Kazakhstan: Crackdown on Government Critics

Kazakhstan Koshe unregistered party activists © 2020 Saniya Toiken, RFE/RL

Over 130 Targeted for Alleged Membership in Groups Deemed ‘Extremist’ 

Authorities in Kazakhstan have targeted at least 135 people across the country with criminal investigations and prosecutions for alleged participation in banned “extremist” political opposition groups, Human Rights Watch said today.

Over the last three years, the authorities have increased their misuse of vague and overbroad criminal charges relating to the crime of “extremism” to harass and prosecute government critics. The crackdown violates the rights to freedom of expression and association.

“It is not a crime to want to see political change in Kazakhstan, or to peacefully express sympathy or support for political opposition groups advocating those changes,” said Mihra Rittmann, senior Central Asia researcher at Human Rights Watch. “Kazakh authorities have effectively criminalized the expression of nonviolent political views, and in doing so, blatantly violated fundamental human rights.”

Photo of woman holding sign saying, "We have a choice."
In April and May 2021 Human Rights Watch interviewed seven people under investigation, charged, or convicted on politically motivated charges of “organization and participation in the activities of a public or religious association or other organization after a court decision banning their activities or liquidating them in connection with extremism or terrorism” (art. 405 of Kazakhstan’s criminal code). Human Rights Watch also interviewed two Almaty-based lawyers who have collectively worked on 10 such cases since 2018, and reviewed court documents for nine other cases and dozens of media articles about such prosecutions.

On June 2 Human Rights Watch sent a letter to the Kazakh Foreign Affairs Ministry summarizing the findings and requesting information about government policies and practices regarding the prosecution of alleged members of banned “extremist” organizations. On June 28 the ministry confirmed receipt of the letter in an email to Human Rights Watch. The ministry said that the letter had been “sent for further consideration” to relevant state bodies and based on the results of their joint review, Human Rights Watch would “be provided with an exhaustive answer to your questions.” No further information had been provided to Human Rights Watch by the date of publication.

Since 2018, the authorities across Kazakhstan have increasingly harassed, questioned, detained, and prosecuted perceived or actual members of the banned “extremist” groups, including for participating in peaceful rallies. At least three people who were convicted in 2019 under article 405 are facing prosecution for a second time on the same charges, Human Rights Watch found.

On March 13, 2018, the Esilskii District Court in Nur-Sultan, Kazakhstan’s capital, ruled that the Democratic Choice of Kazakhstan (DVK) was an “extremist” organization and banned its activities throughout Kazakhstan, including online and on social media networks. The opposition group was founded and led by Mukhtar Ablyazov, an exiled opposition figure who was once a banker and a government minister. He has been prosecuted in absentia on serious criminal charges, including fraud and extortion, and separately on one count of murder. Ablyazov has rejected the charges, saying they are politically motivated.

In May 2020, some months after activists announced the formation of a new group, the Koshe Party, it was also banned by court order as “extremist,” with authorities contending that it was the same as Democratic Choice under another name.

The decisions to ban the groups were based on state-commissioned psychological-linguistic analyses of the material posted on social media. The court rulings did not cite any other evidence showing that either group had advocated or engaged in violence.

Abaibek Sultanov, 45, from Kaskelen, a town outside Almaty, in southeast Kazakhstan, was sentenced to one year of restricted freedom on May 14, 2021, under article 405 of the criminal code. Sultanov told Human Rights Watch: “the [linguistic] expert concluded that I belong to Koshe but did not find that I called for an overthrow [of the government] or that I agitated for others to join.”

The people targeted for ties to the groups come from many walks of life and from cities and villages across Kazakhstan. Some regularly participate in protests and engage actively on social media networks, while others appear to have had minimal engagement in political opposition activities.

The United Nations special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, after visiting Kazakhstan in May 2019, expressed her “serious concern about the use of the terminology of ‘extremism’ in national law and practice.” She found that when “extremism” is a “criminal legal category,” it lacks legal certainty and thus is “incompatible with the exercise of certain fundamental human rights.” She highlighted arrests on charges of article 405 as evidence of the government’s heavy-handed approach to civil society. Arrests and prosecutions under article 405 have continued following Ní Aoláin’s visit.

Bakhytzhan Toregozhena, the head of the human rights group Ar.Rukh.Khak, which maintains a list of people targeted for their civic activism, found that at least 58 people have been convicted under article 405 since 2018.

Sentences range from a one-year non-custodial sentence with restrictions on freedom of movement to a maximum two-year prison sentence. Another 77 people, 18 of whom are currently under arrest or under house arrest, are under investigation or considered persons of interest on the same charge.

