Judicial harassment and ongoing arbitrary detention of Max Bokayev and Talgat Ayan

KAZ 001 /1016/ OBS 085
Judicial harassment/

Arbitrarydetention
Kazakhstan
October 11, 2016

TheObservatory for the Protection of Human Rights Defenders, a partnership of theWorld Organisation Against Torture (OMCT) and FIDH, requests your urgentintervention in the following situation in Kazakhstan.

Briefdescription of the situation:

TheObservatory has been informed by reliable sources about the judicial harassmentand ongoing arbitrary detention of Mr. MaxBokayev[1], head of the NGO “Arlan”[2]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, WesternKazakhstan. Both human rights defenders played a crucial role inthe social protests that took place last April and early May against theamendments to the Land Code of Kazakhstan (see background information below)[3].

Accordingto the information received, the first hearing in the trial against Messrs.Bokayev and Ayan will be taking place in Atyrau’s City Court No. 2 at 10.30 amon October 12, 2016. They are facing charges for “institution of socialdiscord” (Article 174), “disseminationof knowingly false information” (Article 274) and “violation of the procedure of organisationand holding of meetings, rallies, pickets, street processions anddemonstrations” (Article 400) and face imprisonment for a term of up toten years.

The judicial harassment andarbitrary detention of Messrs. Bokayev and Ayan has been ongoing since May 17,2016, when they were arrested in Atyrau in retaliation for their criticalstatements posted on Facebook and for making public their intention toparticipate and encouraging others to take part in the 21 May protests. On thesame day, an administrative court sentenced them to 15 days of administrativedetention for “organising and holding peaceful assemblies” (Article 488 of theAdministrative Offences Code) in violation of the laws of the Republic ofKazakhstan. This happened though the two had sent requests for authorisation tohold demonstrations on May 21 to the relevant local authorities in Atyrau, inaccordance with domestic laws.

On May 20,2016, the officers of the Division 9 of the National Security Committee inAtyrau, following a court order, raided the house of nine human rightsdefenders including that of Mr. Bokayev’s mother and confiscated documents, computers,telephones, USB sticks and other data storage elements. During the search, Mr.Bokayev’s mother was injured and her front door was slammed in.

OnMay 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 theoffenses of “preparation of a crime”, and “propagandaor public calls for seizure of power or retention of power or violent change ofthe constitutional order” under Articles24.1 and 179.3 of the criminal code. On July 21these charges were replaced with the three charges mentioned above.

OnJune 3, 2016, the investigationjudge of Atyrau Court No. 2 remanded Messrs. Max Bokayev and Talgat Ayan fortwo months in pre-trial detention. Mr. Bokayev’s request for house arrest dueto his critical health condition given that Mr. Bokayev suffers from a chronic hepatitis C and needs constant medical care wasrejected. On August 27, 2016, the judge decided to extend the pre-trialdetention. The prosecutor argued that “Max has a lot of friends inside andoutside of Kazakhstan and so there’s a fear that he will leave the country”.

TheObservatory expresses its concern regarding the ongoing repression,intimidation, and judicial harassment of human rights defenders in Kazakhstan,which seems to be aimed at hindering their legitimate human rights activitiesand condemns the ongoing attempts by the Kazakh authorities to curtail therights to freedom of association, assembly, and expression,

Furthermore,the Observatory strongly condemns the ongoing judicial harassment againstMessrs. Max Bokayev and Talgat Ayan, andcalls on the Kazakhstani authorities to immediately and unconditionally releaseand drop all charges against them.

Background Information:

BetweenApril and May 2016, several protests were held in Kazakhstan, gatheringhundreds of citizens calling for the abolition of amendments to the Land Codethat were introduced in November 2015[4].

Ahead of acountry-wide protest scheduled on May 21, the authorities started to repressthe protest movement: they rejected all authorisationsto hold demonstrations on May 21 and arrested and, between, May 16 and 20,2016, detained and sentenced more than 30 protesters to administrativedetention of up to 15 days for “preparation of illegal rallies” or“hooliganism” or “inciting social discord”. Protesters included Messrs. Gatau-Gali Bohan, Sagingali Kapizov,Kubaidolla Sholak, and MakhambetAbzhan.

Later, asthe movement gained momentum through social media, the police arrested, aheadof protests, activists believed to be planning or involved in the movement. Thearrests targeted well-known several civic activists and civil society leadersin Almaty, Uralsk, Atyrau, and Astana. Several criminal cases against humanrights defenders were opened in addition to Messrs. Bokayev and Ayan. On May17, singer and human rights defender, Mr. ZhanatEsentaev was arrested in Uralsk and subsequently sentenced on July 15 totwo and a half years of probation for “incitement of inter-ethnic discord” forhis posts on Facebook.

On May 21,2016, demonstrations were held across the country though the authorities hadfailed to authorise them. The police systematically blocked access to publicplaces and arrested hundreds of protesters as they were on their way to theprotest meeting places. More than 500 people were arrested in Almaty and almost100 in Uralsk.

Moreover, onthe same day, law enforcement officers arrested over 50 journalists who werecovering the protests or were in the vicinity. Their photos and videos weredeleted. The distribution of the newspaper Uralskaya Nedelya was alsoblocked in addition to the website of Radio Free Europe/ Radio Liberty(RFE/RL)’s Kazakh Service, Radio Azattyq. In Almaty, where theprotest counted the largest number of participants, access to social media suchas Periscope, Facebook, Google and Youtube wereblocked. In other regions, individual accounts on social media tools weremonitored and used to prove participation in the protests.

