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.25-09430 (E) 020725 020725
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 18/2025 concerning Marat Zhylanbaev (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 51/8.
2.
In accordance with its methods of work,1 on 22 November 2024 the Working Group
transmitted to the Government of Kazakhstan a communication concerning Marat
Zhylanbaev. The Government replied to the communication on 19 February 2025. 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,
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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/18
General Assembly
Distr.: General
2 July 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Marat Zhylanbaev is a citizen of Kazakhstan. A former ultramarathon runner and local
official, he is now a well-known critic of the Government. Beginning in 2016, he joined
protests and was detained multiple times. On 4 February 2023, he announced his candidacy
for the lower house of the parliament of Kazakhstan. Mr. Zhylanbaev’s detention is part of
the crackdown by Kazakhstan on peaceful opposition, often using “extremism” charges.
Courts declared Democratic Choice of Kazakhstan and the Köşe Party (“Street Party”)
extremist in 2018 and 2020, respectively, despite their peaceful reputations. Zhylanbaev’s
party, Alga, Kazakhstan! (“Forward, Kazakhstan!”), founded in 2022, has not faced such
allegations.
(i)
Arrest and pretrial detention
5.
On 3 May 2023, Mr. Zhylanbaev was arrested for his alleged participation in an
unsanctioned protest and sentenced to 20 days’ imprisonment on administrative charges. On
23 May 2023, shortly before he was due to be released, Mr. Zhylanbaev was detained on a
different set of charges, this time criminal.
6.
Mr. Zhylanbaev was not shown an arrest warrant at the time of his placement in
detention on criminal charges. Instead, Mr. Zhylanbaev was secretly taken, without his legal
counsel’s knowledge, by the investigator and special forces officers from the detention centre
where he had been serving a 20-day administrative sentence. It was not until two days later,
on 25 May 2023, that Mr. Zhylanbaev was first questioned as a suspect. On that same day,
the Specialized Inter-District Investigative Court of Astana ordered Mr. Zhylanbaev’s
detention for a period of two months, which was later prolonged until his conviction on
29 November 2023.
7.
The investigative court made its decision quickly, without giving Mr. Zhylanbaev
enough time to challenge his detention. Both the initial detention and its extension were based
only on the seriousness of the alleged crimes and the severity of the possible punishments,
without considering other factors.
8.
On 25 May 2023, the investigative court approved Mr. Zhylanbaev’s pretrial detention
solely on the basis of the risk that he might reoffend or flee, citing the long prison sentences
involved as the sole justification. The court offered no further reasoning and similarly
dismissed Mr. Zhylanbaev’s bail request with minimal explanation.
9.
On 7 June 2023, the investigative court denied the request by Mr. Zhylanbaev’s
lawyer to replace pretrial detention with a less restrictive measure, citing procedural rules
against bail if there is a risk of obstruction or flight, although no evidence was provided. The
court also dismissed claims of political persecution without explanation and made its decision
final and unappealable.
10.
On 25 September 2023, Mr. Zhylanbaev was formally charged with violating
articles 405 (2) and 258 (2) of the Criminal Code.
(ii)
Trial
11.
Mr. Zhylanbaev’s trial began on 30 October 2023 and was closed to the public because
two witnesses had reported threats and fears for their families’ safety. Citing article 29 of the
Code of Criminal Procedure, the Specialized Inter-District Criminal Court of Astana justified
the closure of the trial for witness protection. The Court also denied the defence’s request for
a copy of the decision labelling Democratic Choice of Kazakhstan as extremist, even though
the charges were based on Mr. Zhylanbaev’s alleged links to the group.
12.
The indictment alleged that Mr. Zhylanbaev participated in unsanctioned protests that
overlapped with those organized by the banned Democratic Choice of Kazakhstan group and
that, due to ideological similarities between Alga, Kazakhstan! and Democratic Choice of
Kazakhstan, he was effectively involved in Democratic Choice of Kazakhstan activities. He
was accused of giving informational and financial support to Democratic Choice of
Kazakhstan, including by filming videos at the direction of a Democratic Choice of
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Kazakhstan leader and transferring funds to supporters of Democratic Choice of Kazakhstan
through their families. The indictment did not claim that Mr. Zhylanbaev had engaged in or
threatened violence.
13.
Mr. Zhylanbaev stated that, although his rallies had sometimes overlapped with
Democratic Choice of Kazakhstan events, and although he shared some of the views of
supporters of Democratic Choice of Kazakhstan, he had acted independently and had
received no instructions from Democratic Choice of Kazakhstan leaders, and his activities
were focused on campaigning with Alga, Kazakhstan! for the March 2023 elections. During
the trial, the judge reportedly denied the defence’s requests to call Alga, Kazakhstan!
committee members as witnesses and to present its own expert testimony.
14.
On 29 November 2023, Mr. Zhylanbaev was convicted under articles 405 (2) and
258 (2) of the Criminal Code. The trial court relied on testimony from two anonymous
witnesses who claimed that there were similarities between Democratic Choice of
Kazakhstan and Alga, Kazakhstan!, based on social media activity, and on a prosecution
expert report stating that both groups had called for rallies at the same times and in the same
places. The court found that Mr. Zhylanbaev had participated in and supported Democratic
Choice of Kazakhstan.
15.
The trial court did not cite any calls to violence by Alga, Kazakhstan! or
Mr. Zhylanbaev, but ruled that his advocacy had encouraged criticism of the Government.
He was sentenced to seven years in prison and banned from social and political activities for
three years. His appeal was rejected on 19 January 2024, and a Supreme Court cassation
appeal is pending.
(iii)
Legal analysis
16.
The source argues that Mr. Zhylanbaev’s case satisfies the criteria for categories I, II,
III and V.
a.
Category I
i.
Unforeseeable judicial interpretation
17.
The source contends that applying articles 405 and 258 of the Criminal Code to
Mr. Zhylanbaev was inappropriate and unforeseeable, as these provisions target intentional
support for extremism. Mr. Zhylanbaev only sought to peacefully participate in elections with
his party, Alga, Kazakhstan!. Despite this, he was convicted of extremist activities on the
basis of alleged ideological ties with and allegedly receiving advice from Democratic Choice
of Kazakhstan members. The source argues that this interpretation is unreasonable and
unsupported by law, as Mr. Zhylanbaev could not have anticipated that his peaceful political
actions would be labelled as extremism and result in a seven-year sentence.
18.
