“Even if the new law on peaceful assemblies in Kazakhstan represents a serious step towards improving the outdated legislation of 1995, it is still an imperfect tool, which requires international expertise and further improvement,” Aiнm Saurambayeva, a lawyer in international law, mentioned in her article written specifically for CABAR.asia.
Follow us on LinkedIn
What is new and what remains unchanged?
As it is known, on May 25 of this year, President of Kazakhstan Kassym-Zhomart Tokayev signed a new law “On the Procedure for Organizing and Holding Peaceful Assemblies in the Republic of Kazakhstan”, which replaced the “obsolete and non-compliant international standards” law from March 17, 1995 with a more expanded title “On the procedure for organizing and conducting peaceful assemblies, rallies, marches, pickets and demonstrations in the Republic of Kazakhstan”. However, the issue of progressiveness and the possible expansion of citizens’ rights in connection with the adoption of new legislation still remain under a big question mark.
In this vein, in his message to the people of Kazakhstan on September 2, 2019, as a newly elected president, Tokayev voiced the need to improve the legislation on rallies as one of the measures to be taken, and emphasized the following: “According to the Constitution, our citizens have the right to freely express their will. If peaceful actions do not pursue the goal of violating the law and rest of citizens, then you need to go forward and give permission to carry them out in the manner prescribed by law, to allocate special places for this, and not on the outskirts of cities. However, any calls for unconstitutional actions, hooligan actions will be suppressed within the framework of the law”.[1]
According to the director of the KSU Institute of Fundamental Research named after A. Baitursynov, the aforementioned law is “a vivid reflection of the implementation of the concept of a “hearing state” which puts the constitutional rights of a person and citizen the highest value, allowing them to express their opinion, to uphold it, but within the framework of a civilized dialogue with the government, which serves the people”.[2] Nevertheless, the position of human rights defenders and civic activists is very different from the point of view of legislators and supporters of the state regime, sincerely convinced of the effectiveness of this law.
Thus, how does the new law differ from the old one, what new norms were included by legislators regarding the realization of the right of citizens and people to freedom of peaceful assembly?
Firstly, the change in the permissive nature of the protests to the notifying one comes to the front, which seems positive, however, requires further analysis. Local executive bodies also have the right to refuse to hold a peaceful assembly, which in itself contradicts the notifying nature of the protests. According to the director of the Kazakhstan International Bureau for Human Rights and Rule of Law (KIBHR), the well-known human rights activist Yevgeny Zhovtis, the situation has not changed de facto, and the permissive principle is enshrined in the new law. “This is not a notifying nature when you report, but you are subsequently allowed or denied. Notification does not imply a refusal,” comments Y. Zhovtis.[3]
The second important point is the legislative regulation of the concept of “a specialized place for organizing and conducting peaceful assemblies”, enshrined in Article 1 of the new law. At the same time, this “specialized place” as a place of general gathering and / or the route of protesters is established by the local executive body. That is, with such a procedure, the place is not chosen by the organizers and participants of the peaceful demonstration, but is specifically indicated by the authorities. Thus, in accordance with paragraph 1 of Article 9 of the mentioned law: “peaceful assemblies are held in specialized places for organizing and holding peaceful assemblies. It is forbidden to hold peaceful assemblies in other places (with the exception of picketing)”.[4] However, in this aspect, the exaggerated significance is allotted precisely to the possibility of choosing a venue for a future assembly, since it is important to be heard and seen in order to declare requirements precisely to the target audience.
Thirdly, the list of grounds on which local authorities have the right to legitimately refuse to hold a peaceful assembly has expanded significantly. This exhaustive list is governed by ten paragraphs of Article 14 of the new law. For comparison: old legislation forbade a peaceful assembly “if the purpose of their holding is to incite racial, national, social, religious intolerance, class exclusivity, forcibly overthrow the constitutional order, encroachment on the territorial integrity of the republic, as well as violation of other provisions of the Constitution, laws and other regulations of the Republic of Kazakhstan, or their conduct threatens public order and the safety of citizens”, ̶ although, it must be recognized that the former expression “violation of other regulatory acts of the Republic of Kazakhstan”, also in itself sounds ambiguous and foggy.
However, it is necessary to note some positive changes in the new law. These “changes” can be called reduced deadlines for the submission of a notification , namely, no later than five working days before the day of its actual conduct, while in the law of 1995 a statement about holding an assembly, rally, procession, picket, demonstration should have been filed in ten days. Further, from the positive side, again regarding the deadline: the corresponding decision is now taken within three working days, at the same time, if no official response has been received within the mentioned period, then there should be a peaceful assembly (silence in this case, indeed, is a sign of consent). The following important change concerns the inclusion of the presumption in favor of peaceful assemblies (Article 3), that is, everything that is specifically not prohibited at the legislative level is allowed.
