Kazakhstan rejects statements of the UN, EU and OSCE on violations of human rights © mukhtarablyazov.org

1. Introduction

Kazakhstan refutes most of the remarks made by the international community. Nevertheless, the desire to maintain its image forces the authorities to resort to making some concessions in the cases of political prisoners. For example, following stark criticism from the UN, OSCE and EU in late 2014, Counsel Zinaida Mukhortova was released from a psychiatric hospital. Continued international pressure forced the Kazakh authorities to release Roza Tuletayeva, a victim of torture, and one of the leaders of the Zhanaozen oil workers’ strike.

In 2015, before the presidential election, all the convicts in the case of the ‘Zhanaozen riots’ were granted early release. One of them, Maksat Dosmagambetov, was released from prison only after a tumour in his eye appeared as a result of torture. Since the condition of the liberation of Zhanaozen oil workers was ‘repentance’, they remain silent about violations of their rights. In March 2015, the office of Kazakhstan's ombudsman informed the Open Dialog Foundation that Maksat Dosmagambetov had written an ‘explanatory statement’ in which he claimed that he had not been subjected to torture and had not addressed human rights organisations for help. It is a well-known fact that Dosmagambetov was the first of the oilmen to testify in court that he had been subjected to torture.

Kazakhstan has consistently refused to commission an independent inquiry into the Zhanaozen tragedy and to release political prisoner Vladimir Kozlov, a staunch critic of the authorities.

At the legislative level, Kazakhstan narrows the space for the development of civil society. The EU and UN have clearly indicated that some Kazakh laws contravene international agreements on human rights. The authorities refuse to respond to the comments and, indirectly alluding to the ‘bias’ of the UN Special Rapporteur, they reply as follows: "Kazakhstan's legislation fully complies with international standards and commitments".

The new Criminal Code, which has already entered into force, included tougher penalties for ‘defamation’ and ‘inciting social discord’. Punishments for ‘aiding and abetting’ illegal organisations and for actions which ‘provoke continued participation in a strike’ were introduced. ‘The leaders of public associations’ could face criminal liability for ‘interference in the activity of state bodies’. Activists and journalists are subject to criminal prosecution for posting and making comments on Facebook.

Kazakhstan, similarly to other authoritarian states, subjectively interprets the recommendations of the international community in order to persecute dissent. Kazakh authorities refuse to respond to some of the recommendations, and in some cases, they provide false information.

Ignoring international obligations leads to the preservation of an authoritarian regime. The EU, OSCE and UN should not permit such actions without legal or political consequences. History has taught that the destruction of democratic opposition leads to the radicalisation of society and social upheaval, and thus, to the threat of another hot spot appearing on the world map.

Effective communication at the diplomatic level and a clear position regarding the inadmissibility of ignoring human rights obligations bring about concrete results, whilst the application of further pressure will lead to the lives of activists, journalists and political prisoners being saved.

2. Documents for analysis: response to the UN Special Rapporteur and report of the Commission under the President

From 19 January 2015 to 27 January 2015, the Special Rapporteur on the rights to freedom of peaceful assembly and of association (hereinafter referred to as ‘Special Rapporteur’) Maina Kiai held meetings with representatives of the authorities and civil society in Kazakhstan. In late June, Kazakhstan responded to the recommendations of the Special Rapporteur. The authorities stated that they did not consider the findings of the Special Rapporteur to be accurate, noting that "it is important for the mandate holders to provide an objective and transparent observation".

On 20 October, 2015, with the assistance of the OSCE office and the ‘approval of President Nursultan Nazarbayev’, Astana published a report of the Human Rights Commission under the President of the Republic of Kazakhstan (hereinafter referred to as ‘the Commission under the President’). The report examines the human rights situation in Kazakhstan in the period from 1 January 2014 to 30 April 2015 and wrongly underlines the merits of the state bodies. In particular, it states that, as far as human rights projects of the Commission are concerned, many countries in the world do not have similar projects“. It is noteworthy that the aim of the authors of the report was to "inform the President, the Parliament and the Government of the Republic of Kazakhstan on the human rights situation in the Republic of Kazakhstan". Representatives of civil society and international organisations are not cited as interested parties.