Article 405 (2) criminalizes participation in an extremist organization, requiring both
actual participation and intent to engage in extremist activities. The trial court found
Mr. Zhylanbaev guilty under this article, citing similarities in the political demands of Alga,
Kazakhstan! and Democratic Choice of Kazakhstan and their coordinated rallies as evidence
of participation. However, the court did not specifically address whether Mr. Zhylanbaev had
intended to support extremist activities, noting only that he had known that Democratic
Choice of Kazakhstan had been labelled as extremist.
19.
Article 258 of the Criminal Code criminalizes financing or supporting extremism,
requiring both a specific act (such as providing money or services) and awareness that the act
will serve extremist purposes. The trial court found Mr. Zhylanbaev guilty of knowingly
funding extremists, on the basis of claims that he had sent money to Democratic Choice of
Kazakhstan members. However, the recipients testified that they belonged to Alga,
Kazakhstan! and that the funds were for election activities. Despite this, the court ruled that
Mr. Zhylanbaev had intentionally provided support to Democratic Choice of Kazakhstan.
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ii.
Vague and overly broad provisions of the Criminal Code
20.
Mr. Zhylanbaev was detained and convicted under vague laws that lack clear
definitions. The source specifically criticizes article 405 of the Criminal Code for its broad
language, as it prohibits participation in banned extremist organizations without defining
“participation”.
21.
Similarly, article 258 of the Criminal Code broadly criminalizes providing support to
extremist organizations, not only banned ones. The relevant provisions rely on undefined
terms such as “undermining national security” and “incitement”. This leaves it unclear which
organizations or actions are prohibited.
22.
The vague wording of articles 405 and 258 enables discriminatory enforcement
against political dissent and free speech. United Nations bodies have raised concerns about
the broad and restrictive extremism laws of Kazakhstan.2
b.
Category II
23.
Mr. Zhylanbaev’s activities on behalf of Alga Kazakhstan! and criticism of the
Government fall squarely within his right to freedom of expression. With the exception of
the allegation that Mr. Zhylanbaev provided financial support to Democratic Choice of
Kazakhstan, the charges under articles 405 and 258 were primarily based on speech, in
particular calls to attend unsanctioned rallies, social media posts promoting Alga,
Kazakhstan! and criticizing the Government, and videos posted online campaigning for Alga,
Kazakhstan!, in which Mr. Zhylanbaev did not call for or otherwise incite any form of
violence, hostility or discrimination.
24.
Mr. Zhylanbaev’s deprivation of liberty on the basis of these posts cannot be justified
as a reasonable limitation on freedom of expression. As an opposition leader,
Mr. Zhylanbaev’s commentary was situated within a broader public dialogue on political
issues. The limitation imposed on Mr. Zhylanbaev’s protected speech was unlawful because:
(a) it was not provided for by law; and (b) it was unnecessary and disproportionate.
25.
Although the main goals of Democratic Choice of Kazakhstan were described in the
indictment as incitement of social enmity and discord, violent change of the constitutional
order of the country, undermining national security, and violent seizure of power, the
prosecution did not allege, and the trial court did not find, that Mr. Zhylanbaev’s acts
themselves qualified as incitement to violence or hatred. It appears that Mr. Zhylanbaev’s
speech and activities were found to be criminal because they diverged from the Government’s
narrative.
26.
In addition to a seven-year prison sentence, Mr. Zhylanbaev received a three-year ban
on all political and civic activism, including through social media. This broad ban unjustly
restricted protected political speech and was neither necessary nor proportionate.
27.
In the indictment, the authorities alleged that Mr. Zhylanbaev, realizing that the
activities of the Democratic Choice of Kazakhstan organization had been recognized as
extremist and banned in the territory of Kazakhstan by a court decision, and being a
committed supporter of the extremist organization, repeatedly participated in unsanctioned
rallies announced by Democratic Choice of Kazakhstan. In addition, the source indicates that
the prosecution and conviction were based on Mr. Zhylanbaev’s promotion of rallies for Alga
Kazakhstan! on social media.
28.
The rallies and social media posts in question were purely political, criticizing the
Government and promoting Mr. Zhylanbaev’s opposition party. The source emphasizes that
political assemblies deserve strong protection but argues that the authorities failed to meet
the necessary standards when restricting these activities.
29.
Even assuming that Mr. Zhylanbaev’s prosecution and conviction were somehow
justified on national security or public order grounds, the authorities failed to demonstrate
how this kind of participation in protests constituted a threat to public order or national
security, as required by the Covenant. There was nothing in Mr. Zhylanbaev’s posts to
2 A/HRC/43/46/Add.1, paras. 13–15.
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indicate that the rallies were intended to be, or might become, violent, and neither in the
indictment nor in the judgment was it alleged that the protests had in fact been violent.
Therefore, convicting and detaining Mr. Zhylanbaev for attending peaceful rallies violated
his right to peaceful assembly.
c.
Category III
i.
Right to a public trial
30.
The trial court found that witnesses’ concerns for their safety were justified and
ordered the trial to proceed in a closed session. The source claims that, even accepting the
court’s justification of protecting the identities of two witnesses for security reasons, there
was no reason to close the entire trial, including the examination of experts, whose
assessment was crucial to the court’s reasoning.
ii.
Right to call and examine witnesses
31.
In Mr. Zhylanbaev’s case, the defence sought to call fact witnesses who were
members of the Alga, Kazakhstan! organizing committee and an expert witness. Although
the fact witnesses were important to the defence’s claims that Mr. Zhylanbaev had not been
acting on behalf of Democratic Choice of Kazakhstan but had been engaging in election
campaigning and promoting Alga, Kazakhstan!, the trial court rejected the request without
any explanation. Similarly, the court denied the defence’s request to call its own expert
witness to testify in court in response to the prosecution’s expert witnesses, all of whom
testified in court. Mr. Zhylanbaev’s expert witness was central to the defence’s claim that
Mr. Zhylanbaev had not expressed extremist ideas or participated in or supported the
activities of any extremist group. The court dismissed the defence expert witness’s testimony
without testing his arguments solely because he was a linguistic expert, and the court
determined that only a political expert would be appropriate to address the issues at hand.
This decision stands in contrast to the court’s acceptance of testimony from prosecution
linguistic experts on the same issue. Excluding relevant defence witnesses without
justification violated article 14 (3) (e) of the Covenant.
iii.
Presumption of innocence
32.
The source claims that the trial court presumed Mr. Zhylanbaev’s guilt without
concrete evidence, ignored his defence and violated his right to be presumed innocent.
iv.
Right to adequate facilities to prepare a defence
33.