On May 27, a press release posted on the official website ofthe Office of the Prosecutor General described protests as a “chain of events”by means of which “certain individuals” intended to “destabilis[e] thesocial-political situation, inciting inter-ethnic discord and seizing power”.It stated that criminal proceedings had been launched against severalindividuals in connection with the events, without specifying their identity.

In thiscontext, the Government launched a smear campaign via mass media platformsaccusing the protesters of planning violent attacks and blaming a Kazakhstani businessman,for leading the protest movement in order to plot a coup to destabilise thecountry.

This isn’tthe first time Kazakhstan has criminalised human rights defenders for usingtheir right to freedom of expression and to peaceful assembly. On October 12,2015, Messrs. Ermek Narymbaev and SerikzhanMambetalin were arrested in Almaty and sentenced to a suspended three-yearand one-year prison term respectively for “inciting inter-ethnic discord”.During a five-year period, they will not be able to take part in any so-called“social activities”.

Actionsrequested:

Pleasewrite to the authorities of Kazakhstan asking them to:

i. Immediately and unconditionally dropall charges against Messrs. Bokayev and Ayan and put an end to all acts ofjudicial harassment against them as well as against all human rights defendersin Kazakhstan;

ii. Guarantee in all circumstances thephysical and psychological integrity of Messrs. Bokayev and Ayan, as well as of all human rightsdefenders in Kazakhstan;

iii. Repeal legal provisions limiting freedom of peacefulassembly beyond the narrow restrictions permitted under international humanrights law, particularly with the aim of ensuring that this right is no longersubjected to the permission of government authorities and merely to priornotification;

iv. Repeal legal provisions limiting freedom ofexpression beyond the narrow restrictions permitted under Article 19 of theICCPR, including thevague and broad definition of the offence of incitement to “social, national,clan, class or religious discord” in Article 174 of the Criminal Code;

v. Comply with all the provisions ofthe United Nations Declaration on Human Rights Defenders;

vi. Ensurein all circumstances respect for human rights and fundamental freedoms inaccordance with international human rights standards and internationalinstruments ratified by Kazakhstan.

Addresses:

· Mr.Nursultan NAZARBAEV, President of the Republic of Kazakhstan. Fax: + 7 3172 3261 82, 007 / 3172 / 32 40 89

· Mr.Kalmukhanbet Kassymov, Minister of Internal Affairs. Email: Kense@mvd.kz

· Mr.Zhakip Assanov, Prosecutor General. Fax: +7 7172 506 402

· Mr.Askar Shakirov, Human Rights Commissioner. Fax: +7 7172 74 05 48

· Ambassador Ms. Zhanar Aitzhanova,Permanent Representative of the Republic of Kazakhstan to the UN Office andother International organizations in Geneva. Fax: +41 (0) 22 788 66 02. Email: mission@kazakhstan-geneva.ch

· Ambassador Mr. Almaz KHAMZAYEV, Embassy of Kazakhstanin Brussels. Email: brussels@mfa.kz.

· Permanent Delegation of the Republicof Kazakstan to the OSCE in Vienna. Fax: +43 1 890 80 08 20. Email: kzosce@kazakhstan.at

Please also write to the diplomaticmission or embassy of Kazakhstan in your respective country.

***

Geneva-Paris,October 11, 2016

Kindlyinform us of any action undertaken quoting the code of this appeal in yourreply.

The Observatory for the Protectionof Human Rights Defenders (the Observatory) was created in 1997 by the WorldOrganisation Against Torture (OMCT) and FIDH. The objective of this programmeis to intervene to prevent or remedy situations of repression against humanrights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human RightsDefenders Mechanism implemented by international civil society.

To contactthe Observatory, call the emergency line:

• E-mail: Appeals@fidh-omct.org

• Tel and fax OMCT + 41 (0) 22 809 4939 / + 41 22 809 49 29

• Tel and fax FIDH + 33 (0) 1 43 55 2518 / +33 1 43 55 18 80

[1] Max Bokayev is a civil society activis. He is a member of the ExtractiveIndustries Transparency Initiative (EITI) since 2011, a member of the“Zhanaozen-2011” International Committee under the “Journalists in Trouble”Public Foundation, the initiator of the “Azat” Coalition (freedoms andliberties on the Internet), and an active participant in the NationalPreventive Mechanism (NPM) on the prevention of torture in prisons. In 2016, hewas appointed as head of the NPM regional group in Atyrau oblast.

[2] Arlan focuses on public scrutiny over governmental actions and the rightof citizens to participate in public life, environmental protection especiallyin the context of oil companies, and various social issues both at the localand national levels.

[3] On May 12, 2016, Mr. Max Bokayev was invited by the Governmentto join a Land Code Reform Commission that had been established to review thelaw following several peaceful rallies across the country. However, he refusedarguing that members of the Commission should nott be nominated by thegovernment but by Kazakhstani citizens and that the government should put anend to all acts of harassment against those protestings the Land Code reform.

[4] In November 2015, draft amendments to theLand Code, aiming at facilitating the lease of agricultural land by foreignerswere presented to the Parliament in Kazakhstan. The amendments were adopted andshould have entered into force in July 2016. Protesters contended that thechanges infringed upon the rights of Kazakh citizens and landowners.