to the prosecutor’s office.
Only after Mr. Bokayev had submitted a complaint to the Office of the Prosecutor General
of Kazakhstan did the Northern Kazakhstan Regional Prosecutor’s Office initiate an inquiry
into his wrongful treatment. In view of the above, Mr. Bokayev claims that the conditions of
his detention amount to cruel, inhuman and degrading treatment in violation of article 7, in
conjunction with article 2 (3), of the Covenant.
3.11
Mr. Bokayev also claims that conditions of his detention in the disciplinary detention
ward and the onerous restrictions on contacting his family and lawyers while under strict
conditions of detention regime caused him much pain and stress and that it constitutes a
separate violation of his right to be treated with humanity and with respect for the inherent
dignity of the human person under article 10 (1) of the Covenant.
3.12
Mr. Bokayev submits that, during the court hearing of the civil case on 12 June 2017
concerning his transfer to a prison closer to his home, the defence was not allowed to see the
materials submitted by the prosecution as evidence justifying Mr. Bokayev’s transfer to
Petropavl, because they were classified as secret. As a result of this, the defence was deprived
of an opportunity to adequately prepare for the trial in violation of article 14 (3) (b) of the
Covenant.
3.13
Mr. Bokayev submits that the hearing of the civil case related to his transfer closer to
Atyrau was held without his remote participation, despite the lawsuit having been filed by
his sister. He argues that the Covenant requires that accused persons have the right to be
present during their trials and that trials in the absence of the accused are permissible only if
it is in the interests of the proper administration of justice or when the accused is sufficiently
informed in advance of the proceedings and refuses to exercise his or her right to be present.
Since he did not refuse to attend the proceedings and it had not been shown that excluding
him from the trial would serve the interests of the proper administration of justice,
Mr. Bokayev claims that there has been a violation of article 14 (3) (d) of the Covenant.
3.14
Mr. Bokayev submits that, by sending him to serve his prison sentence in a penal
colony in Petropavl, which is situated more than 1,500 km from his home city, the State Party
arbitrarily interfered with his right to receive visits on a regular basis, in violation of article 17
of the Covenant. It also violated Kazakh law, which requires incarceration of convicted
persons in the same region as the place of their residence. Mr. Bokayev further claims that
his placement under strict conditions of detention with restrictions on contacting his family
and lawyers for six months further violated his rights under article 17 of the Covenant.
State Party’s observations on the merits
4.1
On 19 July 2019, the State Party submitted its observations on the merits of the
communication. The State Party notes that the authors’ detention on remand was sanctioned
by the investigative judge on 3 June 2016 and thereafter was extended several times. The
decisions of the investigating judge were upheld on appeal. According to the State Party, on
28 November 2016, the authors were found guilty by Atyrau City Court No. 2 of:
(a) committing intentional acts aimed at inciting social and national discord, insulting the
national honour and dignity of citizens, using the media and telecommunications networks;
(b) dissemination, during public events, of information known to be false and creating a
danger of disturbing public order while using the media and telecommunications networks;
and (c) organizing, conducting and directly participating in an illegal meeting, causing
substantial harm to the legally protected interests of the State. The court sentenced the authors
to five years’ deprivation of liberty and a fine and restricted their right to engage in public
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activities for three years. On 20 January 2017, the trial court’s verdict was upheld on appeal,
except for the episode concerning the organization by the authors of the demonstration on
21 May 2016 in Atyrau, which was excluded from the final verdict. On 13 April and 4 May
2017, the Supreme Court dismissed the cassation appeals submitted by the authors’ lawyers.
At the same time, the State Party notes that, under article 486 of the Code of Criminal
Procedure, the authors retain the right to lodge appeals cassation to the Supreme Court on
their own behalf.
4.2
The State Party submits that, on 31 January 2018, both authors became eligible to
apply to have their sentences commuted or transferred to a penal colony. Mr. Ayanov
exercised this right and submitted an application to the court, which commuted the
outstanding part of his sentence to restriction of liberty and released him on 29 April 2018.
Mr. Bokayev chose not to submit such an appeal. The State Party notes that, on 18 September
2018, Mr. Bokayev was transferred to a penitentiary facility in Aktobe. The State Party notes
that, during Mr. Bokayev’s incarceration in Petropavl, he was disciplined eight times for
violating the prison’s internal rules and regulations. He was also recognized for good
behaviour on eight occasions. The State Party further notes that Mr. Bokayev has not
confessed or shown remorse for the crimes he committed and has not paid the fine ordered
by the court.
4.3
With regard to the lawsuit filed by Mr. Bokayev’s sister against the Prison
Administration Office of the Ministry of the Interior concerning his transfer to the prison in
Petropavl, the State Party notes that Almatinsky District Court of Astana dismissed all of her
claims, and the decision was later upheld by the appellate and cassation courts. According to
the State Party, if there are exceptional circumstances, she still can submit a request for a
supervisory review to the President of the Supreme Court.
4.4
Lastly, the State Party submits that, since 5 July 2019, Mr. Bokayev has been receiving
medical treatment for lumbosacral osteochondritis and his state of health is satisfactory.
Authors’ comments on the State Party’s observations on the merits
5.1
In a letter dated 24 September 2019, the authors responded to the State Party’s
observations on the merits of the communication. They confirm that, on 18 September 2018,
Mr. Bokayev was transferred to a penitentiary facility in Aktobe. With regard to the claim
relating to the lack of proper medical assistance, the authors maintain that, contrary to the
State Party’s submission, Mr. Bokayev, who suffers from chronic hepatitis C and
intervertebral disc herniation, did not receive proper medical treatment while in detention in
Petropavl prison from January 2017 to September 2018.