The trial court refused to give Mr. Zhylanbaev’s defence a copy of the Esil District
Court decision banning Democratic Choice of Kazakhstan without citing national security or
public safety, dismissing the defence’s request as “unfounded”. This was especially
problematic because the prosecution extended the Esil District Court decision to include the
Alga, Kazakhstan! party, making access to the decision essential for the defence to challenge
claims of similarity between the two groups. Denying access to this decision violated
Mr. Zhylanbaev’s right to adequate facilities to prepare his defence under article 14 (3) (b)
of the Covenant.
v.
Impartiality
34.
Aspects of Mr. Zhylanbaev’s trial raise doubts about judicial impartiality: the trial was
unjustifiably closed, key defence evidence and witnesses were excluded, and the judgment
favoured the prosecution while ignoring major flaws in the evidence.
d.
Category V
35.
Several non-cumulative factors indicate discriminatory detention based on political
opinion: the detention was part of a pattern of persecution, such as repeated arrests; others
with similar political views were also targeted; and the broader context suggests that the
authorities acted to suppress human rights or discriminate. These factors apply to
Mr. Zhylanbaev’s case. He was repeatedly arrested and detained for peaceful protests and his
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role in the opposition group Alga, Kazakhstan!. The authorities have repeatedly targeted
Mr. Zhylanbaev and other activists as part of a broader crackdown on opposition and free
expression in Kazakhstan. His detention reflects a pattern of persecuting political dissent.
Under international law, depriving someone of liberty for political expression is presumed to
be discriminatory, and Mr. Zhylanbaev’s repeated arrests support this presumption.3
(b)
Response from the Government
36.
The Working Group transmitted the source’s allegations to the Government on
24 November 2024. The Government requested an extension of the time limit for its
response, which was granted. The Working Group received the Government’s response on
19 February 2025, within the established deadline.
37.
The Government stated that it is committed to international instruments on combating
terrorism and ensures that law enforcement actions are consistent with the Constitution, laws
and international agreements. Article 5 of the Constitution bans groups threatening national
security or inciting discord. The Parliamentary Assembly of the Council of Europe defines
extremism as a form of political activity rejecting the principles of democracy, basing its
ideology and its practices on, inter alia, intolerance and ultranationalism, while the Shanghai
Cooperation Organization Convention against Terrorism defines it as any deed aimed at a
violent seizure of power or a violent encroachment on public security.
38.
The Anti-Extremism Act of Kazakhstan targets violent attempts to change the
constitutional order or seize power. Article 258 (2) of the Criminal Code punishes financing
or supporting extremism with 7 to 12 years’ imprisonment and property confiscation.
Organizing or participating in banned extremist or terrorist groups can lead to fines,
corrective labour, up to two years’ imprisonment and, for foreign nationals, expulsion for
five years (art. 405 (2)).
39.
On 13 March 2018, a Kazakh court declared Democratic Choice of Kazakhstan to be
an extremist organization and banned all its activities, including online. Authorities claimed
that Democratic Choice of Kazakhstan promoted a violent overthrow and incited discord,
making any support for the group – including sharing its materials – a criminal offence, with
violators facing prosecution. The ban was widely publicized, and Democratic Choice of
Kazakhstan was added to the official list of extremist organizations.
40.
On 10 May 2023, the Astana Police Department opened a pretrial investigation against
Mr. Zhylanbaev under article 405 (2) of the Criminal Code. The aim of the investigation was
to determine whether Mr. Zhylanbaev’s actions were aimed at violently changing the
Government and discrediting the elections. On 23 May 2023, the authorities searched
Mr. Zhylanbaev and seized his phone, flash drives, magnetic storage media, and Alga,
Kazakhstan! T-shirts. That same day, Mr. Zhylanbaev, accompanied by his lawyer, was
questioned but refused to testify. He was then taken to the temporary detention facility of the
Astana Department of Internal Affairs. Mr. Zhylanbaev’s detention was consistent with the
Code of Criminal Procedure of Kazakhstan, and his rights were fully respected.
41.
On 24 May 2023, Mr. Zhylanbaev’s actions were classified under articles 405 (2) and
258 (1) of the Criminal Code. During questioning as a suspect, he denied any involvement in
the aforementioned offences. However, covert investigative measures conducted in
accordance with article 8 (1) of the Police Operations Act confirmed that Mr. Zhylanbaev
had been in contact, through the messaging application Telegram, with members of the
extremist organization Democratic Choice of Kazakhstan and its foreign headquarters. He
was allegedly instructed by them to prepare propaganda video messages for subsequent
publication on social media.
42.
Mr. Zhylanbaev, who maintained accounts on Facebook, TikTok and Telegram,
regularly posted materials in support of the extremist organizations Democratic Choice of
Kazakhstan and the Köşe Party, both of which had been banned by court order. Analysis of
bank records revealed that Mr. Zhylanbaev had received money transfers from members of
the extremist group Democratic Choice of Kazakhstan across various regions of Kazakhstan.
3 Opinion No. 88/2017, para. 43.
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These transactions were corroborated by Telegram messages between Mr. Zhylanbaev and a
Democratic Choice of Kazakhstan leader, who instructed him to whom to transfer the funds.
43.
On 25 May 2023, the Specialized Inter-District Investigative Court of Astana received
a request to detain Mr. Zhylanbaev for two months. In line with the Code of Criminal
Procedure, the Court, with all relevant parties present, reviewed and approved the request
within eight hours. Mr. Zhylanbaev was charged under articles 405 (2) and 258 (1) of the
Criminal Code.
44.
Articles 405 (2) and 258 (1) of the Criminal Code address serious extremist crimes
that threaten national sovereignty and public safety, with a single offence under article 258
carrying a mandatory prison sentence of five to nine years.
45.
Given these factors, the investigative court found reasonable grounds to believe that,
if released, the suspect might continue to engage in criminal activities or attempt to evade
investigation and trial. According to article 148 (3) of the Code of Criminal Procedure, when
authorizing detention, the investigating judge must review the case materials and ensure that
there are valid grounds to suspect the person of committing the offence.
46.
The criminal case file submitted by the investigating authority confirmed the validity
of the suspicion. The investigative court did not find any exceptional circumstances
precluding the detention of the suspect. In this regard, the court granted the investigator’s
petition and authorized the detention of Mr. Zhylanbaev. At the same time, the court refused
to apply bail in accordance with article 148 (9) (2) of the Code of Criminal Procedure, as bail
is not granted when a person is suspected of committing extremist offences.
47.
