From June 12 to June 22, 2020, the American Bar Association Center for Human Rights monitored the trial of Alnur Ilyashev in Kazakhstan as part of the Clooney Foundation for Justice’s TrialWatch initiative. Ilyashev is a human rights activist and blogger. He was prosecuted under Article 274 of Kazakhstan’s Criminal Code for “disseminat[ing] knowingly false information” in a state of emergency on the basis of three Facebook posts that criticized the ruling Nur Otan party for corruption and incompetence, including in response to the COVID-19 pandemic. The proceedings – held over videoconference because of COVID-19 – were marred by grave violations of Ilyashev’s right to a fair trial.
In particular, the trial demonstrated the potential perils of virtual hearings. Due to technical issues, the feed was constantly interrupted, with the result that the defense was prevented from making motions, presenting arguments, and questioning witnesses. The presiding judge took no steps to remedy this abuse of the defense’s rights and indeed continuously issued unreasoned rulings to the detriment of the defense, severely undermining Ilyashev’s ability to make his case and violating the guarantee of judicial impartiality. Further, the prosecution failed to meet its burden of proof, presenting little to no evidence with respect to several elements of Article 274. The judgment convicting Ilyashev thereby violated the presumption of innocence.
Beyond fair trial rights, the proceedings violated Ilyashev’s right to freedom of expression. The prosecution was based solely on Ilyashev’s criticism of Nur Otan, speech that warranted heightened protection given its role in public debate. Additionally, while the court did not levy a custodial sentence on Ilyashev, it imposed a five-year ban on political and civic activism, an overbroad restriction of protected speech and an indication that the proceedings may have been driven by political considerations.
The Kazakh Supreme Court recently denied Ilyashev’s appeal, finding that the court of first instance sufficiently examined all relevant evidence. The defense has petitioned Kazakhstan’s Attorney General to “file a protest” with the Supreme Court requesting reconsideration of this decision. In line with Kazakhstan’s obligations under the ICCPR, the Supreme Court should overturn the appellate decision upholding Ilyashev’s conviction on the basis of the violations of his right to a fair trial and right to freedom of expression outlined above.
More broadly, especially in light of the adjustments necessitated by the COVID-19 pandemic, Kazakhstan must ensure that any criminal proceedings conducted virtually comply with fundamental principles of due process.