5.2
With regard to their conditions of detention, the authors reiterate that the detention
conditions in the Petropavl prison, including the imposition of disciplinary measures against
Mr. Bokayev, amounted to cruel, inhuman and degrading treatment. They deplore that the
State Party’s observations fail to address this claim despite their detailed statements. The
authors note that the State Party, in its response, admits that Mr. Bokayev was, inter alia,
punished for refusing to participate in outdoor exercises when it was -27 degrees Celsius.
5.3
The authors reiterate that they were subjected to arbitrary detention to prevent their
participation in a peaceful demonstration. In support of their claim, the authors also refer to
the opinion of the Working Group on Arbitrary Detention, which held that their detention
was arbitrary and in contravention of articles 9, 14, 19, 21 and 26 of the Covenant. They note
that the use of so-called preventive detention in Kazakhstan has already been criticized by
several United Nations bodies.5 According to the authors, the State Party’s observations have
not provided any justification that their preventive detention was either necessary or
reasonable. Accordingly, the authors submit that their detention amounted to a breach of
article 9 of the Covenant.
5.4
The authors note that, in its observations, the State Party has largely ignored their
claims under articles 19 and 21 of the Covenant. They stress that their submissions
concerning the freedom of expression and the right to peacefully assemble go to the heart of
5 The authors refer to A/HRC/29/25/Add.2.
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the case. They note that the charges of “agitation of social discord” concern their posts on
social media urging people to demonstrate and announcing the intent to peacefully express
disagreement with the amendments to the Land Code. The charges of “dissemination of
knowingly false information” refer to the information posted on social media showing
discontent with the amendments of the Land Code and calling for protests against them.
Lastly, the charges of “violation of the procedure of the organization and holding of meetings,
rallies, pickets, street processions and demonstrations” concern the intent to participate in
and the participation in peaceful assemblies and expressing disagreement with the
amendments to the Land Code. The authors argue that all the above-mentioned acts are
commonplace in the exercise of the freedom of expression and the right to peaceful assembly
and, therefore, the restriction of these rights should not be considered as “necessary in a
democratic society”, but rather the opposite – detrimental to an informed, pluralistic and
well-functioning democratic society.
5.5
The authors also reiterate their claims under articles 14 and 26 of the Covenant, and
article 17 separately for Mr. Bokayev, and note that the State Party in its observations has not
addressed their arguments.
5.6
The authors request the State Party to immediately release Mr. Bokayev, lift the
prohibition on engaging in public activities for three years for both authors, quash their
obligation to pay the fine and procedural costs, reimburse the amounts that they have already
paid in relation to their case and remove them from the list of persons linked to terrorist and
extremist activities in Kazakhstan. They also ask that their criminal convictions be overturned
and all charges filed against them dropped. Lastly, they ask to be provided with redress for
the pain that they have suffered, including restitution, compensation, rehabilitation,
satisfaction and guarantees of non-repetition.
State Party’s additional observations
6.1
On 16 January 2020, the State Party reiterated its previous submission. Regarding the
authors’ claim of a lack of proper medical treatment, the State Party notes that, after his arrest
and during his detention at the penitentiary facility in Atyrau, Mr. Bokayev underwent
medical examinations for hepatitis C at the prison’s medical ward and the city and regional
hospitals on 3 June, 28 June and 13 September 2016, respectively. It further notes that
Mr. Bokayev was examined by the medical team upon his arrival at the penitentiary facility
in Petropavl and, between 25 February 2017 and 26 August 2018, he was hospitalized on two
occasions. The State Party submits that, while serving his sentence in Petropavl,
Mr. Bokayev’s health was described as satisfactory and he received treatments prescribed by
doctors in full.
6.2
The State Party submits that, on 25 February 2017, owing to overcrowding of
medium-security prisons in the Atyrau and Aktobe regions, Mr. Bokayev was transferred to
prison EC-164/3 in Petropavl. Then, on 26 August 2018, owing to the availability of a place
in the medium-security prison in Aktobe, which is closer to Atyrau, Mr. Bokayev was
transferred to penitentiary facility KA-168/2, where he continues to serve his sentence. He
has been registered by the medical services at the facility with the diagnosis of hepatitis C,
as well as other illnesses, such as chronic cholecystitis and chronic pyelonephritis, both in
remission, and is under constant monitoring by medical specialists. The State Party submits
that Mr. Bokayev has also been registered by the city’s polyclinic No. 1, where he underwent
blood tests. On 11 January 2019, he was taken to Aktobe regional hospital for a fibro scan,
PCR test and ultrasound of his abdomen. Between 5 and 11 July 2019, he was treated for an
acute respiratory infection and osteochondrosis in the prison’s medical ward. The State Party
notes that Mr. Bokayev did not submit any complaints about a lack of medical assistance or
conditions of detention while incarcerated in Aktobe.
6.3
With regard to Mr. Bokayev’s conditions of detention in Petropavl, the State Party
notes that Mr. Bokayev was disciplined on eight different occasions, including for creating
conflict, failing to obey the lawful orders of the prison administration and refusing to attend
morning exercises (the latter on five occasions). The State Party submits that, on 11 and
22 December 2017, Mr. Bokayev was examined by the prison medical commission and a
local neurologist, respectively, and was found to be fit to attend morning exercise outdoors
for up to 15 minutes. The State Party also notes that two of the five disciplinary measures
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9
against Mr. Bokayev were later withdrawn due to air temperatures falling below -25 degrees
Celsius, as the prison’s rules and regulations prohibit outdoor exercises below that
temperature.
