International Law and its connection with the national legislation

The current legislation consists of the norms of the Constitution, corresponding to it laws, other normative legal acts, international treaties and other obligations of the Republic, other normative resolutions of the Constitutional council and the Supreme Court of the Republic (Art. 4 Item 1 of the Constitution). Ratified international treaties prevail over the domestic law at the level of laws and other normative acts but the Constitution has the supreme legal effect and the priority over the international law. Prior to ratification of the international treaties of the Republic of Kazakhstan they are considered by the Constitutional council to find out whether they correspond to the Constitution (Art. 72 Item 1 paragraph 3 of the Constitution). International treaties recognized as not corresponding to the Constitution, cannot be ratified and enacted (Art. 74 Item 1 of the Constitution).

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International Law and its connection with the national legislation

The current legislation consists of the norms of the Constitution, corresponding to it laws, other normative legal acts, international treaties and other obligations of the Republic, other normative resolutions of the Constitutional council and the Supreme Court of the Republic (Art. 4 Item 1 of the Constitution). Ratified international treaties prevail over the domestic law at the level of laws and other normative acts but the Constitution has the supreme legal effect and the priority over the international law. Prior to ratification of the international treaties of the Republic of Kazakhstan they are considered by the Constitutional council to find out whether they correspond to the Constitution (Art. 72 Item 1 paragraph 3 of the Constitution). International treaties recognized as not corresponding to the Constitution, cannot be ratified and enacted (Art. 74 Item 1 of the Constitution).

FREEDOM OF ASSEMBLIES:

Legal framework

In accordance with the Constitution citizens of the Republic of Kazakhstan enjoy the right peacefully and without weapons to assemble, have meetings and demonstrations, marchers and pickets. Application of this right can be restricted by the law in the interests of national security, public order, protection of health, right and freedoms of other people (Art. 32 of the Constitution). The procedure for organization and conducting of public activities expressing interest and protest is mainly defined by the Decree of the President "On the procedure for organization and conducting of peaceful meetings, matchers, pickets and demonstrations in the Republic of Kazakhstan", which has the effect of the law (signed on March 17, 1995). Local representative bodies enjoy the right to regulate the procedure of conducting peaceful assemblies with regard to local conditions (Art. 10 of the Charter). The Supreme Court of the Republic of Kazakhstan adopted in July 1992 its resolution "On ensuring implementation of the legislation regulating the procedure for organization and conducting of assemblies, meetings, marchers and demonstrations".

Types of assemblies defined and protected in domestic law

The Constitution guarantees the right to hold peaceful actions without weapons in the form of meetings, demonstrations, marchers, and pickets (Article 32 of the Constitution).  In accordance with the Decree hunger strikes in public places, putting yurts (Kazakh traditional house used in urban conditions, as a rule, for ritual purposes), tents and other constructions (Art. 1 of the Decree) also belong to the mentioned before forms of expressing of group and personal interests and protest.  The Decree does not cover assemblies and meetings conducted by labor collectives and public associations in accordance with the legislation and the charter inside premises (Art. 11 of the Decree.).

It is impossible to find out whether this Decree covers other meetings of citizens conducted inside of the premises. At the same time administration and other officials of organizations are imposed punishment in the form of a fine for providing of premises or other property (communication means, copying machines, equipment, transportation) to participations of non-sanctioned public activities or create other conditions for organization and conducting of activity in accordance with Administrative Offences Code (Art. 273 Par. 2 of the Code). Any spontaneous actions conducted without a preliminary filing an application are not permitted and subject to termination upon a requirements of a local executive body (Art. 7 of the Decree.).

Possible limitations/restrictions/conditions, including requirements for notification

Under state of emergency there can be taken measures stipulating temporary restriction of rights and freedoms (Art. 10 of the Law of the Republic of Kazakhstan "On the legal regime of emergency status" in the edition of March 12, 1999). Freedom of peaceful assemblies is not included into the list of rights and freedoms, which cannot be restricted (Art. 18 of the Law). Violation of the regime or requirements of emergency provisions on the ban to conduct public and mass activities leads to administrative punishment in the form of a warning, fine or administrative arrest (Art. 362 of the Administrative Offences Code).

