A/HRC/WGAD/2020/43

E. 1 The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. In its resolution 1997/50, the Commission extended and clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The Council most recently extended the mandate of the Working Group for a three-year period in its resolution 42/22.

E. 2 In accordance with its methods of work (A/HRC/36/38), on 19 December 2019 the Working Group transmitted to the Government of Kazakhstan a communication concerning Serikzhan Bilash. The Government replied to the communication on 17 March 2020. The State is a party to the International Covenant on Civil and Political Rights.

E. 3 The Working Group regards deprivation of liberty as arbitrary in the following cases: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her) (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); (c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); (d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability,

* Seong-Phil Hong did not participate in the discussion of the present case. ** An individual opinion of Working Group member Elina Steinerte (partially dissenting) is contained in annex I. An individual opinion of Working Group member Sètondji Roland Adjovi (partially dissenting) is contained in annex II. *** The annexes to the present document are reproduced in the language of submission only. United Nations A/HRC/WGAD/2020/43 General Assembly Distr.: General 14 December 2020 Original: English A/HRC/WGAD/2020/43 2 or any other status, that aims towards or can result in ignoring the equality of human beings (category V). Submissions Communication from the source

E. 4 Serikzhan Bilash is a 45-year-old national of Kazakhstan, who usually resides in Almaty. Prior to his arrest, Mr. Bilash served as the director of Ata-Jurt Eriktileri (“Volunteers of the Fatherland”), an organization he founded in 2017 which campaigns for the release of ethnic Kazakhs allegedly held by the Government of China in the Xinjiang Uighur Autonomous Region and which provides support to the relatives of those detainees. According to the source, despite repeated attempts by Mr. Bilash to register his organization, the Minister of Justice of Kazakhstan has allegedly refused to grant the registration. (a) Arrest and detention

E. 5 The source reports that on 9 March 2019, six unidentified individuals arrived at the office of Ata-Jurt Eriktileri in Almaty, Kazakhstan, where they proceeded to intimidate Ata- Jurt Eriktileri staff. They allegedly left only when the staff called the police. Mr. Bilash, concerned for his safety, decided to stay in a hotel room that night, rather than returning home. He therefore subsequently checked in to the Rahad Palace Hotel in Almaty.

E. 5.30 p.m. on 15 August 2019, the Almaty district court to which Mr. Bilash’s case was now assigned notified his legal representative that Mr. Bilash’s first hearing before this court would take place the following morning at 10 a.m. The source further reports that later that evening, Mr. Bilash’s lawyer discovered that the brakes of her car had been tampered with. She allegedly announced publicly that she believed the act was in retaliation for her representation of politically targeted defendants, including Mr. Bilash.

E. 6 According to the source, at around 2.30 a.m. on 10 March 2019, national security officers arrived at the Rahad Palace Hotel and attempted to enter Mr. Bilash’s room with a key provided by the hotel administration. However, Mr. Bilash had closed the door’s chain link security lock, which prevented the officers from entering immediately. Mr. Bilash attempted to identify the officers and asked to see any documents that would show that they were legally permitted to enter his room. The officers allegedly provided no explanation, and without warning, and while Mr. Bilash was standing behind the door, kicked the door open, breaking the security lock and injuring Mr. Bilash who was left with his right foot bleeding. The source further reports that, noticing his injury, the officers pressured Mr. Bilash to sign a statement testifying that no one had been injured during his arrest.

E. 7 The source submits that, despite Mr. Bilash’s insistence on being told the reason for the officers’ presence in his room, they did not present any warrant or subpoena or any formal notice of the legal grounds for his arrest, and nor did they bring any specific charges against him. One officer, however, reportedly stated that Mr. Bilash had committed two crimes: he had engaged in activities harmful to the relationship between Kazakhstan and China, and he had assisted a whistle-blower from a camp in Xinjiang to obtain private legal counsel in Kazakhstan. The officers proceeded to detain Mr. Bilash and put him on a flight to the capital, Nur-Sultan, 1,300 kilometres away from Almaty. The source further reports that, once in Nur-Sultan, he was allegedly transferred to the Ministry of Internal Affairs, where he was held at the order of the Ministry and interrogated by national security officers.

E. 8 The source indicates that the Government did not notify Mr. Bilash’s family or the press about his detention. Later during the same day (10 March 2019), an online video showing the hotel room with marks of blood caught the attention of several prominent news outlets. The national security officers therefore pressured Mr. Bilash to contact his family and friends to notify them that he had not been killed and that he was in Nur-Sultan. While detained at the Ministry of Internal Affairs, Mr. Bilash also notified investigators that he was represented by his own lawyer. He was, however, not permitted to speak with his lawyer. Instead, the Ministry officials reportedly attempted to provide him with a government-appointed lawyer, which he repeatedly refused.

E. 9 The source submits that, later in the day, the police raided the office of Ata-Jurt Eriktileri, where they seized computers, cameras and hard drives with information about, and testimonies from, individuals detained in Xinjiang. The office was reportedly later locked and sealed by the law enforcement officials, which has temporarily ceased the operations of Ata-Jurt Eriktileri’s headquarters. A/HRC/WGAD/2020/43 3 (b) Charges and investigation

E. 10 The source submits that on 11 March 2019, the authorities notified Mr. Bilash that he was under investigation for incitement to social, national, generic, racial, class or religious discord, under article 174 of the Criminal Code of Kazakhstan. The source further reports that the Office of the Prosecutor issued a press release on the same day stating that Mr. Bilash had violated the second paragraph of article 174 by calling for jihad against the Chinese people on 8 February 2019, while giving a talk at a meeting with members of the Uighur community in Almaty. According to the source, the relevant statements made by Mr. Bilash at that meeting translate as follows into English: “Jihad today is not taking up a gun and fighting in Syria. Jihad is information and propaganda.”

E. 11 The source indicates that on 11 March 2019, the same day as he was notified of the charges against him, Mr. Bilash was brought before a judge at the Specialized Inter-District Investigation Court in Nur-Sultan. At the hearing, the court ordered him to remain under house arrest in the city of Nur-Sultan for two months, pending investigation into the accusations that he had “incited ethnic discord”. Under the terms of the house arrest, Mr. Bilash was not permitted to return to his home in Almaty, despite the fact that the alleged acts for which he was being investigated had occurred in Almaty. As Nur-Sultan is 1,300 kilometres away from Almaty, Mr. Bilash has reportedly had to rent an apartment from an acquaintance to fulfil the terms of his detention order.

E. 12 According to the source, while under house arrest, Mr. Bilash was repeatedly visited by plain-clothes officers who used threats of force to pressure him into making several written and video recorded statements. For one statement, the police reportedly coerced Mr. Bilash into pledging to stop raising the issue of ethnic Kazakhs detained in Xianjang. For another statement, the police coerced him into stating that he wanted to dismiss his legal counsel. During these interrogations, Mr. Bilash was also allegedly forced to sign several documents, some of which were blank.

E. 13 The source reports that on 15 March 2019, the officers visited him again and promised that they would give him “freedom by April” if he stepped down as director of Ata-Jurt Eriktileri. Officers stated that they would let another activist take over the organization, as long as Mr. Bilash was not involved. However, Mr. Bilash refused.

