Guaranteeing Protection of the Right to Privacy of Citizens during State of Emergency in Kazakhstan

Ruslan Daiyrbekov

Founder of the Eurasian Digital Foundation, Director of the Digital Rights Center Kazakhstan, Member of the Digital Rights Expert Group, Data Privacy Professional (GDPR DPP).
Imposition of the state of emergency (SoE) as a result of the events of January 2022 led to the temporary restriction of some civil rights and freedoms, which were aimed at ensuring security and protection of the constitutional order of the Republic of Kazakhstan. The Law of the Republic of Kazakhstan “On State of Emergency” allows introducing certain restrictions of the civil rights and freedoms and at the same time regulates the limits of the application of such measures and temporary restrictions under a state of emergency. The purpose of this paper resides in analyzing the national legislation in respect of the privacy right restrictions during the state of emergency.
What the Law Says
The right to privacy constitutes a keystone of the contemporary democracy, being one of the fundamental and most complicated concepts, which must be legitimately and effectively supported in Kazakhstan society. It contributes to exercising other human and civil rights and freedoms and promotes creativity and personal development as well as democratization of both the society and the state.[1]

Nowadays, in its evolution, the society of Kazakhstan also follows the path that comprehends the value of each and every personality by acknowledging and protecting each person’s dignity and supporting the idea of inalienable and indefeasible human rights and freedoms.[2]

One of the most important human rights is the right to privacy. This right is established by article 18 of the Constitution of the Republic of Kazakhstan[3], where it is clearly stated as follows:

1. Everyone shall have the right to inviolability of private life, personal or family secrets, protection of honor and dignity.

2. Everyone shall have the right to confidentiality of individual deposits and savings, correspondence, telephone conversations, postal, telegraph, and other messages. The limitation of this right shall be permitted only in cases and according to the procedure directly established by law.

3. State bodies, public associations, officials, and the mass media must provide every citizen with the possibility to become familiar with the documents, decisions and other sources of information concerning his rights and interests.

Kazakhstan laws embrace a set of statutory norms to protect private life. In particular, they establish legal methods of protecting privacy as well as forms and procedures for bringing to liability in case such rights are violated. This refers to the mechanisms of the administrative, civil, and criminal liability, as well as liability under international law.

All authorities and officials that carry out criminal intelligence operations (CIO) must ensure that each and any of such activities are conducted in compliance with the human and civil rights and freedoms enshrined in the Constitution.

It is noteworthy that no state of emergency invalidates provisions of the Criminal Procedure Code of the Republic of Kazakhstan, which ensure the right to inviolability of one’s private (personal and family) life. Clause 3 of article 16 of the above-said Code states that “No one has the right to collect, store, use, or disseminate information about the private life of a person without the latter’s consent, except as otherwise provided by law”. In addition, the state of emergency provides for the application of the norms contained in article 15 of the Law of the Republic of Kazakhstan “On Criminal Intelligence Operations”, which prohibit “taking any illegal actions to restrict rights, freedoms, and lawful interests of the citizens” and “disclosing data that affect the inviolability of the private life and personal or family secrecy”.

Articles 147-149 of the Criminal Code of the Republic of Kazakhstan establish criminal liability for the invasion of personal privacy; unlawful violation of the secrecy of correspondence, telephone conversations, mail, telegraph and other communications; disclosure of privileged medical information; and intrusion into private homes. According to article 16 of the Criminal Procedure Code, private life of citizens as well as personal and family secrets are protected by law. Everyone has a right to the privacy of his/her personal deposits and savings, correspondence, telephone conversations, postal, telegraph, and other communications. Any restrictions of such rights in the course of the criminal proceedings shall be permitted where and as expressly provided for by the effective legislation only. Terms and grounds for arresting correspondence, intercepting messages, and wiretapping and recording conversations are detailed in articles 232-246 of the Criminal Procedure Code.

Article 10 of the Civil Procedure Code states that the private life of citizens, along with personal and family secrets, is protected by law. Everyone has a right to the privacy of his/her personal deposits and savings, correspondence, telephone conversations, postal, telegraph, and other communications. Any restrictions of such rights in the course of the civil proceedings shall be permitted where and as expressly provided for by the effective legislation only.

Finally, article 16 of the Code on Administrative Offenses of the Republic of Kazakhstan decrees that “private life as well as personal, family, commercial, and any other legally protected secrecy shall be protected by law. Everyone has a right to the privacy of his/her personal deposits and savings, correspondence, telephone conversations, postal, telegraph, and other communications. Any restrictions of such rights in the course of the administrative proceedings shall be permitted where and as expressly provided for by the effective legislation only”.

Looking at the development of legislative guarantees for the protection of the right to privacy in Kazakhstan, it should be mentioned that in 2009 the state introduced additional measures[4] to protect constitutional rights of the citizens in respect of the inviolability of private life, personal and family secrecy, secrecy of personal deposits and savings, privacy of correspondence, telephone conversations, postal and telegraph messages, and other communications.