State of emergency may be on the entire territory of the Republic of Kazakhstan for a period till 3 days or on a part of its territory - till 6 days. Upon completion of this period the President cancels the state of Emergency. If the circumstances that caused introduction of the state of Emergency were not removed within the established period the President with his Decree can repeatedly prolong it with approval by the Parliament. The President can cancel the state of emergency prior to the established period. Decision on cancellation or prolongation of the state of Emergency becomes valid from the moment of its adoption and is immediately promulgated (Art. 9 of the Law).

In order to conduct a meeting, marching, picket or demonstration it is necessary to file an application not later than 10 days prior to the scheduled date of its conducting. Application must specify the following information: goal, form, place of conducting of an activity or routes of movements, time of its beginning and end, approximate number of participants, names of authorized persons or organizers, persons responsible for public order, place of their residence and work or study, date of application filing. The date of application filing is calculated from the day of its registration (Art. 3 of the Decree). Hunger strikes in public places and putting constructions, though not enumerated in the article, requiring application filing, nevertheless are covered by this Decree.

Local executive body must inform on the adopted decision not later than 5 days prior to the time of conducting an activity, specified in application. In order to ensure rights and freedoms of other people, public safety and also normal functioning of transportation, objects of infrastructure, maintenance of greenery and small architectural forms (such as tents, kiosks and other temporary constructions) local executive body can offer applicants another time and place of activity conducting (Art. 4 of the Decree).

Activities organizers are imposed responsibility to compensate all additional expenses including the ones to ensure public safety, providing premises, sanitary cleaning, lighting, ensuring relay, audio gain at the place of conducting an activity (Art. 9 of the Decree).

Place, route and time of assemblies

Mass activities shall not be conducted at objects of railway, water and air transport and also close to organizations ensuring defense, national safety and activity of the population, including city public transport, water and electricity supply, heating and other energy carriers, establishments of public health and education (Art. 7 of the Decree). Applicant can be offered to replace specified in the application place and time of activity conducting in order to ensure rights and freedoms of other people, public safety and also normal functioning of transport, objects of infrastructure, maintenance of greenery and small architectural forms (Art. 4 of the Decree).

Local representative bodies can additionally regulate the procedure for conducting of public activities with regard to local conditions and in accordance with the requirements of the Decree (Art. 10 of the Decree). The specified restrictions permit free interpretation when ban meetings, marchers and also pickets and hunger strikes close to government buildings and public institutions. In the capital Astana there were allocated only two outside the premises places for conducting peaceful assemblies (Decision of the maslikhat of the city of Astana "On additional regulation of the procedure and places of conducting of peaceful assemblies, meetings and pickets", 2 May 2002). In Almaty the issued permissions in the overwhelming majority of cases allowed conducting of activities in the outskirts of the city, in the park behind one of the cinema halls (Kazakhstan International Bureau on Human Rights and Observation of Legality).

Power to ban assemblies

Local executive body bans public activities if the aim of their conducting causes racial, national, social, religious intolerance, class exclusiveness, violent overthrow of the constitutional structure, infringement on the territorial integrity of the republic and also violation of other provisions of the Constitution, laws and other normative acts of the Republic of Kazakhstan or their conducting threatens public order and safety of citizens.

Mass activities shall not be conducted at objects of railway, water and air transport and also close to organizations ensuring defense, national safety and activity of the population, including city public transport, water and electricity supply, heating and other energy carriers, establishments of public health and education. Local executive body can demand termination of a public activity because of the following reasons (Art. 7 of the Decree):

- absence of an application for conducting an activity;

- adopted decision on ban;

- there was a violation of the procedure for conducting activities, stipulated by the Decree;

- if there appeared a threat to safety and health of citizens, violation of the public order.

