Opinion; Subjects: KAZAKHSTAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-14798(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 33/2021 concerning Azamat Umbetaliyev, Beket
Mynbasov, Samat Adilov, Zhuldyzbek Taurbekov, Zhasulan Iskakov,
Nazim Abdrakhmanov, Ernar Samatov and Bolatbek Nurgaliyev
(Kazakhstan)
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.
2.
In accordance with its methods of work,1 on 18 January 2021, the Working Group
transmitted to the Government of Kazakhstan a communication concerning Azamat
Umbetaliyev, Beket Mynbasov, Samat Adilov, Zhuldyzbek Taurbekov, Zhasulan Iskakov,
Nazim Abdrakhmanov, Ernar Samatov and Bolatbek Nurgaliyev. The Government submitted
a late response on 21 April 2021. The State is a party to the International Covenant on Civil
and Political Rights.
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,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/33
General Assembly
Distr.: General
14 October 2021
Original: English
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religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
Submissions
Communication from the source
4.
Azamat Umbetaliyev is a Kazakh national born in 1992, usually residing in Karasay
District of Almaty Region. The source reports that on 27 October 2018, Mr. Umbetaliyev
was arrested without a warrant by officials of the National Security Committee of Kazakhstan
at his place of residence. On the day of his arrest, Mr. Umbetaliyev was held at the
Committee’s detention centre in Almaty. On 29 October 2018, he was transferred to pretrial
detention centre LA-155/18, where he remained until the end of his trial. Following the trial,
he was transferred to prison No. ICH-167/3, where he is currently detained.
5.
Beket Mynbasov is a Kazakh national born in 1983, usually residing in Almaty.
According to the source, on 27 October 2018, Mr. Mynbasov was arrested without a warrant
by National Security Committee officials on Zhumabayev Street in Almaty. On the day of
his arrest, Mr. Mynbasov was held at the Committee’s detention centre in Almaty. On 29
October 2018, he was transferred to pretrial detention centre LA-155/18, where he remained
until the end of his trial. Following the trial, he was transferred to prison No. 162/3, where
he is currently detained.
6.
Samat Adilov is a Kazakh national born in 1986, usually residing in Alatau District,
Almaty. Mr. Adilov was reportedly arrested without a warrant on 28 October 2018 at the
National Security Committee building in Almaty. On the day of his arrest, Mr. Adilov was
held at the Committee’s detention centre in Almaty. On 29 October 2018, he was transferred
to pretrial detention centre LA-155/18, where he remained until the end of his trial. Following
the trial, he was transferred to prison No. UKA-168/2 in Aktobe, where he is currently
detained.
7.
Zhuldyzbek Taurbekov is a Kazakh national born in 1978, usually residing in Almaty.
The source reports that Mr. Taurbekov was arrested without a warrant at his place of
residence on 28 October 2018. On the day of his arrest, Mr. Taurbekov was held at the
Committee’s detention centre in Almaty. On 29 October 2018, he was transferred to pretrial
detention centre LA-155/18, where he remained until the end of his trial. Following the trial,
he was transferred to prison No. 164/3, where he is currently detained.
8.
Zhasulan Iskakov is a Kazakh national born in 1984, usually residing in Zhezkazgan
City, in Karaganda Region. Mr. Iskakov was reportedly arrested without a warrant by
National Security Committee officials on 27 October 2018 at his place of employment: the
medical centre in Zhezkazgan. On the day of his arrest, Mr. Iskakov was held at the
Committee’s detention centre in Almaty. On 29 October 2018, he was transferred to pretrial
detention centre LA-155/18, where he remained until the end of his trial. Following the trial,
he was transferred to prison No. 159/18 in Karaganda, where he is currently detained.
9.
Nazim Abdrakhmanov is a Kazakh national born in 1988, usually residing in Almaty.
The source reports that on 28 October 2018, Mr. Abdrakhmanov was arrested outside of his
place of residence while taking a walk with his child on the basis of a warrant issued by the
National Security Committee. On the day of his arrest, Mr. Abdrakhmanov was held at the
Committee’s detention centre in Almaty. On 29 October 2018, he was transferred to pretrial
detention centre LA-155/18, where he remained until the end of his trial. Following the trial,
he was transferred to prison No. 166/2, where he is currently detained.
10.
Ernar Samatov is a Kazakh national born in 1980, usually residing in Almaty Region.
According to the source, on 27 October 2018, Mr. Samatov was arrested without a warrant
in his hometown by National Security Committee officials. On the day of his arrest, Mr.
Samatov was held at the Committee’s detention centre in Almaty. On 29 October 2018, he
was transferred to pretrial detention centre LA-155/18, where he remained until the end of
his trial. Following the trial, he was transferred to prison No. UP-156/3, where he is currently
detained.
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11.
Bolatbek Nurgaliyev is a Kazakh national born in 1978, usually residing in Almaty.
The source reports that on 27 October 2018, Mr. Nurgaliyev was arrested without a warrant
by National Security Committee officials at Kenzhekhan Market. Following his arrest, Mr.
Nurgaliyev was held at the Committee’s detention centre in Almaty. On 29 October 2018, he
was transferred to pretrial detention centre LA-155/18, where he remained until the end of
his trial. Following the trial, he was transferred to prison No. 106/25 in Akmola. He was
subsequently transferred to prison No. ZK-169/5 on 26 September 2020, where he is
currently detained.
a.
Context
12.
The source notes that in the Human Rights Committee’s most recent review of
Kazakhstan, the Committee expressed concern about the Government’s practice of using
article 174 of the Criminal Code of Kazakhstan to target individuals for merely exercising
their right to freedom of expression.2 According to the source, multiple international human
rights monitors have found that the Government uses article 174, which penalizes incitement
of social, national, generic, racial, class or religious discord, to prosecute those expressing
views critical of the Government. The Committee also emphasized the need for Kazakhstan
to refrain from using its criminal provisions and other regulations as tools to suppress the
expression of dissenting opinions.3
13.
