Image Credit: Togzhan Tuzel, courtesy of the Committee to Protect Journalists
A freelance journalist in Kazakhstan who was involuntarily committed to a psychiatric clinic, unjustly convicted under abusive anti-extremism laws, and banned from carrying out her profession as a journalist, should have her conviction reversed, TrialWatch and Debevoise & Plimpton LLP said today.
TrialWatch – an initiative of the Clooney Foundation for Justice – and Debevoise & Plimpton LLP have challenged the conviction of the journalist, Aigul Utepova, before the United Nations Human Rights Committee, after a TrialWatch Report found serious violations of her rights at all stages of the proceedings against her and gave the trial a grade of ‘D.’
After years of harassment by the authorities for her journalism, Ms. Utepova was sentenced in 2021 to one year of ‘restricted liberty’ (a form of house arrest) for social media posts and other activity allegedly supportive of banned political opposition groups. Ms. Utepova has also been banned for two years from public commentary on social or political issues, and her bank account has been frozen. These measures have resulted in a serious deterioration of her health and have effectively silenced her by precluding her from working as a journalist.
Her conviction comes against the backdrop of Kazakhstan’s crackdown on journalists and the political opposition – which TrialWatch has documented in other cases – and in the context of sweeping recent arrests of those who participated in protests. In response to the recent unrest, President Tokaev proposed constitutional reforms to limit his own power and encouraged the creation of more political parties, moves which will be important to watch for follow through.
Aigul Utepova’s Case: Anti-Extremism Laws & Punitive Psychiatry
One key tool the authorities are using as part of the crackdown on journalists and the political opposition is Article 405(2) of the Kazakh Criminal Code, which criminalizes “participation” in the “activities” of extremist organizations, but nowhere defines “participation.” This is coupled with a law that defines ‘extremist’ very broadly. In effect, these two laws, when read together, transform non-violent speech and journalism into ‘extremist’ offenses.
As of July 2021, more than 135 cases have been brought under Kazakhstan’s anti-extremism laws, the breadth of which the UN Human Rights Committee has criticized as permitting the authorities “to unduly restrict freedoms of religion, expression, assembly and association.”
Ms. Utepova was convicted under Article 405(2) for activity that was allegedly supportive of two opposition parties – the Democratic Choice of Kazakhstan (DCK) and Koshe (Street) Party. Kazakhstan banned both parties as extremist in unpublished court decisions – although both have been deemed “peaceful” by the European Parliament.
Before trial, Ms. Utepova was subject to involuntary psychiatric examination despite no history of psychosocial disability, and subsequently involuntarily committed to a psychiatric clinic for 19 days.
“This kind of punitive psychiatry is a well-known tactic to intimidate critics and cast doubt on what they have to say. Kazakhstan must end this practice immediately,” said Dr. Éva Szeli, the TrialWatch Expert on the case.
At trial, the court denied Ms. Utepova’s requests for the decisions designating the opposition parties as extremist and did not allow her to summon for cross-examination all the experts on whose reports it relied to convict Ms. Utepova. The court also convicted Ms. Utepova in part based on information allegedly showing her support of the Koshe Party prior to its criminalization, in violation of the principle against retroactivity.
“Together with TrialWatch, we are honored to represent Ms. Utepova, who like many journalists in Kazakhstan has suffered from the State’s abuse of its anti-extremism laws. The United Nations has already condemned Kazakhstan’s abuse of its anti-extremism laws, and this communication presents the State with an opportunity to reform such laws,” said Catherine Amirfar, Debevoise partner and Co-Chair of the International Dispute Resolution Group, who also serves as Deputy Co-Chair of the High Level Panel of Legal Experts on Media Freedom.
In convicting Ms. Utepova, the Court concluded that the “similarity between the content of [her speech] and the ideas of the extremist organizations ‘DVK’ and ‘Koshe Party’” was sufficient to show her “participation” in an extremist group. It referred to expert findings that Ms. Utepova’s speech could create a negative attitude towards the authorities, lead to “anti-social” activities, and constituted distribution of “agitation and propaganda materials.” The criminalization of her commentary and the tenuous evidence used by the court to convict Ms. Utepova demonstrate the expansive scope of the laws and how they can be abused.
“Kazakhstan’s anti-extremism laws must be repealed or reformed so that they are clear and predictable, and to prevent their application to suppress protected freedoms,” said Dr. Szeli.
“The Human Rights Committee should not only find that Kazakhstan has violated Ms. Utepova’s rights, but also build on its prior findings and order reforms of the country’s anti-extremism laws,” added Stephen Townley, Legal Director of TrialWatch.
Additional Background on the Case
Aigul Utepova is a well-known Kazakh freelance investigative journalist who has worked for independent online outlets and published content on her Facebook account and popular YouTube channel. Her reporting has addressed social and political issues, including the government’s treatment of the political opposition and response to COVID-19. She has been repeatedly harassed by the authorities, including brought in for questioning on six separate occasions regarding her social media posts and private WhatsApp conversations.
In this case, she was arrested on September 17, 2020, and charged with using her social media pages to distribute “agitation and propaganda” materials supporting the DCK and Koshe Party. She was ultimately convicted of extremism under Article 405(2) of the Kazakh Criminal Code and sentenced to “restriction of freedom for a period of one year, with the establishment of probation supervision, depriving her of the right to engage in social and political activities, including with the use of mass media and telecommunication networks, for a period of two years,” as well as 100 hours of “forced labor.” Like other journalists and activists convicted of violating Article 405, Ms. Utepova has also been placed on a list of those connected with the financing of terrorism and the authorities have blocked access to her bank account. In June 2021, an appeals court rejected her appeal of her conviction, with no further appeal possible.
The TrialWatch Report on her case found grave violations of Ms. Utepova’s rights at both the pre-trial stage and during the trial itself, and that Article 405(2) is inconsistent with international standards due to its vagueness and overbreadth.
Based on the monitoring of Ms. Utepova’s case, the communication to the UN Human Rights Committee argues that the Committee should order Kazakhstan to reverse Ms. Utepova’s conviction and provide an apology and reparations. It further urges the Committee to order Kazakhstan to reform its anti-extremism laws.
For the report, including a full legal analysis of the trial and explanation of the grade that has been provided, please see here.