Mr. Zhylanbaev was represented in court by a lawyer who appealed the investigative
court’s ruling, citing Mr. Zhylanbaev’s innocence, sports achievements, stable residence,
family obligations and clean record. On 7 June 2023, the investigative court upheld the
original ruling, stating that it could not assess guilt or evidence before the investigation had
been concluded, and found the defence’s arguments insufficient to change the preventive
measure.
48.
On 20 July, 11 August and 21 September 2023, the investigator requested extensions
of Mr. Zhylanbaev’s detention to complete the investigation and allow the parties to
familiarize themselves with the case materials. The investigative court granted these requests,
finding them justified and seeing no reason to change the preventive measure.
Mr. Zhylanbaev’s lawyer appealed, repeating his previous arguments, but the appellate court
rejected the complaints as unfounded.
49.
On 8 September 2023, the pretrial investigation ended, and the parties began
reviewing the case materials. The case was reclassified from article 258 (1) to article 258 (2)
of the Criminal Code. On 25 September 2023, it was referred to the prosecutor with the
indictment. Mr. Zhylanbaev was put on trial on 3 October 2023, at the Specialized Inter-
District Criminal Court of Astana. On 30 October 2023, a preliminary hearing was held,
where the Court considered motions from two witnesses to hold the proceedings in camera.
50.
The witnesses and their relatives had been threatened because of the testimony that
they had given against the defendant and, as a result, they feared for the lives of their family
members. According to article 29 (1) of the Code of Criminal Procedure, the court may close
proceedings to protect those involved. Therefore, the trial court lawfully decided to hold the
trial in closed session to ensure the safety of the witnesses, meaning that claims of a violation
of the principle of publicity are unfounded.
51.
During the trial, the defence argued that the court decision banning Democratic
Choice of Kazakhstan should have been attached to the case file and claimed that the
defendant had been unaware of the ban. However, the trial court noted that the decision
declaring Democratic Choice of Kazakhstan an extremist organization had been issued on 13
March 2018, had been widely reported in the media, and had been confirmed by official
records. The court ruled that the ban was common knowledge and, under article 114 (1) of
the Code of Criminal Procedure, did not require further proof. In addition, Mr. Zhylanbaev
admitted in court that he had known about the ban, and evidence showed that he had
knowingly continued to interact with the extremist organization despite the legal prohibition.
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52.
On 29 November 2023, the Specialized Inter-District Criminal Court of Astana
sentenced Mr. Zhylanbaev to seven years in prison under article 258 (2) of the Criminal Code
and one year in prison under article 405 (2), with the latter sentence absorbed by the former.
He was found guilty of knowingly participating in the banned Democratic Choice of
Kazakhstan from December 2021 to March 2023. Mr. Zhylanbaev was also barred from
social and political activities for three years, ordered to serve his sentence in a medium-
security facility, and required to pay 1,071 tenge in procedural costs and 69,000 tenge to the
Victims’ Compensation Fund. He pleaded not guilty, denying involvement with Democratic
Choice of Kazakhstan or financing extremist activities.
53.
Despite Mr. Zhylanbaev’s denial of guilt, the trial court found the charges proven,
citing evidence that included: political science research from May 2023, according to which
materials linked to Mr. Zhylanbaev showed evidence of extremist propaganda and
participation in the banned Democratic Choice of Kazakhstan organization; experts testifying
that Mr. Zhylanbaev had coordinated activities with leaders of Democratic Choice of
Kazakhstan on Telegram and other social media platforms, with rally dates and demands
matching those of Democratic Choice of Kazakhstan; forensic examinations of
Mr. Zhylanbaev’s phone and Facebook account showing that his statements and activities
closely aligned with the goals and methods of Democratic Choice of Kazakhstan, including
with regard to financial and informational support; expert witnesses confirming that, in posts
on social media, leaders of Democratic Choice of Kazakhstan and Mr. Zhylanbaev had called
for rallies and actions against the authorities, and had advocated creating opposition cells in
cities. The court concluded that Mr. Zhylanbaev’s actions demonstrated participation in and
support for the extremist activities of Democratic Choice of Kazakhstan, despite the fact that
he had not confessed.
54.
The Government disagreed with the defence’s claim that the trial court had rejected
its request that members of the Alga, Kazakhstan! organizing committee be summoned and
examined without explanation. During the hearing, the defence lawyer requested the court to
call five of the organizing committee’s members as witnesses. On 9 November 2023, the
court agreed to question three of them, as they lived in Astana and the defence would ensure
their attendance. The requests to question the other two were denied because they lived in
other cities and could not be questioned online in a closed session. That same day, the court
questioned two of them.
55.
The trial court rejected the defence’s request to examine one witness due to a violation
of closed trial procedures. The motion to exclude an expert report that had been submitted by
the prosecution was denied, as the report had been lawfully prepared by authorized experts.
The court also refused to allow an expert for the defence to be heard, noting that he was a
linguistic expert and not a political science expert.
56.
Considering that Mr. Zhylanbaev had no criminal record and had a small child, the
trial court imposed the minimum sentence under articles 405 (2) and 258 (2) of the Criminal
Code. No appeals were received by the Office of the Prosecutor General, but Mr. Zhylanbaev
and his lawyers appealed to a higher court, seeking acquittal. The appellate court reviewed
and rejected their complaints, upholding the original verdict. Mr. Zhylanbaev’s lawyer
appealed to the Supreme Court, which found no grounds for a cassation review and, on 5
June 2024, declined to refer the case for such a review.
57.
Mr. Zhylanbaev is serving his sentence in a medium-security facility in Stepnogorsk,
Akmola Oblast. He was visited by representatives of the Human Rights Commissioner
(Ombudsman) and the Public Monitoring Commission. Mr. Zhylanbaev went on a hunger
strike (while taking water and supplements) and was monitored daily by medical staff and
received psychological support. He resumed eating on 18 October 2024, refused a medical
examination on 27 December 2024, and is now in stable health with no complaints. The
Akmola Health Department continues to monitor him.
58.
The claims made about the unforeseeable judicial interpretation of articles 405 and
258 of the Criminal Code are subjective. The verdict clearly outlines Mr. Zhylanbaev’s
actions for the extremist organization Democratic Choice of Kazakhstan, including following
instructions, reporting to coordinators, providing informational support and financing
extremist activities.
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59.
Given these facts, the foreseeability and inevitability of punishment for his intentional
offences are clear. Mr. Zhylanbaev was convicted for his involvement with Democratic
Choice of Kazakhstan, which was unrelated to his election campaign and spanned a period
longer than that covered by the 2023 elections. The application of the law by the trial court
is justified and supported by evidence, and claims of an “expansive interpretation” are
unfounded.
