Message: Bakhytzhan Toregozhin v. the Republic of Kazakhstan. Message No. 2137/2012. The Views were adopted by the Committee on October 21, 2014.
In 2014, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
Subject of the message: arrest, conviction of an administrative offense and imposition of a fine for holding a mass art event (art mob).
Substantive issue: arbitrary detention; freedom of movement; freedom of expression; freedom of association.
The legal positions of the Committee. The Committee recalls that, in order to comply with article 9, paragraph 1, of the Covenant, an arrest must not only be lawful, but also justified and necessary in all circumstances (paragraph 7.2 of the Views) (See communications No. 305/1988, Van Alfen v. the Netherlands, Views of 23 July 1990, paragraph 5.8; No. 631/1995, Spacmo v. Norway, Considerations of November 5, 1999, paragraph 6.3.).
The Committee refers to its general comment No. 34, in which it stated, inter alia, that freedom of expression is of key importance and is a fundamental element of any free and democratic society. He notes that article 19, paragraph 3, of the Covenant provides for restrictions on freedom of expression, including freedom to disseminate information and ideas, but only to the extent that they are established by law and are necessary: (a) to respect the rights and reputation of others; or (b) to protect national security, public order, public health or morals. Finally, 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 7.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case. The Committee notes that the State party has not provided any explanation as to why the author's arrest, carried out on the basis of the provisions of the Code of Administrative Procedure, was reasonable and necessary. The Committee considers that the State party has not demonstrated the need to detain the author. In the circumstances, the Committee concludes that the author's detention had no reasonable grounds and was in violation of article 9, paragraph 1, of the Covenant (paragraph 7.2 of the Views).
The Committee notes that the fact of the author's detention and the imposition of a heavy fine on her raises serious doubts about the necessity and proportionality of the restrictions imposed on the author's rights. The Committee notes that the State party has not provided any specific justification for the restrictions imposed on the author, as required by paragraph 3 of article 19 of the Covenant (See communication No. 1604/2007, Zalesskaya v. Belarus, Views of 28 March 2011, paragraph 10.5.). In addition, the State party has not confirmed that the measures chosen were the least restrictive in nature or proportionate to the protected interest. Based on the circumstances of the case, the Committee considers that, although these restrictions were imposed on the author on the basis of domestic law, their justification and proportionality, required by paragraph 3 of article 19 of the Covenant, could not be demonstrated. Therefore, it concludes that the author's rights under article 19, paragraph 2, of the Covenant have been violated (paragraph 7.5 of the Views) (See communications No. 927/2000, Svetik v. Belarus, Views of July 8, 2004, para. 7.3; N 1009/2001, Shchetko v. Belarus, Views of July 11, 2006, paragraph 7.5.).
With regard to the author's complaint under article 21 of the Covenant, the Committee considers that the State party has not confirmed that the restrictions imposed on the author's rights, namely the detention of the author and the imposition of a heavy fine on her, were necessary from the point of view of the interests of State security or public order, the protection of public health or morals, or the protection of the rights and freedoms of the author. the freedoms of others. The Committee concludes that the facts before it also reveal a violation of the author's rights under article 21 of the Covenant (paragraph 7.2 of the Views) (See Zalesskaya v. Belarus, paragraph 10.6.).
Conclusions of the Committee. In accordance with the sub-item. (a) Article 2, paragraph 3, of the Covenant, the State party is obliged to provide the author with an effective remedy, including a review of her conviction (It is a matter of bringing the applicant to administrative responsibility (paragraph 2.2 of the Considerations).) and the payment of appropriate compensation, including reimbursement of legal costs incurred. At the same time, the State party has an obligation to prevent the commission of similar violations in the future. The State party should review its legislation, in particular the Law on the Organization and Conduct of Peaceful Assemblies, Rallies, Marches, Pickets and Demonstrations in the Republic of Kazakhstan, since this law was applied in this case, in order to ensure the full exercise in the State party of those rights provided for in articles 19 and 21 of the Covenant (Paragraph 9 of the Considerations).