The Right to Peaceful Assembly and Association
The guarantee of the freedom of peaceful assembly in the Republic of Kazakhstan is contained in Article 32 of the Constitution of RK: “Citizens of the Republic of Kazakhstan shall have the right to peacefully and without arms assemble, hold meetings, rallies and demonstrations, street processions and pickets. The use of this right may be restricted by law in the interests of state security, public order, and protection of health, rights and freedoms of other persons.”
In addition to this, Article 39 of the Constitution of RK establishes: “1. Rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population . . .”
The legal regulation of the freedom of peaceful assembly in Kazakhstan exists by means of the passing of the Law of the Republic of Kazakhstan of March 17, 1995 “On the Procedure for the Organization and Conducting of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations in the Republic of Kazakhstan” with amendments of December 20, 2004 (further referred to as “the Law”).
Individual regulations concerning the legal regulation of the freedom of peaceful assembly in the Republic of Kazakhstan are contained in the Law of RK of December 21, 1995 “On Agencies of Internal Affairs of the Republic of Kazakhstan,” and the Law of RK of June 26, 1998 “On the National Security of the Republic of Kazakhstan.”
Bylaws regulating the freedom of peaceful assembly in Kazakhstan include the Decree of the Ministry of the Interior of RK of December 31, 1993 “On the Organization of the Work of Agencies of Internal Affairs in Relation to Public Associations;” the Decree of the Ministry of the Interior of RK of December 6, 2000 “On Approval of the Regulation on the Organization of the Work of Subdivisions of Agencies of Internal Affairs Regarding the Guarantee of Guarding Public Order and the Safety of Citizens when Conducting Events of Public Associations on Streets and in other Public Places;” the Decree of the Ministry of the Interior of July 5, 2002 “On Approval of the Regulation of Patrol Post Services of Agencies of Internal Affairs of the Republic of Kazakhstan Regarding the Guarantee of Guarding Public Order and Security;” the Decision of the Maslikhat of the City of Astana of May 2, 2002 “On Additional Regulation of the Procedure and Places for Conducting Peaceful Assemblies, Meetings, and Pickets” and the Decision of the XVII session of the Maslikhat of the City of Almaty of July 29, 2005 “Some Issues Regarding the Rational Use of Places of City Infrastructures.”
Finally, the Code of Administrative Offenses of the Republic of Kazakhstan (Article 373) and the Criminal Code (Article 334) contain sanctions for the violation of legislation on the procedure for organization and conducting of peaceful assemblies, meetings, processions, pickets, and demonstrations from fines and administrative arrest for a term of up to 15 days up to imprisonment of a term of up to one year.
Considering international standards in the area of the guarantee of the freedom of peaceful assembly, as set forth in the International Covenant on Civil and Political Rights (ICCPR), ratified by the Republic of Kazakhstan, and other international documents on human rights, in decisions of the European Court of Human Rights and the Office for Democratic Institutions and Human Rights (ODIHR) developed on their basis, and in the OSCE document “Guidelines on Freedom of Peaceful Assembly” published in the end of March, 2007, an analysis of current legislation of the Republic of Kazakhstan in this sphere highlights its noncompliance to the given standards in some parameters.
Since the existing definition in the Law On the Procedure for Conducting Assemblies and Meetings . . . does not correspond with the category of peaceful assemblies acceptable in international practice, inasmuch as besides meetings, processions, demonstrations, and pickets (in the given instance, hunger strikes in public places, the erection of yurts and tents, defined in Kazakhstan’s legislature, may be considered as special forms of protest actions, similar to pickets) the word “assembly” is used separately. In other words, not only are peaceful assemblies held as public actions in open public areas regulated in legislation, but all assemblies as such.
In current legislation, nowhere is the interpretation of the understanding of “assembly” given, nor the understanding of “demonstration,” “procession,” “meeting” or “picket,” which violates the principles of legal predictability and specificity and makes possible the purely arbitrary designation of one or another aggregation, group or action of citizens as an illegal assembly or picket.
The legal regulation of all forms of peaceful assemblies, as encompassed by law, has a permissive and not advisory character, and exists by means of identical regulations. Since, for the conducting of peaceful assemblies, an application in written form is given to the local executive agency, no later than 10 days before the named date of its being held. In the application must be indicated the objective, form, location for the conducting the event or the route of movement, time of its beginning and end, estimated quantity of participators, the last name, first name and patronymic of its representatives (organizers) and individuals responsible for the observance of public order, the place of their residence and work (school), the date of submitting the application. The submission date of the application is counted from the day of its registration with the local executive agency. The local executive agency considers the application and informs the representatives (organizers) of their decision no later than five days before the time of the holding of the event, as stated in the application (Article 3 of the Law).