60.
The Constitution of Kazakhstan (art. 32) and other laws guarantee the right to peaceful
assembly, but allow restrictions for State security, public order, health, or the rights of others.
Mr. Zhylanbaev was convicted not for statements and assessments critical of the activities of
State bodies but for specific actions: participation in illegal protest actions under the auspices
of an extremist organization, production, publication and circulation of propaganda materials,
and participation in financing through money transfers. He was also administratively
sanctioned under article 488 of the Code of Administrative Offences for violating legal
procedures for assemblies.
61.
Law enforcement had to take legal action in response to Mr. Zhylanbaev’s unlawful
actions. The trial court found that Mr. Zhylanbaev had been aware of the ban on the extremist
organization Democratic Choice of Kazakhstan, which he admitted during the trial. He also
confessed to contacting the leader of Democratic Choice of Kazakhstan and its foreign
coordinator. Mr. Zhylanbaev’s sentence is unrelated to the unregistered party Alga,
Kazakhstan! and is based solely on his involvement with the extremist group Democratic
Choice of Kazakhstan.
62.
The source’s claims of bias are unfounded. The presumption of innocence, court
impartiality, and the right to defence were fully respected, with the defence having full access
to case materials.
63.
The criminal prosecution of Mr. Zhylanbaev is not motivated by political
discrimination. For many years, Mr. Zhylanbaev has actively participated in public life and
openly voiced criticism of the Government and the State authorities.
(c)
Additional comments from the source
64.
The Government admits that the investigative court based its decision to place
Mr. Zhylanbaev in pretrial detention on the seriousness of the alleged “extremist crimes” and
not on an individualized assessment of necessity. Mr. Zhylanbaev’s lawyer requested that the
court consider the suspect’s stable residence, job and family obligations and, on that basis,
asked it to revoke the authorization of the detention and to choose a preventive measure not
involving isolation from society. However, the court argued that Mr. Zhylanbaev posed a
public danger and might evade justice, but it did not consider his personal circumstances or
alternatives to detention. This approach, focused only on the nature of the charges, does not
meet international standards, which require an individualized evaluation. Instead of seriously
considering alternatives, the court simply repeated the investigator’s unsupported claim that
Mr. Zhylanbaev “may conceal information” and dismissed less restrictive measures such as
house arrest or bail without evidence. The court also extended his detention solely to give
prosecutors more time, which is not a proper basis for extending pretrial detention.
65.
The legality and foreseeability requirements of the Covenant are not satisfied by the
Government’s publication of the fact that Democratic Choice of Kazakhstan had been banned
as an extremist organization. International law requires that people know in advance whether
their actions are lawful. The Government argues that Mr. Zhylanbaev should have known
that his activities could be deemed criminal because Democratic Choice of Kazakhstan had
been publicly banned as an extremist group. However, simply announcing the ban – without
explaining the reasons for it or what specific actions were considered extremist – did not give
Mr. Zhylanbaev fair notice. The trial court’s decision lacked detail, and the Government’s
explanation did not specify what conduct was actually prohibited, failing to meet the principle
of legality.
66.
Mr. Zhylanbaev was convicted on the basis of the claim that the ideological alignment
and similarity of activities between his party, Alga, Kazakhstan!, and Democratic Choice of
Kazakhstan amounted to “participation” in extremist acts. The trial court treated his political
rallies for Alga, Kazakhstan! as equivalent to involvement with Democratic Choice of
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Kazakhstan, even though this broad interpretation of “participation” was unforeseeable and
contrary to the principle of legality. The vaguely justified extension by the court of the
extremism label placed on Democratic Choice of Kazakhstan to include Alga, Kazakhstan!
risks chilling free expression, as it is unclear what activities are considered to be “extremist”.
There is no evidence that Mr. Zhylanbaev knew of or took part in the alleged extremist acts
of Democratic Choice of Kazakhstan or intended to do so.
67.
The Government claims that Mr. Zhylanbaev had contact with alleged Democratic
Choice of Kazakhstan members but does not identify any specific extremist acts by him or
them. Even if these individuals had been members of Democratic Choice of Kazakhstan, their
actions supported Alga, Kazakhstan!, which has never been banned as extremist. The
Government also asserts, without further details, that Mr. Zhylanbaev financed extremist
activities, but it ignores testimony from two recipients of his funds who stated they were not
affiliated with Democratic Choice of Kazakhstan. The Government does not explain how
financial transfers related to Alga, Kazakhstan! would amount to financing Democratic
Choice of Kazakhstan, nor does it provide evidence linking these transfers to extremist
activities.
68.
Mr. Zhylanbaev’s acts do not qualify as incitement to violence and do not justify
infringement of his right to freedom of expression. The Government argues that
Mr. Zhylanbaev was not convicted for his statements or assessments critical of the activities
of State bodies, but for “specific actions”. This argument is baseless and is aimed at reframing
Mr. Zhylanbaev’s exercise of his rights to freedom of expression and peaceful assembly as
“extremist” acts.
69.
The Government’s response does not explain why Mr. Zhylanbaev’s actions – such
as his alleged participation in unauthorized protests and the production, publication and
distribution of propaganda materials – constituted a threat to public order or security.
70.
The trial court relied on expert findings that characterized Mr. Zhylanbaev’s social
media posts and videos as criticisms of the Government. However, efforts to create a
“negative opinion” of the Government are not sufficient to justify restrictions on speech.
Moreover, neither the prosecution nor the court identified any other basis on which to
conclude that Mr. Zhylanbaev was a threat to public order or security.
71.
In describing the alleged evidentiary basis for Mr. Zhylanbaev’s detention, the
Government relies exclusively on the opinions and testimony of the prosecution’s expert
witnesses. The Government asserts that the trial court did not deny Mr. Zhylanbaev’s request
to call witnesses, but the court judgments indicate otherwise. During the trial, the judge
refused to permit the defence to present its own expert to testify in response to the
prosecution’s expert witnesses.
72.
The Government concedes that the trial court refused to consider the defence’s expert
witness because he was a linguistic expert, and the court ruled that only a political expert
could address the issues at hand. This decision directly conflicted, however, with the court’s
acceptance of the expert testimony from the prosecution’s own linguistic experts on the same
issue. Indeed, in its response, the Government itself refers to one expert as having conducted
a “comprehensive forensic psychological and linguistic examination”.
73.