According to the source, the Committee’s concerns about article 174 have been
echoed by the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism. Following her visit to Kazakhstan in 2019,
the Special Rapporteur stated that article 174 of the Criminal Code 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 individual minority
groups. The Special Rapporteur further noted that convictions under article 174 are largely
based on the opinions of government-appointed and security-cleared “experts” who are called
upon to determine whether any document, statement or group contains extremist elements,
and that once such an opinion is obtained, it is very difficult in practice to refute or counter.4
14.
Furthermore, the Special Rapporteur identified similar problems with article 256 of
the Criminal Code, which criminalizes propaganda of terrorism or public calls for
commission of an act of terrorism. The Special Rapporteur found that article 256 is phrased
in extremely general terms, rendering it liable to arbitrary application and silencing legitimate
expression, and that the article lacks the essential element of intent to incite terrorist acts as
well as the element that there be a direct and immediate connection between the expressive
act and the actual (i.e. objective) risk of terrorist acts being committed.5
b.
Background and investigations
15.
According to the source, the eight individuals named in the present communication
resided in various regions of Kazakhstan, and the majority of the men had not met one another
in person before October 2018. Each is a practising Muslim, and prior to their arrests, none
of the men had a criminal record. On 2 December 2013, Mr. Nurgaliyev created a text
message group, called “Ahli Sunnah Val Jamagat”, using the WhatsApp messaging app.
According to Mr. Nurgaliyev, the purpose of the group was to share information and engage
in discussions concerning Islam. Furthermore, he stated that he had hoped that by sharing
information about the theological tenets of Islam, his relatives, friends and others in the group
would refrain from engaging in terrorist activities, which Mr. Nurgaliyev strongly opposed.
16.
Between 2013 and 2018, the group reportedly grew to 171 members and thousands of
messages were exchanged. All eight individuals named in the present communication were
members of the WhatsApp group in October 2018, but the involvement of each of the
individuals in the group varied. The majority of engagement in the group involved sharing
articles published by Islamic scholars. Some members posted articles and comments more
2 CCPR/C/KAZ/CO/2, para. 49.
3 Ibid., para. 50.
4 A/HRC/43/46/Add.1, para. 15.
5 Ibid., para. 14.
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frequently than others. However, Mr. Abdrakhmanov only ever sent one message to the
group, consisting of a section of a text that he copied and reposted from an earlier message
in the group. Furthermore, Mr. Adilov only joined the group 12 days prior to his arrest, and
during his time in the group, he only shared quotes of Islamic scholars, never presenting his
own opinions or analysis. Similarly, Mr. Umbetaliyev only ever shared articles from scholars
with the group, never providing commentary or analysis. Since the arrest of Mr. Nurgaliyev,
the WhatsApp group has been deleted.
17.
According to the source, the National Security Committee obtained messages from
the WhatsApp group as early as August 2018. In September 2018, a secret police investigator
of the Committee commissioned an “expert analysis” of texts circulated in the discussion
group from a political science expert, who reportedly concluded that messages exchanged in
the group showed signs of agitating religious discord. Subsequently, in early October 2018,
another analysis was commissioned, which involved a review of the messages by an expert
on religion. The expert reportedly concluded that the texts contained ideas of the Salafi trend
of Whabbism Islam and that the messages propagated religious-radical views. Subsequent to
the commission of the above reports, a criminal case was opened on 18 October 2018, after
the Committee received a written statement from an anonymous source, who allegedly
notified officials that the participants of the group actively discussed religious topics.
c.
Arrest and indictment
18.
According to the source, on 27 and 28 October 2018, National Security Committee
officers arrested all of the individuals except Mr. Adilov, either at their homes or at public
locations near their residences. Notably, in order to arrest Mr. Umbetaliyev, officers allegedly
lured him outside of his home on the pretence of discussing some religious matters with him.
After he came out of his home, he was “attacked” by a group of plainclothes officers who
pushed him into one of the eight cars that the officers had arrived in. Moreover, the source
alleges that in order to arrest Mr. Nurgaliyev, officers anonymously lured him to the nearby
Kenzhekhan Market on the pretence of engaging in a business deal. Once he arrived at the
market, masked men seized him.
19.
The source reports that except for Mr. Abdrakhmanov, none of the individuals arrested
at that time were presented with a warrant. The source adds that it is not required under
Kazakh law. The eight arrested individuals were transported to the National Security
Committee detention centre in Almaty. The source adds that at the time of arrest, each of the
men’s homes was searched. No illegal items or evidence of wrongdoing were found during
those searches, and nothing from the searches was introduced at trial or relied upon in the
judgment.
20.
On 28 October 2018, upon hearing of the arrest of Mr. Nurgaliyev from an
acquaintance, Mr. Adilov reportedly visited the National Security Committee building in
Almaty to inform them that the group was not involved in any illegal activities and that it
was a forum for religious discussion. However, that resulted in Mr. Adilov being
interrogated, arrested and placed under investigation with the other seven individuals.
21.
According to the source, all eight individuals were interrogated without a lawyer
present. Four of the men – Mr. Nurgaliyev, Mr. Mynbasov, Mr. Umbetaliyev and Mr. Adilov
– explicitly requested access to private lawyers during their interrogation, but the
interrogating Committee officers refused to oblige. During the interrogation, investigators
allegedly instructed Mr. Nurgaliyev to convince the other men to refuse the assistance of a
private lawyer. In the absence of a lawyer, three of the men – Mr. Mynbasov, Mr. Iskakov
and Mr. Abdrakhmanov – alleged at trial that investigators had pressured them into signing
false statements and a guilty plea. The source adds that no investigation into the allegations
of forced and coerced confessions was conducted by the police, the prosecution or the judge.
