KAZ 001 / 1016 / OBS 085.3
Sentencing in appeal / Judicial harassment /
January 27, 2017
The Observatory for the Protection of Human Rights Defenders, a partnership of the World Organisation Against Torture (OMCT) and FIDH, has received new information and requests your urgent intervention in the following situation in Kazakhstan.
The Observatory has been informed by reliable sources about the sentencing in appeal of Mr. Max Bokayev , Head of the NGO “Arlan”  and a human rights defender working for the protection of the environment, freedom of expression and the fight against torture, and Mr. Talgat Ayan, a lawyer and activist from Atyrau, Western Kazakhstan. Both human rights defenders played a crucial role in organising peaceful protests that took place last April and early May 2016 against the amendments to the Land Code of Kazakhstan .
According to the information received, on January 16, 2017, the appeal process began before the Criminal Division of the Atyrau Regional Court. After receiving ten motions from the defense lawyers, the Court decided to adjourn the hearing until January 18, 2017. A third hearing took place on January 19. Eight out of the ten motions were rejected.
On January 20, after four hearings, the Criminal Division of the Atyrau Regional Court announced its verdict confirming the sentencing in first instance by the Atyrau’s City Court No. 2 of Mr. Bokayev and Mr. Ayan to five years in prison for “institution of social discord” (Article 174 of the Criminal Code), “dissemination of knowingly false information” (Article 274) and “violation of the procedure of organisation and holding of meetings, rallies, pickets, street processions and demonstrations” (Article 400). This decision can be appealed before the Supreme Court.
The Observatory strongly condemns the sentence against Messrs. Max Bokayev and Talgat Ayanas it considers the charges to be trumped-up and used as a tool to retaliate both activists for their legitimate human rights activities, and calls upon the Kazakh authorities to release them immediately.
The Observatory further expresses its concern regarding the violations of the rights to a fair trial  and of the principle of equality of arms reported throughout the entire judicial process against the two human rights defenders.
Between April and May 2016, several protests were held in Kazakhstan, gathering hundreds of citizens calling for the abolition of amendments to the Land Code that were introduced in November 2015 . During these protests many were detained and sentenced to administrative detention for “preparation of illegal rallies” or “hooliganism”.
The Government launched a smear campaign via mass media platforms accusing the protesters of planning violent attacks and blaming a Kazakh businessman, for leading the protest movement in order to plot a coup to destabilise the country.
On April 24, 2016, Mr. Max Bokayev participated in a peaceful assembly for which no authorisation had been obtained. On May 6, 2016, Mr. Max Bokayev requested to hold a peaceful assembly on May 21, 2016, but the authorities refused on May 16. The next day, on May 17, Messrs. Max Bokayev and Talgat Ayanwere arrested in Atyrau in retaliation for their critical statements posted on Facebook and for making public their intention to participate and encouraging others to take part in the May 21 protests. On the same day, an administrative court sentenced them to 15 days of administrative detention for “organising and holding peaceful assemblies” (Article 488 of the Administrative Offences Code) in violation of the laws of the Republic of Kazakhstan. This happened though the two had sent requests for authorisation to hold demonstrations on May 21 to the relevant local authorities in Atyrau, in accordance with domestic laws.
On May 31, 2016, one day before the end date of their administrative detention, the National Security Committee issued an order charging Messrs. Max Bokayev and Talgat Ayan with the offenses of “preparation of a crime”, and “propaganda or public calls for seizure of power or retention of power or violent change of the constitutional order” under Articles 24.1 and 179.3 of the Criminal Code. On July 21 these charges were replaced with t“institution of social discord” (Article 174 of the Criminal Code), “dissemination of knowingly false information” (Article 274) and “violation of the procedure of organisation and holding of meetings, rallies, pickets, street processions and demonstrations” (Article 400).
On June 3, 2016, the Investigation Judge of Atyrau Court No. 2 remanded Messrs. Max Bokayev and Talgat Ayan for two months in pre-trial detention. Mr. Bokayev’s request for house arrest due to his critical health condition given that Mr. Bokayev suffers from a chronic hepatitis C and needs constant medical care was rejected. On August 27, 2016, the judge decided to extend the pre-trial detention. The Prosecutor argued that “Max Bokayev has a lot of friends inside and outside of Kazakhstan and so there’s a fear that he will leave the country”.
On October 12, 2016, the trial against Messrs. Bokayev and Ayan started beforeAtyrau’s City Court No. 2. During the first two hearings, most of the motions filed by the lawyers were dismissed by Judge Gulnara Dauleshova.