6.4
The State Party submits that, on 10 September 2019, Mr. Bokayev applied to the
Prison Administration Office of the Ministry of the Interior for a transfer closer to his place
of residence in Atyrau; however, his application was denied due to a lack of good behaviour.
At the same time, the State Party notes that, since 11 January 2020, at the initiative of the
Office of the Prosecutor General, domestic legislation has been amended and good behaviour
is no longer required for a prisoner to be transferred to another facility closer to his or her
place of residence. Therefore, should Mr. Bokayev wish to be transferred to a prison closer
to his home, he can submit a new request subject to the availability of space. The State Party
also notes that, on 20 December 2019, Mr. Bokayev had a short visit from his mother and
sister.
6.5
According to the State Party, Mr. Bokayev is eligible for transfer to a
minimum-security prison or early release as of 30 November 2018. However, he has not
submitted a request for any of the above. At the same time, Mr. Ayanov submitted a request
to substitute his remaining sentence for restriction of liberty and, on 29 April 2018, was
released from prison. He is currently registered with the probation service of the Aralsky
district in the Kyzylorda region.
Further submission by the authors
7.
On 17 February 2026, the authors’ counsel informed the Committee that Mr. Bokayev
had been released in February 2021 upon having served his full sentence. According to the
counsel, none of the authors remain subjected to any restrictions.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
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.
8.2
The Committee must ascertain, as required under article 5 (2) (a) of the Optional
Protocol, that the matter is not being examined under another procedure of international
investigation or settlement. It notes that the authors’ case has been examined by the Working
Group on Arbitrary Detention, which rendered an opinion thereon on 21 April 2017. The
Committee recalls that nothing precludes it from considering communications on cases
previously dealt with by another international investigation or settlement body, even when
the body has adopted a decision on the merits, unless the State Party has made a reservation
explicitly prohibiting successive procedures,6 which is not the case here. As the Working
Group had completed its examination of the case before the present communication was
considered by the Committee, the Committee considers that there are no obstacles to the
admissibility of the present communication under that provision.
8.3
The Committee notes that the authors claim to have exhausted all available and
effective domestic remedies. The Committee recalls that, in order to exhaust domestic
remedies, the authors must have raised, through all effective and available domestic
mechanisms for redress, the substance of the claims that are the subject of the communication
before the Committee.7 The Committee observes that the authors have not provided any
information on whether they had raised their claims under articles 14 (3) (e) and 26 of the
Covenant before the domestic authorities. The Committee therefore finds these claims
inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.
8.4
The Committee notes Mr. Bokayev’s claim that, during the entire period of his
detention, he suffered from the lack of specialized medical services for his chronic hepatitis C
6 Tsarsi et al. v. Chad (CCPR/C/140/D/3806/2020), para. 6.2.
7 Coral v. Spain (CCPR/C/83/D/1356/2005), para. 4.2.
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10
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and intervertebral disc herniation, in violation of article 7 of the Covenant. The Committee
also notes the State Party’s submission that, upon arrival at the penitentiary facility in Atyrau,
Mr. Bokayev underwent a medical examination for hepatitis C at the prison’s medical ward
and the city and regional hospitals on 3 June, 28 June and 13 September 2016, respectively.
Also, while incarcerated in the penitentiary facility in Petropavl, he was examined by the
medical team upon his arrival at the facility and, while incarcerated, he was hospitalized on
two occasions. According to the State Party, while serving his sentence in Petropavl,
Mr. Bokayev’s health was described as satisfactory and he was treated as prescribed by the
doctors in full. After his transfer to a prison in Aktobe, Mr. Bokayev was registered by the
medical services at the facility with the diagnosis of hepatitis C and other illnesses, including
chronic cholecystitis and chronic pyelonephritis, both in remission, and was under constant
monitoring by medical specialists. According to the State Party, he also underwent blood
tests, a fibro scan, a PCR test and an ultrasound of his abdomen at local medical facilities. In
the absence of any further pertinent information on file, the Committee considers that, for the
purposes of admissibility, the author has failed to provide sufficient information and factual
evidence in support of the claims regarding a lack of treatment for his illnesses and declares
that part of the claim under article 7 of the Covenant inadmissible pursuant to article 2 of the
Optional Protocol.
8.5
The Committee notes that Mr. Bokayev invokes both article 7 and article 10 (1) of the
Covenant, on the basis of the conditions of detention in Petropavl. The Committee notes that,
although these provisions complement each other, their purpose and scope are not identical.
While article 10 (1) deals specifically with persons deprived of their liberty and encompasses
for such persons the elements set out in article 7, article 7 concerns serious forms of
ill-treatment whereby the individual, including persons deprived of their liberty, is singled
out for specific attacks.8 The Committee considers that, in the present case, the author has
not sufficiently substantiated an individual risk of ill-treatment that would run contrary to
article 7 of the Covenant. The Committee thus finds his claims under article 7 of the Covenant
unsubstantiated and inadmissible under article 2 of the Optional Protocol.
8.6
The Committee further notes Mr. Bokayev’s claims under article 14 (3) (b) and (d) of
the Covenant in relation to the civil trial concerning his transfer to a prison closer to his home.