22.
On 29 October 2018, an investigative judge of the specialized inter-district court on
criminal cases ordered the eight men to be held in pretrial detention. The source reports that
the investigative judge did not provide any grounds for denying bail and ordering detention
other than referencing the allegations presented in the indictment. The judge ordered that all
the individuals be held in pretrial detention centre LA-155/18, where they remained until
trial. On 18 February 2019, all eight men were indicted along with a ninth individual who
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was part of the same WhatsApp group. The indictment alleged that the nine men, acting with
a common intention and aware of the illegality of their actions, actively discussed religious
themes and deliberately made radical statements that represented propaganda of terrorism
and agitation of racial discord. According to the source, the indictment supports the allegation
by claiming that, because the WhatsApp group’s founder, Mr. Nurgaliyev, is a Salafi Muslim
and because terrorist groups following similar ideology have conducted terrorist activities,
the group therefore promoted terrorism.
23.
According to the indictment, all nine men were charged with violating article 174,
paragraph 2, of the Criminal Code of Kazakhstan, which penalizes incitement of “social,
national, generic, racial, class or religious discord”. Paragraph 2 of article 174 provides for a
sentence of 5 to 10 years for those guilty of violating paragraph 1 together with a group of
people. The indictment also charged four of the individuals – Mr. Nurgaliyev, Mr. Mynbasov,
Mr. Samatov and Mr. Taurbekov – with violating article 256, paragraph 2, of the Criminal
Code, which criminalizes “propaganda of terrorism or public calls for commission of an act
of terrorism”. Paragraph 2 of the article provides for a sentence of 7 to 12 years if the action
criminalized under paragraph 1 is “committed by an individual using a State or non-State
official position, or with the use of the mass media or other communication networks, or with
foreign support, or in a group”.
d.
Trial proceedings
24.
On 27 February 2019, the indictment was reportedly filed with the Almalinsky District
Court in Almaty. The trial officially began on 12 March 2019 and lasted five months. At trial,
the Government, represented by four successive prosecutors, reportedly presented no
evidence that any members of the group – in particular, those who were charged under article
256 – were advocating, encouraging or condoning acts of terrorism. The source adds that the
only connection made between the individuals and terrorism was the allegation that their
denomination of Islam was Salafism. The prosecution reportedly presented an expert witness
on religion who testified that certain messages within the group exhibit ideas associated with
Salafist Islam.
25.
Additionally, the prosecution reportedly introduced testimony from the National
Security Committee investigator, the official responsible for initiating the investigation into
the individuals. The investigator noted that (a) the group’s creator, Mr. Nurgaliyev, is a Salafi
Muslim, (b) Salafism is similar in ideology to that of Da’esh, and (c) Da’esh has conducted
terrorist activity. On the basis of those observations, the investigator claimed at trial that the
WhatsApp group, by promoting Salafism, was therefore promoting terrorism. The source
adds that despite the investigator’s reference to Da’esh, there was no evidence presented at
trial that any of the defendants has any connection with Da’esh or had made any comments
in support of it. One of the defence counsels brought that fact to the attention of the Court,
but the trial judge disregarded the defence counsel’s observation.
26.
On the issue of agitation of religious discord, the prosecution reportedly called for
testimony from four of the WhatsApp group members who were not indicted. Although one
of the four claimed that some of the messages agitated religious discord against other people,
the three other group members testified that the group was for religious education purposes
and messages exchanged were scholarly articles or passages directly from religious texts.
The prosecution also introduced an expert witness specializing in political science, who
reportedly testified that the messages contain agitation to religious discord and signs of
religious superiority. The expert also testified that some of the messages would have the
effect of offending the religious feelings of other people. However, the expert, in
contradiction to the Government’s religion experts, also testified that the messages did not
contain advocacy of a violent overthrow of the Government, violent change of the
Constitution, or propaganda of terrorism or incitement to terrorism.
27.
The source adds that the primary evidence presented by defence counsel was the
testimony of an independent expert in philology. After reviewing the messages, the defence
expert concluded that the messages did not contain incitement to hostility towards others on
the basis of their religion and did not contain any incitement to aggression, violence or
terrorism towards others.
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28.
On 3 July 2019, before the end of the trial, Mr. Taurbekov began to suffer significant
medical issues related to his heart. Because Mr. Taurbekov required prolonged
hospitalization, the trial judge determined that he was temporarily unable to stand trial and
severed his case from the other eight individuals. The trial proceeded against the remaining
eight individuals, with the trial against Mr. Taurbekov resuming later.
29.
On 5 August 2019, the Almalinsky District Court of Almaty found the remaining
seven individuals named in the present communication guilty of violating article 174 (2) of
the Criminal Code. In addition, it found Mr. Nurgaliyev, Mr. Samatov and Mr. Mynbasov
also guilty of violating article 256 (2). The court sentenced Mr. Abdrakhmanov, Mr. Adilov,
Mr. Iskakov and Mr. Umbetaliyev to five and a half years’ imprisonment; Mr. Samatov and
Mr. Mynbasov to seven and a half years’ imprisonment; and Mr. Nurgaliyev to eight years’
imprisonment. In the judgment, the trial judge reportedly explicitly refused to consider the
testimony of the expert witness presented by the defence. The judge also considered the fact
that several of the defendants had signed guilty pleas, which supported the view of the
prosecution experts over that of the defence expert. Furthermore, the judge cited 14 messages
in the trial judgment, comprising one or more sent from each individual, with the intention
of demonstrating their guilt. The source adds that messages from several of the individuals
only involved reposting text from an article by an Islamic scholar.
30.
The source reports that after spending significant time in a hospital receiving treatment
for his heart condition, Mr. Taurbekov’s trial resumed on 3 December 2019. He was
subsequently convicted on 6 January 2020 under article 174 (2) and article 256 (2), and he
was sentenced to seven years in prison. The source adds that the evidence presented at Mr.