Among others, such measures include expanding restrictions on the disclosure of any data affecting the inviolability of private life, which shall be applied to the officials engaged in criminal intelligence operations. Thus, article 15 of Law No. 154-XIII “On Criminal Intelligence Operations” dated September 15, 1994, states that during criminal intelligence operations it shall be prohibited “to disclose data, which affect the inviolability of private life, personal and family secrecy, and human and civil honor and dignity, and which have become known in the course of criminal intelligence operations, unless upon consent of the respective citizens and except where otherwise provided for by the law”.

[1] Judicial control over restrictions of the right to privacy // Kazakhstan Journal of International Law. 2004. No. 4(16). P. 160-172.
[2] Rogov I.I. Speech of the Chairman of the Constitutional Council of the Republic of Kazakhstan at the 5th August Readings dedicated to the Constitutional Principle of the Inviolability of Human Dignity, the city of Astana, 2007.
[3] The Constitution of the Republic of Kazakhstan adopted at the Republican Referendum dated August 30, 1995
[4] On Amendments and Supplements to Certain Legislative Acts on the Protection of Civil Rights to the Inviolability of Private Life; Law of the Republic of Kazakhstan No. 221-IV dated December 7, 2009

Inspecting Mobile Phone Contents
Undoubtedly, we should be deeply concerned with the facts reported by citizens in social networks that law enforcement officers and military personnel inspected contents of mobile phones during January events, and at the same time we should welcome the official statement of the Ministry of Internal Affairs of the Republic of Kazakhstan on the unlawfulness of such inspections of mobile phones of citizens without consent of their owners or judicial orders.

Any actions aimed at reviewing mobile phone contents, including photo- and video materials, constitute direct interference into private life of citizens.

The Law “On State of Emergency” allows establishing certain restrictions of civil rights and freedoms, including those on privacy, and yet, as described in article 17 thereof, such restrictions shall be imposed within the limits caused by the “circumstances that give rise to the introduction of the state of emergency” and “shall not contradict international treaties on human rights”. That said, the emergency state legislation sets a “priority” of the international law when introducing measures and temporary restrictions applied during a state of emergency.

The law strictly regulates both major and additional measures and temporary restrictions of personal rights of citizens to be applied during a state of emergency. According to the emergency state legislation, such measures, inter alia, include “body search and inspection of personal belongings and transport vehicles”.

In its turn, if the above-said measure to “inspect personal belongings” is misinterpreted and misapplied in respect of mobile phone contents, it leads to the violation of the right to personal secrecy and correspondence privacy, and also invalidates the constitutional right of citizens to the inviolability of their private life.

Thus, under conditions of a state of emergency, fixation of evidences as well as identification of potential criminals by reviewing contents of mobile phones may be conducted strictly within the framework of the criminal proceedings and in respect of the involved persons only.
It shall be allowable to obtain information on the person’s private life for no other reason than for the purposes of the criminal proceedings, provided that there are specific procedures established by the effective legislation to ensure the right to privacy, personal secrecy, and to the secrecy of correspondence.

In this regard, it merits to mention the statement of the President of the Republic of Kazakhstan announced at the meeting with the top officials of the law enforcement authorities on investigating public disorders, where the President stressesthe importance of preventing violations of civil rights in the course of the antiterrorist campaign and investigative activities”.

What Next
According to the national law on the state of emergency, all measures applied during a state of emergency, along with any restrictions of rights and freedoms of both natural persons and legal entities as well as imposition of any additional responsibilities thereupon, must remain within the limits caused by the circumstances that give rise to the introduction of the state of emergency and must not contradict international treaties on human rights ratified by the Republic of Kazakhstan. International standards also provide that any interference into private life shall be considered permissible only when there are existing procedures to guarantee the compliance of such surveillance measures with the terms set forth by the law and shall be in line with the following requirements:
Strict time limits;
Choice of the least drastic measures of those aimed to stabilize the situation in terms of security;
Application of guarantees, including provisions on the revision and cessation of the effect of such measures, to bring back normal laws when the emergency situation ends.
Operations of law enforcement agencies, including those under a state of emergency, must meet international standards and regulations. Any suspected cases of violations of human rights, including, inter alia, abuse of powers entrusted to the law enforcement officers and military personnel, shall be subject to immediate and effective investigation, after which guilty individuals shall be held to account for their acts.

Law enforcement practice of criminal proceedings under a state of emergency is known to have a problem of expansive interpretation and application of restrictive measures. “Inspections of personal belongings” in respect of mobile phone contents lead to the violation of the right to personal secrecy and correspondence privacy, and, therefore, invalidate the constitutional right of citizens to the inviolability of their private life.

Recommendations
● For the purpose of ensuring civil control over the lawfulness and reasonability of criminal intelligence operations, we suggest developing a special norm to be included into the emergency state law. Such norm should provide persons affected by criminal intelligence operations with a possibility to review collected data (including personal information) and take actions to protect their rights, which have been limited as a result of the unjustified criminal intelligence operations.

● We suggest strengthening accountability for the unlawful use of means and methods applied within the criminal intelligence operations as stipulated by clause 2 of article 22 of the Law of the Republic of Kazakhstan “On State of Emergency”.