A similar procedure applies to all types of peaceful assemblies defined in the Law: assemblies, meetings, processions, demonstrations and pickets.
This makes practically impossible the carrying out of spontaneous actions connected with the expression of protest or another public manifestation in connection with events arousing urgent public reaction.
The local executive agency in the interests of the guarantee of rights and freedom of others, public security, and also the normal function of transport, places of infrastructure, the protection of green areas and small architectural forms may, according to need, offer those applying another time or place of conducting the event (Article 4 of the Law).
In addition to this, Article 10 of the Law makes the provision that, “local representative agencies may additionally regulate the procedure for the conducting of assemblies, meetings, processions, pickets and demonstrations taking into account local conditions and in compliance with the requirements of the current Law.”
The representative agency (Maslikhat) of the city of Astana used this position of the Law in making the decision “in the interests of the guarantee of rights and freedom of citizens, public security, and also the uninterrupted functioning of transportation and objects of infrastructure, the protection of green areas and small architectural forms . . . the places for the conducting of peaceful assemblies, meetings and pickets in the city of Astana have been defined as the territories belonging to the buildings PKF “Gazservis” (1 Vtoraya Nagornaya St.) and OAO Okan Amriko (Mikrorayon 3).” (Decision of the Maslikhat of the City of Astana of May 2, 2002 “On Additional Regulation of the Procedure and Places for Conducting Peaceful Assemblies, Meetings, and Pickets”)
A similar decision was made by the Maslikhat of the city of Almaty: “To recommend to the Akimat of the city of Almaty to use: . . .2) the square beyond the movie theater “Sari-Arka” for the conducting of nongovernmental events of a public political character.” (Decision of the XVII session of the Maslikhat of the City of Almaty, third calling, of July 29, 2005 “Some Issues Regarding the Rational Use of Places of City Infrastructures.”) At the same time, the main city squares are set aside for government events.
Consequently, the peaceful assembly in itself, in the form of a demonstration, meeting or picket loses all sense, inasmuch as usually such actions are an expression of public interests, including protests, directed toward the attracting of public attention to the expression of their opinion regarding a governmental decision, action or process, namely in front of the buildings of those agencies or offices of those organizations which made the decisions or took the action.
Moreover, similar decisions by representatives of agencies of authority, although of a reccomendational nature, are directly guided by local executive agencies, making such forms of peaceful assembly such as parades, processions or demonstrations practically impossible for citizens living in the capitol of Kazakhstan, Astana or in the city of Almaty, inasmuch as these forms of peaceful assembly in themselves involve movement from one point to another.
In contradiction to international standards, current legislation does not contain any differentiation between participators and passers-by who chance to be at the place of the event, and also observers: journalists, law-enforcement and others from the viewpoint of bringing them to accountability in the instance of illegal action. As a result, in a series of instances, journalists and bystanders, etc. have been held accountable.
Current legislation does not contain the understanding or the guarantee of the right to counter-demonstrate, nor the procedure of action for agencies in support of public order and the protection of rights of participators of the main event as well as counter-demonstrations.
Current legislation does not contain the position obligating governmental agencies, and most of all law-enforcement, to assist citizens in realizing their rights to peaceful assembly and to protect participators of legal peaceful assemblies.
According to Article 2 of the Law, the application to hold an assembly, meeting, procession, picket or demonstration can be given by representatives of work collectives, public associations or individual groups of citizens of the Republic of Kazakhstan who are more than 18 years of age.
Based upon similar application, the conclusion can be drawn that an individual person does not have the right to turn in an application on a picket or a meeting, and this is a clear contradiction to international norms, inasmuch as they guarantee the freedom of peaceful assembly to each person, including, under certain limitations which do not infringe upon human rights, minors (Article 15 of the UN Convention On Rights of the Child).
According to Article 11 of the Law, “the procedures for organizing and conducting assemblies and meetings, established by the current Law, are not applicable to assemblies and meetings of labor collectives and public associations, conducted in compliance with legislation and their charters and located in enclosed areas.”
Based upon the formulation of this article, it follows that any other assembly or meeting, organized in enclosed areas which are not of labor collectives or public associations, but, for example, of individual citizens, groups of citizens, commercial organizations, funds or institutions, come under the procedure established by the given Law.
In other words, the necessity to turn in an application 10 days in advance, etc.
The above-quoted analysis allows us to make the following conclusion: the legislation and law-enforcement practices of the Republic of Kazakhstan concerning the right to peaceful assembly, to some extent do not correspond to international standards, including responsibilities under the International Covenant on Civil and Political Rights, other international human rights agreements and also responsibilities within the framework of the Organization for Security and Co-Operation in Europe, especially the OSCE Guidelines on Freedom of Peaceful Assembly.
