Facts of the Case
Article 14 of the Law on Peaceful Assemblies permits a local administrative body to deny a request by an individual seeking to hold an assembly if it believes other events (e.g., repairs) are planned at the same location and time. Birzhanova notified the Astana city akimat of her intent to hold an assembly to express opinion on the pending bill regulating mass media. The city denied her request three days prior to the planned assembly, reasoning that an already scheduled event would make the planned assembly not feasible. Subsequently, Birzhanova filed a suit in an administrative court alleging unlawful action by the city. The court held that the law allows for discretion of an administrative body, and the city is not required to offer her an alternative location. Birzhanova filed this suit, arguing that the provisions of the Law impermissibly vest local officials with unbound discretion, and by not requiring the officials to consider all the circumstances of a planned event, violate the principle of proportionality.
Question
Do the provisions of the Law regulating peaceful assembly violate Article 32, Article 20, Article 23, Article 33, and Article 5 of the Constitution of Kazakhstan?
Holding
No, but only under a certain interpretation. Article 32 guarantees the right of citizens to peacefully assemble, and this right is tightly linked to other personal liberties, such as the freedom of expression and speech, the right to lawfully receive and disseminate information, and the right to participate in state affairs. However, the right is not absolute, and may be constitutionally limited, insofar as such limitations are necessary to protect constitutional order and public safety. Such limitations must be fair, proportional, and rationally related to government’s asserted goals. The law in question employs a notification model to coordinate state measures to assist citizens in organizing a peaceful assembly. In principle, such model is constitutionally permissible. Citizens ought to be able to access information regarding events that had already been planned, and the local officials, except under rare circumstances, are not required to accept or reject citizen’s particular proposal. The Court understands that while the official may reject a citizen’s proposal by referring to a conflicting event or another serious reason, in so doing, the official must (a) provide a reasoned explanation of the decisions, after having analyzed existing factual circumstances and potential risks to public safety, and (b) offer an alternative time and location for the citizen’s proposed event.
Foreign Authorities Cited
- International Covenant on Civil and Political Rights;
- Universal Declaration of Human Rights
- General Comment No. 37 on Article 21
Metadata
- Judges: Azimova (Chief); Nurmukhanov (Rapporteur); Sarsembaev; Eskendirov; Zhakipbaev; Zhatkanbayeva; Musin; Ongarbaev; Podoprigora; Kydyrbaeva; Udartsev
- Date: 20 January, 2025
- Link: Birzhanova
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