On October 17 and 18, 2016, the court decided to proceed with the examination of the witnesses. The witnesses presented by the prosecutors were allowed to testify via videoconference from a Court in Astana, despite motions filed by defence lawyers requesting that witnesses should be brought to Atyrau. Messrs. Bokayev and Ayan reported that due to the bad quality of the sound, they could not hear well what the witnesses were stating, thus affecting their right to defence.
On October 18, Mr. Bokayev requested a break during the hearing, on the grounds that he was not feeling well, but the judge dismissed his request arguing that he was “simulating a faintness”.
On October 11, 2016, UN Special Rapporteur on the rights to freedom of peaceful assembly and association Maina Kiai submitted a legal analysis in the case of Kazakhstan protester Max Bokayev. The Special Rapporteur emphasized that under international law, authorities cannot impose “authorization” requirements on those seeking to hold peaceful assemblies. Doing so turns the fundamental right to freedom of peaceful assembly into a privilege. Mr. Kiai also highlighted the danger of vague laws being interpreted in ways that criminalize peaceful dissent .
The hearings of October 12, 13, 17 and 18 were observed by a lawyer mandated by the Observatory. Important procedural violations amounting to breaches of internationally-recognised fair trial standards were recorded by the trial observer .
On November 28, 2016, Judge Gulnara Dauleshova of Atyrau’s City Court No. 2 found Messrs. Max Bokayev and Talgat Ayan guilty under Articles 174, 274 and 400.
Theywere sentenced to five years in prison with the prohibition to engage in social activities for three years under Article 174 Part 2, five years under Article 274 Part. 4, and to a fine of 250 MCI (530,250 tenge, approx. 1,466 EUR) under Article 400. By the rule of absorption of less severe punishment by more severe punishment, the final punishment of the two defenders is of five years’ imprisonment in a penal colony of ordinary regime. The court also ordered the defendants to pay an amount of 259,000 tenge (approx. 716 EUR) as procedural costs. Messrs. Max Bokayev and Talgat Ayan’s lawyers appealed the sentence.
Please write to the authorities of Kazakhstan asking them to:
i. Guarantee in all circumstances the physical and psychological integrity of Messrs. Max Bokayev and Talgat Ayan, as well as of all human rights defenders in Kazakhstan;
ii. Release Messrs. Max Bokayev and Talgat Ayan immediately and unconditionally, as their detention is arbitrary since it only aims at sanctioning their legitimate human rights activities;
iii. Put an end to all forms of harassment, including at the judicial level, of Messrs. Max Bokayev and Talgat Ayan as well as of all human rights defenders in the country so that they are able to carry out their work without hindrance;
iv. Repeal legal provisions limiting freedom of peaceful assembly beyond the narrow restrictions permitted under international human rights law, particularly with the aim of ensuring that this right is no longer subjected to the permission of government authorities and merely to prior notification;
v. Repeal legal provisions limiting freedom of expression beyond the narrow restrictions permitted under Article 19 of the ICCPR, including the vague and broad definition of the offence of incitement to “social, national, clan, class or religious discord” in Article 174 of the Criminal Code;
vi. Comply with all the provisions of the United Nations Declaration on Human Rights Defenders;
vii. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Kazakhstan.
· Mr. Nursultan Nazarbaev, President of the Republic of Kazakhstan. Fax: + 7 3172 32 61 82, 007 / 3172 / 32 40 89
· Mr. Kalmukhanbet Kassymov, Minister of Internal Affairs of Kazakhstan. Email: Kense@mvd.kz
· Mr. Zhakip Assanov, Prosecutor General of Kazakhstan. Fax: +7 7172 506 402
· Mr. Askar Shakirov, Human Rights Commissioner of Kazakhstan. Fax: +7 7172 74 05 48
· Ambassador Ms. Zhanar Aitzhanova, Permanent Representative of the Republic of Kazakhstan to the UN Office and other international organizations in Geneva. Fax: +41 (0) 22 788 66 02. Email: firstname.lastname@example.org
· Ambassador Mr. Almaz KHAMZAYEV, Embassy of Kazakhstan in Brussels. Email: email@example.com.
· Permanent Delegation of the Republic of Kazakhstan to the OSCE in Vienna. Fax: +43 1 890 80 08 20. Email: firstname.lastname@example.org
Please also write to the diplomatic mission or embassy of Kazakhstan in your respective country.