Taurbekov’s trial mirrored the evidence presented at the prior trial of the other group
members.
e.
Current status
31.
As noted above, the eight individuals were transferred to various prisons across
Kazakhstan where they remain in detention under the custody of the Ministry of Internal
Affairs. The seven individuals who were convicted on 5 August 2019 appealed their
conviction to the Almaty City Court. However, their appeal was denied on 20 November
2019. Similarly, once Mr. Taurbekov was convicted, he appealed his conviction to the same
court, but on 9 April 2020, his appeal was also denied.
f.
Analysis of violations
32.
The source submits that the arrest and continuing detention of the eight individuals
constitutes an arbitrary deprivation of their liberty under categories I, II, and III.
i.
Category I
33.
According to the source, the detention of the eight individuals is arbitrary under
category I because the Government lacks any substantive evidence to justify their detention
and because the Government charged and convicted them under a vague and overly broad
provision of the Criminal Code of Kazakhstan.
34.
The source submits that the Government’s pretrial detention and sentencing of the
eight individuals is not founded on any reasonable evidence against them.6 The Government
is detaining them entirely on the basis of their messages exchanged in a WhatsApp group
dedicated to religious discussions of the theology of Islam. All eight individuals named in
the present communication, as well as witnesses, testified that the group was dedicated to
theological discussions and the sharing of religious expert opinion on Islam. The source adds
that such discussions do not constitute either incitement to or propaganda for terrorism, and
the Government presented no evidence that the discussions in the group or the messages sent
by the individuals, in any way amounted to undermining the rights and freedoms of others in
tangible ways.7 Furthermore, despite the invocation of Da’esh by the prosecution and the
investigator, there was absolutely no evidence that any of the individuals in the group
6 A/73/362, para. 14.
7 Ibid., para. 27.
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condoned, promoted or issued propaganda for such a group. In fact, in their testimony they
openly condemned Da’esh and acts of violence in the name of Islam.
35.
Moreover, as noted above, the purpose of the creation of the group, according to its
founder, Mr. Nurgaliyev, was partly to dissuade violence through education in the tenets of
Islam. The source adds that the context surrounding the statements by the individuals
demonstrates that their speech falls within the scope of the law. In the present case, because
the State was unable to present evidence of a tangible threat to society exhibited in the private
messages of the individuals, it strongly suggests that their punishment relates to their
religious expression being undesirable. The source submits that such a motivation lacks a
legitimate basis in law. Accordingly, the detention of the eight individuals is arbitrary under
category I because there is no basis, in either evidence presented or in fact, for the detention.
36.
The source further notes that article 15 (1) of the International Covenant on Civil and
Political Rights and article 11 (2) of the Universal Declaration of Human Rights both
guarantee the right of individuals to know what the law is and what conduct violates the law.
According to the source, article 174 of the Criminal Code of Kazakhstan defines criminal
activity in a manner that is overly broad and vague. It heavily relies on indeterminate
language, such as “discord” or “insult of national honour and dignity or religious feelings”.
The source notes that this language fails to provide a clear indication of which activities are
prohibited. Moreover, many actions that are seemingly criminalized under this section are
otherwise protected by international human rights law.
37.
The source adds that owing to the pervasive inclusion of indeterminate and subjective
terms in article 174, there is no way for an individual to determine ex ante whether their
actions will, for example, have the effect of insulting someone or potentially cause someone
to engage in activities that could fall within the broad category of discord. The source submits
that the vague and overly broad nature of article 174 permits the authorities of Kazakhstan to
abuse the statute and crack down on legitimate forms of political dissent. In the present case,
the eight individuals were allegedly convicted under article 174 for an instance of the
legitimate exercise of their right to freedoms of expression and religion. The source thus
submits that their continuing detention is arbitrary under category I, in violation of the
Covenant and the Universal Declaration of Human Rights.
38.
According to the source, article 256 of the Criminal Code is also too vague to provide
a “legal basis” for the conviction of the individuals, as the Government has applied it to them.
The provision utilizes extremely general terms that render the article liable to arbitrary
application to silence legitimate expression. The source notes that the very act that it is
intended to criminalize – that is, “propaganda of terrorism” – is not defined in the article or
elsewhere in the Criminal Code, and that such vagueness leads to arbitrary application and
censorship of speech that should otherwise find protection under the law. The source adds
that given that none of the four individuals convicted under article 256 supported, condoned
or advocated terrorist activities in the messages that the Government used to convict them,
the Government’s application of “propaganda of terrorism” to these individuals demonstrates
the existence of vagueness in the term and the existence of arbitrariness in its application.
39.
While referring to the statement made by the Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering terrorism (see
para. 14 above), the source contends that article 256 fails to require a connection between the
action and the actual (i.e. objective) risk of terrorist acts being committed as a result.
Moreover, article 256 reportedly contains no explicit element requiring that the Government
demonstrate intent on behalf of perpetrators, such as an intent to promote extremist content
or an intent to promote violence. Accordingly, the source submits that article 256 is too vague
to provide a legal basis for the four individuals who were convicted under the law. Their
conviction thus violates the Covenant and the Universal Declaration of Human Rights, and
their detention falls under category I.
ii.
Category II
40.
The source also argues that the detention of the eight individuals is arbitrary under
category II as it resulted from the peaceful and legitimate exercise of their rights to freedom
of expression and religion. The source adds that these rights are protected under both
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international and national law, in particular articles 18 and 19 (2) of the Covenant, articles
18 and 19 of the Universal Declaration of Human Rights and articles 14 and 20 (1) of the
Constitution of Kazakhstan.
41.