E. 14 The source submits that, since the beginning of his house arrest, police officers visited Mr. Bilash more than 20 times. The source further reports that, during the interrogations, officers often threatened him and his family with physical harm. On one occasion, officers allegedly brought along a photograph of a family member of Mr. Bilash, to make him aware that the Government knew the identity of his family members. The source adds that Mr. Bilash’s attorney has never been notified prior to interrogations, and that, as a consequence, she has never been present during the questionings. In addition to those attempts to prevent Mr. Bilash’s lawyer from representing him, and to the alleged attempts by the police to have him dismiss his lawyer, the authorities have reportedly followed, harassed and intimidated Mr. Bilash’s lawyer.

E. 15 The source states that, on 7 May 2019, Mr. Bilash’s house arrest was extended by the Specialized Inter-District Investigation Court. At the request of the prosecution and police investigators, his house arrest was reportedly further extended by the Court on 8 July 2019, until 10 August 2019. The source indicates that the Court has provided no specific or individualized basis – such as a flight risk for Mr. Bilash, a danger to society or a likelihood of destroying evidence – that would justify the need for his continued detention, and that, if convicted, Mr. Bilash could face a sentence of between two and seven years in prison. (c) Indictment and alleged pressure to accept a plea agreement

E. 16 According to the source, on 16 July 2019 the prosecution released its official indictment of Mr. Bilash, charging him with a single violation of article 174 (1) of the Criminal Code. Although Mr. Bilash was initially under investigation for violating the second paragraph of article 174, the prosecution decided only to indict Mr. Bilash under the first paragraph of article 174. The alleged reason for the change is that Mr. Bilash could not be considered the “leader of a public association”, as required under the second paragraph, due to the fact that the Government has repeatedly refused to register Ata-Jurt Eriktileri. A/HRC/WGAD/2020/43 4

E. 17 The source reports that on 29 July 2019, a Nur-Sultan trial court found that Nur-Sultan was an improper venue to hear the case against Mr. Bilash because the conduct at issue had occurred in Almaty. The Nur-Sultan court accordingly transferred Mr. Bilash’s case to Almaty, where the pretrial process would begin anew. The court also reportedly ordered Mr. Bilash’s house arrest to be transferred to Almaty, an order that was set to enter into force on 14 August 2019.

E. 18 Between the time of issuance of the order and the time that it entered into force, Mr. Bilash was visited several times by law enforcement officers at his place of house arrest. During these visits, officials pressured Mr. Bilash to accept a plea deal.

E. 19 The source indicates that on 9 August 2019, a district court in Almaty opened criminal proceedings against Mr. Bilash concerning the subject of the Nur-Sultan trial, despite the Nur-Sultan court’s order to transfer the case only entering into force on 14 August 2019, and despite the fact that Mr. Bilash was still being detained under house arrest in Nur-Sultan.

E. 20 According to the source, on 15 August 2019 Mr. Bilash was transferred from Nur-Sultan to Almaty, where he was placed under house arrest at his home. At approximately

E. 21 The source reports that the following morning, on 16 August 2019, Mr. Bilash’s lawyer went to the Almaty courthouse and discovered that the 10 a.m. hearing had been cancelled. The lawyer was then informed that the pretrial hearing was scheduled for 7.30 that evening. At around 5.30 p.m., Mr. Bilash was reportedly visited by his lawyer to discuss legal strategy. During the conversation, Mr. Bilash expressed his intention to refuse the plea agreement. While this meeting was taking place, Almaty police officers arrived at Mr. Bilash’s house and insisted on escorting him to the court. The officers allegedly refused to allow his lawyer to accompany him and the lawyer was forced to go to the hearing separately.

E. 22 According to the source, on 16 August 2019 at 7.15 p.m., when Mr. Bilash’s lawyer arrived at the courthouse, she was informed that he had not yet arrived. Contrary to what she was told, Mr. Bilash had already arrived and was inside the courthouse. While she was waiting, Mr. Bilash was being pressured to accept a plea agreement by a person who was later identified as holding the position of Presidential Adviser. The source further alleges that Mr. Bilash was forced to sign the plea deal, otherwise he would be imprisoned for the maximum of seven years under article 174 of the Criminal Code. In the meantime, his lawyer eventually understood that Mr. Bilash was inside the courthouse and asked to see her client. The court staff reportedly ejected her from the courthouse and locked the doors and gates of the building behind her. The source indicates that she then made a public statement on social media describing the situation, which drew a crowd of supporters of Mr. Bilash to the courthouse.

E. 23 The source further reports that Mr. Bilash’s lawyer was allowed to re-enter the courthouse at 9.00 p.m., and finally met her client, who looked very distressed, was pale, and had trembling hands. She reportedly stated that her client was not in a position to continue with any of the proceedings, in light of his health issues, which had included a heart attack in the past. However, the court clerks proceeded to hold the hearing, and Mr. Bilash and his lawyer were brought to a hearing room, in which sat the prosecutor, a judge and the Presidential Adviser referred to above. The prosecution requested to have the trial sealed, but the lawyer objected because the trial did not raise any issue of classified material or State secrets. She emphasized that the case was a simple case of incitement and that there were no grounds for overriding her client’s right to an open and public trial. Despite the lawyer’s objection, the judge ruled to close the trial to the public, and the prosecution requested to have her removed as Mr. Bilash’s counsel because they claimed that she was acting against the interests of her client. The prosecution reportedly further alleged that Mr. Bilash desired a plea deal but his lawyer was unwilling to allow him to accept one. In response, the lawyer explained that, in light of the conversation that she had had with her client earlier in the A/HRC/WGAD/2020/43 5 evening, Mr. Bilash was not interested in a plea bargain, and she requested some time to speak with her client confidentially to determine whether he had changed his mind about accepting a plea. The judge allegedly refused her request to meet with Mr. Bilash confidentially and instead proceeded to ask Mr. Bilash whether he desired a plea agreement. He answered that he would accept the agreement. The judge then recommended that a plea agreement be signed.

E. 24 According to the source, Mr. Bilash’s lawyer refused to sign the plea agreement, a necessary condition under Kazakh law. The source reports that the court nonetheless proceeded to have Mr. Bilash sign the agreement. At this point, his lawyer reportedly left the courthouse because she was unwilling to participate in an agreement that she considered illegal as it had been signed under coercion. The source indicates that the judge then assigned Mr. Bilash another lawyer, who proceeded to sign off on the plea agreement. Mr. Bilash’s new lawyer did not consult with the previous lawyer, nor did he take time to adequately review any relevant case files concerning Mr. Bilash. Mr. Bilash then reportedly proceeded to sign the plea agreement, with the authorization of his new counsel. The source further reports that, under the agreement, Mr. Bilash pleaded guilty to violating article 174 of the Criminal Code for inciting social discord against Chinese persons. Moreover, Mr. Bilash agreed to refrain from engaging in any public advocacy activity on behalf of any cause for the next seven years. Additionally, the source indicates that the agreement stipulates that Mr. Bilash is not allowed to leave Almaty for three months and must pay a fine amounting to approximately $300. The court proceeded to recognize the plea, closed the criminal case against Mr. Bilash and released him from the courthouse at approximately 11.30 p.m. Mr. Bilash then publicly announced that he had pleaded guilty to the crimes in exchange for his freedom. As a result of the agreement, he also stepped down as director of the Ata-Jurt Eriktileri organization. (d) Alleged continued harassment of Mr. Bilash

E. 25 The source reports that Mr. Bilash continues to face harassment from the authorities despite the fact that he ended his public advocacy activities, as stipulated by the terms of the plea agreement allegedly forced upon him. In particular, the source indicates that the Almaty police visit him every week to question and harass him.