The law does not contain special norms, obliging bodies of power to justify their refusal but in relation to a possibility of appeal of a decision at the court (Art. 7 of the Decree ), justification must be provided.

In case of refusal to obey lawful requirements of a representative of a local executive body, by its instruction law enforcement bodies take measures to terminate an activity (Art. 8 of the Decree).

Actions of the police are determined by the Rules for organization of work of units of law enforcement bodies to ensure protection of public order and safety of citizens in conducting of activities by public associations in the streets and other public places (Adopted by an Order of the Ministry of Internal Affairs on 6 December 2000).

Requirements for organizers, their rights and duties (including liability and penalties)

Authorized representatives of labor collectives, public associations and separate groups of citizens of the Republic of Kazakhstan, who reached the age of 18, can be organizers of peaceful assemblies (Art. 2 of the Decree). According to the Constitution foreigners and persons without citizenship enjoy the rights and freedoms in the Republic and also bear responsibilities established for citizens if otherwise is not foreseen by the Constitution, laws and international treaties (Art. 12 Item 4 of the Constitution). The Decree does not establish other requirements for participation of foreigners and persons without citizenship as organizers of activities. It remains not clear whether a separate citizen can act as an organizer filing an individual application, for instance: for conducting a picket or a hunger strike? (Art. 2 of the Decree )

Organizers are imposed a responsibility to file an application beforehand for conducting activities and also fulfillment of lawful requirements of a representative of a local executive body (Art. 8 of the Decree).

Organizers are obliged to conduct an activity in accordance with the aims specified in the application, within the specified periods and in the specified place and also to keep public order. Organizers are prohibited from making the following actions (Art. 5 of the Decree):

- hinder movement of transport and pedestrians;

- create barriers for continuous functioning of infrastructure objects, a settlement;

- put yurts, tents and other temporary constructions without an agreement of local executive bodies;

- damage greenery and small architectural forms;

- have weapons and also specially prepared and tailored items, which can be used against life and health of peoples, cause material damage to citizens and property of legal entities;

- interfere in any form into activity of representatives of public bodies ensuring public order in conducting activities.

Organizers violation of the legislation on the procedure of organization and conducting of an assembly, meeting, march, picket, demonstration or any other public activity leads to warning or fine in the amount of up to twenty monthly rated indices (Art. 373 Par. 1 of the Administrative Offences Code).

The Criminal Code stipulates punishment in the form of a fine in the amount from a hundred till eight hundred monthly rated indices, salary or another income for the period from one till eight months or bringing to public labor for a period from one hundred twenty till one hundred eighty hours or arrest for a period up to four months for organizer's violation of the procedure for organization and conducting of public activities leading to an organizer's disorder in the work of transport, cause of considerable damage of rights and lawful interests of citizens and organizations (Art. 334 Par. 1 of the Code).

Organization or conducting of unlawful assemblies, meetings, pickets, marchers and demonstrations leading to disorder in the work of transport, cause of considerable damage of rights and lawful interests of citizens and organizations is punished with a fine in the amount of from two hundred up to a thousand of monthly rated indices, salary or another income of the convicted for the period from two up to ten months or bringing to public labor for a period from one hundred eighty up to two hundred forty hours or arrest for a period up to six months or imprisonment for a period up to one year (Art. 334 Par. 2).

Requirements for participants, their rights and duties (including liability and penalties)

Participants are set the same requirements as for organizers - to conduct an activity in accordance with the aims specified in the application, within the specified periods and in the specified place and also to keep public order. Organizers are prohibited from making the following actions (Art. of the Decree):

- hinder movement of transport and pedestrians;

- create barriers for continuous functioning of infrastructure objects, a settlement;

- put yurts, tents and other temporary constructions without the agreement of local executive bodies;

- damage greenery and small architectural forms;

- have weapons and also specially prepared and tailored items, which can be used against life and health of people, cause material damage to citizens and property of legal entities;

- interfere in any form into activity of representatives of public bodies ensuring public order in conducting activities.