However, it is also worth noting here that not all OSCE guidelines on freedom of peaceful assembly are reflected in the new law, namely, it refers to the positive obligation of the state to promote peaceful assemblies and their protection, proportionality, proper administration and responsibility of the administrative body. It should also be noted that this is not an exhaustive list of controversial changes and amendments to new legislation requiring further analysis.
The international community has criticized the actions of Kazakhstan to consider and further adopt the law during the period of quarantine measures and the regime of self-isolation. In particular, the human rights organization Human Rights Watch recommended postponing the consideration of the bill during the state of emergency, indicating that there is no clear reason for rushing to pass such vital legislation that would undermine the fundamental right of citizens to freedom of assembly.[5]
Protests during quarantine. How it was?
New protests during the quarantine and disinfection work carried out in this regard occurred on June 6, 2020, on the day the law “On the Procedure for the Organization and Holding of Peaceful Assemblies in the Republic of Kazakhstan” entered into force. On this day, immediately two political forces declared their right to hold a peaceful assembly with each declaring their demands. Namely, this is the opposition movement “Democratic Choice of Kazakhstan” (DCK). Looking back, in March 2018, the court of the capital of Kazakhstan recognized this movement as “extremist,” and its activity was banned throughout the country. The second movement – the “Democratic Party of Kazakhstan”, which is still at the stage of its creation, led by journalist Zhanbolat Mamay, addressed three main aspects in its requirements concerning all citizens of Kazakhstan: full write-off of loans; refusal to sell land to foreign individuals (recall, in December 2021, a moratorium on the sale and rental of land to foreign individuals and legal entities with a share of more than 50% will be lifted) and the immediate release of all political prisoners and activists, including Max Bokaev and Alnur Ilyashev.
As noted earlier, the day of protests in the city of Almaty fell on the first day of the implementation of the new stage of disinfection of crowded areas, commissioned by the chief sanitary doctor of the city. It is difficult to say whether there is any connection between the two events, and whether this obstruction is a pre-planned rally. The head physician of the metropolis, in turn, named the calls for mass assemblies unacceptable amid the ongoing pandemic and non-decreasing facts of infection in the city and called on the public to refuse to hold them, threatening the organizers with criminal liability.[6]
In this vein, on June 6, the squares of several cities of Kazakhstan, including Almaty and Nur-Sultan, were cordoned off by law enforcement officers, since it was these locations that were indicated by the organizers of different cities as venues for peaceful demonstrations.
And yet, at 11 a.m., dozens of protesters in Almaty gathered near the “Republic Square”, having failed to get to it – the territory of the square around its perimeter was cordoned off by law enforcement officers. Having received an answer about disinfection work and a call to disperse, the people, however, did not back down, and the total number of protesters in the city exceeded one hundred. Later, an akimat employee (mayor’s office – ed.) addressed the demonstrators with the same appeal to disperse, because, according to him, the protest was not agreed, and that the new legislation providing for notification, not permission, entered into force only today (6 June 2020). The deputy prosecutor of the city addressed the people with the same demand, but the activists remained in place, claiming that the notice had been duly filed.[7] Meanwhile, a group of protesters led by Zhanbolat Mamai was densely surrounded by police officers, where such a confrontation lasted for several hours. Later, disinfection work began in the presence of a large gathering of protesters, despite the fact that earlier it was recommended that residents should not leave their homes for several hours after disinfection.
As for the supporters of the banned DCK party, they, in turn, held placards in support of Mukhtar Ablyazov’s supporter, Zhanara Akhmet, demanding that she should not be extradited to Kazakhstan, where she would face a long prison term.[8] Recall that the recognition of the DCK movement as “extremist”, the prohibition of its activities in Kazakhstan, as well as the persecution of its actual and alleged supporters, caused worries at European Parliament, as indicated in its resolution on the human rights situation in Kazakhstan.[9] However, this resolution is for guidance only. Earlier, by the decision of the capital court of May 19, 2020, the activities of the Koshe (Көше) party were also banned in Kazakhstan in view of the fact that “the court established that the DCK changed its name to“ Koshe party (Көше партиясы) and they are part of one extremist organization.”[10]
After long hours surrounded by police and repeated calls by the authorities, the protesters began to disperse, and a peaceful but illegal demonstration was completed.