The Government’s response indicates that fact witnesses were not permitted to testify
because they were not based in Astana, and it was not possible to conduct their examination
online as part of a closed court session. The Government does not explain, much less justify,
why the fact that these witnesses were not based in Astana should have prevented them from
testifying on Mr. Zhylanbaev’s behalf.
74.
The Government fails to refute the argument that Mr. Zhylanbaev was targeted,
detained, convicted and jailed due to his activism. Instead, it argues that he had previously
been allowed to “freely” criticize the Government. Even if this were true – and it is not, as
demonstrated by the numerous similar actions taken against him – the fact that
Mr. Zhylanbaev might not previously have been persecuted for his political speech does not
mean that he has not now been persecuted for it. In fact, Mr. Zhylanbaev had previously been
subjected to administrative actions by the Government for his engagement in political speech,
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and the Government has also blocked his efforts to register Alga, Kazakhstan! as a political
party.
75.
Contrary to the Government’s contention, Mr. Zhylanbaev’s conviction also fits
within a broader pattern of weaponization of the courts against opposition activists in
retaliation for their speech. The source cites similar cases, such as that of Kazakh activist
Alnur Ilyashev, previously considered by the Working Group, where it found that
Mr. Ilyashev’s work “to promote peaceful civic participation had also attracted the attention
of the authorities earlier on” and that his prosecution related to his “legitimate criticism of
the leading political party”.4 The source mentions another activist, who was prosecuted in
Kazakhstan in 2021 under the same anti-extremism law as Mr. Zhylanbaev for his exclusively
peaceful social media posts and Telegram messages in support of the Köşe Party movement.
76.
Viewed in this context, Mr. Zhylanbaev’s detention and conviction are violations of
his right to be free from discrimination based on his political views.
2.
Discussion
77.
The Working Group thanks the source and the Government for their submissions.
78.
In determining whether the deprivation of liberty of Mr. Zhylanbaev is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.5
(a)
Category I
79.
As the Working Group has previously stated, for a deprivation of liberty to have a
legal basis, the authorities must invoke this legal basis and apply it to the circumstances of
the case.6 This is typically done by means of an arrest warrant, arrest order or equivalent
document.7 Furthermore, article 9 (2) of the Covenant provides that all arrested individuals
must be informed, at the time of arrest, of the reasons for the arrest and be notified, as soon
as possible, of any charges brought against them. Respect for these rights is essential to the
exercise of the other rights set out in article 9 of the Covenant and article 9 of the Universal
Declaration of Human Rights, as all individuals must know the reasons for their arrest in
order to be able to contest it effectively, and be brought before a court or a magistrate to be
able to formulate an appeal.
80.
The Working Group notes the source’s allegation that Mr. Zhylanbaev was not shown
an arrest warrant at the time of his placement in detention on criminal charges. Rather,
Mr. Zhylanbaev was allegedly secretly taken, without his legal counsel’s knowledge, by the
investigator and special forces officers from the detention centre where he had been serving
a 20-day administrative sentence. The Government has not specifically addressed this
allegation. In these circumstances, the Working Group finds a violation of Mr. Zhylanbaev’s
rights under article 9 (2) of the Covenant.
81.
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. Article 9 (3) of the Covenant provides that it is not to be the general
rule that persons awaiting trial are 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.
82.
The Working Group notes that, according to the source, the investigative court’s
primary considerations for imposing and extending Mr. Zhylanbaev’s pretrial detention were
the nature of the offence and the potential punishment faced by Mr. Zhylanbaev. The
4 Opinion No. 2/2022, paras. 93 and 94.
5 A/HRC/19/57, para. 68.
6 Human Rights Committee, general comment No. 35 (2014), paras. 24 and 25.
7 Opinion No. 3/2018, para. 43.
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Government confirms that the court considered the high public danger of the alleged offences
and the possibility that Mr. Zhylanbaev could continue his criminal activity or, under threat
of deprivation of liberty, escape from the investigation and trial to be grounds for his
detention. However, the Government has not demonstrated that the court conducted an
individualized assessment of these risks based on specific facts related to Mr. Zhylanbaev’s
circumstances.
83.
The Working Group notes that the investigative court rejected the arguments of
Mr. Zhylanbaev’s lawyer regarding the suspect’s stable residence, job and family obligations
in considering alternatives to detention. The Government confirms that the court refused to
apply bail in accordance with article 148 (9) (2) of the Code of Criminal Procedure, as bail
is not granted when a person is suspected of committing extremist offences. This suggests
that the court’s decision was based on the category of the alleged offence rather than on an
individualized assessment of Mr. Zhylanbaev’s flight risk or danger to the community,
which, in the circumstances of the present case, is contrary to article 9 (3) of the Covenant.
84.
Furthermore, the Working Group notes the source’s submission that Mr. Zhylanbaev
was detained and convicted under articles 405 and 258 of the Criminal Code, which the
source claims are vague and overly broad provisions that lack clarity as to what conduct is
prohibited. The Government has not adequately addressed these concerns about the
insufficient precision of these provisions, although such precision is necessary in criminal
law. In this respect, the Working Group recalls that the Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering terrorism, upon
her visit to Kazakhstan, expressed concern about the use of the term “extremism” in national
law and practice. Her criticism covered articles 258 and 405 of the Criminal Code in
particular.8
85.
Based on these findings, the Working Group concludes that Mr. Zhylanbaev’s
detention lacks a legal basis and is arbitrary under category I, violating article 9 of the
Covenant and articles 3 and 9 of the Universal Declaration of Human Rights.
(b)
Category II
86.
The Working Group reiterates that it applies a heightened standard of review in cases
where freedom of opinion and expression, freedom of peaceful assembly and of association
and participation in political and public affairs are restricted, or where human rights defenders
are involved. Mr. Zhylanbaev’s role as a political opposition figure and civil activist, who
has been detained on multiple occasions since 2016 for his political activities, requires the
Working Group to undertake this kind of heightened scrutiny.
87.
The Working Group recalls that the rights to freedom of opinion and expression, as
protected by article 19 of the Covenant, are indispensable conditions for the full development
of the person; they are essential for any society and in fact constitute the foundation of every
free and democratic society. Moreover, according to the Human Rights Committee, given
that peaceful assemblies often have expressive functions, and political speech enjoys
particular protection as a form of expression, it follows that assemblies with a political
message should enjoy a heightened level of accommodation and protection.9
88.
