Thappar v. Madras
On Appeal Contracts Expression
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The Court No. 2 of Atyrau City, Kazakhstan convicted two activists of disseminating false information, inciting social discord, and violating laws regulating public assembly. The Court relied on expert and witness testimony to conclude that the activists misinformed the masses to agitate them against government officials and people of Chinese ethnicity. The Court held that these activities were in violation of national laws and the International Covenant on Civil and Political Rights. In doing so, the Court dismissed the activists’ defense that they simply disseminated already public information. Both activists were sentenced to five years in prison, fined $1,500, and banned from civic activities for three years after their release.
The case concerns two activists, Max Kebenuly Bokaev and Talgat Tulepkalievich Ayanov, who opposed Kazakhstan’s 2016 land reform bill. If passed, this law would have permitted the sale and rent of farmland to foreign domiciled individuals. Mr. Bokaev and Mr. Ayanov were concerned that the law would result in large amounts of farmland being sold to foreign investors, particularly Chinese investors.
On April 14, 2016, the two activists filed a request with Ataryu City’s government to hold a protest on April 24, 2016 at the Istay-Makhambet Square. The event aimed to raise public awareness of issues related to the land reform bill. On the same day, the activists posted on their Facebook group an image inviting Ataryu residents to attend the protest, with an accompanying comment “Repost! Your Motherland is in Danger!”
On April 18, 2016, the mayor’s office in Ataryu invited the activists for a meeting. The office explained that the protest could not be held at the requested location because the Istay-Makhambet Square was no longer a permitted location for protests (city ordinance No. 125 issued on June 21, 2013). The city offered other locations where the activists could have held their protest. However, Mr. Ayanov rejected the proposal and demanded that the city honor the original request. On April 18, 2016, knowing that the protest could not be held in the Istay-Makhambet Square, Mr. Ayanov published another reminder about the protest to be held on April 24. The city sent an official rejection of the activists’ request on April 19, 2016.
On April 19, 2016, Mr. Ayanov sent a message to a WhatsApp group that stated “Ataryu residents! Assemble! As you know, the government will lease 1 million hectares of farmland to China for 25 years! It’s time to come together and demand changes to the land code! Otherwise it will be too late – we will lose our land and become slaves, and your children will need to learn Chinese! This is not the time to stay home! Our banned protest to demand the government to stop the give-away of our precious land to China will be on April 24”. The activists made similar statements over the phone, online, and in person in order to encourage people to attend the protest.
On April 22, 2016, the Atary City Prosecutor issued a warning to the activists that if they went through with the protest as planned, they would be committing a crime. Nevertheless, the activists held the protest on April 24 at the Istay-Makhambet Square.
At the protest, Mr. Ayanov alleged that the Kazakh government wanted to be united with China and that it wished to destroy the citizens of Kazakhstan. Other statements by the activists criticized the socio-political and socio-economic situation in Kazakhstan. They also demanded, among other things, a change of government in Kazakhstan. Videos of the protests were shared widely over social media.
On May 12, 2016, Mr. Ayanov sent a letter to Atyrau’s government in which he demanded permission to hold a protest on May 21, 2016. On May 13, 2016, the city organized a meeting with the activists and explained to them that they would not be given permission to hold a protest. The city requested that Mr. Bokaev join a committee reviewing reform of the bill. On May 16, the activists received an official rejection to their request to hold the protest on May 21. The activists did not stop disseminating information about the protest.
On May 17, 2016, the Ataryu City Court ordered the activists’ detention for 15 days for their part in organizing an unauthorized protest. Despite the arrest, protests were still held on May 21 across Kazakhstan and resulted in arrests of at least 500 persons.
On May 31, 2016, the National Security Committee charged the activists with:
The activists denied the charges.
The Court No. 2 of Atyrau City (Court) convicted the activists following an assessment of a number of pieces of evidence.
The Court concluded that the activists had criminal intent by reviewing the testimony of Mr. Tuleshov, who claimed that he wanted to force a change of government in Kazakhstan. He stated that he had paid Mr. Ayanov $150,000 to organize events criticizing the land reform bill in furtherance of this cause. Additional witnesses confirmed the transfer of funds. The Court also noted that Mr. Ayanov met Mr. Bokaev at an unspecified conference in 2014 and started working with him, often partnering to organize events and civic actions.
