New constitutional amendments - a false hope for democratisation

DATE POSTED : 06.04.2017

The International Partnership for Human Rights (IPHR) and the Kazakhstan International Bureau for Human Rights and Rule of Law (KIBHR) provided the information for this update.

Kazakhstan’s parliament recently adopted constitutional amendments that President Nursultan Nazarbayev signed into law on 10th March 2017. The amendments have been described as a step forward in strengthening democratic governance in the country by delegating some presidential powers to the legislature and the government. The president still retains broad powers, however, and, as commentators have pointed out, no real democratisation can take place as long as the parliament consists of mainly deputies from pro-presidential parties. Without any genuine political opposition, there is little opportunity for open political debate in the country. Moreover, as previously featured on the CIVICUS Monitor, these constitutional reforms, thought to be part of a process to prepare for an eventual post-Nazarbayev transition, were pushed through in a deteriorating environment for free expression and civic space. 

Association

As KIBHR and IPHR reported on the CIVICUS Monitor, as of 2016, all Kazakh NGOs are required to provide annual information on their activities for inclusion in a government database on NGOs. The deadline for NGOs to report information about their activities in 2016 expired on 31st March 2017. A pilot version of the database was made public shortly before the deadline. While the government has argued that the database will enhance transparency in the sector, NGOs have criticised the fact that the new requirements only add to the already extensive reporting obligations to the state. In addition, NGOs assert that the policy is discriminatory as it does not apply to any other legal entities. Organisations that fail to provide information for the new database or that provide “incorrect” information may face sanctions.

Inspections of NGOs

As previously covered on the CIVICUS Monitor, the Almaty-based human rights NGOs - International Legal Initiative (ILI) and Liberty - faced drawn-out inspections from the tax authorities during the second half of 2016 and then were subsequently fined several thousand EUR each for allegedly failing to pay corporate income tax on grants received from foreign donors. Both NGOs appealed the decisions. On 6 April 2017, a local court rejected the appeal filed by ILI. The president of the NGO, Aina Shormanbayeva commented on this decision by saying that she considers it a threat to all NGOs receiving foreign funding in the country.

As reported by KIBHR, late in the evening on 2nd March 2017, law enforcement authorities searched the office of another Almaty-based NGO, the Association of Young Professionals, as well as the homes of its director, Olesya Khalabuzar, and her mother. Police confiscated documents, mobile phones, and equipment. Khalabuzar was informed that a criminal case had been opened against her and an investigation is currently under way under a criminal code provision that bans creating or leading a public association whose activities are detrimental to the health of citizens. The reason cited for this investigation is the publication on social media of a video in which several members of the organisation led by Khalabuzar declare their intention to engage in self-immolation to protest the lack of access to justice. The searches took place the week after Khalabuzar was detained by police for supposedly planning to hold an unsanctioned gathering to protest against a proposed constitutional amendment on property rights.

Crackdown on independent trade unions

The Confederation of Independent Trade Unions of Kazakhstan (CITUK) was closed down in January 2017 for allegedly failing to confirm its status as a nation-wide trade union. This decision was upheld in court on 28th March 2017 at a hearing that lasted only an hour and where the decision was read in less than two minutes. In January 2017, workers started a hunger strike to protest CITUK's closure. The authorities declared the strike unlawful, and the workers were penalised. The authorities then initiated criminal cases against CITUK's head and two local trade union leaders. 

    • In connection with the workers' hunger strike over the closure of CITUK, local trade union leaders, Nurbek Kushakbaev and Amin Yeleusinov, were arrested in the Mangystau region in late January 2017. Kushakbaev faces charges of calling for an unlawful strike – a new Criminal Code provision that is being applied for the first time, while Yeleusinov has been charged with embezzlement of trade union funds. The trial against Kushakbaev began in mid-March 2017 and is being monitored by KIBHR. A separate criminal case on embezzlement has been opened against Shymkent-based CITUK president, Larisa Kharkova, who is also accused of improper use of trade union funds. In a letter to President Nazarbayev, the International Trade Union Confederation demanded an end to the persecution of the CITUK and trade union leaders, stating,
“We call on the President to release those arrested without delay, and to cease the repressive measures aimed at workers who are simply standing up their right to set up and join unions of their own choice and take action to defend decent work, as guaranteed under international law”.

