The Kazakhstan International Bureau for Human Rights (KIBHR) has prepared an analytical note on the application in Kazakhstan of additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, in particular social, trade union or religious activities. According to the director of the KIBHR, human rights activist Yevgeny Zhovtis, the analysis of court decisions and sentences shows that often the courts forbid people to simply live their normal lives.
As noted at the presentation of the report, over the past few years, courts of Kazakhstan, applying article 50 of the Criminal Code “Deprivation of the right to hold a certain position or engage in certain activities”, have often begun to impose additional punishment in the form of deprivation of the right to engage in public or religious activities to representatives of the political opposition, civil activists as well as religious leaders or believers, who were convicted of various crimes, including those provided for by such articles as “Incitement of social, national, clan, racial, class or religious hatred”, “Organization and participation in the activities of a public or religious association or other organization after the court’s decision on the prohibition of their activities or liquidation in connection with the implementation of extremism or terrorism”, as well as other articles of the Criminal Code, classified by the legislator as “terrorist” or “extremist”. In some cases, such additional punishment is imposed on such persons in the case of committing crimes that have nothing to do with either terrorist or extremist.
“The deprivation of the right to hold certain positions is not something new, it has always been,” Yevgeny Zhovtis said at the presentation of the analytical note. “In some countries, this is generally the main punishment. For example, if a doctor has committed negligence, he is deprived of the right to engage in medical activities. If a teacher has been convicted of violating the rights of minors, he is deprived of the right to engage in teaching activities. This is quite logical and normal. In Kazakhstan, however, recently this article has been applied in order to deprive a person of the right in three directions.
– In what kind of directions?
– The first direction is to hold a position. And here, there are certain problems, because officials are persons working in state bodies and in local self-government structures. They are the officials. However, there are problems with the definition of these persons in the Criminal Code, because financial organizations have been added to the prohibition to hold a certain position in state bodies and local self-government structures. If you look further at the legislation, it turns out that these people are banned from holding any positions related to organizational and financial activities, not only in government agencies, but also in enterprises. So, it’s not very clear what is meant by a position and an official.
– What is the second direction?
– This is a deprivation of the right to engage in professional activities. There are some problems here too. Professional activity is also divided into several types from the point of view of legal regulation. In addition, neither professional, social, nor trade union activity has a definition in the legislation. Therefore, the articles of the Criminal Code indicate that punishment implies a ban on occupying certain positions and a ban on engaging in professional activities, but which one is not indicated there. Fortunately, there are definitions in the Labor Code, in the Directory of professions, and so on. The third direction is the most difficult, when it comes to the prohibition not on engaging in other, that is, non-professional activities. A person is not prohibited from engaging in activities, he is deprived of the right to engage in certain activities. The most striking example to understand is the human right to drive a car. When a person committed a criminal or administrative offense, he was deprived of this right for a certain period or for life, or the right to sell arms in a hunting store. All this is understandable. We are talking about the deprivation of the right to engage in certain activities, for which a permit or licenses are required.
For religious activity, for trade union activity, for social activity, no one has issued any permission and cannot issue it, because this is a natural activity of a person who is in society. Moreover, there is no definition of this public activity in law. It can be assumed that since there is a law on public associations, then we are talking about this. However, this is not quite the case, because public activities are not necessarily carried out by a legal person or organization.
The most interesting thing in the legislation of Kazakhstan is that the court can impose this type of punishment, even if it’s not indicated in a specific article of the Criminal Code. That is, it’s logical to assume that since a court deprives a person of the right to engage in this activity, then someone gave him/her this right. And this prohibition on engaging in certain activities in the sense of other types of activities that don’t have a legal definition, it doesn’t correspond to the principle of legal certainty and predictability recognized in international law. It’s impossible to understand what exactly can be deprived and why. Only in the legislation of one country this type of punishment is described in detail; this is in totalitarian China. In all other countries, this is not detailed. In Russia, Belarus and Azerbaijan, such types of punishment, encroaching on political rights, take place.
Since there is no clear definition of public activity, the courts themselves decide what to prohibit and for how long.
– In the legislation of Kazakhstan, there is a definition of religious activity, isn’t it?
– Yes, but it’s quite general. These are “activities aimed at meeting the religious needs of believers”. Based on this, it can be assumed that, by prohibiting engaging in religious activities, a person is actually prohibited from performing any religious rituals and ceremonies, including visiting religious buildings (structures), shrines, institutions of religious associations, cemeteries and crematoria, participating in religious meetings, performing charitable activities, establishment of contacts, including international ones, with other believers and religious associations, carry out missionary activities, buy, use and distribute religious literature. That is, it turns out that a person cannot pray, cannot buy and read the Koran or the Bible. However, it’s clear that no court can forbid a person to pray, visit a cemetery or religious building, read religious literature and communicate with fellow believers. But, essentially, the ban on engaging in religious activity implies that a person is deprived of the right to all this.