The Committee recalls that paragraphs 2–5 of article 14 of the Covenant contain procedural
guarantees available to persons charged with a criminal offence.9 Therefore, the Committee
considers the present claims, insofar as they relate to the civil case initiated by Mr. Bokayev’s
family, to be inadmissible under article 3 of the Optional Protocol to the Covenant.
8.7
With regard to both of the authors’ claim that the conditions of their detention in
Petropavl amount to a violation of article 10 (1) of the Covenant, the Committee notes that
the authors refer to the concluding observations on the third periodic report of Kazakhstan
by the Committee against Torture and the consolidated report of the members of the Kazakh
National Preventive Mechanism on the preventive visits carried out in 2016. The Committee
notes that these reports do not concern the specific conditions of the authors’ detention and
are of a general nature and therefore finds this claim insufficiently substantiated and
inadmissible under article 2 of the Optional Protocol.
8.8
The Committee notes the authors’ claims under article 14 (3) (b) of the Covenant
concerning a lack of access to legal counsel on the day of their arrest and a lack of time and
access to materials in the criminal case to prepare their defence. However, the Committee
observes that the authors were represented by a lawyer at Atyrau specialized inter-district
administrative court on 17 May 2016. As to the authors’ claims that they did not have
sufficient time to prepare for their trial or access to certain materials, the Committee notes
that it is not clear from the materials on file whether the authors or their lawyers requested
the trial court to grant an adjournment to prepare their defence.10 In these circumstances, the
Committee considers that the authors have failed to provide sufficient information and factual
8 I.A. v. Lithuania (CCPR/C/126/D/2989/2017), para. 11.8.
9 See the Committee’s general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 3. Also, see N.S. v. Kazakhstan (CCPR/C/140/D/3039/2017),
para. 8.3.
10 General comment No. 32 (2007), para. 32.
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GE.26-05196
11
support to these claims. Accordingly, and in the absence of any further pertinent information
on file, the Committee considers that the authors have failed to sufficiently substantiate these
claims for the purposes of admissibility and declares that part of the communication
inadmissible under article 2 of the Optional Protocol.
8.9
As to the authors’ claim that the Supreme Court’s refusal to examine their appeal in
cassation without providing substantial grounds for this decision violates their right to appeal
as established in article 14 (5) of the Covenant, the Committee notes that the authors’
sentence was reviewed by the Criminal Division of Atyrau Regional Court, which is a higher
tribunal within the meaning of article 14 (5). Consequently, the Committee considers that the
authors have failed to substantiate these claims under article 2 of the Optional Protocol.
8.10
The Committee considers that the authors have sufficiently substantiated their joint
claims regarding articles 9, 19, and 21 of the Covenant. The Committee is also of the opinion
that Mr. Bokayev has sufficiently substantiated, for the purposes of admissibility, his claims
under articles 10 (1) and 17 of the Covenant, pertaining to his detention in the disciplinary
detention ward in Petropavl. The Committee therefore declares the above-mentioned claims
admissible and proceeds with the consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
9.2
The Committee takes note of the authors’ claims under article 9 of the Covenant that:
(a) they were arrested and sentenced to 15 days of administrative arrest after announcing on
social media that they intended to participate in the demonstration in Atyrau planned for
21 May 2016 and encouraging others to do so as well; (b) that their pretrial detention in the
criminal case was arbitrary, as they were remanded in custody for having “friends abroad”
and that this would represent a risk of flight without any proof thereof being presented; and
(c) that they have not been granted reparations for their arbitrary detention, as recommended
by the Working Group on Arbitrary Detention.
9.3
The Committee observes that the State Party has not responded to these allegations.
It recalls its jurisprudence, according to which the burden of proof should not rest solely on
the author of a communication, especially given that the author and the State Party do not
always have the same degree of access to evidence and that often only the State Party is in
possession of the necessary information. 11 The Committee recalls that the notion of
“arbitrariness” is not to be equated with “against the law”, but must be interpreted more
broadly to include elements of inappropriateness, injustice and lack of predictability and due
process of law, as well as elements of reasonableness, necessity and proportionality.12 That
means, inter alia, that remand in custody on criminal charges must be reasonable and
necessary in all circumstances, for example, to prevent flight, interference with evidence or
the recurrence of crime.13 The Committee notes that the State Party has not provided any
explanation regarding the necessity and proportionality of the authors’ administrative arrest
on 17 May 2016 or within the framework of the criminal case against them on 3 June 2016.
The Committee also takes note of the opinion of the Working Group on Arbitrary Detention
concerning the arrest and detention of the authors and their right to be granted reparations.14
In the light of the foregoing, and in the absence of any further information, the Committee
concludes that there has been a violation of article 9 (1) of the Covenant.
9.4
The Committee further notes the authors’ claims that they were sanctioned for
exercising their right to freedom of expression and assembly, as they were arrested and
sentenced to 15 days of administrative arrest after announcing on social media that, despite
11 Ammari and Ammari v. Algeria (CCPR/C/112/D/2098/2011), para. 8.3; Mezine v. Algeria
(CCPR/C/106/D/1779/2008/Rev.1), para. 8.3; Berzig v. Algeria (CCPR/C/103/D/1781/2008),
para. 8.3; and El Abani v. Libyan Arab Jamahiriya (CCPR/C/99/D/1640/2007), para. 7.4.
12 General comment No. 35 (2014) on liberty and security of person, para. 12. See also Mirzayanov v.
Belarus (CCPR/C/126/D/2434/2014), para. 8.9.
