Violation of the Right to a Fair Trial during January Events
Roman Reymer
Human rights defender, practicing lawyer in the field of civil law, co-founder of the "Yerkindik Kanaty" Public Foundation, member of the Coalition of a new generation of human rights defenders
Introduction
Tragic events of January 2022 once again, but this time much obviously and directly, revealed facts of systemic violations and, in truth, disregard of the freedom of gathering and of the right to a fair trial and the right to privacy.

Kazakhstani social networks are home to hot discussions of the use of video cameras with the facial recognition function by law enforcement authorities for identifying participants of January events.

According to the social networks, several citizens of Kazakhstan, who one way or another had taken part in January events and got caught by the video surveillance system, were:

● Detained and taken to police departments;
● Brought to administrative liability according to article 488 of the Code on Administrative Offences of the Republic of Kazakhstan.

At the same time, the official position of the Ministry of Internal Affairs of the Republic of Kazakhstan is to refute using video cameras with the facial recognition function by law enforcement agencies[1].

Yet, there are facts of bringing Kazakhstanis to administrative liability, including, supposedly, through urban video surveillance systems. Moving further, let’s look at one of such instances.

[1] Official response of the Ministry of Internal Affairs of the Republic of Kazakhstan. Outgoing number: 6-6-2-25/ЗТ-Ш-1112-И dated 18.02.2022 to the enquiry made by Erkindik Qanaty Public Foundation (Wing of Freedom).
Alexandra Osipova’s Case
In short, the case summary is as follows. On January 5, 2022, Alexandra Osipova, a well-known blogger, conducted a live broadcasting on Instagram to cover a spontaneous peaceful gathering on the Republican Square in the city of Ust-Kamenogorsk aimed to support demands of workers of the large industrial enterprises in the western region of the country.

After the announcement made by the executive government (city Akim) that the peaceful gathering was unlawful, Alexandra Osipova left the Republican Square immediately, which was far long before the confrontment between citizens and law enforcement officers broke out.

However, on January 9, 2022, the blogger was taken to the police department where she was brough to administrative liability according to part 7 of clause 488 (Violations of the Legislation of the Republic of Kazakhstan on Organization and Conduction of Peaceful Assemblies) of the Code on Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the CAO of the RK).


On the 9th day of January 2022, pursuant to the decision of Judge Rakhimova R.T. of the Ust-Kamenogorsk Specialized Court on Administrative Offences, Alexandra Osipova was found guilty in committing an administrative offence specified in part 7 of article 488 of the COA of the RK and imposed with an administrative fine in the amount of KZT 153 150[1].

The decision of the judicial board on criminal proceedings of the East Kazakhstan Regional Court represented by Judge Dorosh I.N. changed the above-said ruling of the Ust-Kamenogorsk Specialized Court on Administrative Offences. Actions of Alexandra Osipova were re-qualified to part 6 of article 488 of the COA of the RK, and she was sentenced to paying an administrative fine in the amount of KZT 91 890[2].

At present, the advocate of Alexandra Osipova has submitted a motion to bring the case before the judicial board of the Supreme Court of the Republic of Kazakhstan for reviewing those decisions under cassation proceedings.

It is noteworthy that the first instance court session as of January 9, 2022, was conducted off-line in the police department building. It is a so-called ‘extramural’ format.

Furthermore, based on the case papers, the key evidence of the “guilt” of Alexandra Osipova was a photo table confirming that the blogger had visited the Republican Square on January 5, 2022. It is rather intriguing that the photo table had photos taken not by Alexandra Osipova only, but also photos of her taken by third persons. Thus, it means that representatives of the Ministry of Internal Affairs obtained photos of Alexandra Osipova either in violation of article 145 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the CC of the RK), or as a result of the absolutely illegal investigative activities, or through the urban video surveillance system.

Despite the obviously doubtful legitimacy of extramural court sessions, the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the SC of the RK) made an official statement that:

● The effective legislation does not contain a direct prohibition of conducting extramural court sessions;
● Extramural sessions were conducted due to the imposition of the national state of emergency (SoE).[3]

By now, an additional enquiry has been submitted to the SC of the RK to clarify its position on the activities of extramural court sessions based on the specific requirements of both the national legislation and international law.

In point of fact, the SC of the RK informs that it acts as a proponent of the ‘everything is permissible what is not prohibited’ principle and also refers to the specialized legislation, namely, to the Law of the Republic of Kazakhstan No. 387-II “On State of Emergency” dated February 8, 2003 (hereinafter referred to as the “SoE Law”).

