A/HRC/43/46/Add.1 B. International legal framework 12. Kazakhstan is a State party to the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its Optional Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, the International Convention for the Protection of All Persons from Enforced Disappearance, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Elimination of All Forms of Racial Discrimination. II. Key human rights challenges in countering terrorism and preventing violent extremism A. The scope of criminalization of terrorism and extremism offences 13. The Special Rapporteur notes that the various provisions in the Criminal Code of Kazakhstan directly criminalizing terrorism and extremism, together with offences characterized as extremist, 6 cannot be examined in a vacuum. There are numerous other provisions in legislation overlapping and intersecting with this security-based regulation through the prism of terrorism and extremism. Placing all of these elements together reveals a complex rights-limiting legal framework aimed at tightly regulating groups, individuals and activities, for which the broad and malleable terms of “terrorism” and particularly “extremism” act as overarching grounds for government action. 1. Numerous overly broad and vague provisions relating to terrorism and extremism (a) Terrorism offences 14. The Special Rapporteur closely examined the provisions of the Criminal Code pertaining to crimes of terrorism. She finds that the domestic law regulating offences of terrorism (despite amendments in 2017) remains overly broad and ambiguously worded, in violation of international law. 7 She particularly notes the definition of acts of terrorism (Criminal Code, art. 255), including “other actions” that can inflict “significant property damage” or make “international relations more difficult”. These vaguely worded expressions extend criminalization beyond acts or threats of lethal violence to acts that are protected as the legitimate exercise of fundamental freedoms. Similarly, article 256 of the Criminal Code criminalizes “propaganda of terrorism or public calls for commission of an act of terrorism” in extremely general terms, rendering it liable to arbitrary application and silencing legitimate expression.8 She notes that, contrary to the claim of some government authorities that this article criminalizes incitement of terrorism, as required by Security Council resolution 1624 (2005), incitement of terrorism is applicable only to acts of a genuinely terrorist nature that include the essential element of “intent to incite terrorist acts” and for which there is a direct and immediate connection between the action – including an expressive act – and the actual (i.e. objective) risk of terrorist acts being committed. None of these elements are present in article 256, enabling its abusive application against the media and journalists. Article 180, which includes criminalization of “propaganda or public calls for violation of the integrity of … Kazakhstan”9 in general terms, contains similar lacunae, enabling its application to expression protected under international law. Furthermore, article 257, which addresses the creation and management of and participation 6 7 8 9 Criminal Code, arts. 174, 179–182, 184, 258–260, 267 and 404–405. Note the position of the Human Rights Committee in its general comment No. 34 (2011) on the freedoms of opinion and expression, para. 46, in which it stated that a precise definition of extremism offences was needed. The crime carries a jail sentence of between 3 and 7 years and confiscation of property with heavier sentences for “leaders of public associations” of between 5 and 10 years. Those found to have violated article 180 face a prison sentence of up to seven years, in addition to a fine. 5