The following sections provide an analysis of the Kazakh authorities’ recent responses to the comments of the United Nations, the OSCE and the EU on human rights violations in Kazakhstan.

3. The freedom of assembly

The UN Special Rapporteur has noted that Kazakhstan applies the ‘rule by law’ in order to introduce excessive restrictions on the right to freedom of assembly, thereby rendering the right meaningless.

The authorities have not responded to the criticism of the Special Rapporteur concerning the criminalisation of ‘aiding and abetting the conduct of illegal activities’ (Art. 400 of the Criminal Code). Also, the Special Rapporteur’s demand that Article 403 of the Criminal Code on ‘illegal interference of members of public associations in the activity of state bodies’ be revoked, was ignored.

Maina Kiai stated that the new article of the Criminal Code on increasing the obligations of ‘the leaders of public associations’ ‘is a way to instill fear in civil society leaders’. Kazakhstan refused to provide a response to this point, although it has declared its commitment to the principle of ‘equality of all before the law’. The Special Rapporteur called for an end to the practice of detaining activists as a preventive warning prior to protest rallies. Kazakhstan only confirmed the importance of the presumption of innocence, although, in practice, this principle is being flouted.

Since 2010, Kazakhstan has promised to adopt a new law on peaceful assemblies. In 2015, the government limited itself promising that it would ‘improve the enforcement practice’. The authorities also considered ‘not appropriate’ the abandonment of the cumbersome requirements regarding the registration of political parties which are exploited in order to obstruct the activities of the opposition.

The Special Rapporteur has repeatedly stressed that the new law on NGO activities in Kazakhstan poses a threat to the independence of NGOs. The law provides that all grants, including those from international or foreign organisations, shall be distributed by one Operator, a body, ‘appointed by the government’ having undetermined powers. By law, government grants are allocated to specific areas, among which the development of human rights and democracy, and the protection of the rights of migrants and refugees are not mentioned. So far, both houses of parliament, having ignored the recommendations of experts and human rights activists, have voted in favour of the law. More than 50 NGOs have called on President Nazarbayev to veto the law.

4. The freedom of religion

Kazakhstan has rejected the demands of the Special Rapporteur on the abolition of harsh, discriminatory conditions for the registration of religious communities outright. Due to these conditions, non-traditional and/or small-scale religious communities were eliminated or forced to enter religious structures, loyal to the government. Following the introduction of the obligation to re-register religious organisations under the new law, the number of religious associations decreased by almost one and a half thousand (from 4551 to 3088). The number of different confessions of faithfell from 46 to 17.

The Commission under the President declares the "principle of non-interference of the state in religious organisations’ internal affairs". At the same time, the law on religious activity provides for the mandatory inspection of all religious literature and hefty fines for violations of religious law. In November 2015, a representative of the Seventh-day Adventist Church was sentenced to 7 years’ imprisonment for ‘inciting religious hatred’. This was in relation to the Adventist speaking about his faith to students at one of their homes.

According to the human rights organisation ‘Forum 18’, since December 2014, the National Security Committee of Kazakhstan has accused 15 Muslims of participation in a banned religious organisation. All of them were sentenced to imprisonment or restriction of liberty for up to 5 years. Frequently, such proceedings are carried out behind closed doors. In the autumn of 2015, six more Muslims were arrested.

Kazakh authorities explain that the strict control of the religious sphere is necessary in order to facilitate the fight against extremism. However, in practice, the narrowing of the space for freedom of religion contributes to the radicalisation of some groups and to rises in extremism.

5. The freedom of the press

"In order to provide information security (...) the blocking of Internet resources as a counter-defamation measure is necessary," - the Commission under the President announced. In September 2015, without any notices having been issued by the prosecutor's office and in the absence of any court rulings, the online news portals Ratel.kz and Zonakz.net were banned. Kazakh Radio station Svoboda [‘Radio Liberty’] (the Azattyk Radio) and the website Eurasianet.org also reported that some of their articles were being periodically blocked.

