Special Report
“Qazaqstan Shutdown 2022”
Right to a Fair Trial
Right to a Fair Trial
Article author
Roman Reimer
Yerkindik Kanaty (Wing of Freedom) Public Foundation
Starting from January 5, 2022, the President issued respective Decrees to impose the state of emergency over the entire territory of Kazakhstan. The Law “On State of Emergency” establishes that the ground for imposing a state of emergency resides in ensuring safety and security, protection of human and citizen rights and freedoms, and also protection of the constitutional system of the Republic of Kazakhstan.
When analyzing those President’s Decrees on the imposition of the state of emergency, we do not find any clauses that limit activities of the courts of Kazakhstan. It relates to the fact that the access to a fair court proceeding is one of the key constitutional rights of any human.
More than that, article 23 of the Law “On State of Emergency” states that “Justice in areas of the state of emergency shall be exercised by the courts in accordance with the legislative acts of the Republic of Kazakhstan”. Those legislative acts include, above all, the Constitutional Law “On Judicial System and Status of Judges” dated December 25, 2000.
Clause 1 of article 3 of the Constitutional Law establishes that “the judicial system of the Republic of Kazakhstan shall consist of the Supreme Court of the Republic of Kazakhstan, local and other courts…”. In doing so, ”no establishment of special and emergency courts under any name shall be permitted”.
It should be specially noted that neither the Law “On State of Emergency”, nor the Constitutional Law contain provisions on any possible limitations of the right to access to the judicial system and, consequently, on restrictions of the process-related rights of the involved parties.
Starting from March 2020, Kazakhstan judicial proceedings shifted to the online format due to the imposed quarantine measures. The ultimate majority of all civil, administrative, and criminal processes are considered through various available messengers (mostly WhatsApp), though with a various degree of success. Thus, the physical possibility to get the access to justice directly depends on the stability and quality of the internet connection.
However, the total internet shutdown throughout the entire territory of the country made it impossible to deliver justice in the online mode, which, putting it mildly, produced an adverse effect on the consideration of thousands of court proceedings during the period.
At the same time, process-related laws contain provisions that regulate the right of the court to suspend case procedures. In particular, subclause 1.1 of clause 1 of article 273 of the Civil Procedural Code of the Republic of Kazakhstan (CPC of the RK) establishes the right of the court to initiate the suspension of case proceedings. The above-said becomes possible upon the occurrence of force-majeure circumstances, which include, inter alia, imposition of a state of emergency (article 273 of the CPC of the RK).
The similar provision is also presented in subclause 4 of clause 1 of article 45 of the Criminal Procedural Code of the Republic of Kazakhstan (CrPC of the RK). When the court exercises its right to suspend the case proceedings, it issues a relevant ruling. After force-majeure circumstances cease to exist, all earlier suspended case proceedings are resumed with the prolongation of respective procedural timelines.
Thus, theoretically, the state of emergency and attendant internet shutdown should not adversely affect most of the cases being considered by courts. The point at issue is about those cases, which do not refer to case proceedings initiated during the state of emergency and internet shutdown.
At present, there are numerous judicial processes in national courts commenced under administrative offenses related to organizing, running, and/or participating in ‘unlawful’ peaceful gatherings. At that, court proceedings are carried out with the violation of the principle of equality of arms, vividly having an accusatory nature.
A bright example is the case of blogger Alexandra Osipova from Ust-Kamenogorsk. Alexandra Osipova was brought to the administrative liability according to part 7 of article 488 of the Code of Administrative Offences of the Republic of Kazakhstan. Due to the lack of the internet connection, neither her attorney, nor observers, nor mass media representatives could participate in the process. That said, such court session took place in the police department building and was named an ‘extramural session’.
‘Extramural’ court sessions are no way regulated by the national legislation, which means that, in fact, such ‘extramural’ sessions are unlawful.
Moreover, international standards, namely article 14 of the ICCPR and General Comments No. 32 to the said article, do not contain any provisions that court be interpreted as a possibility to conduct court sessions outside court buildings.
Therethrough, we suppose that ‘extramural’ court sessions, including those under the state of emergency, are illegal due to the following arguments:
● ‘extramural’ court sessions are not regulated by any national legislative act or any international standard, voluntarily ratified by Kazakhstan, in the field of the right to a fair trial;
● Conducting ‘extramural’ court sessions in police department buildings violates the principle of the separation of powers as court sessions take place within the territory of executive authorities;
● ‘extramural’ court sessions infringe the principle of publicity, because police departments are secured institutions and, consequently, their territory is closed to visits of observers and mass media representatives;
● ‘extramural’ court sessions violate the principle of equality of arms, since court sessions take place in the premises of police bodies that bring detained citizens to the administrative liability.
All above-said is a direct violation of both the national legislation and international standards of fair court proceedings, especially in light of the fact that total internet shutdown makes it impossible to ensure the principle of justice delivery publicity.
Thus, the State, represented by the ‘extramural’ court session restricted procedural rights of Alexandra Osipova.
Surely, being guided by the Siracusa Principles, the State has a right to limit certain human rights and freedoms in cases of the strictest necessity, when such measure corresponds to the actual need of the State or society, provided that it pursues legal goals and is proportionate to those goals.
In this very case, the State does not give clear explanations on why such ‘extramural’ court sessions are practiced. The State has not proved its vital need to discriminate by violating procedural rights of its citizens and infringing the principles of the independent judiciary proceedings when we speak of introducing ‘extramural’ court sessions.
In that vein, we can state that such restriction of citizen rights had a free-hand nature. It should be mentioned that the case of Alexandra Osipova is not a solitary instance; mass-scale information on the ‘extramural’ court sessions is received from almost all regions of the country.
Summarizing what has been said, we can make the following conclusions regarding the operating principles and practical administration of law in the online format.
● The judicial system of Kazakhstan has made a steady shift to the online format for the period of the state of emergency and continuing quarantine. When considering the ultimate majority of cases online, the judicial system exerts efforts to ensure the maximum possible implementation of the justice delivery principles, such as publicity, equality of arms, and others.
● When force-majeure circumstances occur, such as imposition of the state of emergency and consequent total internet shutdown, the courts have their procedural right to suspend court proceedings to prevent, in the first instance, violations of the basic principles of legal processes.
● Yet, when considering cases initiated under administrative offenses, related to organizing, conducting, and/or participating in ‘illegal’ peaceful gatherings, the State, in fact, violates the rights of its citizens to a fair trial when allows ‘extramural’ court sessions that take place in police departments.
Recommendations
To the Supreme Court of the Republic of Kazakhstan:
● Clarify the unlawfulness and groundlessness of ‘extramural’ court sessions, which contradict both the national legislation and international standards in the field of the right to a fair trial, to subordinate courts.
To the Ministry of Internal Affairs of the Republic of Kazakhstan:
● Prohibit conducting ‘extramural’ court sessions in police departments and other buildings under the jurisdiction of the Ministry as being unlawful and violating the principles of the right to a fair trial and principle of the separation of powers.
To the General Prosecutor’s Office:
● Consider activities of ‘extramural courts’ with regard to the compliance with law and observance of citizen rights and interests within the framework of judicial processes.