URGENT APPEAL - THE OBSERVATORY

New information

KAZ 001 / 1016 / OBS 085.4
Arbitrary detention /

Judicial harassment

Kazakhstan
February 13, 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.

New information:

The Observatory has been informed by reliable sources about the ongoing arbitrary detention of Mr. Max Bokayev[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 Ayanov, 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 30, 2017, relatives of Messrs. Max Bokayev and Talgat Ayanov received two separate letters issued from the pre-trial detention centre in Atyrau. The first one, dated January 25, 2017, was informing them that the twowould be transferred to the Penal Colony in Atyrau. This was subsequently confirmed verbally to both Messrs. Bokayev and Ayanov. The second letter, dated January30, 2017, was informing the relatives of the two defenders that Messrs. Bokayev and Ayanov would be transferred to the Penal Colony of Petropavlovsk, NorthernKazakhstan, which is 1,500 km from Atyrau, their home city,to serve their sentence. This is in violation ofKazakhstan’s domestic law, which requires keeping convicts near their place ofresidence.

OnJanuary 27, 2017, Messrs. Max Bokayev and Talgat Ayanov were transferred from Atyrau pre-trial detention centre to a pretrial detention facility in Aktobe, more than 500 km away from Atyrau, their home city, where they remained detained as of February 9, 2017, before being transferred to the Penal Colony of Petropavlovsk. The relatives of Messrs. Max Bokayev and Talgat Ayanov have not beeninformed on a possible date for the transfer of Messrs. Max Bokayev and Talgat Ayanov to the Penal Colony of Petropavlovsk, as according to Article 91.7 of the Criminal Executive Code, authorities are requested to take measures on security and confidentiality during transfer process.

The Observatory strongly condemns the ongoingarbitrary detention and harassment of Messrs. Max Bokayev and Talgat Ayanov. Moreover, the Observatory fearsthat imprisonment in the Penal Colony of Petropavlovsk where conditions of detention areknown to be particularly harsh and where they would be cut from regular visitsfrom their family members and lawyers would place them at risk of torture andill-treatment, in violation of Kazakhstan’s obligations under theUnited Nations Convention Against Torture.

The Observatory urges authorities inKazakhstan to release Messrs.Max Bokayev and Talgat Ayanov immediately and unconditionally as their detention is arbitrary since it only seems to aim at sanctioning their human rights activities.

Background information:

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[3]. During these protests many were detained and sentenced to administrativedetention for “preparation of illegal rallies” or “hooliganism”.

On April 24, 2016, Mr. Max Bokayev participated ina 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. MaxBokayev and Talgat Ayanov were arrested in Atyrau in retaliation for theircritical statements posted on Facebook and for making public their intention toparticipate and encouraging others to take part in the May 21 protests. On thesame day, an administrative court sentenced them to 15 days of administrativedetention for “organising an unsanctioned assembly” (Article 488 of theAdministrative Offences Code) although the rally of May 21 had not yet happenedat the time of the arrest.

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 Ayanov with the offense of“propaganda or public calls for seizure of power or retention of power orviolent change of the constitutional order” under Article 179.1 ofthe Criminal Code. On July 21 this charges was replaced with “institution ofsocial discord” (Article 174 of the Criminal Code), “dissemination of knowinglyfalse information” (Article 274) and “violation of the procedure of organisationand holding of meetings, rallies, pickets, street processions anddemonstrations” (Article 400).

On June 3, 2016, the Investigation Judge ofAtyrau Court No. 2 remanded Messrs. Max Bokayev and Talgat Ayanov for twomonths in pre-trial detention. Mr. Bokayev’s request for house arrest due tohis critical health condition given that Mr. Bokayev suffers from achronic hepatitis C and needs constant medical care was rejected. On August 27,2016, the Judge decided to extend the pre-trial detention. The Prosecutorargued that “Max Bokayev has a lot of friends inside and outside of Kazakhstanand so there’s a fear that he will leave the country”.

On October 12, 2016, the trial against Messrs. Bokayev and Ayanovstarted before Atyrau’s City Court No. 2.