In the present case, the individuals were reportedly arrested, tried and convicted for
their participation in a messaging group engaged in sharing and discussing religion, religious
texts and theological writings. The source adds that the activity for which they are currently
detained is, in both subject matter and form, an exercise of their freedom of religion and
expression. Their activities fall within the scope of freedom of religion as their messages
amount to the sharing of religious information on Islam. Their activities fall within the scope
of freedom of expression as they used a messaging app to share the ideas of others on religion.
42.
The source submits that all of the messages cited in the trial judgment as evidence of
criminal culpability fall within the scope of the rights to freedom of religion and expression.
The messages cited in the judgment against the defendants were all quotes or paraphrases
from religious texts or scholars. In none of the comments referenced in the judgment do any
of the men call for specific acts of violence against any identifiable group of people.
Accordingly, the source submits that the Government’s detention of the eight individuals
constitutes a violation of their rights to freedom of expression and religion.
43.
The source also submits that although the rights to freedom of religion and expression
are not absolute, the arrest and detention of the eight men fall well outside any possible
legitimate restriction on these rights. First, there is no indication that their sentences of
between five and eight years in prison are necessary to protect any government interest. None
of the individuals expressed any intention to encourage violence or hatred, and none of the
evidence presented by the Government suggested that the individuals themselves were
engaged in, planning or condoning acts of violence or hatred. The source adds that the
punishment, in addition to being grossly disproportionate, does not serve any legitimate
purpose given the context and content of the messages exchanged by these men. Second, as
stated above, the laws under which they were convicted are vague and overly broad, which
results in the laws failing to satisfy the “provided for by law” condition of any legitimate
limitation on either expression or religion. Accordingly, the detention of the eight individuals
does not fall within the scope of the exceptions to the rights to freedom of expression and
religion.
44.
The source thus submits that the Government has acted in violation of articles 18 and
19 of the Covenant and articles 18 and 19 of the Universal Declaration of Human Rights,
making their detention arbitrary as defined under category II.
iii.
Category III
45.
In the present case, on 29 October 2018, the eight individuals were reportedly brought
before a judge who ordered them to remain in pretrial detention, where they remained until
trial. According to the source, the judge did not provide any reasons specific to the individuals
to justify detaining them. The source adds that even if the court had attempted to provide a
justification for keeping them in detention, it would not have found any legitimate reasons
for doing so. They have no history of violence, and thus are not a threat to society. All of the
individuals currently reside in Kazakhstan, as do their families; thus, they do not pose a flight
risk. Moreover, the Government found no evidence that the individuals might have destroyed
if they had been released. Accordingly, the source submits that the pretrial detention of the
individuals was unfounded, and the denial of their pretrial release was a violation of 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.
46.
The source also recalls that during investigations, several of the individuals notified
authorities, in no uncertain terms, that they desired private legal representation. Despite those
clear requests, investigators refused. Moreover, the source adds that investigators specifically
pressured the men not to ask for lawyers, and also pressured them to sign plea deals. The lack
of representation reportedly led to several of the individuals being unduly pressured into
signing statements, without assistance of counsel, that were subsequently introduced in trial.
Accordingly, the source submits that Kazakhstan violated article 14 (3) (b) and (d) of the
Covenant, principles 18 (1) and (3) of the Body of Principles for the Protection of All Persons
A/HRC/WGAD/2021/33
9
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.
47.
According to the source, the trial of the defendants was unfair. The court reportedly
did not consider exculpatory evidence in favour of the defendants. In the judgment, the court
did not credit the testimony of three other members of the group who stated that the group
was not inciting hatred or violence, but only sharing and discussing religious articles. Instead,
the court considered only the testimony of one witness, who stated the opposite. Moreover,
evidence introduced by defence counsel demonstrating that the messages did not amount to
incitement to hatred or violence was not considered in the court’s final judgment. Instead,
the court reportedly recognized only the Government’s experts as being capable of
commenting on the nature of the messages in the group. According to the source, this
demonstrates a clear bias on behalf of the judge in favour of the prosecution.
48.
The source adds that the trial judge’s selective consideration of the evidence thus
demonstrates a lack of equality of arms, the absence of a presumption of innocence and
unfairness in proceedings. The source submits that the conviction of the eight individuals
amounts to a violation of their right to the presumption of innocence. For these reasons, the
Government reportedly violated article 14 (2) of the Covenant and article 11 (1) of the
Universal Declaration of Human Rights.
Response from the Government
49.
On 18 January 2021 the Working Group transmitted the allegations from the source
to the Government under its regular communications procedure. The Working Group
requested that the Government provide, by 19 March 2021, detailed information about the
current situation of Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr.
Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev and that it clarify the legal
provisions justifying their continued detention, as well as its compatibility with the
obligations of Kazakhstan under international human rights law, and in particular with regard
to the treaties ratified by the State. Moreover, the Working Group called upon the
Government of Kazakhstan to ensure their physical and mental integrity.
50.
On 26 January 2021, the Government of Kazakhstan requested an extension, in
accordance with paragraph 16 of the Working Group’s methods of work. It was granted on
27 January 2021 with a new deadline of 19 April 2021. The Government submitted its reply
on 21 April 2021, which was after the set deadline. Consequently, the Working Group cannot
accept the reply as if it was presented within the time limit.
Discussion
51.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
52.
In determining whether the detention of Mr. Umbetaliyev, Mr. Mynbasov, Mr.
Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev
was arbitrary, the Work 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.8 In the present
case, the Government has chosen not to challenge the prima facie credible allegations made
by the source in a timely fashion.
53.
The source has submitted that the detention of the eight individuals is arbitrary under
categories I, II and III. The Working Group shall proceed to examine the submissions in turn.
8 A/HRC/19/57, para. 68.
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10
Category I
54.
The source has submitted, and the Government does not contest in its late reply, that
all individuals, except for Mr. Abdrakhmanov, were arrested between 27 and 29 October
2018, without a warrant.
