Report: The harassment of civil society in Kazakhstan

1. Introduction

The Open Dialog Foundation welcomes the initiative of the UN High Commissioner for Human Rights on consultations regarding the creation of a favourable space for civil society activities and the development of a report with practical recommendations on this matter.

Since 2009, the Open Dialog Foundation has been dedicated to the protection of human rights in the area of the former Soviet Union, paying particular attention to the region’s largest countries: Kazakhstan, Russia and Ukraine.

The strike of oil workers of Zhanaozen and protests on Bolotnaya Square were suppressed by force. Since then, for fear of new protest movements, Kazakhstan and Russia have increased oppression against members of civil society who continue to live in fear.

We highly appreciate the opportunity to share our experience gained during our communication with representatives of civil society in Kazakhstan. After each section, the report provides specific recommendations for Kazakhstan on the protection of civil society. The analysis has been carried out according to areas determined by the United Nations, namely: legislative framework; political and social environment; freedom of dissemination of information; long-term support and resources; space for dialogue and cooperation.

At the end of the report, general recommendations for the development of civil society in post-Soviet countries with low levels of democracy can be found.

In the years 2012 and 2013, the Open Dialog Foundation organised several observation missions on human rights in Kazakhstan. It also reported on the court trials of Vladimir Kozlov and the Zhanaozen oil workers as well as the closure of independent media outlets.

On 1 September and 2 September, 2014, representatives of the Foundation participated in the meeting of the UN Working Group on Arbitrary Detention. On 14 November, 2014, the Foundation informed the UN Committee against Torture about the situation regarding torture in Kazakhstan. On 18 November, 2014, the Foundation’s representatives held a briefing for the UN Working Group on Arbitrary Detention on cases of harassment and the detention of representatives of civil society in Kazakhstan.

We hereby request that the United Nations High Commissioner for Human Rights consider these recommendations, and we stress the importance of this initiative, given the critical narrowing of space for the development of civil society in post-Soviet non-democratic states.

Over the past 5 years, the largest post-Soviet countries – Kazakhstan, Russia and Ukraine – have undergone major social upheavals associated with the struggles of civil society against political regimes. The strike of oil workers of Zhanaozen and protests on Bolotnaya Square were suppressed by force. Since then, for fear of new protest movements, Kazakhstan and Russia have increased oppression against members of civil society who continue to live in fear. Pressure from the international community did not suffice to prevent this. Even in Ukraine, civil society only began to benefit from true international support after February 2014, when special police officers opened fire on protesters in the centre of Kiev.

The lack of space for the free and safe operation of civil society leads to the preservation of authoritarian regimes, and these countries cease to be reliable and predictable partners.

The international community should heed civil society in non-democratic countries, especially in times of social upheavals and armed conflicts. The UN, EU, OSCE, PACE, and the governments and parliaments of democratic states should support the human rights NGOs whose members often risk their lives defending the values ​​of human rights and democracy. Constant communication with civil society will contribute to the transfer of unbiased information to diplomats and politicians about situations in non-democratic countries, and will also allow proactivity, thus preventing violent conflicts.

2. Legislative measures

Legislation of the Republic of Kazakhstan (RK) limits the space for the development of civil society and provides the possibility for the state authorities to overregulate this sphere. Some examples of such regulations are presented below:

• The Law of the RK ‘On Public Associations’  stipulates that the activities of unregistered associations constitutes an administrative violation. This contravenes the right to freedom of association and informal association. Associations which are inconvenient to the government are refused registration on technical grounds.
• The Law of the RK ‘On Political Parties’ contains stringent bureaucratic requirements for the establishment and functioning of partisan organisations. For example, the opposition party ‘Alga!’ was refused registration from 2005 to 2012 due to ‘uncertainties in some statements’, ‘the need for additional inspections’, and so on. In 2012, a Kazakh court banned the ‘Alga!’ party as some of the party’s members were charged with ‘inciting social discord’ during the Zhanaozen events.According to the law ‘On political parties’, the reason for the suspension of the party’s activities was calling for ‘extremism’ (although the law contains no clear definition of this term). A party can also be banned for not participating in two consecutive elections.
• The Law of the RK ‘On religious activity and religious associations was adopted in 2011 and introduced tough new stipulations regarding the registration of religious associations. In particular, for the registration of a local religious organisation, a minimum of 50 people is necessary, for a regional association – 500, while for a national association – 5000. Implementation of the law has led to a sharp decline in the number of religious associations. Non-traditional and/or independent communities have been forced to join religious structures, loyal to the authorities. The activity of unregistered religious organisations is prohibited.