E. 26 Finally, the source submits that the authorities have placed him on a financial blacklist and frozen his bank account, a situation that prevents him from transferring certain items of property or obtaining insurance. His credit cards were also allegedly not returned, following their seizure at the time of his arrest. On 7 December 2019, when he reportedly attempted to transfer the ownership of his car to his brother, he was prohibited from doing so due to the legal restrictions on him. When Mr. Bilash attempted to obtain a new insurance policy for his car, he was denied this too due to the fact he was on the blacklist. (e) Legal analysis

E. 27 The source argues that Mr. Bilash’s detention constitutes arbitrary deprivation of liberty under categories I, II and III of the Working Group on Arbitrary Detention. (i) Category I

E. 28 The source submits that Mr. Bilash’s detention is arbitrary due to the lack of any substantive evidence justifying his detention and because he was charged under article 174 – a vague and overbroad provision of the country’s Criminal Code that does not provide a clear description of the activities that are prohibited. The source refers to the Working Group’s finding that there is lack of a legal basis, for the purposes of category I, when an individual is arrested without substantive evidence to justify the arrest 1 and when the government concerned uses vague and/or overbroad laws to prosecute an individual.2 The source notes that the Human Rights Committee described article 174 as vague and overbroad3 and stated 1 Opinion No. 58/2016, para. 21. 2 Opinions No. 60/2013, para. 22; and No. 44/2014, paras. 26–37. 3 CCPR/C/KAZ/CO/2, para. 49. A/HRC/WGAD/2020/43 6 that this article was applied extensively to individuals exercising their legitimate rights under international human rights law.4

E. 29 The source further argues that the context surrounding Mr. Bilash’s statements demonstrates that the Office of the Prosecutor General has mischaracterized Mr. Bilash’s words pronounced on 8 February 2019 and that those statements cannot be interpreted so as to suggest that he committed any criminal activity under article 174 or otherwise. On the contrary, the source alleges that Mr. Bilash’s speech encouraged non-violence.

E. 30 The source submits that the Government violated article 15 (1) of the International Covenant on Civil and Political Rights and article 11 (2) of the Universal Declaration of Human Rights, both of which guarantee the right to know what the law is and what conduct violates the law. The source further argues that the detention of Mr. Bilash is arbitrary under category I as there is no substantive evidence justifying his detention and that the basis for it is both vague and overbroad, in violation of the Covenant and the Universal Declaration of Human Rights. (ii) Category II

E. 31 The source argues that Mr. Bilash was detained on the basis of his exercise of fundamental rights or freedoms protected under international law, including the rights to freedom of expression, assembly and association.

E. 32 The source submits that the Government violated Mr. Bilash’s rights to freedom of expression, assembly and association because he was detained on the basis of his advocacy on behalf of ethnic Kazakhs detained in the Xinjiang Uighur Autonomous Region. According to the source, the Government repeatedly demonstrated that Mr. Bilash had been detained because of this advocacy, as: (a) national security officers told him that his arrest was due to his work’s impact on the relationship of Kazakhstan with China; (b) on 14 March 2019, government investigators pressured him to make statements promising to stop raising the issue of the oppression of ethnic Kazakhs in Xinjiang; (c) on 15 March 2019, national security officers promised that they would give him “freedom by April” if he stepped down as director of Ata-Jurt Eriktileri; and (d) the Government’s arrest of Mr. Bilash was closely followed by a government raid on Ata-Jurt Eriktileri’s office, during which officers seized advocacy materials unrelated to the allegations against Mr. Bilash. Lastly, the source argues that the Government allegedly attempted initially to charge Mr. Bilash under paragraph 2 of article 174 of the Criminal Code, a provision that, if he were convicted, would legally prohibit him from engaging in public advocacy activity for a period of up to three years.

E. 33 The source claims that the Government violated Mr. Bilash’s right to freedom of expression by detaining him on the basis of comments clearly protected under article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights. According to the source, his statements amount to a discussion of religious interpretation as it applies to a matter of public concern, namely the matter of raising awareness of the internment of Muslims in Xinjiang. Accordingly, the source argues, those comments about adopting a non- violent interpretation of the concept of jihad in the Qur’an are an exercise of his right to freedom of expression, and were therefore mischaracterized, by the Office of the Prosecutor General, as calling for jihad against China.

E. 34 The source also states that, although the rights to freedom of expression, association and assembly are not absolute, none of the exceptions to those rights apply to Mr. Bilash’s case. The Human Rights Committee has emphasized that such restrictions must not “put in jeopardy the right itself”,5 and that it is not sufficient for a government to merely invoke one of the exceptions; rather, the government must specify “the precise nature of the threat” posed by the protected activity, 6 establish “a direct and immediate connection between the expression and the threat”, and demonstrate why the limitation was necessary.7 Furthermore, in the case of the right to freedom of expression, the Human Rights Committee has been clear 4 Ibid., paras. 47–49. 5 General comment No. 34 (2011), para. 21. 6 Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para. 7.3. 7 General comment No. 34 (2011), para. 35. A/HRC/WGAD/2020/43 7 that paragraph 3 of the Convention must never be used to justify “the muzzling of any advocacy of … human rights”.8 The source argues that the arrest and detention of Mr. Bilash fall outside any possible legitimate restriction on the right to freedom of expression and would qualify as an attempt to muzzle Mr. Bilash’s advocacy of human rights, and thus cannot be justified as a legitimate restriction on his rights to freedom of expression, assembly and association.

E. 35 Additionally, the source states that none of the restrictions under article 19 (3) of the Covenant would justify the Government’s arrest or detention of Mr. Bilash, because his statements neither place national security, public order, public health or morals at risk, nor violate the rights or reputations of others. Finally, the source argues that the law that the Government has accused Mr. Bilash of violating with his statements of 8 February 2019 is too vague and overbroad to satisfy the “provided by law” requirement under article 19 (3) of the Covenant.

E. 36 The source concludes that, by depriving Mr. Bilash of his freedom of expression and detaining him on the basis of his rights to freedom of association and assembly, the Government of Kazakhstan violated his rights enshrined in articles 19, 21 and 22 of the Covenant, as well as in articles 19 and 20 of the Universal Declaration of Human Rights and articles 20 (on freedom of speech), 23 (on freedom of association) and 32 (on freedom of assembly) of the Constitution of Kazakhstan, and rendered his deprivation of liberty arbitrary under the category II. (iii) Category III

E. 37 The source reports that Mr. Bilash was not informed of the legal grounds for his arrest when he was seized and detained on 10 March 2019. Moreover, the officers did not show Mr. Bilash a warrant for his arrest, and there is no indication that such a warrant exists. Accordingly, the source submits that Mr. Bilash’s detention is unfounded, in violation of article 9 (1) of the Covenant, article 9 of the Universal Declaration of Human Rights and principles 2 and 36 (2) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (the Body of Principles).