Once again, Kazakhstan rejected the recommendation of the UN on the decriminalisation of libel. Kazakhstan refers to the presence of articles on libel in the legislation of European countries. At the same time, the Kazakh authorities abuse this law, having introduced the punishment of imprisonment. The maximum penalty for defamation is approx. 18,000 euros (while the subsistence minimum is 59 euros).

Inconvenient journalists are punished with crushing fines on charges of ‘harming a reputation’. For example, a Kazakh court ruled to impose a fine of 50 million tenge (approx.152,000 euros) on a journalist of the magazine ‘ADAM’, and 20 million tenge (approx. 61,000 euros) on the owner of the website Nakanune.kz. In addition, new cases involving the banning or suspension of circulations of inconvenient media outlets due to minor technical violations have been recorded in Kazakhstan.

On 30 October, 2015, in accelerated proceedings which took place behind closed doors, a Kazakh court sentenced Yaroslav Golyshkin, a journalist of the ‘Versya’ newspaper, to 8 years’ imprisonment on charges of ‘extortion of money’ from the Akim [governor] of Pavlodar Province. Golyshkin conducted a journalistic investigation into a rape case in Pavlodar. The journalist recorded the testimonies of the two victims, according to which, the son of the Akim of Pavlodar Province participated in the rape. According to media reports, the son of the Akim was transferred to the category of witness and the victims were forced to drop the charges in exchange for $5,000. As a result, the case was closed ‘due to the settlement between the parties’.

Soon, it was reported that unknown persons had demanded 500,000 dollars from the Akim of Pavlodar Province and threatened that the testimonies of the aggravated women would be published. The National Security Committee took over the investigation into the matter. As a result, in addition to journalist Golyshkin, three more persons were sentenced to varying prison terms, having been convicted of extortion. ‘Reporters without borders’ announced that the journalist became a victim of fabricated accusations within the framework of a politically motivated case.

In 2015, several citizens of Kazakhstan were sentenced to restriction of liberty or imprisonment for publishing articles via social networks. In particular, the Kazakh authorities have found signs of ‘incitement of national hatred’ in posts on the Facebook page of Tatiana Shevtsova-Valova (she was sentenced to 4 years’ imprisonment); Mr. Alkhanashvaili (3 years’ imprisonment); Saken Baykenov (2 years of restriction of liberty); Mukhtar Suleymenov (3 years’ imprisonment). On 18 November, 2015, lawyer Bulat Satkangulov was sentenced to 6 years in prison for ‘propaganda of terrorism’ via social networks; he claims that he was only discussing religious topics with his friends.

Recently, criminal charges have been brought against several journalists, human rights defenders and activists for posting on social networks. Journalist Andrey Tsukanov (for his post about a pro-government activist) and human rights activist Yelena Semenova (for her post about torture in prisons in the Pavlodar Province) are charged with ‘spreading false information’. Blogger Ermek Taychibekov, human rights activist Bolatbek Blyalov, and activists Serikzhan Mambetalin and Ermek Narymbayev are facing charges of ‘inciting ethnic or social discord’.

The National Telecommunications Committee announced that Kazakhstan provided for criminal responsibility for writing or sharing ‘extremist’ posts and comments in social networks. In addition, according to the Telecommunications Committee, citizens of Kazakhstan can be held criminally responsible for other people's ‘extremist’ comments on their social networks pages. Such actions fall under Article 183 of the Criminal Code ‘The granting of authorisation for publication of extremist materials in the media’ (punishable by a fine of approx. €3,000 or incarceration for up to 90 days). Kazakh legislation equates social networks with ‘foreign media’.

6. Torture and ill-treatment

According to the Commission under the President, in November 2014, the UN Committee against Torture ‘praised’ Kazakhstan’s for its efforts aimed at combatting torture. Conversely, the UN Committee actually criticised the discrepancy between the statements presented by the Kazakh delegation and the true situation, based on data obtained by human rights NGOs. It was noted that "less than 2 per cent of the complaints of torture received by the State have led to prosecutions". Also, thus far, Kazakhstan has ignored the recommendation on transferring the penitentiary system into the supervisory control of the Ministry of Justice.