Many scientific studies, as well as analyses of data by the ‘World Values ​​Survey’ organisation show that the public environment imposes limitations on the development of civil society in Kazakhstan.

• The Law of the RK ‘On Labour Unions’   has been criticised by the International Confederation of Trade Unions and the International Labour Office due to the state monopoly in this area and the limited capacity of independent labour unions.
• The Criminal Code, which has been effective since 2015, introduced the concept of ‘leader of a public association’ (Article 3). A ‘Leader’ is he who “is able, through his influence and prestige, to have sole control over the activities of a public association”. This definition makes it possible to classify any member of an association as a ‘leader’.The act of organising and participating in an illegal gathering “or other illegal public event” (Article 400) is a criminal offence. Criminal liability is provided for “illegal interference of members of civic associations in the activity of state bodies” (Article 403). It is unclear why, in violation of the principle of equality, the responsibility of members of civic associations is determined.

Recommendations:

• Reduce the number of bureaucratic requirements for registration and with regards to the activities of civic associations, political parties and religious communities.
• Eliminate from the Law ‘On Public Associations’, the ban on informal civic associations.
• Based on international standards, introduce a clear definition of ‘extremism’ into the legislation in order to avoid selective application of the rule in order to restrict the activities of civil society organisations.
• Revise the Law ‘On religious activity and religious associations’ in order to facilitate the registration of independent and small-scale religious communities.
• Decriminalise the article on the intervention of civic associations in the activity of state bodies and abolish the concept of ‘leader of a civic association’, which serves as a confounding factor.

3. Particularities of political and public environment

Many scientific studies, as well as analyses of data by the ‘World Values ​​Survey’ organisation show that the public environment imposes limitations on the development of civil society in Kazakhstan. For Kazakhs, private social networks and family ties are more common than civic life. They remain ‘enclosed’ in their social sphere and do not engage in political or public life. In society, there are features of a political culture, such as: patriarchy, political apathy, tolerance towards the authorities, low levels of knowledge as regards politics, etc. In this connection, great responsibility lies with the government, which is charged with ensuring that proper conditions exist for the development of civil society.

However, the political environment is not favourable for the development of civil society in Kazakhstan. Civil society activists are subjected to many restrictions, including arrest, criminal prosecution, bans on carrying out actions, etc.

Activists who are critical of the state authorities are subjected to prosecution on fabricated charges:

–   In 2012, the leader of the unregistered party ‘Alga!’, Vladimir Kozlov, was sentenced to 7.5 years in prison on political charges in connection with the events in Zhanaozen.

–   Since 2012, human rights defender Vadim Kuramshin has been serving a 12-year sentence in a penal colony having been convicted of ‘extortion’.

–   In 2007, dissident and poet Aron Atabek was sentenced to 18 years’ imprisonment in a penal colony having been convicted of ‘organising mass disorder’.

–   Through abuse of the Interpol system, Kazakhstan pursues not only the opposition politician Mukhtar Ablyazov, who has long funded the independent media and the opposition movement in Kazakhstan, but also his relatives and associates. Human rights organisations, members of the European Parliament and PACE have repeatedly labelled Ablyazov’s case political and called on France not to extradite him.

–   In ​​November 2014, Roza Tuletayeva, an activist of the oil worker’s movement, who, like other convicts in the Zhanaozen case, was subjected to brutal torture, was released from prison. Her liberation was made possible thanks to stark criticism by the European Parliament, the UN and the OSCE.

–   Human rights activist and lawyer, Zinaida Mukhortova, was repeatedly subjected to forced psychiatric treatment. She was released in December 2014, following repeated appeals from the United Nations and human rights organisations.