13 Mirzayanov v. Belarus, para. 8.9.
14 Tsarsi et al. v. Chad, para. 7.4
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12
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the lack of authorization, they intended to participate in the demonstration planned for
21 May 2016 in Atyrau and encouraging others to do so as well. The Committee also notes
the authors’ claim that the State Party’s authorities prosecuted them and sentenced them to
five years’ imprisonment for exercising their right to freedom of expression and for their
political activities. The Committee considers that the above actions of the authorities interfere
with the authors’ rights to freedom of expression and freedom of assembly, and therefore it
must decide whether or not the measures taken against the authors amount to or are
permissible restrictions under articles 19 (3) and 21 of the Covenant.
9.5
The Committee recalls to its general comment No. 34 (2011) on the freedoms of
opinion and expression, according to which those freedoms are indispensable conditions for
the full development of the person and constitute the foundation stone for every free and
democratic society.15 All restrictions imposed on freedom of expression must conform to the
strict tests of necessity and proportionality, must be applied only for those purposes for which
they were prescribed and must be directly related to the specific need on which they are
predicated.16 The Committee observes that the State Party has failed to invoke any specific
grounds to support the necessity of the restrictions imposed on the author as required under
article 19 (3) of the Covenant, which included administrative arrest, criminal conviction and
additional restrictions, such as placing them on the list of persons linked to terrorist and
extremist activities in Kazakhstan and the prohibition on engaging in public activities for
three years. Moreover, the State Party did not demonstrate that the measures selected were
the least intrusive in nature or proportionate to the interest it sought to protect. In the absence
of any explanation as to how the restrictions imposed on the authors in the exercise of their
right to freedom of expression were justified pursuant to the conditions of necessity and
proportionality, the Committee finds that the State Party violated the authors’ rights under
article 19 (2) of the Covenant.17
9.6
Regarding the authors’ claims under article 21 of the Covenant, the Committee
similarly considers that the State Party has failed to demonstrate that the restrictions imposed
on the authors’ rights, namely, the detention of the authors and sanctioning them with 15 days
of administrative arrest, were necessary in the interest 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. Accordingly, the Committee concludes that the facts before it resulted
also in a violation of the authors’ rights under article 21 of the Covenant.18
9.7
The Committee notes Mr. Bokayev’s claim that he was subjected to disciplinary
measures, detention in the isolation ward and strict conditions of detention on account of
refusing to do outdoor exercises on several occasions, despite requesting to do them indoors
due to the extreme weather conditions and their effect on his fragile state of health. According
to Mr. Bokayev, the repetitive disciplinary measures triggered the change in the conditions
of his detention from medium to strict for a period of six months, which in turn imposed
additional restrictions on communicating with the outside world, including his family and
lawyers. The Committee also notes the State Party’s submissions that Mr. Bokayev was
disciplined on eight different occasions, including for creating conflict, failure to obey the
lawful orders of the prison administration and five times for refusing to attend morning
exercises, two of which were later rescinded due to air temperatures falling below -25 degrees
Celsius.
9.8
The Committee notes that, for each disciplinary violation, Mr. Bokayev was placed in
the disciplinary detention ward for 24 to 48 hours, in poor conditions of detention and
subjected to body searches in front of other inmates. The Committee also notes that, owing
to disciplinary violations, Mr. Bokayev was placed under a six-month strict detention regime
with onerous restrictions on contacting the outside world that caused him much stress. When
appealing each disciplinary measure to Petropavl City Court, his appeals were transferred to
15 General comment No. 34 (2011), para. 2.
16 Ibid., para. 22.
17 Statkevich v. Belarus (CCPR/C/133/D/2619/2015), para. 7.11; Sadykov v. Kazakhstan
(CCPR/C/129/D/2456/2014), para. 7.4; Toregozhina v. Kazakhstan (CCPR/C/124/D/2257/2013-
CCPR/C/124/D/2334/2014), para. 7.5; and general comment No. 34 (2011), para. 34.
18 Toregozhina v. Kazakhstan (CCPR/C/112/D/2137/2012), para. 7.6.
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13
the Northern Kazakhstan Regional Prosecutor’s Office, which replied that there were no
grounds for a complaint.
9.9
The Committee recalls that persons deprived of liberty may not be subjected to any
hardship or constraint other than that resulting from the deprivation of liberty and that the
measure of their treatment under the Covenant is as set out, inter alia, in the Standard
Minimum Rules for the Treatment of Prisoners (1957). 19 In the absence of specific
information from the State Party regarding Mr. Bokayev’s conditions of detention in the
disciplinary ward, the Committee considers that confining him in such conditions,20 the
searches of his cells and the restriction of his contact with the outside world21 violated
Mr. Bokayev’s right to be treated with humanity and respect for the inherent dignity of the
human person and are therefore contrary to article 10 (1) of the Covenant.
9.10
The Committee notes Mr. Bokayev’s claim that the decision of the Prison
Administration Office of the Ministry of the Interior ordering his transfer to a penal colony
in Petropavl, which is situated more than 1,500 km from his home city, constituted an
interference with his family in violation of article 17 of the Covenant. Furthermore, his
placement under strict conditions of detention with restrictions on contacting his family and
lawyers for six months also violated his rights under article 17 of the Covenant. The
Committee considers that this constitutes an interference with his family and must therefore
examine whether such interference was justified under the criteria provided in the Covenant.
