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 is 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). This law requires that a group wishing to hold a public assembly must apply for a permit from the "local executive body" no less than 10 days in advance of a planned gathering. Individuals are not permitted to apply. The local executive agency considers the application and informs the organisers of their decision no later than five days before the planned assembly, as stated in the application.Article 4 of the 1995 Act.The requirement for advance notice effectively prevents spontaneous assemblies.
The organizer bears responsibility for security during the event if permission is granted. But many provisions under the Act restrict where a meeting may be held. In particular, an assembly is not permitted where it may disturb transport, pedestrians, or public infrastructure. Assemblies are prohibited outside the offices of public utilities (water, gas or electricity) or outside the offices of health or educational administrations. Assemblies are also prohibited close to buildings important to national defence or security or near railways, ports, or airports.Arts. 5 and 7 of the 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 2015 report by the Norwegian Helsinki Committee on freedom of assembly in Kazakhstan concluded that domestic legislation on public assemblies did not comply with Kazakhstan's international human rights obligations and with its own Constitution.
Major problems include lengthy approval procedures, and de facto ban on protests in city centers and outside government building. There is an evident bias against demonstrations critical of the government, part of a wider form of pressure that also includes independent media outlets and opposition groups.
It recommended that Kazakhstan lift "this de facto ban on public criticism of government policy".