Activists and organisers of the protests are often subjected to detentions, arrests and even fines for taking part in small or single-person pickets. In March, 2014, in Astana, the police violently pushed women and children who were protesting against forced evictions from apartments into a police bus. Also in 2014, police detained protesters at a rally against the establishment of the Eurasian Economic Union; activists of the ‘Antigeptil’ group; protesters at a rally against the devaluation of the tenge; protesting builders of the ‘EXPO-2015’ exhibition; bloggers Nurali Aytelenov, Rinat Kibrayev, Dmitriy Shhelokov, Dina Baydildayeva and others. In February 2015, police arrested two residents of Semey city, who were holding a protest action outside the US embassy.

Recommendations:

• Discontinue the practice of exerting pressure on civil society activists, subjecting them to harassment, arrest and intimidation; observe their right to a profession, their rights to freedom of expression and freedom of assembly in accordance with the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
• Ensure that an impartial investigation into each individual case involving the arrest of a civil activist is carried out.
• Heed the calls of the international community and release opposition activists Vladimir Kozlov, Vadim Kuramshin and Aron Atabek, as charges which were levied against them have been recognised as politically motivated.
• Deny requests for the extradition of opposition politicians, who financed and supported the opposition movement and civil society activists in Kazakhstan; cease the practice of exerting pressure on opposition politicians through the persecution of their relatives, taking them hostage.

4. The freedom of flow of information

In Kazakhstan, the authorities impede the development of independent media, thereby limiting the information channels, necessary for the activities of civil society.

• In 2012, the Kazakhstani courts banned the activities of the 34 most influential independent media outlets on the basis of a politically motivated judgement against oppositionist Vladimir Kozlov. The media outlets were accused of ‘inciting social hatred’ in connection with the events in Zhanaozen in 2011.
• Shortly after, a new method of persecution came in the form of suspensions on outlets’ rights to circulate media due to minor technical violations. In violation of the principle of commensurability and proportionality of penalties, in 2013-2014, the circulation of ‘Pravdivaya Gazeta’ [‘The Truthful Newspaper’] was banned, while the publication of the newspapers ‘Pravda Kazakhstana’ [‘Truth of Kazakhstan’] and ‘Tribuna’ [‘Tribune’] was suspended.
• A significant number of articles in the new administrative and criminal legislation are designed to limit freedom of speech:-   Article 456 of the CC ‘Violation of the procedure for declaring output data’ is regularly used to restrict the activities of small independent publications.

  –   Article 174 of the CC ‘Inciting social, national, tribal, racial, class or religious hatred’ contains vague criteria for defining actions as criminal.

  –   Article 274 of the CC ‘Spreading false information’ endangers investigative journalists.

  –   Article 130 of the CC provides for punishment for defamation, not only in the form of imprisonment, but also in the form of exorbitant fines (up to 25,810 euros).

• Journalists are subjected to criminal prosecution for their professional activities. Fearing imprisonment in relation to charges of defamation, journalists Aidos and Natalia Sadykov were forced to flee the country, and in December 2014, they were granted political asylum in Ukraine.
• In 2014-2015, civil activist Musagali Duambekov; journalists: Oksana Zhivitska, Valeriy Surganov, Lyudmila Batyushkina, Talgat Umarov; editor, Aigul Musabayeva; publisher, Tamara Yeslyamova; and attorney, Abzalov Kuspan faced charges of defamation. Journalists, Andrey Tsukanov and Mariya Kovaleva were presented with charges of ‘spreading false information’, editor, Zharylgap Kalybai – of ‘justifying extremism’, editor, Sergey Perkhalskiy – of ‘insulting a representative of authority’. An Investigative journalist of the newspaper ‘Versiya’ [‘Version’], Yaroslav Golyshkin is being held in custody on suspicion of extorting money from the akim of Pavlodar province.
• On 19 June, 2015, a Kazakh court imposed an obligation upon the owner of website Nakanune.kz Gyuzal Baidalinova to pay damages to ‘Kazkommertsbank’ in the amount of 20 million tenge (over 95,000 euros) for denting its business reputation. The court also demanded that the article, which reported possible violations in the financing of the Bank’s projects, be removed from the website. In the article, journalists expressed mere assumptions and suggested that the law enforcement agencies verified the information contained within the article. The court rejected the motion for a linguistic examination.

