Kazakhstan v. Alnur Ilyashev: Punishing Dissent in Ways Old and New

Alnur Ilyashev, a Kazakh activist and blogger, did what many do when fed up with their governments: He complained on Facebook. Following a trial last summer that ended in his conviction, he was banned for five years from political and civic activism.

In a series of posts in March 2020, Ilyashev criticized Kazakhstan’s ruling party, Nur Otan, for its handling of the then-emerging coronavirus pandemic and more generally. The posts, however, led to his arrest in April 2020 for violating Article 274 of the Kazakh Criminal Code banning the “disseminat[ion of] knowingly false information that creates the danger of disrupting public order and causing substantial harm to the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law.”

The American Bar Association Center for Human Rights, which monitored Ilyashev’s trial, said in a report released in March 2021 that the proceedings were marred by “grave violations” both of Ilyashev’s right to a fair trial and his right to the freedom of expression. 

The report highlighted Ilyashev’s case as reflective of a “larger crackdown on dissent in Kazakhstan, which has been exacerbated by the COVID-19 pandemic.” Kazakhstan’s state of emergency, which lasted from March 15 to May 11, 2020 provided a platform for a number of charges, both criminal and administrative, against Kazakh activists and journalists. Other forms of harassment included targeted smear campaigns, which have further narrowed the online space for discussion and dissent while the pandemic constricted the public space for the same.

Ilyashev’s case also focuses attention on violations of due process and fair trial rights, many preexisting and simply exacerbated by the pandemic situation. At the same time, the pandemic permitted novel ways of denying individuals their rights via connectivity issues and alleged lack of privacy on videocalls between those accused and their legal counsel.

The American Bar Association Center for Human Rights’ report, authored by a Portuguese criminal lawyer, Vânia Costa Ramos, painstakingly lays out every detail of the violations it identified in the proceedings under applicable laws, in this case the International Covenant on Civil and Political Rights (ICCPR) which Kazakhstan ratified in 2006. Importantly, the report notes that “Article 4 of the Kazakh Constitution recognizes ratified international treaties as having primacy over domestic law.”

In the investigation and pretrial stage, the report found that Ilyashev was not informed, at the time of his arrest, of the reason for his detention. After Ilyashev was arrested, he was ordered detained for two months before his trial, which the report deems arbitrary. His pretrial detention was requested by the police, who argued that if released he might impede the investigation and “continue his criminal activity while at liberty, creating a mood of protest in society, leading to destabilizing the situation in the Republic of Kazakhstan.” Ilyashev was subsequently denied release on the grounds that he had not admitted guilt. 

The report also outlines that Ilyashev was denied humane treatment while in custody. Despite the pandemic, and the fact that he was repeatedly tested for COVID-19 at a temporary detention center, after he was transferred to the pretrial detention center he was not tested again for COVID-19. Later, Ilyashev got sick, reporting a fever and coughing blood. Once he was prescribed medicine, the trial schedule (10 a.m. to 7 p.m.) prevented him from actually getting the medicine even though the trial was held online. 

The online trial presented further, and novel, violations of Ilyashev’s rights to a fair trial. The report notes that “problems with the virtual proceedings continuously prevented Ilyashev and counsel from making motions, presenting arguments, and questioning witnesses.”

For example, the prosecution’s primary witness, Roza Akbarova, who the report notes “concluded that Ilyashev’s [Facebook] posts were likely to occasion disruption of public order and harm to citizens and organizations,” called into the hearing on her cellphone. Reportedly the court couldn’t really see her face, mostly just her ear. During the defense’s examination of Akbarova, she cut out and then said her battery was dying and the connection dropped, prematurely ending the defense’s examination of the prosecution’s main expert witness. The court determined that the defense could continue its cross-examination the next day but when the time came the court announced that Akbarova had fallen ill and could not participate. The trial moved on. 

The court, the report notes, neglected to suspend proceedings due to technical difficulties, which undermined the defense’s ability to make a case and prevented the accused from effectively participating. Meanwhile, the court rejected a majority of the defense’s desired witnesses without explanation. One witness who was allowed to testify was refused on the appointed day because she was not sitting in the same room as the lawyer. The report contrasted this with the fact that the main prosecution witness whose ear is all the court saw testify did not appear in the same room as the relevant lawyers either.

The report goes on to carefully explain that the prosecutor did not even attempt to prove that in making his Facebook posts Ilyashev knowingly disseminated false information that disrupted society. “At no point during the proceedings did the prosecution present evidence that the information contained in Ilyashev’s Facebook posts was false,” the report notes, identifying his posts as mostly statements of opinion about the ruling party. “It is impossible to prove the falsity of an opinion,” the report states. 

Beyond the violations of due process and fair trial standards, the “legal process appears to have been initiated with the goal of preventing [Ilyashev] from criticizing the government.”

The report’s author gives the proceedings a grade of “D” and calls for the Kazakh Supreme Court to overturn Ilyashev’s conviction. It also determines that Kazakh authorities should amend Article 274 to criminalize only the gravest speech offenses, offering “incitement to terrorism, public incitement to genocide, and advocacy for national, racial, or religious hatred” as a suggested list. Lastly, virtual proceedings should be made to resemble “an in-person hearing to the greatest extent possible” with uninterrupted connections and the consent of the accused to the format. 

The American Bar Association Center for Human Rights’ report on Ilyashev’s case would be comical reading if it were not real and a serious illustration of the myriad ways Kazakhs are denied rights and justice. 

“We can see everyone, everyone is connected, we can hear everyone very well,” the judge reportedly said during one of the hearings while Ilyashev angrily shouted on his end that he could see no one. What a perfect summation.