Anyone convicted under article 405 is automatically added to the list of individuals “connected with the financing of terrorism or extremism” maintained by the Financial Monitoring Agency under the Presidential Administration, even if they never provided any financial support to such a group. Being on the list means the person’s personal finances are subject to strict limitations.

In addition, courts frequently apply additional sanctions under article 50 of the criminal code to people convicted under article 405, banning them from participating in political, civic, or other kinds of activities, or from using social media networks. Ní Aoláin found that these additional sanctions “prolong disproportionate violations of civil society’s rights to freedom of expression, association and participation in public affairs.” Imposing a blanket ban on engaging in certain activities, or on using social media, is arbitrary and violates the internationally protected right to freedom of speech, Human Rights Watch said.

The Kazakh government has long restricted the rights to freedom of speech and assembly, and used restrictive legislation, including vague and overbroad criminal charges, to arbitrarily restrict the rights of government critics and of political opposition groups. No genuine political opposition groups are registered in Kazakhstan today, Human Rights Watch said.

The Kazakh authorities should cease their relentless efforts to crack down on peaceful dissent and allow free speech and criticism of the authorities without fear of retribution and political opposition groups to carry out peaceful activities in Kazakhstan, Human Rights Watch said. The Kazakh government should revise the definition of “extremism” to bring it in line with Kazakhstan’s international obligations and seek review of the court-imposed bans on DVK and the Koshe Party.

The authorities should also commission an independent review of all convictions for organization or participation in a banned “extremist” organization and ask the courts to vacate all convictions imposed on people simply for alleged membership in or support of a peaceful political opposition or advocacy group.

Kazakhstan’s international partners should call on the government to commission an independent review of these convictions and to stop targeting perceived or actual members of banned “extremist” groups. They should press Kazakh authorities to immediately release from prison Aset Abishev and Askar Kaiyrbek, and any others in pre-trial detention or under house arrest for the peaceful expression of critical views. They should echo concerns raised by the European Parliament and by a group of United States senators and urge authorities in Kazakhstan to stop their relentless crackdown on government critics.

“Seeking political change is not a crime,” Rittmann said. “The bottom line is that the Kazakh government has a responsibility to protect and uphold freedom of association, assembly, and speech for everyone, including those who hold views the authorities don’t like.”

For detailed findings on persecution of political opposition activists in Kazakhstan, please see below.

 

Opposition Groups Banned on Vague, Overbroad Extremism Charge

Kazakh law does not distinguish between “extremism” and “violent extremism.” The vague and overbroad definition of “extremism” and its broad applicability to nonviolent acts allows for undue restrictions on political opposition activism and the right to peaceful assembly.

On March 13, 2018, the Esilskii District Court in Nur-Sultan, Kazakhstan’s capital, ruled that Democratic Choice of Kazakhstan (DVK) should be considered an “extremist” group for the purpose of Kazakh law and banned it from carrying out any activities in Kazakhstan, including online.


The court decision, as seen by Human Rights Watch, claimed that “DVK, with the assistance of more popular social media networks in and outside Kazakhstan including Facebook, Instagram, messengers Telegram, Viber and the video hosting platform YouTube, circulates information and calls that are of an extremist character, connected with the violent overthrow of the current government of Kazakhstan.” The authorities had banned the group as an “extremist” organization once before, in 2005.

The only evidence cited in the court ruling are the conclusions of the state-ordered complex psychological-linguistic analysis, conducted by government “experts” who apparently examined information uploaded on social media networks by Mukhtar Ablyazov, the group’s founder and leader. The expert analysis was never made public. The ruling says that state experts asserted that the group engaged in “the purposeful preparation of provocative activities, aimed at inciting the reader to the violent overthrow and seizing of power in the Republic of Kazakhstan,” but provided no further evidence to back up this conclusion.

On May 19, 2020, the same Esilskii District Court found that the unregistered Koshe Party should be treated as the same group using another name, and as such, determined it also was “extremist” under Kazakh law and ordered it banned in Kazakhstan, including online. The ruling, a copy of which Human Rights Watch has on file, says that the court determined that “the ideology of DVK extremist organization has (in essence) transformed into that of the unregistered Koshe Party; this proves that the DVK extremist organization has effectively turned into unregistered Koshe party movement.” The hearing was closed to the public.