Police can apply administrative detention, which is a temporary deprivation of the freedom of movement and action with a forced keeping in special premises with an aim to stop his/her unlawful actions. Administrative detention is imposed for committing minor hooliganism, persistent disobedience to lawful order or requirement of a law enforcement body official, violation of the procedure of organization and conducting of assemblies, meetings, marchers, pickets and demonstrations (Art. 620 Item 1 of the Administrative Offences Code).

Active participation in unlawful public activities, which led to disorder in transport work, which caused considerable damage of rights and lawful interests of citizens and organizations is punished with a fine in the amount from two hundred till one thousand monthly rated indices or in the amount of a salary or other income of the convicted for a period from two till ten months or bringing to public labor for a period from one hundred eighty till two hundred forty hours or arrest for a period up to six months or imprisonment up to one year (Art. 334 Par. 2 of the Criminal Code).

Damage caused during the time of conducting of an activity is subject to compensation in accordance with the established by the law procedure (Art. 9 of the Decree).

State and police powers and responsibilities (including liability and penalties)

Local executive bodies are obliged to carry out reception, registration and consideration of applications on conducting public activities and also inform organizers about the taken decision not later than five days prior to the date of conducting an activity specified in application (Art. 3, 4 of the Decree). If in application there was specified information on the place and time of conducting activity subject to restrictions, a local executive body can offer an organizer to replace activity time and place (Art. 4, 7 of the Decree).

During conducting public activities local executive body is imposed a responsibility to follow observance of the declared procedure of conducting activities and if there appears a thereat to life and health of citizens, breach of the public order to demand activity termination. In case of refusal to fulfill lawful requirements, a representative of a local executive body provides corresponding directions to law enforcement bodies on taking measures to terminate the activity (Art. 8 of the Decree).

The actions of law enforcement bodies are regulated by the Rules on organization of work of units of law enforcement bodies to ensure protection of public order and safety of citizens in conducting activities by public associations in the streets and other public places (No. 665 Order of the Ministry of Internal Affairs, 6 December 2000). Rules contain directions on the actions of police in case of conducting sanctioned or spontaneous activities.

Illegal hindering conducting an assembly, meeting, demonstration, march, picket or participation in them and forcing participation in them made by an official with the use of his/her official position or usage of violence or threat of its use is punished with a fine in the amount from five hundred till seven hundred monthly rated indices or salary or other income of the convicted for a period from five till seven months or correctional labor for a period up to two years or imprisonment for a period up to three years with deprivation of the right to occupy certain positions or carry out certain activities for a period up to three years or without it (Art. 151 of the Criminal Code).

Rights of appeal

In accordance with the Criminal Code in a criminal case on illegal hindrance to conducting peaceful assembly investigators of law enforcement bodies make a preliminary investigation. Preliminary investigation must be completed not later than within two months period from the date of a criminal case initiation. In case of an accusation the case is transferred to the court.

Possibility and procedure for appeal of decisions and actions of officials is stipulated by the Civil Procedural Code (Chapter 27 of the Code). The court considers application within a monthly period. Having acknowledged an application as justified the court takes a decision about an obligation of a relevant body or official to eliminate in the full volume the committed violation of rights and freedoms and protected by the law interests.

Decision of the court of the first instance can be appealed in a superior court. Within three days after the verdict coming into affect it is sent for elimination of the committed violations of the law to a relevant body or superior body in accordance with the subordination procedure (Art. 282 of the Civil Procedural Code).

Analysis is provided by Dmitry Kabak, ODIHR Expert with assistance of the Kazakhstan International Bureau for Human Rights and Rule of Law, International Center of Non-Commercial Law, Kazakhstan, OSCE/ODIHR Mission in Kazakhstan which completed the ODIHR questionnaire.

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