Recommendations:

• Decriminalise articles on defamation and the dissemination of false information in accordance with the international standards as regards protection of freedom of opinion and close the criminal case against the accused journalists.
• Cancel the amendments to the law ‘On Telecommunications’, which allow the blocking of Internet resources without the obtainment of a court order.
• Cease the prosecution of editors and other mass uses of administrative penalties in order to restrict the activities of independent media outlets. 
• Introduce changes to the Administrative Code, making it impossible to mete out disproportionate punishments in the forms of suspension or bans on the circulation of newspapers for technical and formal violations.
• Ensure independent and impartial investigations into all criminal cases against journalists.

5. Long-term support and resources

With regard to this sphere in Kazakhstan, one can highlight the following features and problems:

The State does not allocate grants for projects in the spheres of human rights protection, political education, rule of law, reform of the government etc.

• The State supports organisations which are engaged in public services and social projects. The State does not allocate grants for projects in the spheres of human rights protection, political education, rule of law, reform of the government etc. The State’s ‘social order’ does not reflect all the realities, as no public consultations on the issue of NGOs’ activities correspondence to the needs of society take place.
• NGOs that receive social orders are largely dependent on the postures of the state structures and are forced to abandon political activities and projects of political orientation.
• Independent NGOs are reluctant to cooperate with the state. In view of the strict monitoring of budgetary funds, even a minor change to an item listed on a budget for a project, or criticism of the current authorities, can lead to prosecution or persecution. Within the framework of the implementation of joint projects, a lack of confidence on the part of public authorities has been observed.
• Independent NGOs can obtain government grants only for projects related to educational activities or social services. In addition, as noted by the human rights activist Bakhytzhan Toregozhin, one of the conditions for receipt of a state grant for independent NGOs may be a bribe.
• In Kazakhstan, NGOs which defend the interests of the state are commonplace. “There are NGOs that are not just in the mainstream of public policy, but they implement it even against the interests of independent civil society”, – Kazakh human rights activist Yevgeny Zhovtis stated.
• Frequently, grants provided by the state for social projects are established with specific organisations having already been earmarked as beneficiaries. This is particularly evident at the regional level.
• In Kazakhstan, the draft law ‘On state support of non-governmental organisations’ has been developed. According to social activists, it gives priority to pro-government NGOs, especially in terms of financing. The draft law is discriminatory with respect to organisations that are engaged in projects for the protection of human rights and the development of democracy.
• Judging by the legislative initiatives undertaken, the authorities fear the influence of independent NGOs financed by foreign donors. To some extent, Kazakhstan is striving to mirror the policies of its closest ally, i.e. Russia, which has launched a campaign against ‘foreign agents’. Kazakhstan is making attempts to ensure a high level of public funding, which will allow the authorities to keep NGOs under their control.
• Working under the conditions of corruption (especially at the regional level); a lacking in the practice of reporting one’s activities, also due to the threat of persecution.
• Most NGOs suffer from a lack of qualified personnel, volunteer involvement and support of initiatives by local communities. This is due, in particular, to factors, such as: the danger of falling into disfavour with the authorities; low financial remunerations; the ‘Soviet’ image of NGOs in that they are controlled entirely by the state, a notion which is still very much present in society’s mind today.
• According to the human rights activists Yevgeniy Zhovtis and Bakhytzhan Toregozhina, international and intergovernmental organisations, as well as foreign governments, are striving to ensure parity in terms of financing both independent and pro-government NGOs, thus demonstrating their objectivity to the authorities.
• Human rights activist Max Bokayev suggests that, due to their bureaucratization, representative offices of international donors in Kazakhstan can sometimes show bias towards NGOs with which they have long cooperated. These NGOs, according to human rights activist Galym Ageleuova, can sometimes discuss the details of a project with potential benefactors in advance.