In a February 2021 resolution on the human rights situation in Kazakhstan, the European Parliament condemned the abuse of anti-extremism legislation and has referred to both groups as “peaceful opposition movements.” Everyone Human Rights Watch interviewed said explicitly that the two groups are against violence and advocate only peaceful means to achieve political change. Nurbol Onerkhan, a 27-year-old teacher from a small town in the North Kazakhstan region, who was convicted and given a one-year restricted freedom sentence for alleged membership in DVK said: “Everything [we do] must be done peacefully. And secondly, everything must be in accordance with the law.”

Arbitrary Prosecutions

The ability to peacefully express sympathy on social media networks such as Facebook or Telegram for political views that challenge the policies of a sitting government is a fundamental human right. Yet, in Kazakhstan today, the authorities have labeled peacefully calling for political change “extremism” if those views align with the messages of political change espoused by Democractic Choice and Koshe Party.

A tally by local rights defenders indicated that Kazakh courts have convicted at least 58 people for alleged membership in the banned groups since March 2018, while another 18 are currently in pre-trial detention or under house arrest. At least 59 others are under criminal investigation or persons of interest on the same charge.

No Evidence Needed

Lawyers and human rights defenders said that the most problematic aspect of the wave of criminal trials under Criminal Code Article 405 is that both the prosecution and the courts rely as primary evidence for conviction on state-commissioned psychological-linguistic assessments by so-called experts of material the accused posted or reposted on social media networks such as Facebook or Telegram.

The Almaty-based lawyer Galym Nurpeisov, who has defended nearly half a dozen such cases in the last two years, said: “the first, most important, most problematic aspect of what’s going on here is that these criminal cases [under article 405] hinge exclusively on the conclusions of expert political scientists and linguists.”

Yevgeniy Zhovtis, a human rights lawyer and head of the Kazakhstan International Bureau for Human Rights and Rule of Law, said: “it doesn’t matter that a person is just expressing his opinion or that there isn’t a threat of violence … The expert analysis is cited as the sole evidence against them.”

Sultanov, who was sentenced to one year of restricted freedom on May 14, said that the case against him rests on a linguistic analysis concluding that several videos he uploaded to Facebook show that he is a member of the banned Koshe Party.

“The linguistic expert concluded that I belong to Koshe [Party], but did not find that I called for an overthrow [of the government] or that I agitated for others to join [the Koshe party],” he said. “Actually, the police shouldn’t have anything [to refer the case for prosecution]. It’s a politically motivated case.” Sultanov was banned from engaging in socio-political activities, including online, for three years.

In the May 14 verdict, the court noted that Sultanov’s videos and posts gave “a negative assessment of the authorities [and of] the situation in the country as a whole, and inspired actions aimed at changing the government, [carrying out] rallies, and [engaging in] civil resistance.” The verdict, which Human Rights Watch reviewed, cited no material evidence of any wrongdoing.

Aliya Zhakupova, 50, from Nur-Sultan, who is under house arrest and whose trial is ongoing, said that the authorities persisted with prosecuting her even though “they themselves [the experts] concluded that nowhere, not in social networks or in chats did Zhakupova call for violent overthrow of the government, or even for a change in leadership.” She said that “If there is no incitement to overthrow the government, then how can they accuse me of extremism?”

Onerkhan, the teacher from Northern Kazakhstan Region, said: “If we’re talking about evidence, they didn’t have any whatsoever. They tried me on the basis of expert analysis from Astana [now Nur-Sultan, the capital of Kazakhstan].”

Aset Abishev, 44, was arrested on July 7, 2018, and charged in relation to his Facebook posts criticizing the Kazakh government and for reposting Democratic Choice messages. Prosecutors contended that these posts “discredited the head of state, members of his family and the ruling power of the Republic of Kazakhstan.” Although Abishev denied the charges, the court considered the posts “information support.” On November 30, 2018, a court sentenced him to four years in prison under articles 266 (financing a criminal group) and 405. His sentence was upheld on appeal.

Threatened, Pressured by Police

The Almaty-based human rights defender Bakhytzhan Toregozhena said that the authorities have used criminal investigations on charges under article 405 to pressure suspects and defendants to denounce the opposition groups. Several people interviewed cited similar pressure.

Orynbai Okhasov, from Uralsk, in western Kazakhstan, who worked in the oil industry until he was targeted for his political views, said that after he was detained for participating in an unsanctioned protest in December 2018, the police tried to get him to denounce Democratic Choice on camera. When he refused, two police officers threatened him, he said: “They warned me that day. ‘You know that you’re on [our list] since 2016. You have a family, a job. Stop your activism, or you’ll lose it all.’”

