Special Report
“Qazaqstan Shutdown 2022”
Inspection of Phones
Inspection of Phones under a State of Emergency: Invasion of Privacy or Reasonable Measures
Article author
Dana Mukhamedzhanova
KazGUU (M.Narikbayev KAZGUU University)
According to the current Law of the Republic of Kazakhstan “On Personal Data and Their Protection”, personal data matters in Kazakhstan refer to regulated activities. This law defines basic provisions on the processes related to personal data and their protection.
Under the state of emergency, Kazakhstan imposed a number of temporary restrictive measures. Some of those restrictions focused on strengthening public order and security of the crucial governmental objects and facilities that support vital functions of the population and transport operations. The freedom of movement was also restricted. Article 15 of the Law “On State of Emergency” allows checking personal identification documents as well as inspecting personal items and transport vehicles. In an attempt to analyze if the actions of officials who conducted such inspections were lawful, we should consult the effective laws of Kazakhstan,
For the purpose of detecting and identifying traces of a criminal offense and other material objects, clarifying the incident scene, and establishing the circumstances relevant to the case, the person conducting the pre-trial investigation conducts an inspection of the territory, buildings, items, documents, survivors, corpses, and animals. Instructions of the person conducting the inspection shall be binding for all participants in this investigative action.
We should also consider some parts that concern the general rules of conducting an inspection:
● The examination shall be carried out with the use of scientific and technical means to fix the course of the inspection and its results, and in cases under Parts 13 and 14 hereof, with the participation of witnesses.
According to article 6 of the Law of the Republic of Kazakhstan “On Internal Affairs Bodies of the Republic of Kazakhstan”:
● Acting within their competence, internal affairs bodies shall inspect persons as well as their personal belongings and transport vehicles when implementing relevant access control procedures applied at the facilities guarded by the State.
According to article 254 “Procedures of Search and Seizure” of the Criminal Procedural Code of the Republic of Kazakhstan:
● Searches and seizures are carried out by the person conducting the pre-trial investigation on the basis of the respective motivated ruling. An order for conducting search and seizure of documents, items and data contained therein, which refer to the state secrets or other legally protected secrets must be authorized by an investigating judge.
The Criminal Procedural Code of the Republic of Kazakhstan does not specify such term as “personal inspection”, but applies another definition, namely “personal search”.
According to article 255 “Personal Search” of the Criminal Procedural Code of the Republic of Kazakhstan:
● Personal search may be carried out without issuing a special resolution or a sanction of the investigating judge in the presence of any of the following circumstances:
1) if there are reasonable grounds to suppose that a person, being present in the room or in some other place, which is being searched in compliance with the requirements of Article 254 of this Code, hides documents or items that may be relevant to the case;
2) if it is performed during the detainment of a person or his/her taking in custody. Should it be the case, a personal search can be carried out in the absence of attesting witnesses.
On January 12, Yerbol Izbasarov, a citizen of Kazakhstan, addressed the President of the Republic of Kazakhstan through Facebook on the fact of the inspection of the documents of some citizen ‘M’ and search of the latter’s car by police officers. Yerbol Izbasarov told the story of ‘M’, who had been very detailed on how his personal property had been inspected, and that he had been required to show the contents of his mobile phone. The phone of ‘M’ contained video materials of the protests obtained from the open internet sources. Besides, in his plea, the citizen spoke about the extortion and threats to his life from the representatives of law enforcement agencies. The fact of extortion was supported by the attached screenshot of the money transfer through the Kaspi Bank application. Having consulted the attorney and specialists of the human rights advocacy, the person, who had suffered from extortion, complained to the police department. As judged by the comments of Kazakhstanis under Izbasarov’s post, that case of extortion was not unique.
As mentioned above, under clause 3 of article 15 of the Law “On State of Emergency”, checking identification documents of natural persons, as well as conducting personal search and inspecting their belongings and transport vehicles, is allowed. However, police bodies may not inspect the contents of the mobile phone as there can be certain data that refer to personal privacy. In addition, personal correspondence, images, and video clips can contain information on the marital or commercial secrecy.
Journalist Olga Chechulina, who works in the field of PR and SMM, was also detained by the police for having photo- and video materials from the protests on January 4th and 5gh in her mobile phone and for publishing stories in her personal Instagram account. The Village Kazakhstan states that police officers conducted a search and listened to audio messages as well as made photos of all references to the protests, which they managed to find in shared and personal chats.
Public disorders that accompanied January events made it absolutely justifiable that the State had to impose certain restrictions to ensure national security and stabilize the situation in the country. And yet, can it serve as a springboard for exceeding official powers by authorized persons charged with conducting inspections and searches?
A good example of the protection against arbitrary interference can be found in the practice of the European Court of Human Rights (ECHR). When considering the case of Catt v. The United Kingdom, the court established that retention of the data of the peaceful movement activist, who had never been convicted for any offense, was neither compulsory for all, nor necessary for the purposes of the specific investigation, and, therefore, was recognized to be a violation of his right to privacy,
In Kazakhstan, the state of emergency lasted from January 5th to January 19, 2022. Yet, in practice there were examples of the long-lasting imposition of such regime and derogations from human rights, which also existed for an unreasonably extensive period of time.
● Monitoring of social networks must be regulated by stricter supervision. The use of technical control means must be more transparent, including a continuous dialogue between law enforcement agencies and concerned community.
● The observance of civil rights must undergo a public evaluation. Governmental bodies must be liable for the cases of illegal actions of authorized officials who under the state of emergency have access and levers of influence. It is required to apply effective tools and remedies to protect victims of any free-hand inspections of mobile phone contents or personal searches.
● Online-tracking technologies must not be used for the preventive monitoring in respect of those who plan and organize peaceful protest actions or those who participate in nonviolent political groups.
On January 15, 2022, the President held a meeting, during which a demand to develop a new legislative framework on coordinating activities of law enforcement agencies under critical situations was voiced. After the meeting, in pursuit of arranging measures to restore trust to police bodies, Yerlan Turgumbayev, the Minister of Internal Affairs, published a directive to the Internal Security Department to carry out a thorough investigation of all incoming complaints of citizens in relation to the actions of police officers. The Minister made an official announcement that no mobile phone may be checked or inspected without its owner’s consent or a relevant court sanction. Monitoring of incoming complaints of citizens caused by the facts of unmotivated inspections of mobile phones by police officers has been implemented by sending out confidential hotline numbers and instructions for submitting an application.
With regard to the international standards in the field of human rights, if we speak about the state of emergency in general terms, temporary derogations from the rights and freedoms fixed in the international documents may be allowed, and yet such practice may be ‘justified in extraordinary and most serious situations only’.
In Kazakhstan, as from the 6th of January, social networks started publishing numerous complaints of the citizens who had faced personal search and inspection of the contents of their phones conducted by police officers. For instance, one of such cases was described in the Instagram account named “Almaty Complaints”.
Major Conclusions Based on the Current Situation
Recommendations
● It is necessary to exclude situations that pose a risk of arbitrary interference in private life under the state of emergency.
● Rules for conducting searches and inspections when prescribed by the law must be observed, providing that such measures are applied only when they are indeed necessary, proportionate and non-discriminating.
● To conduct systematic monitoring of how procedures of ensuring adequate guarantees on the protection of the right to privacy are implemented.
● It is strongly advised to delete all data collected during inspections, and make sure immediately upon the end of the state of emergency that none of such data can be misused.