E. 38 The source argues that the Government violated article 9 (3) of the Covenant and principles 38 and 39 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment by denying Mr. Bilash’s release pending trial. Mr. Bilash was brought before a judge and ordered to stay under house arrest for two months in Nur- Sultan, which is over 1,300 kilometres away from Almaty where the alleged crime occurred and where Mr. Bilash is domiciled. The judge did not provide any individualized reasons in respect of Mr. Bilash to justify detaining him in Nur-Sultan. Moreover, the source states that the court failed to provide individualized reasons for extending Mr. Bilash’s house arrest for two months on 7 May 2019 and for an additional month on 8 July 2019. The source further argues that Mr. Bilash did not pose any flight risk that would justify those extensions. As a consequence, the source concludes that the denial of his pretrial release is a violation of article 9 (3) of the Covenant and of principles 38 and 39 of the Body of Principles.

E. 39 The source states that the Government violated articles 14 (3) (b) and (d) of the Covenant, principle 18 (1) and (3) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, rule 119 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and article 16 (3) of the Constitution of Kazakhstan by denying Mr. Bilash’s right to assistance of counsel of his own choosing. Despite repeated notice by Mr. Bilash’s chosen counsel, the Government reportedly coerced Mr. Bilash into dismissing his own lawyer to accept a State-appointed lawyer in her place. The source submits that, despite having received notice that Mr. Bilash was represented by his chosen legal representative, the officers repeatedly interrogated him without her being present and without notifying her that interrogations were taking place. Furthermore, throughout the course of Mr. Bilash’s detention, his lawyer was followed and harassed by national security officers, which served to intimidate her, obstruct her work and interfere with her ability to represent Mr. Bilash. 8 Ibid., para. 23. A/HRC/WGAD/2020/43 8

E. 40 In light of the above, the source concludes that Kazakhstan has violated article 14 (3) (b) and (d) of the Covenant, principle 18 (1) and (3) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, rule 119 of the Nelson Mandela Rules and article 16 (3) of the Constitution.

E. 41 The source submits that, on multiple occasions, the Government subjected Mr. Bilash to threats of harm to him and to his family, in order to obtain both written and video testimony from him. During Mr. Bilash’s house arrest, he was repeatedly coerced by national security officers, with threats to both him and his family. Officers allegedly used coercion to get Mr. Bilash to promise to stop his advocacy on behalf of ethnic Kazakhs in Chinese detention camps, to refuse representation by his domestic lawyer, and to sign several documents, some of which were blank. The source thus argues that, by using threats of harm to coerce testimony from Mr. Bilash, the Government of Kazakhstan violated article 14 (3) (g) of the Covenant and principle 21 (2) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

E. 42 Lastly, the source submits that the events surrounding the plea agreement that Mr. Bilash was allegedly forced to sign on 16 August 2019 further restricted his physical liberty, as well as his rights to expression, association and assembly, constituting additional human rights violations, including violations of articles 5, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights, of articles 7, 9, 10, 14, 19, 21, 22 and 26 of the Covenant, of article 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and of principles 1, 2, 5, 6, 11, 15, 16, 17, 18, 21, 35 and 36 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

E. 43 In light of the above, the source concludes that the Government of Kazakhstan has denied many of Mr. Bilash’s due process rights, thereby rendering his deprivation of liberty arbitrary under category III. Response from the Government

E. 44 On 19 December 2019, the Working Group transmitted the allegations from the source to the Government under its regular communications procedure. The Working Group requested the Government to provide, by 17 February 2020, detailed information concerning the circumstances of Mr. Bilash’s arrest and detention and clarification regarding the legal provisions which justified his detention, as well as their compatibility with the Government’s obligations under international human rights law.

E. 45 On 11 February 2020, the Government requested an extension of the deadline, in accordance with paragraph 16 of the Working Group’s methods of work. The extension was granted, with a new deadline of 17 March 2020.

E. 46 In its response of 17 March 2020, the Government stated that Nur-Sultan police had received a complaint from a lawyer in Nur-Sultan, which referred to comments that Mr. Bilash had posted online and to a speech given by Mr. Bilash on 8 February 2019.

E. 47 The Government states that a copy of Mr. Bilash’s speech of 8 February 2019 was submitted to independent experts, who concluded that Mr. Bilash’s comments incited ethnic hatred. The Government stated that the expert report mentioned the following comments made by Mr. Bilash: (a) “Every citizen regardless of his nation must stand together against a national enemy.” (b) “If my brother works for the Chinese, if my brother sells himself to the Chinese, I would kill him.” (c) “And if the enemy who killed my seven fathers tells me to forget everything for our nations, to work together against China, I am ready to fight against the enemy, even together with the enemy who killed my father.” (d) “So, if you desire to be worthy of Allah’s mercy and compassion, push all [other] matters aside, this is jihad.” A/HRC/WGAD/2020/43 9 (e) “China needs to change this history. [Uighurs’] crime is that they are not Chinese. Their names are not Chinese. For this reason, they are the first to be destroyed.”

E. 48 The Government submitted that the prosecutor had authorized the police to detain Mr. Bilash on the basis of the complaint and the expert report. It was submitted that Mr. Bilash’s arrest without a warrant was in conformity with the domestic laws of Kazakhstan.

E. 49 The Government denied Mr. Bilash’s account of the arrest, and states that it involved no forced entry, and that Mr. Bilash opened the door himself and was not harmed.

E. 50 The Government submitted that Mr. Bilash chose to replace his lawyer and that it had

played no role in Mr. Bilash’s selection or retention of counsel. The Government adds that

Mr. Bilash’s decision to enter a guilty plea was freely taken, with the advice and consent of

his new counsel.

51.

The Government states that pursuant to his guilty plea, Mr. Bilash was sentenced to

six months of house arrest and was restricted from working for social organizations and

engaging in illegal activities for seven years. The Government notes that because Mr. Bilash

received credit for time spent under house arrest, he was only incarcerated for an additional

three months and 12 days.

Additional comments from the source

52.

The source noted that the Government had not disputed that article 174 of the Criminal

Code was impermissibly vague and overbroad, and nor had it contested that the prohibition

on coerced testimony had been violated.

53.

The source states that the reply was the first time that the Government had raised any

issue with the five quoted statements, and that the Government’s initial allegations were that

Mr. Bilash had called for “jihad – a war against the Chinese”. The source submits that none

of the five quoted statements fit that description.

54.

The source adds that Mr. Bilash’s alleged statements are protected by the right to

freedom of expression, and that the Government cannot discharge its burden of proof merely

by stating that an expert report had concluded that Mr. Bilash’s public statements went

beyond appropriate free speech.

55.

The source referred to the criteria outlined in the Rabat Plan of Action on the

prohibition of advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence, for assessing whether the criminalization of hate speech

complies with the right to freedom of expression.9 The source contends that Mr. Bilash’s

statements are protected expression, as: (a) they were made in the context of public advocacy

directed towards ending large-scale human rights violations in Xinjiang; (b) they were made

by Mr. Bilash who is a human rights advocate and leader of an organization working to

expose abuses by the Government of China to an audience of persons who are seeking to

learn more about the violations in Xinjiang; (c) the statements are rhetorical devices that

employ hyperbole and hypotheticals to make a dramatic point rather than specific calls for

imminent violence against identifiable individuals; (d) the speech was delivered in person to

an audience and thus had limited reach; and (e) no evidence has been presented that actual

violence or hatred resulted from Mr. Bilash’s speeches.