On 13 October, 2015, the former UN Special Rapporteur on Torture, Manfred Nowak, as well as representatives of international and Kazakh human rights organisations, called on Kazakhstan to immediately implement the recommendations of the UN Committee against Torture. According to human rights activist Yevgeniy Zhovtis, since the beginning of 2015, more than 70 statements of torture have been recorded and impunity [of perpetrators] is the norm“. In 7 cases, Committees of the United Nations have recognised Kazakhstan as guilty of torture. Only in two cases (the case of Aleksandr Gerasimov and Rasim Bayramov), did the victims receive compensation, but perpetrators of torture have not been punished.

7. The Zhanaozen tragedy

The UN Special Rapporteur Maina Kiai underlined the need to carry out an independent international investigation of the Zhanaozen tragedy of December 2011. It was then that the police opened fire with live ammunition on the backs of unarmed oil workers, who had been calling for higher wages and better working conditions for seven months.

The Special Rapporteur made it clear that the early release of the oil workers is insufficient to redress the injustice: "It is not clear (…) what circumstances led police forces to resort to lethal force and who ordered the police to use lethal force.(...) There has been a conspicuous absence of charges against high-level officials involved in supervising the police response."

Kazakhstan didn’t comment on the remark that more than 20 convicted oil workers reported that they had been subjected to severe torture, and the prosecutor's office and the Interior Ministry "did not find any confirmation" of these allegations. Kazakhstan refused to carry out a review of the cases and stated that "an objective assessment and investigation of the situation in Zhanaozen, was carried out."

8. Political persecution

For several years, poet Aron Atabek, human rights activist Vadim Kuramshin and opposition politician Vladimir Kozlov have been serving time in Kazakh prisons for political reasons. Due to his support for oil workers of Zhanaozen, in 2012, Kozlov was sentenced to 7.5 years in prison, having been convicted of ‘calling to overthrow of the constitutional order’ and ‘inciting social discord’. Kazakhstan bluntly informed the Special Rapporteur that the article on ‘inciting social discord’ “corresponds to the interests of Kazakhstan on preservation of interethnic harmony and stability".

Considering Kozlov’s case as an example of “heavy-handed approach to quashing political opposition", Maina Kiai reiterated the EU’s demands regarding the early release of the political prisoner. Once again, Kazakhstan has publicly refused to do so, citing that the case ‘will be considered in accordance with the current legislation". However, in July 2015, the prison administration imposed admonitions on Kozlov and sent him to solitary confinement for 10 days. Subsequently, the authorities transferred Kozlov to a prison unit with severe conditions of detention, thereby depriving him of the legal opportunity for early release.

On 15 October 2015, Vice President of the European Commission, Federica Mogherini noted that the EU delegation has repeatedly requested that the Kazakh authorities permit her to meet with Kozlov so as to monitor the conditions of his detention; however, she ‘did not receive satisfactory reply’. At the same time, pressure applied to the political prisoner has increased: between 26 October 2015 and 27 October 2015, when troops were brought into the colony, he received a blow from a baton, and on 3 November, 2015, his counsel didn’t receive permission to visit him. Kozlov could also be transferred to the most severe prison in the town of Arkalyk, Kazakhstan.

In a letter to MEP Tomáš Zdechovský, the Embassy of Kazakhstan in the Czech Republic labelled Vladimir Kozlov a ‘persistent offender’. On 13 November, the General Prosecutor’s Office of Kazakhstan provided Zdechovskýwith false information stating that Kozlov ‘had never been held in solitary confinement or in a punishment cell’.

Particular attention should be paid to the fact that Kazakhstan responded to the Special Rapporteur with the following words: “The courts have recognised the guilt of Mr. V. Kozlov on the grounds of concrete evidence of inciting violent protests through the orders of runaway former Kazakhstan banker Mukhtar Ablyazov, who is being prosecuted by judicial authorities in Latvia, Ukraine, Russia, the United Kingdom and France".