In a comment published in mid-March 2017, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, criticised the measures taken against CITUK and the trade union leaders, stressing that the right to form and join independent trade unions: 

“...is a central component of the right to freedom of association...A nation cannot call itself democratic when it sweeps social conflicts under the rug; our differences must be constructively aired, debated and confronted. These differences may not always be resolved to everyone’s satisfaction, but refusing to even acknowledge them is a sign of a failing system”.

Following a visit to Kazakhstan in 2015, Kiai published a detailed report on key concerns regarding freedom of association and assembly in the country. He also provided a set of recommendations to the authorities on how to improve respect for these rights. Along with other NGOs, IPHR and KIBHR welcomed the report and urged Kazakhstan’s international partners to push the government on implementing the recommendations in it.  

Peaceful Assembly

Freedom of peaceful assembly is seriously restricted in law and practice in Kazakhstan. Peaceful protests are regularly dispersed and the participants detained, fined and imprisoned. Civil society activists are often detained ahead of planned protests as a 'preventative' measure, and journalists have repeatedly been detained while reporting on protests. Law enforcement authorities have increasingly targeted civil society representatives using social media and other online platforms to announce and discuss plans for protests.

KIBHR documented two recent cases of violations of the right to peaceful assembly:

    • After announcing a picket on Facebook in support of arrested journalist Zhanbolat Mamay, human rights defender Erland Kaliev was detained by police on 23 February 2017, as he was leaving KIBHR’s office in Almaty. He was held for three hours before being released. Bloggers Galim Ageleuov and Askhat Bersalimov were also detained the same day outside the headquarters of the Committee on National Security, where Kaliev was planning to hold a protest. While Ageleuov was released after a few hours, Bersalimov was summoned to court and sentenced to 15 days of administrative arrest for allegedly violating the law on holding assemblies, although he had only planned to report on the Kaliev's planned protest. The decision was upheld on appeal.
    • On 24 February 2017, police detained and questioned three people accused of discussing plans on WhatsApp to gather at Almaty’s Zhibek Zholy pedestrian street for a public action to draw attention to a proposed constitutional amendment which critics feared would allow foreigners to purchase land in the country. Even though the protest never happened, Kazakh authorities detained a number of activists, including CSO leader, Olesya Khalabuzar, historian, Nurlan Amrekulov, and blogger, Zhanar Akhmet, who had all previously criticised the proposed constitutional amendment. Khalabuzar and Amrekulov were released without charge after being held for several hours, while Akhmet was brought to court the same evening and fined an equivalent of about 300 EUR for allegedly calling for holding an assembly without permission by authorities. Akhmet has also faced other charges she claims penalise her for her activism. In mid-March 2017, she fled to Ukraine to escape persecution. 

In 2016, hundreds of people were detained and civil society activists, Max Bokayev and Talgat Ayan, were each sentenced to five years in prison for participating in peaceful protests over changes to the Land Code which critics feared would allow foreign investors to gain control of land in the country. 

Expression

In late March 2017, a proposed amendment to the criminal code posted on the Ministry of Justice's website caused a public outcry. This amendment introduced a new criminal code provision banning "serious harm to vital interests of the republic of Kazakhstan, as well as threatening the existence and stability of the state and society”. The proposed amendment included harsh penalties such as lengthy prison sentences, life imprisonment and even the death penalty. As experts noted, the extremely vague language in this draft provision would have made it applicable to any behaviour deemed undesirable by the authorities, including expressions of dissent. KIBHR Director, Yevgeniy Zhovtis, concluded that the proposed provision, reminiscent of Soviet-era policy towards “enemies of the people”, seriously violated the principle of legal certainty. Following a wave of criticism, the proposed provision was removed from a package of draft amendments to various laws published on the Ministry’s website. However, the fact that such an amendment was even proposed is alarming. In another concerning development, the draft amendments proposed by the Ministry of Justice also included depriving a person of citizenship as a penalty for a number of crimes, including “inciting” national, social, religious and other discord – a broadly worded provision that has repeatedly been used against civil society activists and other outspoken individuals.