Discussion

56.

The Working Group thanks the source and the Government for their timely

submissions.

57.

At the outset, the Working Group notes that Mr. Bilash has been released, following

his plea agreement after having spent over five months under house arrest. Following his

release, the Working Group has the option of filing the case or rendering an opinion as to the

arbitrariness of the detention, in conformity with paragraph 17 (a) of its methods of work. In

this particular case, the Working Group has decided to render the present opinion in

conformity with paragraph 15 of its methods of work. In making this decision, the Working

9 A/HRC/22/17/Add.4, appendix, para. 18.

A/HRC/WGAD/2020/43

10

Group gives particular weight to the fact that, although Mr. Bilash has been released, the

circumstances in which he was detained were serious and warrant further attention,10 as he

was allegedly targeted for exercising his rights to freedom of expression and association, and

because he was reportedly deprived of his liberty by way of house arrest for over five months

prior to his plea agreement and for over three months thereafter.

58.

In determining whether Mr. Bilash’s detention was arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international requirements constituting

arbitrary detention, the burden of proof should be understood to rest upon the Government if

it wishes to refute the allegations. Mere assertions by the Government that lawful procedures

have been followed are not sufficient to rebut the source’s allegations (A/HRC/19/57, para.

68).

59.

The Working Group reiterates that it applies a heightened standard of review in cases

in which freedom of expression and opinion appear to be restricted or where human rights

defenders are involved.11 Mr. Bilash’s role as a prominent activist and human rights defender

for the release of ethnic Kazakhs held by the Government of China in the Xinjiang Uighur

Autonomous Region requires the Working Group to undertake this kind of strict scrutiny.12

60.

The Working Group recalls that house arrest amounts to deprivation of liberty

provided that it is carried out in closed premises that the person is not allowed to leave.13 The

Working Group notes that Mr. Bilash was subjected to pretrial detention by way of house

arrest for over five months prior to his plea agreement. The source specifies that his house

arrest took place as of 11 March 2019, in the city of Nur-Sultan, which is 1,300 kilometres

away from his own residence in Almaty, and that he was not allowed to go back to his home

in Almaty. While under house arrest, Mr. Bilash was repeatedly visited by police officers.

On 29 July 2019, a court ordered a transfer of his house arrest to his residence in Almaty, and

he was transferred on 15 August 2019.

61.

The source has made a number of allegations with regard to the detention of Mr.

Bilash and argued that it falls under categories I, II and III. The Working Group will consider

each of these in turn.

Category I

62.

According to the information provided by the source, the national security officers did

not present any arrest warrant when they arrested Mr. Bilash, and used excessive force during

the arrest. The Working Group notes that the Government has submitted in its reply that the

arrest was carried out in full compliance with national legislation, but has not substantiated

such affirmation to rebut the allegation. In principle, and except for cases where a person is

arrested in flagrante delicto, arrest without a valid warrant must be considered ipso facto a

violation of articles 3 and 9 of the Universal Declaration of Human Rights and of article 9 (1)

of the Covenant, as well as of principles 2, 4 and 10 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.14 Therefore, the

Working Group considers that Mr. Bilash was arrested without a warrant and with excessive

use of force, contrary to article 9 (1) of the Covenant.

10 Opinions No. 55/2018, para. 59; and No. 50/2017, para. 53 (c).

11 Opinions No. 13/2018, para. 22; No. 57/2017, para. 46; No. 41/2017, para. 95; No. 62/2012, para. 39;

No. 54/2012, para. 29; and No. 64/2011, para. 20.

12 Human rights defenders, in particular, have the right to study, discuss, form and hold opinions on the

observance, both in law and in practice, of all human rights and fundamental freedoms and, through

those and other appropriate means, to draw public attention to those matters; see the Declaration on

the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect

Universally Recognized Human Rights and Fundamental Freedoms, art. 6 (c). Human rights

defenders have the right to investigate, gather information regarding and report on human rights

violations; see opinion No. 8/2009, para. 18.

13 See, for example, opinions No. 37/2018, para. 25; and No. 13/2007, para. 24; and deliberation No. 1

(E/CN.4/1993/24, sect. II).

14 Opinions No. 13/2020, para. 47; No. 6/2020, para. 40; No. 47/2018, para. 56; No. 27/2018, para. 68;

and No. 26/2018, para. 54.

A/HRC/WGAD/2020/43

11

63.

The source submitted that Mr. Bilash’s detention was arbitrary because he had been

arrested without substantive evidence to justify the arrest, since Mr. Bilash’s speech of 8

February 2019 could not be interpreted as amounting to a crime. In its reply, the Government

stated that there was probable cause to detain and question Mr. Bilash because two experts

had analysed the speech of 8 February 2019 and concluded that the comments incited ethnic

hatred. According to the source, Mr. Bilash was notified of the charges on 11 March 2019

and, on that same day, was brought before a judge at the Specialized Inter-District

Investigation Court who ordered him to remain under house arrest pending investigation into

the accusations. The Working Group recalls that, in principle, it is outside the scope of its

mandate to reassess the sufficiency of the evidence upon which individuals are arrested,15

therefore it will not analyse whether the arrest of Mr. Bilash was justified by sufficient

evidence.

64.

However, the Working Group considers that Mr. Bilash’s pretrial detention – bearing

in mind that pretrial detention should be the exception rather than the rule – lacked a legal

basis, as the court’s order, and the repeated extension, were not based on an individualized

determination that they were reasonable and necessary taking into account all the

circumstances, for such purposes specified in law as to prevent flight, interference with

evidence or the recurrence of crime, and as there was no consideration of alternatives, such

as bail, electronic bracelets or other conditions, which would render detention unnecessary

in the particular case. The Working Group therefore concludes that the Government has

violated article 9 of the Universal Declaration of Human Rights, article 9 (3) of the Covenant

and principles 38 and 39 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.16

65.

The source submitted, and the Government did not refute, that article 174 of the

Criminal Code was overly broad, as it relied on subjective language which criminalized

activities that insulted feelings, national honour or dignity, or that promoted discord.

66.

The Working Group recalls that vaguely and broadly worded provisions, which

cannot qualify as lex certa, could be used to deprive individuals of their liberty without a

specific legal basis, in violation of the due process of law upheld by the principle of legality

in article 15 (1) of the Covenant and article 11 (2) of the Universal Declaration of Human

Rights. As the Working Group has previously stated, the principle of legality requires that

laws be formulated with sufficient precision so that the individual can access and understand

the law and regulate his or her conduct accordingly.17

67.