Firstly, the EU, the US and human rights organisations have recognised the judgement against Vladimir Kozlov as unfair and politically motivated. Moreover, the statement of the authorities about Mukhtar Ablyazov does not correspond to reality, and once again confirms the political nature of his prosecution. Within the framework of the case of Kozlov, in connection with his support for the striking oil workers in Zhanaozen, Ablyazov was accused of ‘inciting social discord’. Kazakhstan also accused Ablyazov of ‘preparing an act of terrorism’ and ‘committing a crime against the peace and security of mankind’.

From 2014-2015, the media published correspondence which confirmed that the Kazakh authorities had coordinated the Ukrainian and Russian investigation into the case of Ablyazov. Following the publication of information on the illegal cooperation with Kazakhstan, criminal cases were initiated against two Ukrainian investigators who worked on Ablyazov’s case. Russian investigators claim that Ablyazov financed a part of the Russian opposition with ‘embezzled money’ and was preparing to ‘overthrow the government’ in Kazakhstan.

The former head of BTA Bank and founder of the influential opposition movement ‘Democratic Choice of Kazakhstan’, Mukhtar Ablyazov was granted political asylum in Britain. More than 10 EU countries have granted asylum to persons involved in Ablyazov’s case. France and the United Kingdom are not pursuing the opposition politician. In London, civil, rather than criminal proceedings, were carried out; as a result, Ablyazov’s financial means were seized during a lawsuit, initiated by BTA Bank.

Kazakhstan has not concluded an extradition treaty with most European countries; for this reason, it is striving to lay its hands on Ablyazov and his associates through Ukraine and Russia. A French court considered the extradition request of Russia and Ukraine, examining solely ‘the conformity of the extradition requests with procedural rules’. On 17 September, 2015, the French Prime Minister issued decision to extradite Ablyazov to Russia, expressing confidence in Russia’s guarantees to ensure adequate conditions of detention and protection from torture. The extradition decree refers to the decision of the Russian judge Krivoruchko, who is named on the ‘Magnitsky List’.

On 3 November, 2015, 11 members of the European Parliament expressed their regret over the fact that France had not responded to numerous appeals from international human rights organisations and representatives of the European Parliament on the inadmissibility of the extradition of Ablyazov. MEPs noted the lack of guarantees of a fair trial in Russia, involvement of persons on the ‘Magnitsky List’ in the case of Ablyazov, as well as information about Kazakhstan’s illegal influence on the Ukrainian and Russian investigative bodies.

In addition, Syrym Shalabayev, the brother of Alma Shalabayeva, the wife of Ablyazov, is being held in detention in Lithuania pending extradition proceedings. In 2013, Ablyazov’s wife and 6-year-old daughter became the victims of an unlawful deportation from Italy to Kazakhstan; however, the UN and the European Parliament managed to bring about the family’s return to Europe. In May 2015, Syrym Shalabayev was granted temporary protection in Lithuania (for the period of consideration of the asylum application). On 28 July 2015, Lithuanian authorities arrested Shalabayev on the request of Kazakhstan. Kazakhstan and Ukraine, on 17 August 2015 and 19 August, 2015 respectively, sent requests for extradition of Shalabayev to Lithuania. Kazakh and Ukrainian human rights organisations called for the prevention of the extradition of Syrym Shalabayev, whose criminal case is part of a campaign of oppression, carried out by the Kazakh authorities against the relatives and associates of Mukhtar Ablyazov.

It is noteworthy that, as noted by the UN Special Rapporteur, pro-government activists in Kazakhstan carry out unhampered actions to support the extradition of Ablyazov, while peaceful rallies against his extradition are immediately dispersed by the police.

9. The re-election of the President

On 26 April, 2015, in the early presidential election, Nazarbayev was re-elected for the sixth time, having won 97.8% of the vote. The OSCE and the EU have reported serious electoral violations: the absence of competition; the use of administrative resources; limiting the right to be elected and recommended that Kazakhstan reform its electoral law. Despite this, the Commission under the President stated that the early presidential election was held "in compliance with the requirements of international obligations, assumed by Kazakhstan" and received "high assessment" ofinternational observers.

10. Conclusions

The Commission under the President stated that Kazakhstan ‘had the most successful presentation’ of the report under the Universal Periodic Review of the UN and, at the same time, rejected 51 recommendations, as they "run counter to the state legal policy of the Republic of Kazakhstan and to guidelines of the head of state". The majority of the rejected recommendations pertained to freedom of speech, assembly and religion. According to this logic, the protection of civil and political rights ‘contravenes the policy’ of the authorities.

