URGENT APPEAL - THE OBSERVATORY
KAZ 001 / 1016 / OBS 085.2
Sentencing / Arbitrary detention
November 29, 2016
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 to five years in prison 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 November 28, 2016, Judge Gulnara Dauleshova of Atyrau’s City Court No. 2 found Mr. Max Bokayev and Mr. Talgat Ayan guilty of “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).
They were 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 for procedural costs incurred by examinations for an amount of 259,000 tenge (approx. 716 EUR). Mr. Max Bokayev and Mr. Talgat Ayan's lawyers have announced their intention to appeal the sentence.
The announcement of the judgement, which lasted less than 15 minutes, was held again in a small hall as for previous hearings, inadequate to accommodate the high number of people who wished to observe the hearing.
The hearing was monitored by Ms. Ekaterina Vanslova, International Protection Consultant at the Russian NGO “Committee for Prevention of Torture”, within the framework of a trial observation mandated by the Observatory, as well as by local human rights defenders, journalists and observers from the Kazakhstan International Bureau for Human Rights and Rule of Law (KIBHRRL), the Coalition for the Security and Protection of Human Rights Defenders and the Norwegian Helsinki Committee (NHC). All journalists were allowed to enter the courtroom.
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 several hearings observed by its mission delegate.
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. During this 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.
In this context, the judicial harassment and arbitrary detention of Messrs. Bokayev and Ayan has been ongoing since May 17, 2016, when they were 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 the three charges mentioned above.
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 hearings on October 12, 13, 17 and 18 that were observed by the Observatory mission delegate, important procedural violations were registered that amount to breaches of internationally-recognised fair trial standards. 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”.
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.
Geneva-Paris, November 29, 2016
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.
The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by the World Organisation Against Torture (OMCT) and FIDH. The objective of this programme is to intervene to prevent or remedy situations of repression against human rights defenders. OMCT and FIDH are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.
To contact the Observatory, call the emergency line:
• E-mail: Appeals[at]fidh.omct.org
• Tel and fax OMCT + 41 (0) 22 809 49 39 / + 41 22 809 49 29
• Tel and fax FIDH + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80
 Mr. Max Bokayev is a member of the Extractive Industries 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 and liberties on the Internet), and an active participant in the National Preventive Mechanism (NPM) on the prevention of torture in prisons. In 2016, he was appointed as head of the NPM regional group in Atyrau oblast.
Arlan focuses on public scrutiny over governmental actions and the right of citizens to participate in public life, environmental protection especially in the context of the operation of oil companies, and various social issues both at the local and national levels.
 On May 12, 2016, Mr. Max Bokayev was invited by the Government to join a Land Code Reform Commission that had been established to review the law following several peaceful rallies across the country. However, he refused arguing that members of the Commission should not be nominated by the government but by Kazakh citizens and that the government should put an end to all acts of harassment against those protesting the Land Code reform.
Violations of the rights of the accused, including proceedings before an independent and impartial court; to adequate time and facilities to prepare a defence, to examine witnesses, to translate documents, also the right to equality before the courts.
See also the Legal Analysis submitted by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, in the case of Max Bokayev: http://freeassembly.net/wp-content/uploads/2016/10/UNSR-Maina-Kiai-letter-in-Kazakhstan-Max-Bokayev-case.pdf
 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 Kazakh citizens and landowners.
 In particular, the key evidence provided by the prosecution was based on expertise provided by official experts representing the Center for Forensic Expertise under the Ministry of Justice of Kazakhstan. These experts, political scientists, philologists and psychologists analyzed texts placed on Messrs. Bokayev and Ayan Facebook pages including their posts and comments of other people, and made conclusions that they incited social discord between such social groups as “society and authorities” or “people and members of the Parliament or police”.