On November 28, 2016, Judge GulnaraDauleshova of Atyrau’s City Court No. 2 found Messrs. Max Bokayev and Talgat Ayanov guiltyunder Articles 174, 274 and 400. They were sentenced to five years in prison underArticle 174 Part 2, five years under Article 274 Part. 4, and to a fine of 250MCI (530,250 tenge, approx. 1,466 EUR) under Article 400. They were alsoprohibited to engage in social activitiesfor three years. By the rule ofabsorption of less severe punishment by more severe punishment, the final punishmentof the two defenders is of five years' imprisonment in a penal colony ofordinary regime. The court also ordered the defendants to pay anamount of 259,000 tenge (approx. 716 EUR) as procedural costs. On December 9,2016, Messrs. Max Bokayev and Talgat Ayanov's lawyers appealed the sentence.

On January 20, 2017, after fourhearings, the Criminal Division of the Atyrau Regional Court upheld the verdictand confirmedg the sentencing in first instance by the Atyrau’s City Court No.2 of Mr. Bokayev and Mr. Ayanov to five years in prison and three years of banto engage in social activities after their release for “institution of social discord”, “dissemination of knowingly falseinformation” and “violation of the procedure of organisation and holding of meetings,rallies, pickets, street processions and demonstrations”.Messrs. Max Bokayev and algat Ayanov's lawyers intend to file an appealagainst the decision beforethe Supreme Court.

Actions requested:

Please write to the authorities of Kazakhstan asking them to:

i. Guarantee in all circumstances the physical andpsychological integrity of Messrs. Max Bokayev and Talgat Ayanov, as well as ofall human rights defenders in Kazakhstan;

ii. Release Messrs. Max Bokayev and Talgat Ayanov, immediatelyand unconditionally, as their detention is arbitrary since it only aims atsanctioning their legitimate human rights activities;

iii. Put an end to all forms of harassment, includingat the judicial level, against Messrs.Max Bokayev and Talgat Ayanov as well as of all human rightsdefenders in the country so that they are able to carry out their work withouthindrance;

iv. Conform in any circumstances withthe provisions of the United Nations Declaration on Human RightsDefenders, adopted on December 9, 1998 by the UN General Assembly, inparticular its Articles 1, 6, 8, 9 and 12.2;

v. Ensure in all circumstances respect for humanrights and fundamental freedoms in accordance with international human rightsstandards and international instruments ratified by Kazakhstan.

Addresses:

· Mr. Nursultan Nazarbaev, President of the Republicof Kazakhstan. Fax: + 7 3172 32 61 82, 007 / 3172 / 32 40 89

· Mr. Kalmukhanbet Kassymov, Minister of InternalAffairs of Kazakhstan. Email: Kense@mvd.kz

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

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

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

· Ambassador Mr. Almaz KHAMZAYEV, Embassy ofKazakhstan in Brussels. Email: brussels@mfa.kz.

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

Please also write to thediplomatic mission or embassy of Kazakhstan in your respective country.

***

Geneva-Paris, February 13, 2017

Kindly inform us of any action undertaken quotingthe code of this appeal in your reply.

The Observatory for the Protection of HumanRights 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. OMCT and FIDH are both members of ProtectDefenders.eu, the European Union Human Rights DefendersMechanism implemented by international civil society.

To contact the Observatory, call the emergencyline:

· E-mail: Appeals[at]fidh-omct.org

· Tel and fax OMCT + 41 (0) 22 809 49 39 / + 41 22809 49 29

· Tel and fax FIDH + 33 1 43 55 25 18 / +33 1 43 55 18 80

[1] Mr. Max Bokayev is a member of theExtractive Industries Transparency Initiative (EITI) since 2011, a member ofthe “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 National PreventiveMechanism (NPM) on the prevention of torture in prisons. In 2016, he wasappointed as head of the NPM regional group in Atyrau oblast.

[2] Arlan focuses on public scrutiny overgovernmental actions and the right of citizens to participate in public life,environmental protection especially in the context of the operation of oilcompanies, and various social issues both at the local and national levels.

[3] In November 2015, draft amendments to the Land Code, aiming at facilitating the lease of agricultural land by foreigners were presented to the Parliament in Kazakhstan. The amendments were adopted and should have entered into force in July 2016. Protesters contended that the changes infringed upon the rights of Kazakhcitizens and landowners.