Kazakhstan’s response to the recommendations in the field of human rights has once again confirmed the words of President Nazarbayev, uttered to a British journalist in July 2013: "We are grateful to you for the advice, but no one has the right to instruct us as to how to live and how to build our country".  The Kazakh authorities should take into account the fact that respect for human rights does not constitute an ‘instruction’, but rather a direct responsibility of the state. International treaties take precedence over state laws. The position of the authorities, according to which they are willing to selectively implement agreements on human rights, while ignoring points which conflict with their political interests, is simply unacceptable.

While the EU is currently focused on the problem of terrorism, refugees, the conflicts in the Donbass and in Syria, it is necessary to keep the issue of violations of human rights in Central Asia on the agenda. This is especially true for Kazakhstan which declares its ‘commitment’ to international human rights mechanisms.

Until recently, Kazakhstan was the only country in Central Asia to permit some manifestations of democracy and freedom of speech. Now, Kazakhstan is gradually becoming increasingly analogous to other authoritarian states in the region. Therefore, the EU should take a principled stance: in order to resume a constructive dialogue, Kazakhstan should honour its commitments on human rights. By neglecting these commitments, Kazakhstan reinforces its reputation as an unreliable and unpredictable partner.

Kazakhstan needs to attract new European investment in order to reduce its dependence on Russia and China. Given the economic recession and the devaluation of the national currency, the Kazakh authorities are interested in a new partnership agreement with the EU.

Investment agreements should not be based solely on short-term interests. The necessity of economic cooperation cannot justify the whitewashing of serious problems in the area of human rights. Shortsighted disregard for the suppression of dissent in Central Asia could lead to new threats to security and the creation of new hot spots of radicalisation, as well as tragic consequences for future generations. Therefore, a condition of signing an extended agreement on cooperation with Kazakhstan should be the unconditional implementation of EU recommendations regarding the human rights and the release of political prisoners by the Kazakh authorities.

We hereby urge every EU Member State to postpone the ratification of the extended cooperation agreement with Kazakhstan. We also call for a boycott of the exhibition ‘EXPO-2017’ and the rejection of the candidacy application of Kazakhstan for non-permanent membership of the UN Security Council for the years 2017-2018.

All those wishing to support our demands are welcome to send their statements to the following persons and institutions:

  • EU High Representative for Foreign Affairs and Security Policy, Federica Mogherini – 1049 Brussels, Rue de la Loi / Wetstraat 200, phone: +32 2 584 11 11; +32 0 2 295 71 69;
  • President of the European Parliament Martin Schulz – Rue Wiertz 60, 1047 Bruxelles, Belgique, phone: +32 0 2 28 42111, fax: +32(0)2 28 46974;
  • Chairman of the European Parliament Committee on Foreign Affairs Elmar Brok – Rue Wiertz 60, 1047 Bruxelles, Belgique, phone: +32 2 28 49013 (Brussels), +33 3 881 76902 (Strasbourg);
  • President of the European Council Donald Tusk – Rue de la Loi / Wetstraat 175, 1048 Brussels, phone: +32 2 28 15650, e-mail: [email protected];
  • President of the European Commission, Jean-Claude Juncker – 1049 Brussels, Belgium Rue de la Loi / Wetstraat 200, e-mail: [email protected];
  • President of the OSCE PA Ilkka Kanerva, – Tordenskjoldsgade 1, 1055, Copenhagen K, Denmark, phone: +35 8 9 432 3055; +35 8 9 432 3529,e-mail: [email protected];
  • UN High Commissioner for Human Rights Zeudi Hfle Al-Husseini – Palais des Nations, CH-1211 Geneva 10, Switzerland, phone: +41 22 917 9220;
  • UN Special Rapporteur on freedom of peaceful assembly and association Maina Kiai - Palais des Nations CH-1211 Geneva 10, Switzerland, fax: + 41 22 917 9006, e-mail: [email protected].

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