Zhazira Demeuova, a single mother from Almaty who was convicted and given a one-year restricted freedom sentence for alleged membership in Democratic Choice in October 2019, said that she was held in solitary confinement and that the authorities pressured her to denounce Democratic Choice: “Every day security officers came to me and demanded that I speak on camera and blame Mukhtar Ablyazov. “But [he] has nothing to do with it. I went to the protest on my own. I expressed my views. No one made me do it.”

Pretrial Detention

The authorities often petition courts for pretrial detention of those accused under article 405. Human rights lawyers call it a tactic to stifle free speech and the right to peaceful assembly.

Nurpeisov, the lawyer, said that in criminal cases in which the maximum sentence is two years in prison, defendants are usually released on bail, or have minimum restrictions during the pre-trial investigation stage. But if the defendant is facing criminal code charges under article 405, “either they’re sent off to pre-trial detention, or put under house arrest.”

Akmaral Kerimbaeva, 49, who runs a small business, said she was sentenced to one year of restricted freedom in October 2019 for alleged membership in Democratic Choice. She said she believed the police in Nur-Sultan initially detained her to prevent her from participating in a protest that was planned on June 9, then placed her under house arrest. “They [the police] tricked me when they took me in,” she said. “They said they were just going to question me. But they detained me for three days. They released me after two days, on June 9 after the protest, but then placed me under house arrest.”

Questioned Without a Lawyer

Kazakh authorities on several occasions failed to ensure that suspects in criminal investigations of offenses under article 405 were allowed their right to an attorney, Human Rights Watch found.

Sultanov said that although he asked for a lawyer when police arrested him and took him to Taldikorgan for questioning on October 30, 2020, he was denied a defense lawyer: “I asked for a state-appointed lawyer, but [the investigator] ignored me. They didn’t even give me a copy of the search warrant. … They didn’t give me a copy of any case documents.”

Okhasov said that when the police summoned him for questioning, they refused to ask a state-appointed lawyer to represent him because he was only a “witness.” Okhasov said he refused to answer any of their questions that day.

Restrictions on Peaceful Assembly

Everyone interviewed said that they had been detained and prosecuted on multiple occasions for participating in unsanctioned protests, in addition to facing criminal charges for alleged membership in a banned “extremist” organization.

Serik Zhakhin, 62, from Nur-Sultan, said that he was sentenced to a one-year restriction on his freedom under article 405, then accused of a second offense on the same charges. He said that he was detained five times in 2020 for participating in peaceful protests, and each time sentenced to 15 days of administrative detention.

The right to peaceful assembly is severely curtailed in Kazakhstan in both law and practice. Despite government claims that a new peaceful assembly law, adopted in May 2020, would uphold the right to protest, the authorities across the country continue to prevent attendance at and to break up unsanctioned peaceful protests, particularly those the two targeted opposition groups called for.

Zhakupova said that she was detained for participating in a peaceful protest on May 10, 2018, outside the European Union delegation office in Nur-Sultan. “Our constitutional rights as Kazakhstan citizens are so violated that we can’t even gather in a small, peaceful, quiet meeting, holding up small blue flags, the state symbol, or little blue balloons, or banners,” she said. “When I got there on May 10, 2018, I saw how a riot police officer grabbed a young student by her hair and dragged her along the sidewalk. I started to defend her, asking them, ‘What are you doing, she’s a student!’ And in defending her, I [too] ended up in the police van.”

Arbitrary Financial Restrictions

Under the “Law on fighting against laundering income received illegally and against the financing of terrorism,” anyone convicted of an extremist offense, such as under article 405, is included on the state list of people “associated with the financing of terrorism and extremism” for up to six or eight years.

When a person is placed on the list, their bank accounts are frozen, they are prohibited from making any bank transfers or payments, including mortgage payments, for example, and can only withdraw the equivalent of the minimum wage once a month per individual in their household (approximately US$70). They cannot use state services such as a notary because their state personal identification number is blocked, which they need to access such services. These financial restrictions are arbitrary and discriminatory, Human Rights Watch said.


Aoláin, the UN special rapporteur, following her trip to Kazakhstan in 2019, noted her “extreme disquiet at the hardship created for family members and dependants…resulting in independently undermining the rights of women and children.”

Demeuova, the single mother from Almaty, said that because she is on the list: “I can’t use the notary. I can’t leave the city. I can’t access the bank or change money. I can’t [even] pay my rent. … [The authorities] arranged my financial death to silence me.” Another interviewee said that she cannot get the child support she receives for her son because it is deposited into her bank account, which is frozen due to her conviction.

Original source:   HRW

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