In this respect, the Working Group recalls that the Human Rights Committee, in its

concluding observations of 2016 on Kazakhstan, stated that:

The Committee remains concerned (see CCPR/C/KAZ/CO/1, para. 25) about laws

and practices that violate freedom of opinion and expression, including: (a) the

extensive application of criminal law provisions to individuals exercising their right

to freedom of expression, including provisions on the broadly formulated offence of

incitement to “social, national, clan, class or religious discord” … The Committee

notes that the above laws and practices appear not to comply with the principles of

legal certainty, necessity and proportionality as required by the Covenant, including

with the strict requirements of article 19 (3) of the Covenant (arts. 14 and 19).18

68.

The Working Group further notes the views of the Special Rapporteur on the

promotion and protection of human rights and fundamental freedoms while countering

terrorism, following her visit to Kazakhstan in 2019:

Article 174 of the Criminal Code, the most commonly used article against civil society

activists in Kazakhstan, broadly criminalizes incitement to social, national, tribal,

class, racial or religious discord, all of which are extremely vague grounds, and fails

to provide genuine protection to individuals belonging to minority groups. … By

providing for the limitation of the right to freedom of expression on extremely vague

15 Opinions No. 8/2020, para. 71; No. 16/2017, para. 59; and No. 12/2015, para. 11.

16 A/HRC/19/57, paras. 53–56.

17 See, for example, opinions No. 62/2018, para. 57; and No. 41/2017, paras. 98–101.

18 CCPR/C/KAZ/CO/2, para. 49.

A/HRC/WGAD/2020/43

12

and subjective grounds not recognized by human rights law – referring, for example,

to undefined terms such as “discord” or an “insult to national honour and dignity or

religious feelings”, it fails to provide legal certainty for individuals to regulate their

conduct accordingly. The Special Rapporteur holds that what constitutes incitement

under article 174 is extremely imprecise and reiterates that, according to international

standards, when judging expression as incitement, regard should be had to six

elements: the general context; the speaker; intent; the content of the message or its

form; the extent of the speech at issue; and the likelihood of harm occurring, including

its imminence. 19 The lack of certainty is compounded by the subjectivity in

determining what can be considered extremist. The Special Rapporteur notes that this

is largely done on the basis of the opinions of government-appointed and security-

cleared “experts” (linguists, philologists, psychologists, theologians and political

scientists) who are called upon to determine whether any document, statement or

group contains an extremist element. Once this opinion is obtained, it is very difficult

in practice to refute or counter. The Special Rapporteur thus fully concurs with the

assessment of the Human Rights Committee that the broad formulation of the

concepts of “extremism”, “inciting social or class hatred” and “religious hatred or

enmity” can be used to unduly restrict freedoms of religion, expression, assembly and

association (CCPR/C/KAZ/CO/2, para. 13).20

69.

The Working Group concurs with the views expressed by the Human Rights

Committee and the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism, in relation to the formulation of article

174 of the Criminal Code. The Working Group considers that along with the definitions of

“inciting social or class hatred” and “religious hatred or enmity”, the criminalization of

conduct “promoting social, national, generic, racial, class or religious discord” is also overly

broad and lacks the requisite degree of legal certainty.21

70.

Accordingly, the Working Group finds that the arrest and detention of Mr. Bilash

lacks legal basis, and therefore his arrest and detention fall under category I.

Category II

71.

The source alleges, and the Government does not refute, that Mr. Bilash was the

founder and director of Ata-Jurt Eriktileri, an organization that campaigns for the release of

ethnic Kazakhs allegedly held by the Government of China in the Xinjiang Uighur

Autonomous Region. The source submitted that Mr. Bilash’s detention was arbitrary as he

had been detained on the basis of his exercise of fundamental rights or freedoms protected

under international law, including the rights to freedom of expression, assembly and

association. The Government submitted that while it supported the right of free speech, Mr.

Bilash’s arrest pertained to speech that was designed to incite violence or hatred against

others based on ethnic origin.

72.

The Working Group recalls that freedom of expression and of opinion as expressed in

article 19 of the Covenant are indispensable conditions for the full development of the person;

they are essential for any society and in fact constitute the foundation for every free and

democratic society. Moreover, “given that peaceful assemblies often have expressive

functions, and political speech enjoys particular protection as a form of expression, it follows

that assemblies with a political message should enjoy a heightened level of accommodation

and protection”.22

73.

The Human Rights Committee has noted that freedom of expression includes the right

to seek, receive and impart information and ideas of all kinds, regardless of frontiers, and that

that right includes the expression and receipt of communications of every form of idea and

opinion capable of transmission to others, including political opinions. 23 The permitted

restrictions to that right may relate either to respect of the rights or reputations of others, or

19 Rabat Plan of Action.

20 A/HRC/43/46/Add.1, para. 15. See also A/HRC/29/25/Add.2, paras. 25, 30 and 96 (a).

21 Opinion No. 62/2017, para. 36.

22 Human Rights Committee, general comment No. 37 (2020), para. 32.

23 Human Rights Committee, general comment No. 34 (2011), para. 11.

A/HRC/WGAD/2020/43

13

to the protection of national security, of public order, or of public health or morals. The

Committee went on to stipulate that restrictions are not allowed on grounds not specified in

article 19 (3), even if such grounds would justify restrictions to other rights protected in the

Covenant. 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 are predicated.24

Moreover, article 19 (3) “may never be invoked as a justification for the muzzling of any

advocacy of multi-party democracy, democratic tenets and human rights”.25 It should be

noted that articles 21 and 22 of the Covenant permit restrictions to the right of association on

the same three grounds.

74.

The Working Group recalls that the Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression has indicated that the right to

freedom of expression includes expression of views and opinions that offend, shock or disturb

(A/HRC/17/27, para. 37). Even statements considered unacceptable, disrespectful and in very

bad taste by the authorities are entitled to protection.

75.

In the present case, it is clear to the Working Group that in fact the basis for the arrest

and detention of Mr. Bilash was the exercise of his freedom of expression and freedom of

association. The source alleges that upon Mr. Bilash’s arrest, a national security officer stated

that the arrest was for engaging in activities harmful to the relationship of Kazakhstan with

China and for assisting a whistle-blower from a camp in Xinjiang to obtain legal counsel in

Kazakhstan. The source further alleged, and the Government in its reply did not refute, that:

(a) police officers pressured Mr. Bilash to make statements promising to stop raising the issue

of the oppression of ethnic Kazakhs detained in Xinjiang; (b) national security officers

promised Mr. Bilash that they would give him “freedom by April” if he stepped down as

director of Ata-Jurt Eriktileri; and (c) on the day of Mr. Bilash’s arrest, police raided the Ata-

Jurt Eriktileri office and seized materials pertaining to Ata-Jurt Eriktileri’s advocacy efforts

which were unrelated to the allegations against Mr. Bilash. Notably, the Government states

in its reply that pursuant to Mr. Bilash’s plea agreement, he is prohibited from working for

social organizations for a period of seven years from the date of his conviction. Such a

condition, which restricts Mr. Bilash’s ability to exercise his rights to freedom of expression

and association, bears no connection to the alleged speech that was the subject of the charges

against Mr. Bilash.26 This leads the Working Group to conclude that the Government was

targeting Mr. Bilash for exercising his rights to freedom of expression and association.

76.

Based on the information available and having particular regard to the advocacy

context in which the statements were allegedly made, the Working Group is of the view that

none of Mr. Bilash’s statements has been shown to fall outside the scope of the right to

freedom of expression, and that his detention resulted from exercising that right.