In the present case, it is clear to the Working Group that the basis for the arrest and
detention of Mr. Zhylanbaev was the exercise of his rights to freedom of expression and of
peaceful assembly. According to the source, Mr. Zhylanbaev was convicted under
articles 405 (2) and 258 (2) of the Criminal Code for allegedly participating in the activities
of the banned Democratic Choice of Kazakhstan and financing extremist activities, primarily
based on his social media posts promoting Alga, Kazakhstan! and criticizing the Government,
as well as his participation in and promotion of peaceful rallies.
89.
The Government acknowledges that Mr. Zhylanbaev was charged with these offences
but asserts that he was convicted not for statements and assessments critical of the activities
8 See https://www.ohchr.org/en/press-releases/2019/05/preliminary-findings-special-rapporteur-
promotion-and-protection-human.
9 Human Rights Committee, general comment No. 37 (2020), para. 32.
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13
of State bodies but for “specific actions”, including participation in illegal protest actions
under the auspices of an extremist organization, the production, publication and circulation
of propaganda materials, and participation in financing through money transfers. However,
the Government has not provided any evidence or more detailed explanation to show how
his actions constituted a genuine threat to national security, public order or the rights of
others.
90.
The Working Group observes that the trial court found Mr. Zhylanbaev guilty based
on alleged ideological similarities between Alga, Kazakhstan! and Democratic Choice of
Kazakhstan, the fact that both organizations had called for rallies at the same times and in the
same places, and alleged financial transfers to supporters of Democratic Choice of
Kazakhstan. However, according to the source, the recipients of the funds testified that they
were members of Alga, Kazakhstan! rather than Democratic Choice of Kazakhstan and that
the money was intended for election campaigning. The Government has not effectively
refuted this testimony.
91.
The Working Group notes that the Government has not demonstrated how
Mr. Zhylanbaev’s activities – organizing peaceful rallies, making political statements on
social media, or transferring funds for election campaigning – posed a genuine threat that
would justify restrictions on his rights to freedom of expression and peaceful assembly. The
judgment does not describe any calls to violence by Mr. Zhylanbaev or Alga, Kazakhstan!
but instead focuses on how his advocacy might cause the public to become critical of the
Government.
92.
In this regard, the Working Group recalls that the Human Rights Committee, in its
concluding observations of 2016 on the second periodic report of Kazakhstan under the
Covenant, expressed concern about “the broad formulation” of the concept of “extremism”
under Kazakh criminal legislation and the use of legislation on extremism to unduly restrict
the freedoms of religion, expression, assembly and association.10 The Committee also noted
that the above-mentioned laws and practices appeared not to comply with the principles of
legal certainty, necessity and proportionality, as required by the Covenant.
93.
The Working Group observes that Mr. Zhylanbaev was sentenced not only to seven
years of imprisonment but also to a three-year ban on engaging in social and political
activities, including the use of mass media and telecommunications networks. This additional
punishment further confirms that the purpose of his detention was to restrict his political
expression and participation.
94.
On the basis of the information available, and having particular regard to the context
in which the alleged crimes occurred, the Working Group finds that the Government did not
show that any of the restrictions on freedom of expression or freedom of assembly permitted
under the Covenant (arts. 19 (3) and 21, respectively) was applicable in Mr. Zhylanbaev’s
case.
95.
The Working Group finds Mr. Zhylanbaev’s detention to be arbitrary under category
II, as it resulted from his exercise of rights protected by articles 19 and 20 of the Universal
Declaration of Human Rights and articles 19 and 21 of the Covenant.
(c)
Category III
96.
Given its finding that the deprivation of liberty of Mr. Zhylanbaev is arbitrary under
category II, the Working Group wishes to emphasize that no trial should have taken place.
Nevertheless, as the trial did take place, and he was convicted, the Working Group will
proceed with its examination of the source’s submissions concerning the denial of his fair
trial rights.
97.
In the present case, the source alleges several violations of Mr. Zhylanbaev’s right to
a fair trial, including: (a) the right to a public trial; (b) the right to call and examine witnesses;
(c) the right to be presumed innocent; (d) the right to adequate facilities to prepare a defence;
and (e) the right to be tried by an impartial tribunal.
10 CCPR/C/KAZ/CO/2, para. 13.
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98.
Regarding the right to a public trial, the Working Group notes that Mr. Zhylanbaev’s
entire trial was closed to the public on the ground that two witnesses had expressed concern
for their safety. The Government confirms that the trial court ordered a closed trial based on
these witnesses’ claims that they and their relatives had received threats because of the
testimony that they had given against the defendant, as a result of which they feared for the
lives of their family members.
99.
While the Working Group recognizes that, according to article 14 (1) of the Covenant,
the press and the public may be excluded from all or part of a trial, and that security concerns
may, in certain limited circumstances, justify excluding the public from parts of a trial, any
such security matters would have to be of substantial weight and fully explained. In the
present case, the Government has not provided a convincing explanation as to why the
presence of two witnesses who feared for their safety necessitated closing the entire trial to
the public. Less restrictive measures could have been employed, such as closing only the
portions of the trial during which those particular witnesses testified, or implementing other
witness protection measures that would not have required excluding the public from the
entirety of the proceedings. The decision to close the entire trial, including the examination
of expert witnesses and other evidence unrelated to the two witnesses in question, was
disproportionate and lacked adequate justification. This blanket exclusion of the public
significantly undermined the transparency of the proceedings and Mr. Zhylanbaev’s right to
a public trial under article 14 (1) of the Covenant.
100.
With respect to the right to call and examine witnesses, the source alleges that the trial
court denied the defence’s request to call fact witnesses who were members of the organizing
committee of Alga, Kazakhstan! and refused to permit the defence to introduce its own expert
to testify in court. The Government acknowledges that the court rejected the defence’s
request to question two witnesses because they lived in other cities (Almaty and
Petropavlovsk), and it was not possible to question them online as part of a closed court
session. The Working Group finds this explanation inadequate, as no other method to obtain
their testimonies was ever considered. Furthermore, the Government confirms that the court
refused to hear the defence’s expert witness because he was a linguistic expert and could not
give an opinion on issues in the field of political science. However, as the source points out,
this decision directly contradicted the court’s acceptance of testimony from the prosecution’s
own linguistic experts on the same issue.
101.
The Working Group recalls that article 14 (3) (e) of the Covenant guarantees the right
of defendants in criminal proceedings to obtain the attendance and examination of witnesses
on their behalf under the same conditions as witnesses against them. In the present case, the
trial court’s refusal to hear the defence witnesses without adequate justification, while
accepting to hear prosecution witnesses with a similar area of expertise, created an imbalance
that violated the principle of equality of arms, an essential component of a fair trial.
