Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2551/2015 (CCPR/C/130/D/2551/2015) State party: Kazahkstan

A selection of key paragraphs can be found below the document.

10.3 The Committee also has to consider whether the restrictions imposed on the author’s freedom to impart information and ideas are justified under any of the criteria set out in article 19 (3) of the Covenant. The Committee recalls in this respect its general comment no. 34, in which it stated, inter alia, that the freedom of expression is essential for any society and a foundation stone for every free and democratic society. It notes that article 19(3)allows restrictions on the freedom of expression, including the freedom to impart information and ideas, only to the extent that they are provided by law and only if they are necessary (a) for respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public),or of public health or morals. Finally, any restriction on the freedom of expression must not be overbroad in nature, that is, it must be the least intrusive among the measures that might achieve the relevant protective function and proportionate to the interest whose protection is sought.

10.4 The Committee observes that the State party has to explain whether, in the present case, the administrative detention and the imposed fine on the author were necessary and proportionate restrictions on the author’s rights. Even if it is accepted that the author actively participated in an unauthorized protest, the Committee observes that, the State party has merely argued that the right to freedom of expression as guaranteed by article 19(2) of the Covenant, may be subject to limitations as provided for bylaw. The Committee observes in this respect that the State party has failed to justify specific grounds to support the necessity of the restrictions imposed on the author as required under article 19(3) of the Covenant. Moreover, the State party did not demonstrate that the measures selected were least intrusive in nature or proportionate to the interest it sought to protect. The Committee recalls that the role of journalists, human rights defenders, election monitors and others involved in monitoring or reporting on assemblies is of particular importance for the full enjoyment of the right of peaceful assembly. Those persons are entitled to protection under the Covenant. Even if an assembly is declared unlawful or is dispersed, that does not terminate the right to monitor. The Committee considers that, in the circumstances of the case, the limitations on the author, although imposed on the basis of domestic law, were not shown to be justified and proportionate pursuant to the conditions set out in article 19(3) of the Covenant. It therefore concludes that the author’s rights under article 19(2) of the Covenant have been violated.

10.5 Regarding the author’s claim under article 21 of the Covenant, the Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential for public expression of an individual’s views and opinions and is indispensable in a democratic society. This right entails the possibility of organizing and participating in a peaceful assembly, in a public location. The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience, and no restriction to this right is permissible, unless it (a) is imposed in conformity with the law; and (b) is 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. When a State party imposes restrictions with the aim of reconciling an individual’s right of assembly and the aforementioned interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it. Restrictions must not be discriminatory, impair the essence of the right, or be aimed at discouraging participation in assemblies or causing a chilling effect. The State party is thus under an obligation to justify the limitation of the right protected by article 21 of the Covenant.

10.6 The Committee notes the disagreement between the parties as to whether or not the author attended the protest as a journalist or as a participant. However, even if it is accepted that the author actively participated in an unauthorized protest, the Committee considers in this respect that the State party, which treated the author as a participant, has failed to demonstrate that the restrictions imposed on the author’s rights, namely, the administrative detention and imposition of a fine for taking part in a spontaneous and peaceful assembly held on 15 February 2014, without a permit in a non-designated area, were proportionate and necessary in the interest of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. Accordingly, the Committee concludes that the facts before it resulted also in a violation of the author’s rights under article 21 of the Covenant.

11. The Committee, acting under article 5(4), of the Optional Protocol, is of the view that the facts before it disclose violations by Kazakhstan of the author’s rights under articles 19(2)and 21 of the Covenant.