77.

Moreover, there was no suggestion by the Government that any of the permitted

restrictions on freedom of expression found in article 19 (3) of the Covenant applied in Mr.

Bilash’s case. As a result, the working Group refers the case to the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression.

78.

The Working Group finds that Mr. Bilash’s deprivation of liberty was arbitrary, falling

within category II, as it resulted from his exercise of the rights and freedoms guaranteed

under articles 19 and 20 of the Universal Declaration of Human Rights and articles 19, 21

and 22 of the Covenant.

Category III

79.

Given its finding that the deprivation of liberty of Mr. Bilash is arbitrary under

category II, the Working Group wishes to emphasize that Mr. Bilash should not have been

arrested and detained under house arrest, and no plea agreement with Mr. Bilash should have

been reached. However, Mr. Bilash was arrested and so detained, and a plea agreement was

concluded.

24 Ibid., para. 22.

25 Ibid., para. 23.

26 See, for example, opinion No. 26/2000, para. 11.

A/HRC/WGAD/2020/43

14

80.

The source submitted that the Government had denied a number of Mr. Bilash’s due

process rights, given that he had been denied the right to counsel of his own choosing and

the ability to communicate with his counsel, and been subjected to threats of harm in order

to solicit coerced testimony. The Working Group will examine each of the source’s

arguments in turn.

81.

The source argued that the Government had failed to provide evidence sufficient to

justify detaining Mr. Bilash under house arrest before he was convicted of any crime. The

Government, in its reply, stated that Mr. Bilash had been detained by way of house arrest due

to the serious nature of the offence, and to ensure that he could not continue to violate the

law.

82.

The source submitted that government officers had repeatedly interrogated Mr. Bilash

during his period of pretrial detention in the absence of his lawyer, had pressured him to

dismiss his lawyer, and had interfered with his ability to consult with his lawyer prior to

signing his plea agreement.

83.

The Government submitted, in its reply, that Mr. Bilash had replaced his attorney of

his own free will, without coercion. The Government has not otherwise sought to rebut the

source’s allegations.

84.

The Working Group is of the view that the authorities failed to respect Mr. Bilash’s

right to legal assistance, which is inherent in the right to liberty and security of person and in

the right to a fair and public hearing by a competent, independent and impartial tribunal

established by law. Mr. Bilash was interrogated on a number of occasions in the absence of

his lawyer. He was also deprived of his right to legal counsel at a critical stage of the criminal

proceedings, at which time authorities allegedly coerced him into agreeing to a plea

agreement. The Working Group recalls that, in accordance with the United Nations Basic

Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of

Their Liberty to Bring Proceedings Before a Court, persons deprived of their liberty should

have the right to legal assistance by counsel of their choice, at any time during their detention,

including immediately after the moment of apprehension. The Working Group therefore

finds a violation of article 14 (3) (b) and (d) of the Covenant and of principle 18 (1) and (3)

of the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.

85.

The Working Group is also concerned at the allegations of harassment of Mr. Bilash’s

lawyer, which have not been contested by the Government. The Working Group considers

that this is a serious interference with the right to legal assistance which is in violation of

article 14 (3) (b) of the Covenant.27 It is the legal and positive duty of the State to protect

everyone within its territory and subject to its jurisdiction against any violation of human

rights and to provide remedies whenever such a violation occurs. The Working Group

especially recalls that according to the United Nations Basic Principles and Guidelines on

Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring

Proceedings Before a Court, legal counsel are to be able to carry out their functions

effectively and independently, free from fear of reprisal, interference, intimidation, hindrance

or harassment.28

86.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the independence of judges and lawyers.

87.

The source submitted, and the Government has not contested, that during Mr. Bilash’s

detention, the Government repeatedly subjected him to threats of harm, directed towards both

him and his family, in order to coerce him to stop his advocacy, to dismiss his lawyer, and to

sign several documents, some of which were blank. The source also submitted that Mr. Bilash

had been coerced into agreeing to the plea agreement.

88.

In the view of the Working Group, the repeated threats of harm described by the

source appear to amount to a prima facie breach of the absolute prohibition of ill-treatment

27 Opinions No. 70/2017 and No. 29/2017.

28 See principle 9. See also, for example, opinions No. 66/2019, No. 29/2017 and No. 14/2017.

A/HRC/WGAD/2020/43

15

and torture,29 which is a peremptory norm of international law and of the Convention against

Torture. The Working Group notes that the threat of harm to one’s family is one of the torture

methods listed in paragraph 145 of the Manual on the Effective Investigation and

Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(Istanbul Protocol). Thus, the Working Group reminds the authorities of Kazakhstan of their

obligations enshrined in article 5 of the Universal Declaration of Human Rights and articles

7 and 10 of the Covenant.

89.

As regards the circumstances leading to the conclusion of the plea agreement, the

Government has chosen not to rebut the source’s allegation that: (a) in the early evening of

16 August 2019, Mr. Bilash advised his lawyer that he intended to refuse the plea agreement;

(b) Mr. Bilash was separated from his lawyer, and pressured, by the Presidential Adviser, to

accept a plea agreement, otherwise he would be imprisoned for the maximum period of seven

years under article 174 of the Criminal Code; (c) Mr. Bilash’s lawyer was initially told that

Mr. Bilash was not at the courthouse, and was later ejected from the premises when she

insisted on seeing her client; (d) when Mr. Bilash’s lawyer was permitted to see Mr. Bilash,

he appeared distressed and pale and his hands were trembling; and (e) the Court refused Mr.

Bilash’s lawyer’s request to adjourn the hearing and her request for time to speak with her

client confidentially to determine whether he had changed his mind about accepting the plea.

90.

The Working Group reminds the Government that it is a violation of article 14 (3) (g)

of the Covenant to compel a confession. As the Human Rights Committee states in its general

comment No. 32 (2007),30 the burden is on the Government to prove that statements made by

the accused were given of their own free will, particularly in the absence of legal

representation. The Government has not proven that Mr. Bilash’s signature to the plea

agreement was given of his own free will.

91.

The Working Group considers that the source has established that Mr. Bilash accepted

the plea agreement under coercion and that article 14 (3) (g) of the Covenant has been

violated. It follows that Mr. Bilash should not have been subjected to the terms of the plea

agreement, including his further detention under house arrest.

92.

The Working Group considers that the violations of Mr. Bilash’s right to a fair trial

are of such gravity as to give his deprivation of liberty an arbitrary character. Accordingly,

his deprivation of liberty falls within category III.

Disposition

93.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Serikzhan Bilash, being in contravention of articles 3, 9,

11, 19 and 20 of the Universal Declaration of Human Rights and articles 9, 10, 14, 15,

19, 21 and 22 of the International Covenant on Civil and Political Rights, is arbitrary

and falls within categories I, II and III.

94.

The Working Group requests the Government of Kazakhstan to take the steps

necessary to remedy the situation of Mr. Bilash 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 International Covenant on Civil and Political Rights.

95.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to unconditionally annul Mr. Bilash’s plea agreement

with prejudice so that he is no longer bound by the prohibitions therein and does not face the

risk of being reprosecuted in relation to the charges in the case at hand, and accord him an

enforceable right to compensation and other reparations, in accordance with international law.

