The International Human Rights Framework on the Right of Peaceful Assembly
Kazakhstan is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Kazakhstan is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Kazakhstan is not a member of the Council of Europe but it will be able to apply for membership once necessary domestic reforms have been achieved. It could then accede to the European Convention on Human Rights. Article 11 of the European Convention governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 32 of the 1995 Constitution of the Republic of Kazakhstan (as amended) guarantees the right of peaceful assembly:
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.
The primary legislation on public assembly was, until recently, the 1995 Act on the procedure for organizing and holding peaceful assemblies, meetings, rallies, demonstrations, marches or pickets in the Republic of Kazakhstan (as amended). In May 2020, however, a new law was adopted. Many of the obstacles to the exercise of the right of peaceful assembly in the 1995 Act remained. As Human Rights Watch reported, groups not formally registered in Kazakhstan are banned from organising protests. Kazakh nationals who have been declared “incapable” by a court, such as persons with psychosocial disabilities, are also banned, which violates the right to freedom from discrimination.
The difference between a “gathering”, “meeting”, “picket”, “demonstration” and “march” determines which rules apply. Although a formal permit is no longer a prerequisite to an assembly, as it was under the 1995 law, organisers must submit in advance a notice of intent, and, depending on the type of assembly, wait three or seven days for local administration officials to “consider” and respond to the request. Spontaneous protests are not allowed.
The new law also retains restrictions that the vast majority of protests can only occur in pre-designated areas. Under the 1995 Law, an assembly was not permitted where it might disturb transport, pedestrians, or public infrastructure. Assemblies were prohibited outside the offices of public utilities (water, gas or electricity) or outside the offices of health or educational administrations. Assemblies were also prohibited close to buildings important to national defence or security or near railways, ports, or airports.Arts. 5 and 7, 1995 Act.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Law enforcement in Kazakhstan is the responsibility of the Kazakhstan police. There is not believed to be national legislation in place governing police use of force.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
There is not believed to be national legislation in place in Kazakhstan specifically regulating police use of firearms.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Kazakhstan, the Human Rights Committee expressed continuing concern "about undue restrictions on the exercise of freedom of peaceful assembly, arrests and the intimidation of civil activists". The Committee was also concerned about the imposition of administrative and criminal penalties for such offences as providing “assistance” to “illegal” assemblies, and the imposition of harsher penalties against “leaders” of associations as a new, separate category of offender under the Criminal Code. The Committee called on Kazakhstan to
ensure that all individuals fully enjoy, in law and practice, their right to freedom of assembly, and revise all relevant regulations, policies and practices with a view to ensuring that any restrictions on freedom of assembly, including through the application of administrative and criminal sanctions against individuals exercising that right, comply with the strict requirements of article 21 of the Covenant.
In his report on his 2015 mission to Kazakhstan, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai concluded that Kazakhstan’s current approach to the rights to freedom of peaceful assembly and of association
has had an adverse effect on public discourse. Opposition or dissenting views are frequently seen as a source of possible instability, rather than as a means to strengthen the rule of law. Kazakhstan has come a long way since 1991. Focus has been put on economic reforms to empower people, but the younger generation, who did not live through the harsh Soviet period, appear to have greater aspirations. It is natural that they want to take ownership of their society by participating in public affairs.
The Special Rapporteur recommended that Kazakhstan ensure that no one is criminalised for exercising their right of peaceful assembly or is subject to "threats or use of violence, harassment, persecution, intimidation or reprisals"; and that "any limitations on the rights to freedom of peaceful assembly and of association have a legitimate aim, are defined by law, are proportionate to the aim pursued and are necessary in a democratic society".
Kazakhstan is not a party to the European Convention on Human Rights.
Views of Civil Society
A 2020 report by Freedom House concluded that the proposed text of new law on public assemblies did not comply with Kazakhstan's international human rights obligations and with its own Constitution.
“We are concerned about the Kazakhstan Senate’s decision to rush its vote on the draft law on peaceful assembly during the COVID-19 country lockdown,” said Marc Behrendt, director of Freedom House’s Europe and Eurasia programs. “That a law severely limiting peaceful assembly is adopted during a state of emergency, without anywhere near the necessary levels of transparency or public consultation, raises serious concerns about the democratic process in Kazakhstan. This move is especially disturbing after the government refused repeated demands by civil society to request an expert opinion on the draft from the OSCE’s Office for Democratic Institutions and Human Rights, based on their assessments that the bill contradicts international standards of peaceful assembly. We call on Kazakhstan’s authorities to postpone voting on the bill, and request that it be reviewed by the OSCE.”