Views of the Human Rights Committee dated July 13, 2017 in the case of Andrei Sviridov v. Kazakhstan (communication No. 2158/2012).
In 2012, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
The Committee's legal position: The Committee notes that the right of an individual to express his or her opinion, including, of course, opinions on human rights issues such as the right to a fair trial, is part of the right to freedom of expression guaranteed by article 19 of the Covenant (paragraph 10.2 of the Views) (See Kivenmaa v. Finland, para. 9.3.).
The Committee refers to its general comment No. 34 (2011) on freedom of opinion and freedom of expression, according to which freedom of opinion and freedom of expression are essential conditions for the comprehensive development of the individual. They are of key importance for any society and are fundamental elements of any free and democratic society (paragraph 2). The Committee recalls that article 19, paragraph 3, of the Covenant allows for certain restrictions, but only those provided for by law and which are necessary (a) to respect the rights and reputation of others and (b) to protect national security, public order, public health or morals. Any restriction on the exercise of such freedoms must strictly comply with the requirement of necessity and proportionality. Restrictions should be established only for the purposes for which they are intended, and should be directly related to the specific purpose they seek to achieve (paragraph 22) (See Communication No. 1948/2010, Turchenyak et al. v. Belarus, Views adopted on July 24, 2013, paragraph 7.7; No. 2089/2011, King v. Belarus, Views adopted on July 14, 2016, paragraph 7.3; and Poplavny v. Belarus, paragraph 8.3.). Committee...Recalls (See communications No. 1830/2008, Pivonos v. Belarus, Views adopted on October 29, 2012, paragraph 9.3; and No. 1785/2008, Oleshkevich v. Belarus, Views adopted on March 18, 2013, paragraph 8.5.), that it is up to the State party to demonstrate that the restrictions on the author's rights provided for in article 19 of the Covenant are necessary and proportionate (See communications No. 2092/2011, Androsenko v. Belarus, Views adopted on March 30, 2016 7.3; and Poplavny v. Belarus, paragraph 8.3.). Finally, the Committee recalls that any restriction on freedom of expression should not be too broad in nature, i.e. It should be the least restrictive measure by which an appropriate protective function can be ensured and be proportionate to the protected interest (paragraph 34) (paragraph 10.3 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee notes the author's claim that his right to freedom of expression, as enshrined in article 19, paragraph 2, of the Covenant, was restricted without the required justification based on any of the legitimate purposes provided for in article 19, paragraph 3 [of the Covenant]...The Committee notes that the author was found guilty and fined for organizing a "demonstration" in which he was the only participant without officially requesting permission from local executive authorities. In the Committee's view, the State party interfered with the author's exercise of his right to freedom of expression and dissemination of all kinds of information and ideas, which is protected by article 19, paragraph 2, of the Covenant (paragraph 10.2 of the Views).
The Committee notes the author's claim that the restrictions imposed on him are not provided for by law, since the expression of an opinion by an individual does not constitute a "demonstration". The Committee...Notes the State party's position that, although the concepts of "demonstration" and "public protest" are not defined in the law, the author's conduct constitutes a "demonstration" for the purposes of the Law on the Organization and Conduct of Peaceful Assemblies, Rallies, Marches, Pickets and Demonstrations. Regardless of whether the author's conduct is prohibited under domestic law, the Committee notes that the peaceful expression of an individual's opinion in a public place about an allegedly unfair trial should not be subject to the same restrictions that apply to an assembly of persons. The Committee...Notes that neither the State party nor the national courts have indicated any specific grounds, as required under article 19, paragraph 3, of the Covenant, to justify the restrictions imposed on the author (see para. Communication No. 1604/2007, Zalesskaya v. Belarus, Views adopted on March 28, 2011, paragraph 10.5.). In particular, the State party has not substantiated the reasons why obtaining prior official permission from local authorities before holding a single protest action is necessary to protect State security, public order, public health or morals, or to respect for the rights or reputation of others. In addition, the State party has not demonstrated that the measures taken, i.e. the finding of the author guilty and the imposition of a fine in the amount of half of the maximum amount according to part 1 of Article 373 of the Code of Administrative Offences constituted the least restrictive measures or were proportionate to the protected interest (See communication No. 2137/2012, Toregozhina v. Kazakhstan, Considerations adopted on October 21, 2014, paragraph 7.5.). The Committee considers that, in the circumstances, it has not been proven that the restrictions imposed on the author were justified by a legitimate interest and were necessary or proportionate to such a purpose, in accordance with the conditions set out in article 19, paragraph 3, of the Covenant. It therefore concludes that the author's rights under article 19, paragraph 2, of the Covenant have been violated (paragraph 10.4 of the Views).
The Committee's conclusions: The facts presented indicate a violation by Kazakhstan of article 19 of the Covenant (paragraph 11 of the Views).