9.11
The Committee recalls that prisoners shall be allocated, to the extent possible, to
prisons close to their homes or their places of social rehabilitation in accordance with the
Nelson Mandela Rules (Rule 59). The Committee also refers to its general comment No. 16
(1988) on the right to privacy, according to which article 17 provides for the right of every
person to be protected against arbitrary or unlawful interference with one’s privacy, family,
home or correspondence. Arbitrariness within the meaning of article 17 is not confined to
procedural arbitrariness but extends to the reasonableness of the interference with the
person’s rights under article 17 and its compatibility with the purposes, aims and objectives
of the Covenant.22
9.12
According to the information submitted by Mr. Bokayev, the Prison Administration
Office of the Ministry of the Interior ordered his transfer to Petropavl to prevent him from
committing new offences.23 The Committee notes that the State Party has not provided any
explanation as to how transferring Mr. Bokayev to a prison so remote from his home would
prevent him from committing new offences. The Committee also notes the State Party’s later
submission that Mr. Bokayev was transferred to prison EC-164/3 in Petropavl due to
overcrowding of medium-security prisons in the Atyrau and Aktobe regions. According to
the State Party, on 26 August 2018, once a place in a medium-security prison closer to
Mr. Bokayev’s home became available, he was transferred to penitentiary facility KA-168/2
in Aktobe. In this regard, the Committee observes that the State Party has not provided any
information as to the precise number of inmates held in medium-security prisons in the
Atyrau and Aktobe regions at the time of Mr. Bokayev’s sentencing, nor such information
was shared with the family of Mr. Bokayev citing “confidentiality” when they attempted to
obtain his transfer through the domestic courts.
9.13
Accordingly, the Committee considers that the State Party has failed to justify the
interference with Mr. Bokayev’s family life, as required in article 17 of the Covenant. The
Committee concludes that transferring Mr. Bokayev to a remote penal facility prevented him
from receiving regular family visits and therefore amounted to a violation of his rights under
article 17 (1) of the Covenant, which was further aggravated by placing him under strict
conditions of detention for a period of six months.
19 Gorbaeva v. Kyrgyzstan (CCPR/C/139/D/3261/2018), para. 7.9.
20 Aminov v. Turkmenistan (CCPR/C/117/D/2220/2012), para. 9.3.
21 Khadzhiev v. Turkmenistan (CCPR/C/113/D/2079/2011), para. 8.8.
22 Tornel et al. v. Spain (CCPR/C/95/D/1473/2006), para. 7.3.
23 As per decision of Almaty District Court in Astana on 29 January 2018.
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14
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10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the
information before it discloses a violation by the State Party of the authors’ rights under
articles 9 (1), 19 (2) and 21 of the Covenant. Furthermore, the Committee also finds that the State
Party violated the rights of Mr. Bokayev under articles 10 (1) and 17 (1) of the Covenant.
11.
In accordance with article 2 (3) (a) of the Covenant, the State Party is under an
obligation to provide the authors with an effective remedy. That requires it to make full
reparation to individuals whose Covenant rights have been violated. Accordingly, the State
Party is obligated to provide the authors with adequate compensation for moral and material
damage caused to them. The State Party is also under an obligation to take all steps necessary
to prevent similar violations from occurring in the future.
12.
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 and enforceable 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.
CCPR/C/145/D/3250/2018
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15
Annex I
[English only]
Individual opinion of Committee member Laurence R. Helfer
(concurring)
1.
The authors in this case were convicted of criminal offences relating to organizing a
peaceful but unauthorized public assembly (para. 2.6 of the Committee’s Views). Following
the denial of their appeals, both authors were placed on a list of persons linked to terrorist
and extremist activities established pursuant to the anti-money laundering and counter
terrorism law of Kazakhstan.1 Placement on this list prevented the authors from performing
any financial transactions, such as opening bank accounts, accessing their funds, or starting
their own businesses (see para. 2.9). The authors allege that Kazakh authorities have
repeatedly placed civil society activists and political dissidents on this list to silence them
and obstructing their work as human rights defenders (para. 3.8), a claim that is supported by
a recent non-governmental organization report on the State Party.2
2.
The authors initially sought to have the State Party remove them from the list
(para. 5.6). However, shortly before the adoption of the Views in this case, counsel informed
the Committee that neither author remains subject to any restrictions (para. 7), which
presumably means that all financial and other sanctions have been removed. In finding a
violation of the right to freedom of expression, the Committee observes that the State Party
has not justified the necessity or proportionality of the restrictions imposed on the authors,
including “placing them on the list of persons linked to terrorist and extremist activities”
(para 9.5). However, the remedies that the Committee indicates for the violations of the
Covenant are general in nature: an obligation to provide compensation for moral and material
damage and to prevent similar violations from occurring in the future (para. 11).
3.
Laws authorizing governments to identify individuals allegedly linked to terrorism or
extremist activities for financial and administrative sanctions implicate numerous provisions
of the Covenant, including the rights to freedom of expression and association, to private and
family life, to a fair hearing, and to an effective remedy, as well as the prohibition of arbitrary
application of the criminal law.3 The potential violation of these rights are exacerbated where
such laws contain overbroad or vague definitions of terrorism that encompass the peaceful
activities of civil society groups, journalists, human rights defenders or political dissidents.4
Due process concerns also arise where listing or delisting procedures are opaque, burdensome
or lack clear standards for judicial review.5
1 On combating legalization (laundering) of proceeds from crime, financing of terrorism and financing
of the proliferation of weapons of mass destruction, Law of the Republic of Kazakhstan (28 August
2009) No. 191-IV. Available at
https://adilet.zan.kz/eng/docs/Z090000191_#:~:text=The%20Law%20of%20the%20Republic%20of
%20Kazakhstan,weapons%20of%20mass%20destruction%20and%20its%20financing (unofficial
English translation).