The same can be said about the ban on trade union activity, which implies not only the creation and management of a trade union, but also membership in a trade union, voting, participation in some kind of rallies. That is, people are deprived of a number of rights prescribed in the Labor Code.
– What can you say about the ban on engaging in social activities?
– This is the hardest prohibition to understand. The courts are very imaginative in passing such cases. These sentences show that judges impose sentences absolutely arbitrarily and, guided by some of their own motives, deprive people of their civil and political rights. Moreover, a number of sentences is absolutely not detailed exactly what they mean by this prohibition.
– Can you give specific examples?
– For example, in 2018, for participation in the activities of a public association banned for extremism, the City Court of Uralsk prescribed to civil activist B. Khalelova a restriction of freedom for a period of one year with the imposition of the following duties for this period. I quote from the verdict:
“Not to visit places where protest actions are taking place (rallies, pickets, processions, etc.), to limit participation in round tables, meetings, training seminars related to political, environmental, social issues that are organized or conducted with the participation of international non-governmental organizations, as well as social and political parties and movements; not to carry out publications, comments and reposts in the media and on social networks (both under your own name and under the “nickname”) aimed at discrediting the activities of the authorities, as well as related to political, social, economic and environmental issues; not to hold meetings and flash mobs under the pretext of solving political, social, economic and environmental issues.”
What was the judge guided by when making such a decision? To be honest, I had the feeling that I was reading a sentence from the 60s and 70s of the last century. This is a purely Soviet approach – to restrict a person in his/her civil and political rights. Moreover, I emphasize, not an isolated person, but a person who is at large.
Or, in the verdict to Max Bokayev, there is a prohibition “on participation in any meetings of citizens, except for memorial events”. It turns out by this decision that he cannot go to weddings and birthdays, only to funeral repast.
Or here’s another point from his sentence:
“A ban on organizing, holding and (or) participating in various conferences, debates, teleconferences, television broadcasts, including in the media, on social networks and other telecommunication networks; to organize, conduct and (or) participate in strikes; to organize, conduct and (or) participate in peaceful assemblies, rallies, demonstrations, processions and picketing; for membership and participation in the activities of public organizations, including political parties, religious organizations, social movements, trade unions, self-regulatory organizations based on voluntary membership; to create and participate in the activities of non-profit organizations; to organize and participate in sponsorship activities for the provision of charitable and other assistance; to organize and participate in volunteer activities, initiate and (or) maintain (sign, join) various petitions; to create and participate in the activities of the media, including as a journalist; for publication, broadcasting, dissemination of information, reports, various video materials concerning socio-economic, socio-political topics in the media, on social networks and other telecommunication networks; as well as the prohibition to engage in other social activities through the performance of work and the provision of services.”
That is, in fact, the person was forbidden to be a member of something, and he was also forbidden to sign petitions!
In addition to all this, later, Bokayev was prohibited “from appearing on the streets, squares, parks and other public places in order to discuss opinions on socially significant issues, actions and inaction of persons of state administrative bodies authorized to perform state functions, organizations of all forms of ownership”. That is, in fact, a person was forbidden to lead a normal life.
Let me give you another example. It’s the verdict of the Court No. 2 of Medeu district of Almaty to civil activist Alnur Ilyashev. He was assigned three years of restriction of freedom with the deprivation of the right “to engage in public and public activities to voluntarily serve the political, cultural, professional needs of society, to create and take part in the activities of political parties, public associations, foundations for a period of 5 years”. After the trial, Ilyashev wanted to get a job at the Department of Social Wellbeing of Almaty in one of his specialties – a lawyer, a teacher-psychologist, a specialist in corporate governance / management, religious studies specialist. In response to his request, the Department says that all these specialties “may fall under the definition of voluntary service to the political, cultural, professional needs of society”, and therefore, according to the Department, Ilyashev is limited in working in these areas in connection with the court verdict.
– What should be done to correct the current situation?
– It’s obvious that all these prohibitions don’t comply with the international principles. The restriction of rights is so widespread that people are limited in basic civil and political rights. Therefore, the main recommendations are as follows:
– to analyze the articles of the Criminal Code that provide for criminal liability for extremist crimes for compliance with the principle of legal certainty and predictability, as well as the criteria for admissibility of restrictions on human rights;
– to define, in the form of additional punishment under some articles of the Criminal Code, the deprivation of the right to engage in certain activities by deprivation of a special right, permission or suspension of its action, as well as the prohibition of certain actions;
– to indicate in each relevant article of the Criminal Code a specific type of additional punishment in the form of deprivation of a special right, permission or suspension of its action, as well as the prohibition of certain actions directly related to the committed crime.
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