55.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, for a deprivation of liberty to have a legal
basis, it is not sufficient that there is a law that may authorize the arrest. The authorities must
invoke that legal basis and apply it to the circumstances of the case through an arrest warrant.9
56.
Indeed, the international law on deprivation of liberty includes the right to be
presented with an arrest warrant, which is procedurally inherent in the right to liberty and
security of person and the prohibition of arbitrary deprivation, under articles 3 and 9,
respectively, of the Universal Declaration of Human Rights; article 9 of the Covenant; and
principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.10 Any form of detention or imprisonment should be
ordered by, or be subjected to the effective control of, a judicial or other authority under the
law, whose status and tenure should afford the strongest possible guarantees of competence,
impartiality and independence, in accordance with principle 4 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
57.
In the present case, it is clear from the late response of the Government that Mr.
Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Samatov and
Mr. Nurgaliyev were not arrested in “hot pursuit” or in flagrante delicto. Rather, the
authorities had been investigating their actions for some time and yet the Government has
presented no explanation as to why the arrests of these individuals took place in the absence
of a warrant. This stands in stark contrast to the case of Mr. Abdrakhmanov, who was also
arrested as part of the same operation by the authorities and tried in the same court case.
However, he was presented with a warrant upon his arrest. There is no explanation as to why
the same approach was not taken in relation to the other seven individuals. In these
circumstances, the Working Group concludes that the arrests of Mr. Umbetaliyev, Mr.
Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Samatov and Mr. Nurgaliyev
violated their rights under article 9 of the Covenant and lacked legal basis. The Working
Group is particularly mindful of the circumstances of the arrests of Mr. Umbetaliyev and Mr.
Nurgaliyev (see para. 18 above), which suggest that both individuals were lured and
entrapped by the law enforcement agents in order to execute their arrests. Such actions can
hardly be said to form part of proper arrest procedures and thus add weight to the findings of
the Working Group that the arrest of these two individuals did not comply with the
requirements of article 9 of the Covenant.
58.
Moreover, the source has argued that all individuals, following their arrests, were
remanded in pretrial detention through a decision taken by a court that was not substantiated.
The Working Group notes that, in the Government’s late response, it has merely stated that
the pretrial detention was duly imposed in the remits of the law without any explanation of
the reasons justifying pretrial detention.
59.
The Working Group recalls that it is a well-established norm of international law that
pretrial detention is to be the exception and not the rule, and that it should be ordered for as
short a time as possible.11 Article 9 (3) of the Covenant provides that it is not to be the general
rule that persons awaiting trial be detained, but release may be subject to guarantees to appear
for trial and at any other stage of the judicial proceedings. It follows that liberty is recognized
as a principle and detention as an exception in the interests of justice.12
9 See, e.g., opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018, No. 79/2018
and No. 49/2019.
10 See opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
11 See opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 57/2014, para. 26; No. 1/2020, para.
53; and No. 8/2020, para. 54. See also Human Rights Committee, general comment No. 35 (2014),
para. 38; and A/HRC/19/57, paras. 48–58.
12 A/HRC/19/57, para. 54.
A/HRC/WGAD/2021/33
11
60.
In order to give effect to this principle, pretrial detention must be based on an
individualized determination that it is reasonable and necessary, for such purposes as to
prevent flight, interference with evidence or the recurrence of crime. 13 The courts must
examine whether alternatives to detention, such as bail, would render custodial measures
unnecessary.14 According to the source, this did not take place in the case of any of the
individuals. Equally, the Government in its late response has not demonstrated whether and
how the court decided that remanding the eight individuals in custody was justified by an
individual determination of reasonableness and necessity to detain and why a less restrictive
measure, such as bail, was not suitable. In the absence of such an explanation, the Working
Group cannot accept that the pretrial detention of Mr. Umbetaliyev, Mr. Mynbasov, Mr.
Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Samatov, Mr. Abdrakhmanov and Mr. Nurgaliyev
was properly constituted in accordance with article 9 (3) of the Covenant. In making this
finding, the Working Group is particularly mindful of its findings under category II,
discussed below.
61.
Finally, the source has argued that all eight individuals were convicted on the basis of
articles 174 and 256 of the Criminal Code of Kazakhstan, which are overly broad and vague.
The Government in its late response disputes these submissions, arguing that the said
provisions are sufficiently precise and clear.
62.
The Working Group recalls that it is not the first time that it is faced with the
application of article 174 of the Criminal Code of Kazakhstan.15 On that previous occasion,
having conducted an in-depth analysis of the provision and taking note of the analysis of this
provision by other United Nations bodies, the Working Group concluded that article 174
indeed is overly broad and vague. The Working Group was particularly mindful of the
conclusions 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,
in which she addressed article 174 in detail.16 The Working Group notes the recent changes
introduced in respect of article 174 on 26 June 2020, but regrets that the changes do not
address the concerns previously expressed by the Working Group.
63.
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 In the present case, the Government
has been made aware of the concerns of the Working Group regarding the formulation of
article 174. However, in the Government’s late response, it provides no explanation of the
actions taken to reflect the views previously expressed by the Working Group. The Working
Group therefore concludes that the detention of Mr. Umbetaliyev, Mr. Mynbasov, Mr.
Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Samatov, Mr. Abdrakhmanov and Mr. Nurgaliyev
is arbitrary as it was based on overly broad and vague provisions of article 174 of the Criminal
Code of Kazakhstan, in breach of article 9 of the Covenant.
64.
Noting all of the above, the Working Group considers that the detention of Mr.
Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Samatov, Mr.
Abdrakhmanov and Mr. Nurgaliyev is arbitrary under category I as it lacks a legal basis.
Category II
65.
