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A/HRC/WGAD/2021/33

Opinion No. 33/2021 concerning Azamat Umbetaliyev, Beket Mynbasov, Samat Adilov, Zhuldyzbek Taurbekov, Zhasulan Iskakov, Nazim Abdrakhmanov, Ernar Samatov and Bolatbek Nurgaliyev (Kazakhstan)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-09-10 · en UN

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.

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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.