2 Human Rights Watch, Politically Targeted, Economically Isolated: How Kazakhstan’s Financing
Terrorism List Compounds Human Rights Harms (27 August 2024). Available at
https://www.hrw.org/report/2024/08/27/politically-targeted-economically-isolated/how-kazakhstans-
financing-terrorism.
3 “The impact of counter-terrorism targeted sanctions on human rights”, Position Paper of the Special
Rapporteur on the promotion and protection of human rights and fundamental freedoms while
countering terrorism, Fionnuala Ní Aoláin (2021).
4 A/HRC/61/52.
5 Organization for Security and Cooperation in Europe, Office for Democratic Institutions and Human
Rights, “Border management and human rights”, policy brief (2021).
CCPR/C/145/D/3250/2018
16
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4.
Several States Parties have enacted laws establishing terrorist and extremist lists that
impose financial sanctions on natural persons and organizations.6 The Committee has not
previously considered on the merits a communication challenging such laws. However, in
Sayadi and Vinck v. Belgium,7 decided in 2008, the Committee found violations of articles 12
and 17 of the Covenant when the State Party had placed the authors on a list established by
the Security Council that imposed asset freezes and travel bans on individuals with suspected
links to terrorism. To remedy the violations, the Committee urged the State Party “to do all
it can to have their names removed from the list as soon as possible, to provide the authors
with some form of compensation and to make public the requests for removal”.8
5.
In Sayadi and Vinck, the individuals remained on the sanctions list long after the
dismissal of the criminal investigations against them. In this case, in contrast, the authors
were apparently removed from the Kazakh terrorism and extremist list after serving their
criminal sentences but before the Committee adopted its Views. The decision thus does not
address this aspect of the authors’ complaint, and the potential violations of the Covenant
that resulted from placing the authors on the list evades the Committee’s review. In a future
case, the Committee should give careful consideration to the potential violations raised by
the placement on the lists and to the appropriate remedies for such violations, including a
transparent administrative process for requesting removal and access to an effective judicial
remedy for both listing and delisting decisions.
6 Eurasian Group on Combating Money Laundering and Financing of Terrorism, Guidelines on the
Listing/De-Listing of Terrorists/Extremists and Freezing of their Assets (2023). Available at
https://eurasiangroup.org/files/uploads/files/Guidelines_on_freezing.pdf.
7 CCPR/C/94/D/1472/2006.
8 Ibid., para. 12.
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Annex II
[English only]
Individual opinion of Committee member Carlos Ramón
Fernández Liesa (partially dissenting)
1.
My disagreement with the majority opinion of the Committee refers to the
interpretation of article 5 (2) (a) of the Optional Protocol. In particular, I disagree that the
Committee may examine communications relating to cases previously dealt with by another
international investigative or settlement body, even where that body has taken a decision on
the merits, unless the State Party has entered a reservation explicitly prohibiting subsequent
appeals.
2.
When the International Covenant on Civil and Political Rights and the Optional
Protocol, both of 1966, were concluded, the subsequent proliferation of international courts
and bodies had not yet taken place. The European Commission of Human Rights existed, to
which Austria refers in the declaration it made under article 5 (2) (a). However, to consider
that States had, ab initio, the burden of formulating a reservation prohibiting successive
appeals in relation to developments that had not yet occurred is an a posteriori construction.
3.
A number of States have made unilateral declarations under article 5 (2) (a), but they
did so with the intention of clarifying a text that has been authenticated in several languages
which are confusing because they do not convey the same meaning. In Spanish, it states that
the Committee shall not examine any communication unless it ascertains that the same matter
“no ha sido sometida” to another procedure, whilst in French it states that “la même question
n’est pas déjà en cours d’examen devant une autre instance” and in English “the same matter
is not being examined”. They do not say the same thing and the interpretation was confusing.
4.
These are not reservations, even though Denmark, El Salvador, France, Iceland,
Poland and Slovenia referred to them as such, but rather declarations, as Austria, Croatia,
Luxembourg, Malta, Romania and the Union of Soviet Socialist Republics described them,
whilst others chose to clarify without labelling them one way or the other (principle of
non-nominalism), as Germany, Ireland, Italy, Norway, Moldova, Spain or Sweden did.
5.
That said, the content of all these interpretative, unilateral and written declarations is
largely consistent. Their purpose is to clarify the meaning of article 5 (2) (a): a matter already
examined by another settlement or investigative body cannot be examined by the Committee.
However, these declarations do not alter the legal effect of the article; rather, they clarify it.
That would also have been the intention of the States in 1966. It is the most reasonable
interpretation to be drawn from the text and the context.
6.
Article 5 (2) (a) does not reflect a rule of lis pendens in international law, which is not
a rule of general application (nor is it a custom, nor is it a general principle of international
law), since each treaty is a self-contained system, and there is no legal link between settlement
and investigation bodies, whatever their nature. Nor was there lis pendens within the
United Nations itself between the International Court of Justice and the Security Council in
the Lockerbie case. This is a consequence of the fragmentation of international law.
7.
It is also unclear whether article 5 (2) (a) reflects respect for res judicata, even where
the matter has not yet been interpreted. Article 5 (2) (a) stems from the intention of the States
that individuals wishing to have other international avenues for the defence of their rights (as
was the case under the Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights)) should be able to choose.
Article 5 (2) (a) reflects more of a disjunctive than a conjunctive option, more the idea of
choosing one avenue or the other than of making successive appeals.
8.