Pressure on independent media and blocking of websites

The few independent and opposition media outlets still operating in Kazakhstan face constant pressure, including defamation lawsuits from public officials and other public figures demanding large sums in moral compensation. A few recent examples of such cases include:

    • In a decision handed down on 4th April 2017, a local Almaty court ordered the Ratel.kz news portal and the Forbes.kz journal to pay a total of over 50 million Tenge (some 150 000 EUR) in compensation for moral damage allegedly inflicted on Former Finance Minister Zejnully Kakimzhanov and his son because of a series of articles. These articles discussed allegations of unlawful actions by the claimants. The court also ordered Ratel.kz and Forbes.kz to publicly refute information included in the articles in question, as well as to fully remove several of them from their respective sites. The trial was held behind closed doors and media was prohibited from covering it. 
    • There has been a re-occurring pattern of websites being arbitrarily blocked. For example, in January 2017 the global Avaaz community site was blocked after a petition against new residential registration rules was posted on the site, drawing thousands of signatories. The site was later operational and the petition now has over 800 signatures. 

New criminal cases against civil society

IPHR and KIBHR have drawn attention to the alarming number of journalists, civil society activists and social media users who have recently been arrested, charged with criminal offences and imprisoned for exercising their right to freedom of expression and other fundamental freedoms 

This uptick in rights violations shows no signs of abating. Leading Kazakh civil society representatives issued a joint statement in February 2017, voicing concern that independent journalists and activists are increasingly persecuted. And in cases involving journalists and activists, national and international fair trial standards are disregarded. As the joint statement declared, 

"It is with great concern that we have to state that the fight against terrorism, corruption and crime more and more frequently ends up in the persecution of independent media, journalists and civil society activists. Whenever this persecution takes place, national and international norms and standards of a fair trial are thrown aside in a gross and harsh manner shrinking down the information playing field, in glaring defiance of constitutional guarantees of freedom of speech".

A few recent cases of serious concern for KIBHR and IPHR include:

    • On 10th February 2017, Zhanbolat Mamay, chief editor of the independent Tribuna-Sajasi kalam newspaper, was detained in Almaty on suspicion of money laundering. The following day a court sanctioned his arrest for two months, a period that was later prolonged until 10th May 2017. Immediately finding him guilty, the National Anti-corruption Bureau claimed that the journalist had laundered funds stolen from the BTA Bank through the financial operations of his newspaper. The Bureau also charged him as an “accomplice” of former BTA Bank head, Mukhtar Ablyazov, a government opponent living in exile and facing criminal charges in absentia. Mamay has denied all accusations, asserting that they aim to silence him and his newspaper. He has also reported being subjected to ill-treatment by fellow detainees, allegations that were confirmed by his lawyer and members of the National Prevention Mechanism against Torture, who visited him in detention. However, the government committee supervising the penitentiary system stated that “no traces of bodily harm” had been found on Mamay and that he had “refused to undergo a medical examination”. Kazakhstan’s NGO Coalition Against Torture, of which KIBHR is a leading member, questioned the committee’s claims and called for an investigation into Mamay’s allegations of ill-treatment. 
    • According to information obtained by KIBHR, human rights defender and writer, Alexander Kharlamov, is facing charges of inciting religious discord for the second time. The new criminal case against Kharlamov appears to be related to a book he published in 2015, in which he reflects on issues of religion and atheism and the influence of science on Christianity. In early February 2017, local law enforcement authorities searched Kharlamov’s home in the city of Ridder, confiscating 80 copies of this book, as well as three flash drives and a hard drive with work-related documents. Kharlamov was previously arrested in March 2013 on similar charges of inciting religious discord and subjected to forced psychiatric examinations. At that time, he was accused of offending religious believers by “propagating atheism”, an absurd claim according to KIBHR and IPHR. After six months in detention, he was released in September 2013. There is concern that Kharlamov human rights efforts are the real reason by the arrest and persecution. Since his release in 2013, he has continued to provide assistance to victims of unlawful actions by local officials. 
Civic Space Developments
Country
Kazakhstan
Country rating
Repressed
Category
Latest Developments
Tags
intimidation,  HRD detained,  negative court ruling,  labour rights,  torture/ill-treatment,  bureaucratic restriction,  office raid,  religious groups, 
Date Posted

06.04.2017

Back to civic space developments