It follows thence that the legitimate nature of extramural court sessions, along with their practical legal enforcement and role of observers and bloggers in covering peaceful assemblies should be thoroughly analyzed through the prism of the relevant international standards.

[1] Decision No. 6312-22-00-3/244 dated 09.01.2022
[2] Decision No. 6399- 22-00-3а-415 dated 26.01.2022
[3] Official response of the Supreme Court of the Republic of Kazakhstan No. 6001-22-8-6/70 dated 18.02.2022 года to the enquiry made by Erkindik Qanaty Public Foundation
Violation of the Fair Trial Principles
When rendering its decision, the judicial board on criminal proceedings of the East Kazakhstan Regional Court did not find any violations of Alexandra Osipova’s rights during the initiation of her case and its consideration at the court of original jurisdiction.

The first instance trial of Alexandra Osipova was conducted in the police department building where the blogger had been taken by the representatives of the Ministry of Internal Affairs.

The court session was announced open according to Decision No. 6312-22-00-3/244 of the Specialized Court on administrative offences of the city of Ust-Kamenogorsk dated January 9, 2022 (hereinafter referred to as the “Decision”).

Moreover, the Decision neither indicates that the court process took place in the off-line mode in the police department building, nor that it was an “extramural” one. The session was conducted on the same day as Alexandra Osipova had been brought to the police department. Hence it appears that she didn’t have a chance to get duly prepared for the court proceedings.

Besides, no advocate, observers, or mass media representatives were allowed to the court session. It would not have been possible for her advocate, observers or mass media to attend the session online as the Internet had been shut down.

Having said that, both the court of the original jurisdiction and the appeal body in all but name legitimize the practice of conducting administrative proceedings in the forms and places, which are not intended for those purposes, when we speak of so-called ‘extramural’ court sessions.

Extramural court sessions are in no way regulated by the corresponding national legislation. This implies that per se ‘extramural’ courts are unlawful.

Further, international standards, in particular article 14 of the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR) and General Comment No. 32 to that article (hereinafter referred to as Comment No.32), do not contain any provisions that could be interpreted as a legal possibility to conduct court sessions outside court buildings.
1
Clause 9 of Comment No. 32 regulates that “Access to administration of justice must effectively be guaranteed … to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice”.
2
Clause 13 of Comment No. 32 indicates that “The right to equality before courts and tribunals also ensures equality of arms… the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant”.
3
Clause 28 of Comment No. 32 states that “All trials … must in principle be conducted orally and publicly. The publicity of hearings … provides an important safeguard for the interest of the individual and of society at large”.
Thuswise, ‘extramural’ court sessions seem to be illegal for the following reasons:

● ‘extramural’ court sessions are neither governed by any of the national laws and regulations, nor by any international standard in the field of the right to a fair trial ratified by Kazakhstan;
● conduction of extramural court sessions in police department buildings violates the principle of separation of powers as such court proceedings take place within the territory of the executive authorities;
● extramural court sessions do not comply with the principle of transparency because police departments are classified among secured objects and, consequently, access of observers and mass media representatives is restricted thereto;
● extramural court sessions contradict the principle of equality of arms since court sessions are conducted in the premises of police authorities that brought detainees to administrative liability.
All above-said constitutes a direct violation of both the national legislation and international standards of a fair trial, especially under the total Internet shut-down, which made it impossible to ensure the principle of transparency of judicial proceedings. In this regard, the state represented by the extramural court restricted procedural rights of Alexandra Osipova.
According to the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, the state has a right to restrict human rights and freedoms where it is strictly necessary only. In doing so, the Siracusa Principles prescribe that the ‘necessity’ of such restrictions is justified in three instances only: when it responds to a pressing public or social need, when it pursues a legitimate aim, and when it is proportionate to that aim.
In the instant case the state does not provide any clear explanations of why extramural court sessions have been practiced. No pressing need to introduce ‘extramural’ court proceedings, which infringe procedural rights of the citizens and violate principles of judicial independence, has been established. In this context, restriction of civil rights is arbitrary.
From this perspective, court proceedings of the original jurisdiction were conducted in breach of both national and international standards, and, as such, are not legitimate, meaning that the previously issued decision should be overturned.
Furthermore, the Law on State of Emergency establishes that the grounds for imposing a state of emergency reside in ensuring security and protecting rights and freedoms of humans and citizens as well as protecting the constitutional order of the Republic of Kazakhstan. When analyzing the President’s Decrees on the introduction of the state of emergency, we do not find any provisions that would restrict activities of the national courts. This is due to the fact that access to a fair trial is one of the key human rights enshrined in the Constitution.