If a matter has been “submitted” but not “examined” on the merits – for example, if it
has been declared inadmissible by another settlement or investigative body – it may be
deemed admissible by the Committee, as is the practice, in the same way as if it were an
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aspect of the matter that has not been examined by another body. In other words, a case may
be admitted by the Committee if it is not exactly the “same case”, as stated in article 5 (2),
that is to say, “the same complaint concerning the same person” with “the same basic set of
facts and allegations” before two proceedings.
9.
Ultimately, I do not agree, without further clarification, with the view that the special
public procedures established since 1967 under Economic and Social Council resolution
1235, following the adoption of the Covenant – and which today are established by the
Human Rights Council, a subsidiary body of the General Assembly – can be regarded as
international settlement or investigation procedures for the purposes of article 5 (2) (a), as
some might infer from reading the final line of paragraph 8.2 of the Committee’s Views, in
relation to the Working Group on Arbitrary Detention.
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19
Annex III
[English only]
Individual opinion of Committee member Hélène Tigroudja
(partially dissenting)
1.
I concur with the conclusion reached by the Committee in the present case, regarding
the violation of the authors’ rights under articles 9, 10, 17, 19 and 21 of the Covenant.
However, I disagree with the decision to declare inadmissible the claims under article 7 in
conjunction with article 2 (3) of the Covenant regarding his placement in disciplinary
isolation and a more severe regime of detention (para. 8.5 of the Committee’s Views).
2.
As I have already stressed in several dissenting opinions, the distinction drawn by the
Committee between article 7 and article 10 in cases dealing with ill-treatment in detention is
not only unclear, inconsistent and poorly reasoned,1 but also dangerous.2 The present case
illustrates the same inconsistency and the concerning and regressive trend followed by the
Committee regarding disciplinary regime in detention.
3.
In his complaint, one of the authors (Mr. Bokayev) claimed that he was “subjected to
disciplinary isolation due to refusing to do outdoor exercises”, despite his requests for being
exempted from physical exercise “due to the extreme weather conditions and their effect on
his already fragile health” (para. 3.10). He affirmed that he has been reprimanded and placed
in isolation and under a stricter regime of detention for months as a sanction for refusing to
perform recreational activities. He brought a formal complaint before the domestic authorities
but without much success. Therefore, before the Committee, Mr. Bokayev did not only claim
the violation of article 10 due to his bad conditions of detention; he also raised a claim under
article 7 considering the “punishment” (para. 3.10) he was subjected to.
4.
As a response, the Committee decided to reject the claim, considering that “article 7
concerns serious forms of ill-treatment whereby the individual, including persons deprived
of their liberty, is singled out for specific attacks” (para. 8.5).3 However, this explanation is
not convincing. First, the decision of the Committee in the case referred to in the footnote
(I.A. v. Lithuania) is based on a factual background and claims that are different from the
present case. More importantly, this precedent referred to the Committee’s previous case-law
– and in particular, to Bobrov v. Belarus – that goes in the exact opposite direction and
contradicts the reasoning of the Committee followed in the present case. In Bobrov, after
examining the hardship of the conditions of detention of the author, the Committee concluded
as follows:
The Committee considers, as it has repeatedly found in respect of similar substantiated
claims, that the author’s conditions of detention as described violated his right to be
treated with humanity and with respect for the inherent dignity of the human person,
and are therefore also contrary to article 10 (1), a provision of the Covenant dealing
specifically with the situation of persons deprived of their liberty and encompassing
for such persons the elements set out generally in article 7. For these reasons, the
Committee finds that the circumstances of the author’s detention, as described by the
author, constitute a violation of articles 7 and 10 (1) of the Covenant.4
Therefore, facing two contradictory approaches to the articulation of articles 7 and 10 in its
own jurisprudence, it is regrettable that the Committee did not apply the most favourable one
to the author.
1 See my partially dissenting opinion in Nazarov et al. v. Turkmenistan (CCPR/C/126/D/2302/2013).
2 See my partially dissenting opinion in López Mendoza et al. v. the Bolivarian Republic of Venezuela
(CCPR/C/144/D/3053/2017).
3 Emphasis added.
4 Bobrov v. Belarus (CCPR/C/122/D/2181/2012), para. 8.2 (emphasis added).
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5.
Furthermore, affirming that article 7 only applies when a victim is “singled out for
specific attacks” introduces not only a new requirement in the condition of applicability of
the provision – some treatments falling under article 7 do not necessarily require the proof of
an intentional attack – but also makes it almost impossible to prove the violation. Proving
that an ill-treatment suffered by a person deprived of liberty is based on a specific and
targeted attack is not only requiring a probatio diabolica at odds with precedents of this
Committee, but also retrogressing in the long-standing stance of human rights bodies
affirming that the disciplinary sanctions applied to persons deprived of liberty must comply
with human rights.5
6.
In this regard but also considering the multiplication of these recent inconsistent
precedents – the present case must be read in light of the above-mentioned López Mendoza
case – it is of the utmost importance for the Committee to clarify its jurisprudence on the
articulation between articles 7 and 10. In the present case, I have no doubt that the facts as
presented by Mr. Bokayev not only revealed a violation of the right not to be subjected to
inhumane conditions of detention (art. 10) but also that he was victim of an excessive regime
of disciplinary sanctions and isolation that falls under the prohibition of ill-treatments (art. 7
of the Covenant).
5 As a starting point of this jurisprudence: European Court of Human Rights, Golder v. United
Kingdom, Application No. 4451/70, 21 February 1975.