The source argues that Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov,
Mr. Iskakov, Mr. Samatov, Mr. Abdrakhmanov and Mr. Nurgaliyev were arrested, tried and
13 Human Rights Committee, general comment No. 35, para. 38.
14 Ibid. See also opinion No. 83/2019, para. 68; and guideline 15 of 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.
15 See opinion No. 43/2020.
16 Ibid., para. 68.
17 See, e.g., opinions No. 41/2017, paras. 98–101; and No. 62/2018, para. 57.
A/HRC/WGAD/2021/33
12
ultimately sentenced for the peaceful exercise of their rights under articles 18 and 19 of the
Covenant. In its late response, the Government denies these claims, arguing that all
individuals were arrested and tried for actions that amounted to crimes, including acts of
terrorism.
66.
The Working Group observes that the essence of the allegations against all eight
individuals rests with the establishment of a WhatsApp group and the sharing of messages of
religious content within the group. None of the individuals have a previous criminal record,
they have never met in person, and in fact, aside from the fact that they all live in Kazakhstan,
the only uniting factor among them is their Muslim faith. While the Government has argued
in its late response that the activities of the organization Da’esh have been outlawed by a
court in Kazakhstan, it has also noted that none of the eight individuals were part of that
organization. Despite this, the exchange of messages of religious content by these eight
individuals on a mobile phone app was determined to amount to terrorist propaganda. The
Working Group notes, however, that the Government, in its late response, presented no
evidence of any such messages. It merely stated that the messages amounted to terrorist
propaganda.
67.
The Working Group recalls that the right to freedom of thought, conscience and
religion in article 18 (1) of the Covenant encompasses freedom of thought on all matters,
personal conviction and the commitment to religion or belief, whether manifested
individually or in community with others. Article 18 protects theistic, non-theistic and
atheistic beliefs, as well as the right not to profess any religion or belief.18
68.
Equally, the freedom of expression as encapsulated in article 19 of the Covenant
protects expression even when it may shock, offend or disturb,19 or which may insult an
individual or group20 or criticize an institution.21 As noted by the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression, this right can be
exercised through any sort of medium,22 which clearly includes the exchange of messages via
a mobile phone platform.
69.
The Working Group considers that the Government did not explain the threat posed
by the conduct of any of the eight individuals to the legitimate interests that States might
invoke under articles 18 (3) and 19 (3) of the Covenant, namely respect for the rights,
freedoms or reputations of others, national security, public safety, public order, public health
or morals, and how the arrest and detention of the eight individuals was necessary to protect
any of those interests. In addition, no evidence has been presented that these messages had
the effect of incitement, nor have any of the eight individuals ever been accused of any form
of violence or incitement to violence that would justify restriction of their activities as
religious hate speech under article 20 of the Covenant.
70.
The Working Group therefore concludes that the arrest, trial and subsequent detention
of Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Samatov,
Mr. Abdrakhmanov and Mr. Nurgaliyev resulted from the peaceful exercise of their rights
under articles 18 and 19 of the Covenant. Their detention is consequently arbitrary, falling
under category II. The Working Group refers the case to (a) the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression; (b) the Special
Rapporteur on freedom of religion or belief; and (c) the Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering terrorism, for
appropriate action.
Category III
71.
Noting its findings under category II above, the Working Group wishes to emphasize
that no trial of Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov,
18 Human Rights Committee, general comment No. 22 (1993), paras. 1–2.
19 See, e.g., opinion No. 33/2019.
20 See, e.g., opinions No. 46/2013; and No. 4/2019.
21 See, e.g., opinions No. 7/2008 (a government); and No. 35/2012 (royal family).
22 A/HRC/23/40/Add.1, para 71.
A/HRC/WGAD/2021/33
13
Mr. Samatov, Mr. Abdrakhmanov and Mr. Nurgaliyev should have taken place. However,
the trial did take place and the source argues that it lacked several fair trial guarantees.
72.
The source has argued that the trial court did not take into account exculpatory
evidence and disregarded the conclusions of the expert witness presented by the defence.
However, the source has not provided any details as to what this exculpatory evidence would
be aside from noting the disregarding of the expert witness presented by the defence. In its
late response, the Government has denied the claims and presented a lengthy explanation as
to the professional expertise of the expert witness in question, arguing that the testimony of
the expert was excluded by the court as it went beyond the professional qualifications of the
said expert. In its further comments, the source has presented detailed arguments as to why
the professional qualifications of the expert witness were relevant to the testimony that the
witness presented.
73.
The Working Group recalls that it has consistently refrained from taking the place of
the national judicial authorities or acting as a kind of supranational tribunal when it is urged
to review the application of domestic law by the judiciary.23 It is outside of the mandate of
the Working Group to reassess the sufficiency of the evidence or to deal with errors of law
allegedly committed by the domestic court.24 The Working Group therefore shall not make
any pronouncement on this claim.
74.
However, the source has also submitted that none of the eight individuals were
afforded legal assistance from the moment of their arrests and that they were in fact
interrogated in the absence of their lawyers (see para. 21 above). The source has further
submitted that during the interrogations, several of the individuals were pressured into
confessing and entering plea bargains.
75.
The Government in its late response denies these allegations, stating that the
interrogations took place in the presence of lawyers and that confessions and plea bargains
were entirely voluntary. However, the Working Group notes that the Government has failed
to provide any details as to when the lawyers of the eight individuals were first allowed to
see their clients or indeed to substantiate its claims of confessions having been given freely.
In this regard, the Working Group recalls in particular that the burden is on the Government
to prove that the statements were given freely,25 but in this case it has not done so.
76.
The Working Group therefore concludes that Mr. Umbetaliyev, Mr. Mynbasov, Mr.
Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev
were denied their right to legal assistance as provided for by article 14 (3) (b) of the Covenant.
They were also denied their right not to be compelled to testify against themselves or to
confess guilt in violation of article 14 (3) (g) of the Covenant.
77.