96.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Bilash and to take appropriate measures against those responsible for the violation of his

rights.

29 See, for example, opinion No. 93/2017, para. 57.

30 See para. 41.

A/HRC/WGAD/2020/43

16

97.

The Working Group urges the Government to bring its laws, in particular article 174

of the Criminal Code, into conformity with the recommendations made in the present opinion

and with the commitments made by Kazakhstan under international human rights law.

98.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the independence of judges and lawyers and

the Special Rapporteur on the promotion and protection of the right to freedom of opinion

and expression.

99.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

100.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Bilash has been unconditionally released from the terms of his

plea agreement with prejudice, and if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Bilash;

(c)

Whether an investigation has been conducted into the violation of Mr. Bilash’s

rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Kazakhstan with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

101.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

102.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

103.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.31

[Adopted on 25 August 2020]

31 Human Rights Council resolution 42/22, paras. 3 and 7.

A/HRC/WGAD/2020/43

17

Annex I

Individual opinion of Working Group member Elina

Steinerte (partially dissenting)

1.

The majority of the Working Group in this Opinion concludes that the detention of

Mr. Bilash is arbitrary under category I, inter alia, because of the vague provision contained

in Article 174 of the Kazakh Criminal Law (see paras. 65–69 of the Opinion). This is the first

time in the entirety of the Working Group’s mandate that the Working Group engaged in the

examination of Article 174 of the Kazakh Criminal Code and the majority concluded that the

said provision is overly broad and lacks the requisite degree of legal certainty. In other words,

the majority of the Working Group determined that Article 174 of the Kazakh Criminal Law

could not be invoked as a legal basis justifying the detention of Mr. Bilash. However, in

making this determination, the majority of the Working Group chose to depart from the well-

established jurisprudence of the Working Group without providing any explanation for doing

so and I am unable to support such a departure.

2.

In instances when faced, for the first time, with allegations of overly broad legal

provisions invoked to justify deprivation of liberty, it is the established practice of the

Working Group to examine these provisions and allude to the State concerned of the need to

re-examine these in the light of the absolute prohibition of arbitrary detention. By doing this,

the Working Group avails the State concerned with the possibility of bringing its national

legalisation in compliance with the absolute prohibition of arbitrary deprivation of liberty.

This is evident, for example, in Opinions No. 64/2020, para. 38; No. 37/2020 paras. 60–61;

16/2020, paras. 64–72; 8/2020, paras. 66–68; No. 36/2018, para. 51; No. 35/2018, para. 36;

41/2017, paras. 98–10.11

3.

In all these Opinions, faced with allegations of vague legal provisions for the first time,

the Working Group analyses them and alludes the State concerned of the problem areas. The

vague language of the provisions is considered as a factor contributing to the finding of

arbitrary detention, but the Working Group does not establish that these legal provisions per

se caused the occurrence of arbitrary deprivation of liberty. This is entirely appropriate as it

is to be recalled that a finding of arbitrary detention under category I of the Working Group

entails detention without legal basis. Therefore, declaring that a legal provision duly adopted

by the national legislator cannot be invoked as legal basis justifying detention is very far-

reaching and grave.

4.

This is contrasted with instances when the Working Group is asked to return to the

examination of legal provisions which it has already noted as vague and overly broad

previously. In such cases, making clear reference to its previous jurisprudence which

highlighted the issue with the legal provision at hand, the Working Group determines that the

said provision(s) per se caused the arbitrary detention. This is evident, for example, in

Opinions No. 36/2020 at para. 54; No. 45/2019, para. 54; No. 9/2019, para. 39; 62/2018,

paras. 57–59; No. 46/2018, para. 62; 22/2018, paras. 52–54. In all these Opinions the

Working Group makes a clear reference to its previous jurisprudence concerning the legal

provision(s) at hand and noting absence of progress in addressing the issues raised earlier,

makes a finding of arbitrary deprivation of liberty, inter alia, on the basis of vague and overly

broad legal provisions under category I.

5.

In the present case, the majority of the Working Group, having no previous

engagement with Article 174 of the Kazakh Criminal Code, declared the provision to be

vague and overly broad, leading to finding under category I. In doing so, the majority relied

entirely on the examination of this provision carried out by the Human Rights Committee in

its 2016 Concluding Observations on Kazakhstan and the 2019 visit report of the Special

Rapporteur on the promotion and protection of human rights and fundamental freedoms while

countering terrorism. The majority of the Working Group provided no explanation for taking

1 It should be noted that Opinions 64/2020 and 37/2020 was adopted during the very same session as

the present Opinion.

A/HRC/WGAD/2020/43

18

such an approach in this case and I am unable to support it. Not only this departure

contravenes the very principle of legality that the majority is seeking to uphold by creating

inconsistencies in the Working Group’s jurisprudence. Such an approach may also have a

chilling effect on the willingness of the States to engage constructively with the Special

Procedures of the Human Rights Council. In the present case, a report by another UN Special

Procedure mandate has served as a basis for the findings made by the majority of the Working

Group. Although that report analyses the same provisions that the Working Group was

required to analyse, it does so from the perspective of a different mandate and not from the

point of view of prohibition of arbitrary deprivation of liberty. While it is not unusual for the

Working Group to refer to the findings of treaty bodies and other Special Procedures’

mandates, it has never based its findings under category I entirely on the assessment of such

other bodies.2

6.

Consequently, I respectfully submit that the concerns over the broad and vague

formulation of Article 174 of the Kazakh Criminal Code in this case should have been

considered by the Working Group as an element under category II.

2 The approach of the Working Group in this case can be contrasted with its approach in Opinion

8/2020 at para. 67 where the Working Group while making its own analysis under category II also

notes the views of the Special Rapporteur on freedom of religion or belief on the same legal

provision.

A/HRC/WGAD/2020/43

19

Annex II

Individual opinion of Working Group member Sètondji

Roland Adjovi (partially dissenting)

1.

The majority of the Working Group did not retain category V in the present case. I

would like to express here my disagreement with such a position.

2.

The principle of this category of arbitrary detention is that the situation submitted to

the Working Group would stem from a logic of discrimination in violation of the law. In the

present case, however, the discrimination appears to me to be established by the

circumstances.

3.

The authorities did not appreciate the activism of Mr. Bilash and that is why his

organization was never registered although he submitted a renewed application to that effect.

This is a first sign of unjustified differentiated treatment.

4.

As a result of harassment by unidentified individuals, and fearing for his safety, Mr.

Bilash did not return home but took a room at the hotel. It was there that state agents

attempted to enter his room with a key allegedly provided by the hotel. The security chain

did not allow them to enter. While Mr. Bilash was talking to see their warrant, the agents

broke down the door, injuring him as he started to bleed. This is another degree of

differentiated treatment.

5.

The detention was the continuation of these two situations where it seems to me that

discrimination is established. For this reason, I also conclude that the detention in this case

is arbitrary under category V as defined by the methods of work.

6.

Furthermore, I fully associate myself with the partially dissenting opinion of my

colleague, Steinerte Elina. It should be noted that, in the present case, the Working Group

was composed of only four members, the fifth member having not participated in the session,

and that the rules of procedure do not give a casting vote to the presiding member.