Recommendations:

• Through national and international programmes, ensure the independence and development of the organisational and financial capacity of civil organisations.
• Priorities for nationwide projects should be formulated through real public consultations, and on the basis of society’s true needs.
• To engage representatives of independent NGOs, including those dealing with the development of democracy and the rule of law, in the development of the draft law ‘On state support of non-governmental organisations’, so as to ensure that it does not discriminate against organisations of certain areas.
• The draft law should prescribe the optimum model of cooperation between the state and NGOs. In particular, such a model should provide for: flexibility when it comes to amending budgets for projects which are publicly funded; the possibility of long-term financing; guarantees regarding the independence of NGOs, despite the fact that they implement government projects, etc.
• The state should recognise its own interests in the fact that independent NGOs implement projects for the protection of human rights, democracy and the rule of law.
• International donors should work not only with long-term partners, but also support the work of promising new independent organisations.
• To ensure transparent and competitive tenders for state grants, encourage the activity of independent organisations.

6. The space for dialogue and collaboration

The Kazakh regime is not interested in dialogue and reacts negatively to the independent activities of NGOs, which manifests itself in oppression or disregard for the stance of civil society.

• During and after the tragic events in Zhanaozen, the authorities reacted to the activities of activists and organisations with aggression, namely, through: violent dispersal of the rallies; arrests and detentions of NGO representatives, leaders of labour unions and partisan movements; prohibition of activities of the unregistered party ‘Alga!’ and independent media outlets.
  Activists constantly feel under pressure and that they are at risk of reprisals. In particular, in January 2015, Maina Kiai, the UN Special Rapporteur on the right to freedom of peaceful assembly and freedom of association, paid a visit to Kazakhstan. The representatives of civil society, with whom Maina Kiai met, were under surveillance. As a result, Kazakh police detained a random individual who allegedly “confessed to a crime”. Maina Kiai noted that this case points to an “unwillingness to duly protect human rights in the country, as well as to the sense of impunity enjoyed by some officials“.
• In the course of an observation missions in Kazakhstan, Open Dialog Foundation representatives were also repeatedly surveilled by unknown persons who, apparently, belonged to the security forces.
• Efforts of representatives of civil society to influence the drafting of the new criminal and administrative laws are ignored, although the authorities have declared their active collaboration with civil society. In general, civil organisations in Kazakhstan operate outside of the decision making process.
• Kazakhstan attracts well-paid lobbyists that are willing to carry out campaigns of disinformation directed at international partners. As a result, governments, international organisations and the Western media receive distorted information that discredits Kazakhstani activists, journalists and opponents of the Kazakh regime, including those who are in exile in Europe for fear of persecution.    

–   In 2013, the embassies of Kazakhstan, in their statements to their European colleagues, accused opposition activists, politicians and the media of ‘inciting social discord’ and labelled the court judgements in respect of the Zhanaozen oil workers and Vladimir Kozlov ‘unbiased’. The EU and human rights activists have recognised these sentences to be politically motivateds.

The Kazakh regime is not interested in dialogue and reacts negatively to the independent activities of NGOs, which manifests itself in oppression or disregard for the stance of civil society.

–   Over the last few years, in violation of the law, Kazakhstan has applied lobbying mechanisms in order to extradite the opposition leader Mukhtar Ablyazov, his family members and close associates, who have been granted political asylum in the EU. With the use of fabricated data, Kazakhstan is also striving to deprive these people of refugee status. Law enforcement agencies of the Czech Republic, Spain, Italy, France and the United Kingdom were subjected to Kazakhstan’s undue influence, which triggered an international scandal.

–   In October 2014, Kazakhstan misinformed the United Nation’s states during the consideration of the Universal Periodic Review. Kazakhstan refuted comments on nonfulfillment of the recommendations regarding the observance of human rights and stated that the country’s legislation and the policy of the authorities fully comply with international obligations.

