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A/HRC/WGAD/2025/18

Opinion No. 18/2025 concerning Marat Zhylanbaev (Kazakhstan)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2025-04-10 · 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.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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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.