Unfortunately, this time there were some detentions as well. According to the press service of the Ministry of Internal Affairs of the Republic of Kazakhstan, 53 people were taken to police stations for participating in an unauthorized protest throughout the country, of which eight were brought to administrative liability, including fines and a warning. For insulting and using violence against a representative of the authorities, a pre-trial investigation is conducted against two people.[11]
Conclusion
Even if the new law on the procedure for organizing and conducting peaceful assemblies in the Republic of Kazakhstan represents a serious step towards improving the outdated legislation of 1995, which undoubtedly required progressive novelty, it is still an imperfect tool, which requires international expertise and further improvement
The current conditions of the coronavirus pandemic and the quarantine measures taken against it dictate their conditions under which the conduct of peaceful demonstrations and the need for new legislation are called into question. Despite the seeming inconsistency, this situation provides the necessary time for high-quality and effective legislative work in this area with the involvement of groups of civic activists and human rights defenders at the stage of development and approval of the concept of the bill.
In turn, the international community, represented by such influential human rights organizations as Human Rights Watch, Amnesty International, Freedom House, and others, criticized the new law, arguing that it does not comply with international standards for peaceful assembly and the need to recall it for further improvement.
Nevertheless, it is necessary to emphasize once again the following significant aspects regarding both positive and negative changes in the new legislation. Positive changes:
- Formally, the noticeable nature of peaceful assemblies in the new law is against the permissive principle in the old;
- There is a shorter time period for notifying organizers of meetings and for making appropriate decisions by representatives of local executive bodies;
- Adoption of one of the OSCE guidelines on freedom of peaceful assembly – a presumption in favor of peaceful assembly (everything that is not prohibited by law is permitted).
Negative changes:
- Actual conservation of the permissive nature of peaceful assemblies;
- Legislative consolidation of the concept of “specialized place” for organizing and conducting peaceful meetings (the place is not chosen by the organizers and participants, but is determined specifically by the authorities);
- An expanded list of grounds for refusing to hold a peaceful assembly (indicated in ten paragraphs of Article 14 of the new law).
In turn, the past unauthorized protests raise the following questions: will the demands of the people be heard this time and should we expect positive results from a peaceful but illegal demonstration, or is this public protest just another attempt by the public to call on the authorities to take effective measures? After a sufficient amount of time has elapsed, one can assert the veracity of the second part of the question.
This material has been prepared as part of the Giving Voice, Driving Change – from the Borderland to the Steppes Project. The opinions expressed in the article do not reflect the position of the editorial board or donor.
[1] Message from President Kasym-Zhomart Tokayev to the people of Kazakhstan; Youtube, 10:21. https://youtu.be/Z_VItvv0IXM.
[2] Kazakhstan; Kostanay news; https://kstnews.kz/news/politics/item-59773#
[3] New law on peaceful assembly. How to hold rallies, marches and pickets now. Instruction Informburo.kz; https://informburo.kz/stati/novyy-zakon-o-mirnyh-sobraniyah-kak-teper-provodit-mitingi-shestviya-i-pikety-instrukciya.html
[4] On the procedure for organizing and conducting peaceful protests in the Republic of Kazakhstan. Zakon.kz. https://online.zakon.kz/document/?doc_id=36271780&doc_id2=36271780#pos=179;-81&pos2=239;-83
[5] Kazakhstan Draft Law would undermine freedom of assembly; Human Rights Watch; https://www.hrw.org/news/2020/03/31/kazakhstan-draft-law-would-undermine-freedom-assembly
[6] The Chief Sanitary Doctor of Almaty called for abandonment of protests and public events. Inalmaty.kz; https://www.inalmaty.kz/news/2782565/glavnyj-sanvrac-almaty-prizval-otkazatsa-ot-provedenia-mitingov-i-massovyh-meropriatij
[7] A protest action in Almaty on June 6: a protest against the backdrop of disinfection. Vlast.kz; https://vlast.kz/politika/40046-miting-v-almaty-6-iuna-protest-na-fone-dezinfekcii.html
[8] “Shal, ket!” Over hundreds of detainees, cordoned off “for disinfection” of the area. Radio Azattyk; https://rus.azattyq.org/a/kazakhstan-rallies-6-june/30656050.html
[9] Resolution on the situation of human rights in Kazakhstan; KMBCH; https://bureau.kz/monitoring_2/mejdunarodnye_otchety_2/rezolyuciya_o_situacii_s_pravami_cheloveka_v_kazakhstane_2018/
[10] “DCK” transformed into “Koshe party.” It was also banned in Kazakhstan. Zakon.kz; https://www.zakon.kz/5023271-dvk-transformirovalos-vk-she-partiyasy.html
[11] The Ministry of Internal Affairs described attempts to hold illegal protests. Polisia.kz; https://polisia.kz/ru/v-mvd-rasskazali-o-popytkah-provedeniya-nesanktsionirovannyh-mitingov/