• Most think tanks that operate in international institutions and governments, receive information about non-democratic countries not from direct communication with civil society, but from materials published in the media. Still, autocracies restrict access to objective information. Hence, with no direct observation missions, the EU and the UN institutions may receive distorted information that could lead to the untimeliness of decisions issued.At the same time, NGOs have difficulties with the obtainment of timely funding from international donors for the organisation of observation missions to countries where human rights are violated. For example, the Open Dialog Foundation raised funds for the organisation of missions in Kazakhstan (the trials of Vladimir Kozlov, the Zhanaozen oil workers and independent media outlets) and in Ukraine (the battery of protesters on Independence Square, the trials against Maidan activists, the monitoring of developments in the Crimea and eastern Ukraine) on its own initiative.

Recommendations:

• During the adoption of socially important laws, a broad information campaign and real communication with civil society, including the involvement of international experts, should be ensured.
• The UN, OSCE, PACE, European Parliament, the governments and parliaments of the EU should organisationally and financially support the visits of representatives of civil society from non-democratic countries, so that they are able to directly inform the international community about human rights violations in their countries. The regular holding of such hearings and meetings constitutes an effective platform for dialogue between civil society and governments of countries with a low level of democracy. 
• Representatives of the UN, OSCE, PACE and the European Parliament should directly participate in observation missions in non-democratic countries, as well as provide operational support to NGOs that are engaged in the organisation and conduct of such missions. In order to carry out an objective assessment of the situation and issue proper decisions, it is important to hold meetings with representatives of civil society, including victims of human rights violations and political prisoners. Representatives of international institutions and European governments should demand that the state authorities of Kazakhstan implement international obligations and cease the harassment of civil society.

7. Recommendations for the creation of a favourable environment for civil society in post-soviet countries with low levels of democracy.

• Develop a legislative framework that would restrict the ability of the state to excessively control and interfere with the civic sphere.
• Amend and implement national legislation in accordance with international human rights standards. The development of civil society is impossible without guarantees in terms of freedom of assembly and freedom of speech.
• Eliminate restrictions on the active participation of citizens in civil society organisations in order to ensure the democratisation of the political system.
• Contribute towards the development of the public sector, as this opens up opportunities for social and political criticism. The state must not simultaneously suppress dissent and declare support for civil society.
• Public criticism of the current political regime or government bodies cannot constitute the basis for the prosecution of representatives of civil society.
• The building of democratic institutions is blocked in the absence of the rule of law and the confidence of the state in civil society. The state should not regard civil society as a threat and create a suppressive atmosphere in which citizens fear persecution for their activities undertaken in independent, civil associations which protect human rights.
• Cease the harassment of, and restrictions on, civil organisations whose activities are politically oriented (protection of human rights, communication of the interests of various groups, legislative initiatives, development of the rule of law, democratic reforms, etc.).
• Cease the use of criminal and administrative law for the prosecution of representatives of civil society in connection with their public activities. Any such abuse should be objectively investigated by an independent body.
• Cease the hindrance of civil society from exercising their rights and freedoms, including the right to control the activities of state bodies.
• The law should not restrict the ability of citizens to form informal and independent associations, including religious communities.
• Encourage participation and the taking into account of views of representatives of civil society at all stages of the decision-making process in government. Implement initiatives and comments of civil society in the discussion on draft laws.
• Provide effective public consultation with respect to the correspondence of NGOs’ tasks and national projects with actual problems and needs of society.
• The state should encourage, rather than restrict, the development of independent public associations. Cooperation with state bodies should be only one of the possible forms of activity of civil society organisations, and it should not be compulsory in nature.
• The obtainment of government grants should not force an organisation to be loyal to the ruling power. Public and private programmes should encourage real public participation and networking within civil society.
• Cease the blockage of communication channels through the restriction and harassment of independent media and individual journalists. Citizens should have access to alternative information regarding the activity of the authorities.
• Implement high-quality programmes in the field of political education and the protection of human rights in order to raise the level of civic consciousness.
• Create an optimum model for collaboration between the state and civil society, at the same time ensuring accountability of civil organisations, and mitigate the government’s intervention in the activities of civil organisations.
• Develop the institutional capacity of civil society organisations and promote the establishment of their financial independence.
• International institutions should support the organisation of observation missions to undemocratic countries for the purpose of objectively monitoring violations of the human rights of civil society.