102.
Regarding the right to adequate facilities to prepare a defence, the source alleges that
the trial court refused to provide the defence with a copy of the court decision banning
Democratic Choice of Kazakhstan as an “extremist organization”, despite the fact that this
document was central to the prosecution’s case. The Government confirms that the court did
not provide a copy of this decision to Mr. Zhylanbaev, arguing that the fact that Democratic
Choice of Kazakhstan had been recognized as an extremist organization was common
knowledge. The Working Group finds this justification insufficient. Article 14 (3) (b) of the
Covenant guarantees defendants the right to have adequate time and facilities for the
preparation of their defence. Access to the court decision that formed the foundation of the
prosecution’s case was essential to Mr. Zhylanbaev being able to effectively contest the
charges against him, in particular the allegation that his activities were equivalent to
participation in the banned organization.
103.
Given these conclusions, the Working Group does not find it necessary to address the
source’s allegations that the same breaches of fair trial requirements also violated the
presumption of innocence and Mr. Zhylanbaev’s right to be tried by an impartial tribunal.
The above findings are sufficient for the Working Group to conclude that Mr. Zhylanbaev’s
right to a fair trial under article 14 of the Covenant and article 10 of the Universal Declaration
of Human Rights was violated. These violations were of such gravity as to give
Mr. Zhylanbaev’s deprivation of liberty an arbitrary character, falling within category III.
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(d)
Category V
104.
The source has submitted that Mr. Zhylanbaev’s detention fits into a common pattern
of persecution of those who criticize the Government, through abuse of the term
“extremism”. The source alleges that Mr. Zhylanbaev was targeted, detained, convicted and
jailed due to his activism and political opposition activities. According to the source, the
detention and conviction of Mr. Zhylanbaev is part of a broader pattern of weaponization of
the courts against opposition activists in retaliation for their speech. The Working Group has
found, under category II, that Mr. Zhylanbaev’s detention resulted from his legitimate
exercise of freedom of expression and freedom of assembly, creating a strong presumption
that the detention also constitutes a violation of international law on the grounds of
discrimination based on political or other views. Accordingly, the Working Group will
examine the allegations under category V.
105.
The source argues that Mr. Zhylanbaev’s case satisfies several indicators that establish
the discriminatory nature of his detention based on his political opinion. First, the deprivation
of liberty was allegedly part of a pattern of persecution against Mr. Zhylanbaev, including
previous detentions for his political activism. Second, other persons with similarly
distinguishing characteristics have also been persecuted.
106.
The Working Group observes that, according to the source, Mr. Zhylanbaev has been
subjected to administrative actions by the Government for his engagement in political speech,
and the Government has blocked his efforts to register Alga, Kazakhstan! as a political party.
The source cites similar cases previously considered by the Working Group, such as that of
Kazakh activist Alnur Ilyashev, where it found that Mr. Ilyashev’s work “to promote peaceful
civic participation had also attracted the attention of the authorities earlier on” and that his
prosecution related to his “legitimate criticism of the leading political party”.11 The source
also mentions the case of another activist who was prosecuted in Kazakhstan in 2021 under
the same anti-extremism law as Mr. Zhylanbaev for his exclusively peaceful social media
posts and Telegram messages in support of the Köşe Party movement.
107.
The Government argues that Mr. Zhylanbaev has been engaged in public activities for
a long period of time, freely expressing critical assessments of the activities of the
Government and State bodies. However, the Government contends that his actions associated
with the commission of the offences of which he was ultimately convicted forced law
enforcement and judicial authorities to act in accordance with the letter of the law. The
Government denies that the criminal prosecution of Mr. Zhylanbaev was discriminatory on
political grounds. The Working Group notes that the Government’s response does not
effectively refute the source’s allegations of a pattern of targeting political opposition figures.
108.
The Working Group considers that the above-mentioned presumption of
discrimination is reinforced in Mr. Zhylanbaev’s case by the pattern of his previous
detentions for political activities, the similar treatment of other political opposition figures
under the same legal provisions, and the broader context of the use of extremism laws to
suppress political dissent in Kazakhstan. Considering this pattern of discriminatory conduct
displayed by the authorities towards Mr. Zhylanbaev on the basis of his political opinion, and
noting its findings under category II, the Working Group finds that the arrest and detention
of Mr. Zhylanbaev was based on discrimination resulting from his political opinion in
violation of articles 2 (1) and 26 of the Covenant and articles 2 and 7 of the Universal
Declaration of Human Rights. His detention is therefore arbitrary under category V.
(e)
Concluding remarks
109.
The Working Group wishes to express its concern about the information received
concerning Mr. Zhylanbaev’s health while in detention and the fact that he was on hunger
strike for over a month, consuming only water, ascorbic acid and glucose, according to the
Government.
110.
The Working Group takes this opportunity to remind the Government of its obligation
under article 10 (1) of the Covenant to ensure that all persons deprived of their liberty are
11 Opinion No. 2/2022, paras. 93 and 94.
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treated with humanity and with respect for the inherent dignity of the human person. This
includes ensuring adequate medical care and monitoring of health conditions, particularly in
cases where detained individuals engage in hunger strikes or other forms of protest that may
impact their health.
111.
The Working Group also wishes to recall that, on 2 March 2015 and 31 October 2023,
it issued requests to the Government to invite the Working Group to conduct a country visit.
The Working Group reiterates that it would welcome the opportunity, at the Government’s
earliest convenience, to conduct a visit to Kazakhstan in order to engage with the Government
in a constructive manner and to offer its assistance in addressing its serious concerns relating
to instances of arbitrary deprivation of liberty.
3.
Disposition
112.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Marat Zhylanbaev, being in contravention of articles 2,
3, 7, 9, 10, 19 and 20 of the Universal Declaration of Human Rights and articles 2, 9,
14, 19, 21 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, II, III and V.
113.
The Working Group requests the Government of Kazakhstan to take the steps
necessary to remedy the situation of Mr. Zhylanbaev 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.
114.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Zhylanbaev immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
115.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Zhylanbaev and to take appropriate measures against those responsible for the violation
of his rights.
116.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
117.
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. Zhylanbaev has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to
Mr. Zhylanbaev;
(c)
Whether an investigation has been conducted into the violation of
Mr. Zhylanbaev’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Kazakhstan with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
118.
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.
119.
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
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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 of any failure to take action.
120.
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.12
[Adopted on 3 April 2025]
12 Human Rights Council resolution 51/8, paras. 6 and 9.