Moreover, article 23 of the Law on State of Emergency claims that “Justice in the areas under the state of emergency shall be exercised by the courts in accordance with the legislative acts of the Republic of Kazakhstan”. Here, legislative acts implicate, above all, Constitutional Law of the Republic of Kazakhstan No. 132-II “On Judicial System and Status of Judges” dated December 25, 2000 (hereinafter referred to as the “Constitutional Law”).
1
Clause 1 of article 3 of the Constitutional Law states that “The judicial system of the Republic of Kazakhstan shall consist of the Supreme Court of the Republic of Kazakhstan, local and other courts…”. At the same time, “Establishing special and emergency courts under any name shall not be permitted”.
Most significantly, neither the Law “On State of Emergency”, nor the Constitutional Law contain any provisions on legal possibilities for restricting the right to the access to judicial system and, as a result, for restricting procedural rights of any parties to the proceedings. This being said, the reference of the SC of the RK that such extramural court sessions were conducted due to the introduction of the state of emergency is not supported by any legislative grounds and, consequently, is not legitimate.
Violations of Standards on Freedom of Peaceful Assembly
General Comment No. 37 on the right to peaceful assembly to article 21 (Comment No. 37) contains elements that give credence to the unacceptability of imposing administrative punishments on Alexandra Osipova.

Official sources of information offer no data on the organizers of the peaceful assembly that took place at the Republican Square on the 5th day of January 2022. Moreover, there is no official information that certain natural persons had submitted relevant notifications to the local executive body, to which the latter responded and, inter alia, handed down an injunction to conduct the assembly.

As to the international standards, the gathering of the 5th day of January 2022 should be considered ‘spontaneous’. According to clause 14 of Comment No. 37, “… spontaneous assemblies, which are typically direct responses to current events, whether coordinated or not, are equally protected under article 21 of the ICCPR”.

Thus, in the absence of any official information and pursuant to the international law standards, on January 5, 2022, Alexandra Osipova took part in the spontaneous assembly, not knowing that certain disputable national standards had been violated. There had been no official announcement on the ‘illegitimacy’ of the assembly until the speech of the Akim of the city of Ust-Kamenogorsk.

According to Alexandra Osipova’s explanations reflected in the decision of the first instance court, her intentions were to cover the overall situation and monitor events at the Republic Square through live broadcasting on Instagram as she was a blogger. From here it follows that she should have been protected under article 21 of the ICCPR, and, in particular, under clause 30 of Comment No. 37, which states that:

“The role of journalists, human rights defenders, election monitors and others involved in monitoring or reporting on assemblies is of particular importance for the full enjoyment of the right of peaceful assembly. … They must not face reprisals or other harassment, and their equipment must not be confiscated or damaged. Even if an assembly is declared unlawful …, that does not terminate the right to monitor”.

Therefore, bringing Alexandra Osipova to administrative liability for the mere fact of her attendance at the assembly on January 5, 2022, contradicts the ICCPR provisions voluntarily ratified by the Republic of Kazakhstan.
Recommendations
To the Supreme Court of the Republic of Kazakhstan:

1. Conduct a thorough study of the effective national legislation as well as international law to decide on the legitimacy, adequacy and reasonability of conducting extramural court sessions.
2. When conducting court sessions according to article 488 of the COA of the RK, a critical approach should be practiced in respect of such evidences as photo- and video materials, if obtained from unidentified sources in breach of the right to one’s own image.

To the Ministry of Internal Affairs of the Republic of Kazakhstan:

To prohibit conducting extramural court sessions in police departments and other buildings affiliated to the Ministry since such court sessions violate the right to a fair trial and principle of separation of powers.

To the General Prosecutor’s Office of the Republic of Kazakhstan:

To analyze activities of ‘extramural’ courts for the compliance with law and observance of civil rights and interests during court proceedings.
Attachments
Decision No. 6312-22-00-3/244 dated 09.01.2022

Decision No. 6399- 22-00-3а-415 dated 26.01.2022

Official response No. 6-6-2-25/ЗТ-Ш-1112-И of the Ministry of Internal Affairs of the Republic of Kazakhstan dated 18.02.2022 to the enquiry of Erkindik Qanaty Public Foundation

Official response of the Supreme Court of the Republic of Kazakhstan No. 6001-22-8-6/70 dated 18.02.2022 to the enquiry of Erkindik Qanaty Public Foundation.