Moreover, the source has argued that several of the individuals told the court that they
had been pressured into making statements, but the court did not take any action to investigate
those claims. In its late response, the Government argues that the eight men simply “changed
their stories” during the court hearing but did not address the allegation that the court had
taken no action to investigate the claims of forced statements.
78.
The Working Group recalls that the Human Rights Committee, in its general comment
No. 32 (2007), has noted that the requirement of competence, independence and impartiality
of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to
any exception.26 The Committee has further observed that:
The requirement of impartiality has two aspects. First, judges must not allow their
judgment to be influenced by personal bias or prejudice, nor harbour preconceptions
about the particular case before them, nor act in ways that improperly promote the
23 See, e.g., opinion No. 40/2005.
24 See, e.g., opinions No. 15/2017, No. 16/2017, No. 49/2019, No. 58/2019, No. 60/2019 and No.
5/2021.
25 Human Rights Committee, general comment No. 32, para. 41. See also, e.g., opinions No. 45/2018
and No. 86/2020.
26 Human Rights Committee, general comment No. 32, para. 19.
A/HRC/WGAD/2021/33
14
interests of one of the parties to the detriment of the other. Second, the tribunal must
also appear to a reasonable observer to be impartial.27
79.
In the present case, the trial judge was clearly informed of the allegations of forced
statements during the interrogations of several of the individuals, yet took no action to
investigate these claims. In these circumstances, the Working Group considers that the court
failed to act impartially and thus violated the rights of Mr. Umbetaliyev, Mr. Mynbasov, Mr.
Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev
under article 14 (1) of the Covenant. The Working Group refers the case to the Special
Rapporteur on the independence of judges and lawyers, for appropriate action. The Working
Group also calls upon the Government to adhere to the Principles on Effective Interviewing
for Investigations and Information Gathering (the Méndez Principles).
80.
Noting all of the above, the Working Group determines that the violation of the fair
trial rights of Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov,
Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev is of such gravity as to give their
detention an arbitrary character, falling under category III.
Category V
81.
The Working Group will now examine whether the deprivation of liberty constitutes
illegal discrimination under international law, falling within category V.
82.
While the Government claims that all eight individuals were arrested, tried and
convicted for actions that amounted to crimes and not for their religious or other views, the
Working Group has already established that their arrest, detention and imprisonment resulted
from their exercise of the rights to freedom of religion or belief and to opinion and expression
under articles 18 and 19 of the Covenant. When it is established that the deprivation of liberty
resulted from the active exercise of civil and political rights, there is a strong presumption
that the deprivation of liberty constitutes a violation of international law on the grounds of
discrimination.
83.
In this respect, the Working Group recalls that the deprivation of liberty is arbitrary
when it 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, or any other status, that aims towards or
can result in ignoring the equality of human beings. In the present case, the Working Group
notes that Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr.
Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev all belong to the Muslim faith and that
they were all part of the same WhatsApp group, which was used to express their faith. It is
thus their religion that was at the heart of what the Working Group has determined above to
be arbitrary detention under category II.
84.
For these reasons, the Working Group considers that the arrest and detention of Mr.
Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov,
Mr. Samatov and Mr. Nurgaliyev constitute a violation of articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, on the ground of
discrimination based on their religion, aimed at and resulting in ignoring the equality of
human beings, and that it therefore also falls within category V.
Concluding remarks
85.
The Working Group is mindful that at least one more individual has been arrested as
part of the same case as Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr.
Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev (see para. 22 above). While
the present opinion addresses the specific circumstances of the arrest and detention of the
eight individuals named, the Working Group is mindful that there is at least one other
individual in a situation similar to that of these eight individuals. The Working Group urges
the Government to immediately address the situation of this other individual, noting the
findings made in the present opinion.
27 Ibid., para. 21.
A/HRC/WGAD/2021/33
15
Disposition
86.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Azamat Umbetaliyev, Beket Mynbasov, Samat Adilov,
Zhuldyzbek Taurbekov, Zhasulan Iskakov, Nazim Abdrakhmanov, Ernar Samatov
and Bolatbek Nurgaliyev, being in contravention of articles 2, 3, 7, 9, 10, 11, 18 and
19 of the Universal Declaration of Human Rights and articles 2 (1), 9, 14, 18, 19 and
26 of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I, II, III and V.
87.
The Working Group requests the Government of Kazakhstan to take the steps
necessary to remedy the situation of Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr.
Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev 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.
88.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Umbetaliyev, Mr. Mynbasov, Mr.
Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev
immediately and accord them an enforceable right to compensation and other reparations, in
accordance with international law. In the current context of the global coronavirus disease
(COVID-19) pandemic and the threat that it poses in places of detention, the Working Group
calls upon the Government to take urgent action to ensure the immediate release of Mr.
Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov,
Mr. Samatov and Mr. Nurgaliyev.
89.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov,
Mr. Samatov and Mr. Nurgaliyev and to take appropriate measures against those responsible
for the violation of their rights.
90.
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.
91.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to (a) the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression; (b) the Special Rapporteur on freedom of religion or
belief; (c) the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism; and (d) the Special Rapporteur on the
independence of judges and lawyers, for appropriate action.
92.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
93.
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. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr.
Iskakov, Mr. Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev have been released and, if
so, on what date;
(b)
Whether compensation or other reparations have been made to Mr.
Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr. Abdrakhmanov,
Mr. Samatov and Mr. Nurgaliyev;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Umbetaliyev, Mr. Mynbasov, Mr. Adilov, Mr. Taurbekov, Mr. Iskakov, Mr.
A/HRC/WGAD/2021/33
16
Abdrakhmanov, Mr. Samatov and Mr. Nurgaliyev 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.
94.
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.
95.
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.
96.
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.28
[Adopted on 8 September 2021]
28 See Human Rights Council resolution 42/22, paras. 3 and 7.