Kazakhstan: Land Reform Protesters Must Be Released

ARTICLE 19 condemns yesterday's sentencing of Talgat Ayanov and Max Bokayev, two prominent activists in Kazakhstan, to five years imprisonment for exercising their right to protest. The sentences should be immediately and unconditionally overturned on appeal. The Kazakhstan Government should also urgently reform its legislation on protest and several provisions of the Criminal Code related to freedom of expression and bring it into full compliance with international human rights standards.

In April and May 2016, Ayanov and Bokayev were involved in protests in the city of Atyrau, which were part of nationwide demonstrations against amendments to the Land Code. The amendments increased the term for which foreigners can rent state-owned agricultural land from 10 to 25 years, stoking popular fears that Chinese companies would be allowed to take over local farmland.

The amendments were signed into law in November 2015 and would have been effective from 1 July 2016; however, in a rare moment of acquiescence to public opinion following the protests, President Nursultan Nazarbayev imposed a moratorium, postponing the implementation of the amendments until 2017.

Following the protests, the Kazakh authorities launched a nationwide wave of arrests of activists involved in the protests on a range of minor criminal and administrative charges. High profile activists, such as Ayanov and Bokayev, faced more severe charges. Both activists are well known for their work in the Atyrau district of Kazakhstan on a variety of social, environmental and human rights issues.

On 28 November 2016, Court Number Two in Atyrau, western Kazakhstan, sentenced Ayanov and Bokayev to five years imprisonment and significant fines, on charges of "incitement to social unrest," spreading "false" information, and violating the law on public assemblies.

Right to protest

Ayanov and Bokayev were prosecuted for violating the procedure for holding public assemblies (under Article 274 of the Criminal Code) by organising "unauthorised" protests in Atyrau.

On 14 April 2016, they submitted an application to the city administration, requesting permission to hold a protest on 24 April. Although permission to hold the protest was denied, a peaceful protest nevertheless took place and was attended by over 700 people, according to official sources (5,000 people, according to unofficial sources). On 6 May, Ayanov and Bokayev submitted an application for a second peaceful protest, to be held on 21 May, but again the authorities refused to grant permission. On 18 May, Ayanov and Bokayev were arrested and have been held in pre-trial detention since.

Kazakhstan's Criminal Code and the Peaceful Assembly Law establish a regime of prior authorisation for conducting assemblies, imposing criminal sanctions for unauthorised protests. ARTICLE 19 finds that this violates international standards on the rights to freedom of expression and peaceful assembly.

Under international human rights law, the authorities should not require protest organisers to submit a request for permission to hold a protest. The OSCE's Guidelines on Freedom of Assembly, for example, specify that the authorities could require advance notification about an assembly. Such prior notification can, however, only be required "where its purpose is to enable the state to put in place necessary arrangements to facilitate freedom of assembly and to protect public order, public safety and the rights and freedoms of others."

Further, Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association stated in a communication on this case, "it must be emphasized that the right to peaceful assembly is a right and not a privilege. Thus, peaceful assemblies can never be subjected to an 'authorization' procedure to be given at the discretion of authorities".

The prosecution and sentencing of Ayanov and Bokayev under the Kazakhstan law therefore violate international standards, to which Kazakhstan has committed as a signatory to the International Covenant on Civil and Political Rights (ICCPR). The activists' convictions should be immediately overturned, and the Criminal Code and Law on Public Assemblies amended to bring them into line with the country's international obligations.

"Incitement to social hatred"

Ayanov and Bokayev were also found guilty of "incitement to social hatred" under Article 174/2 of the Criminal Code.

According to the prosecution, statements disseminated by the activists on social media and via Whatsapp incited "social divisions" and contained "false" accusations about the nature of the proposed amendments. Both these criminal provisions violate international standards on freedom of expression and should be repealed or reformed.

ARTICLE 19 has previously criticised the provisions of Article 174 of the Criminal Code on incitement to "social, national, ethnic, racial, class or religious hatred", for failing to meet international freedom of expression standards.

The obligation under Article 20(2) of the ICCPR to prohibit incitement does not recognise "social group" or "class" as characteristics requiring specific protection by States. The prohibition of incitement to social hatred implies protection of "social groups" and "classes." While the protected grounds of national, racial or religious hatred may not be exhaustive, ARTICLE 19 argues that the list of protected characteristics should be considered in light of the right to non-discrimination as provided under Article 2(1) and Article 26 of the ICCPR. Although both have been interpreted expansively to include characteristics such as sexual orientation, gender identity, and disability, the criteria for differentiation should be objectively justified and reasonable. We find that the belonging to a social group or class is not an objectively justifiable and reasonable criterion. Unlike nationality, disability or ethnic origin, for example, "social group" and "class" are vague categories and difficult to legally define.

We are concerned that the authorities in this case exploited these provisions to criminalise criticism of state authorities. In particular, the prosecution argued that organising the protest amounted to "incitement to hatred" between the people and representatives of the government, law enforcement and special bodies. The characterisation of the authorities as a "social class" cannot be sanctioned under international law, as it effectively enables the application of criminal sanctions to prevent criticism of the government, or government policies.

"False news"

Finally, Ayanov and Bokayev were also charged for disseminating "false" information in the process of organizing the demonstrations under Article 274(4) of the Criminal Code. Article 274 of the Criminal Code, which prohibits "knowingly disseminating false information that creates a risk of public disorder or substantial harm to the rights and legitimate interests of citizens or organisations or the legally protected interests of society or the state", is similarly overly broad and open to abusive, politically-motivated application. Article 274 does not explain what is meant by "knowingly false information" and does not differentiate facts and value judgments; it allows for subjective interpretation that is open to abuse and can be used to suppress legitimate expression that the authorities simply disagree with, as we see in this case.

Ayanov and Bokayev are accused of claiming that the amendments would enable the sale of farmland to foreigners, in fact, the legislation permits an increases of the period for which foreigners can rent state-owned agricultural land, and does not permit the permanent sale of the land. However, in numerous interviews and posts on social media prior to the protests, the activists explained that in their view the 25 year limit on leasing to foreigners would in practice have the same result as selling the land, due to the long-term environmental, economic and political harm that it could cause.

Several UN human rights bodies have made it clear that "false" news prohibitions - such as those in Article 274(4) of the Kazakhstan Criminal Code - are inconsistent with the right to freedom of expression. For example:

Commenting on the domestic legal system of Cameroon, the UN Human Rights Committee stated that "the prosecution and punishment of journalists for the crime of publication of false news merely on the grounds, without more, that the news was false, [is a] clear violation of Article 19 of the Covenant".

On another occasion, the UN Human Rights Committee reiterated that false news provisions "unduly limit the exercise of freedom of opinion and expression". It has taken this position even with respect to laws which only prohibit the dissemination of false news that causes a threat of public unrest.

In 2000, the UN Special Rapporteur made a statement on the unacceptability of imprisonment under false news provisions, saying: "In the case of offences such as ... publishing or broadcasting "false" or "alarmist" information, prison terms are both reprehensible and out of proportion to the harm suffered by the victim. In all such cases, imprisonment as punishment for the peaceful expression of an opinion constitutes a serious violation of human rights".

The right to freedom of expression and protest are integral to democracy, and have the potential to inspire social change and enhance the protection of human rights. The Kazakhstan authorities' abusive application of broadly worded charges to prevent activists exercising their legitimate right to protest constitute a major violation of human rights standards and obstruct social and democratic development in the country.

ARTICLE 19 calls on the authorities of Kazakhstan to respect these rights in the case of Ayanov and Bokayev and to bring all respective legislation into compliance with international law.