The main problems in legislation are summarized as follows:
- The Law establishes strict permissive but not informative procedures. Permission for conducting any assembly is given by local executive agencies. Applications must be submitted 10 days in advance of conducting the assembly, and a violation of this regulation is an administrative violation.
- The Law does not give clear definitions of types of peaceful assembly, which violates the principles of legal predictability and specificity. Any cluster of people in such a situation could be potentially termed an assembly in the sense of the Law, and correspondingly, illegal, if there was no permission given by an executive agency of the government. In other words, citizens seeking to lay flowers on a memorial or carrying a petition to the authorities, participants of flash mobs, courtyard meetings of apartment residents, etc may be held to administrative accountability. In addition, the Law does not contain a distinction between who is considered a participant in an assembly and who is not. This makes it possible to hold accountable anyone found in the location where an assembly is held.
- The law does not provide for the submitting of an application to conduct an assembly by an individual person. This directly contradicts Article 21 of the ICCPR, which provides for freedom of assembly not only for groups but also for individuals.
- The Law, together with decisions of local representative agencies limits the places for holding assemblies of citizens and public associations. In a series of cities, are established strictly out-of-the way places, as a rule, located on the outskirts of the city. Higher officials and local authorities, and also some political organizations, for the holding of assemblies, have the unfounded exclusive right to use squares in the city center, in comparison with citizens and their associations, which is discrimination. In addition to the element of discrimination, this is a violation of the essence of freedom of assembly. In fact, there can be no reasonable substantiation, from the viewpoint of international standards, to bind the realization of freedom of assembly to one location. Moreover, not all forms of assembly can be held in such conditions, since pickets, demonstrations or processions virtually cannot be contained to one place in the city.
- Article 373 of the Code of Administrative Offenses and Article 334 of the Criminal Code excessively broadly interpret violations in the sphere of the freedom of peaceful assembly. Administrative responsibility per these articles may occur in the instance of the violation of the procedure for conducting assemblies as stated in the Law. At the same time, law-enforcement agencies may independently determine the margin of public danger of an action.
Legislation does not establish the line by which administrative and criminal responsibility may be clearly distinguished. In compliance with Paragraph 2 Article 373 of the CAP, a third party rendering assistance to an assembly unsanctioned by the authorities comes under administrative responsibility. This type of limitation is unnecessary in a democratic government and unjustified from the viewpoint of the availability of vital public and social necessities, and, consequently, is disproportionate.
- The Law contains a large quantity of prohibitions of the holding of an assembly. These prohibitions are so broadly stated that they allow the possibility for their abuse from the side of executive agencies. In them is no clarity regarding the question: whose violations and in what quantity may influence the prohibition of the holding of an assembly, and the responsibility of authorities to take into consideration concrete circumstances is absent.
- The Civil Procedure Code does not support effective measures of legal protection in the case of appeal of a refusal of the authorities of the holding of an assembly. In it is established a monthly time for the consideration of civil suits. Consequently, even if the prohibition of authorities would be acknowledged as illegal, the holding of the assembly may become irrelevant.
As indicated by the observations of non-governmental organizations for the protection of rights, including monitoring conducted by the public fund “Charter for Human Rights,” law-enforcement practices are also imperfect and require cardinal improvement.
Thus, the following problems were disclosed:
- Freedom of assembly is interpreted by local authorities as a collective right, which contradicts both the Constitution and international standards. As a result, the situation is created in which a person individually does not have freedom of peaceful assembly.
- Judges do not apply the principle of proportionality to limitations of the freedom of assembly when considering suits regarding the appeal of refusal to hold an assembly, and when considering administrative matters regarding the charge of violation of legislation on freedom of assembly.
- Law-enforcement agencies are not always guided in the detainment of demonstrators by the existence of an actual threat, in consequence of which a large quantity of unfounded detainments is allowed. Detainment often takes place on the grounds of suspicion only of the intent to participate in an assembly.
- Conduct of officials of law-enforcement agencies creates the feeling of uncertainty and unpredictability in citizens. In a series of instances of the forced termination of assemblies, the police do not warn participators of their actions. There have been frequent instances of assault and detainment of journalists and independent observers collecting information at the place of the event.
- Local authorities, considering applications for the holding of assemblies, are inclined to apply extreme measures in the form of a denial, often on a formal basis. At the same time, the possibility is often ignored of requesting additional information from applicants and engaging in preliminary discussions with organizers regarding the holding of assemblies.
Based upon all the above-stated, The National Human Rights Action Plan contains a series of measures directed toward the improvement of legislation and law-enforcement practices in the sphere of guaranteeing the constitutional right of citizens to freedom of peaceful assembly.