The Court also reviewed the activists’ request to hold the April 24 protest. After reviewing the content of the request, the Court declared that the activists were clearly familiar with the land reform bill and its proposed amendments, yet they disseminated information online that was not in the bill; namely allegations that land was to be sold to Chinese investors, that Kazakhs would become Chinese slaves, and that Kazakhs would be forced to learn Chinese.
The Court also relied on an expert linguistic review of the activists’ statements to conclude that the activists formed a negative opinion toward the Kazakhstan government and people of Chinese ethnicity.
The Court established that Mr. Bokaev and Mr. Ayanov were responsible for organizing the protests with knowledge that their actions were unlawful. The Court concluded this on the basis that the calls to attend the protest came from the activists following prior written and oral warnings from various government representatives on the illegality of these planned protests.
The Court then turned to the issue of the activists’ dissemination of false information about people of Chinese ethnicity. It first reviewed the land reform bill and declared that the proposed law did not state anything about the sale of land to foreigners, China or people of Chinese ethnicity. The Court then noted that Article 14 of the Kazakh Constitution prohibits discrimination on the basis of ethnicity, social status, gender, race, nationality, language, religious belief, opinions, place of residence, or other reasons. In the eyes of the Court, this constitutional provision was in line with international standards, including Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
The Court went on to find that the activists had disseminated propaganda on social networks and orally, and that this propaganda undermined trust and respect toward foreigners, including the Chinese, and incited hatred to their way of life, culture, and tradition. Furthermore, the Court held that these actions gave rise to distrust toward the People’s Republic of China. The Court also considered data from the Ministry of the Interior on the number of people of Chinese ethnicity living in Kazakhstan to dismiss the activists’ claims about a mass relocation of Chinese people to Kazakhstan. The Court concluded that the activists’ actions violated both the Kazakh law on national security, as well as Article 20(2) of the ICCPR protecting against hate speech.
Additionally, the Court reviewed the public nature of the activists’ actions. It held that the activists disseminated their statements in writing using tools of mass information that were publicly accessible to a large number of persons. The activists argued that social media platforms were not tools of mass information. The Court disagreed. It clarified that the Kazakh Law No. 451-I “On Tools of Mass Information” named certain types of mass media (newspapers, radio, TV), but also defined mass media as any periodic or continuous dissemination of information. The Court then turned to the Kazakh Law “On Information” from November 24, 2015, which lists the Internet as a resource for sharing and disseminating information. Thus, the Court held that social media platforms were to be treated as tools of mass information.
Lastly, the Court reiterated that although Article 32 of the Kazakh Constitution guarantees the right to public assembly, it also permits the government to limit this right to protect national security, public order, health, and the rights of others.
On the basis of the information above, the Court convicted Mr. Bokaev and Mr. Ayanov and sentenced them to five years in prison, fined them $1,500, and imposed a ban on their taking part in civic activities for up to three years after their release.
It should be noted that the Court also highlighted that Article 14 of the ICCPR establishes the right to a fair trial. The Court then proceeded to state that it reviewed all of the provided evidence objectively and abided by the rule law (thus satisfying this provision).
On January 20, 2017, the Criminal Division of the Atyrau Regional Court upheld the decision of the the Atyrau’s City Court No. 2. The activists intend to appeal against the decision before the Supreme Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is extremely damaging to freedom of expression because it penalized political speech through the imposition of a harsh prison sentence, coupled with a fine and a ban on civic activities. Even if the activists published some information that was inaccurate, it did not lead to violence or to riots. In 2017, in a joint declaration, the international special mandates on freedom of expression stressed that “the human right to impart information and ideas is not limited to “correct” statements, […] the right also protects information and ideas that may shock, offend and disturb, and […] prohibitions on disinformation may violate international human rights standards”. The decision is incompatible with this and other international principles governing freedom of expression and assembly, as was well articulated by the UN Special Rapporteur on freedom of assembly and association.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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