OPEN STATEMENT of the International Foundation for Protection of Freedom of Speech "Adil Soz" to the President of the Republic of Kazakhstan, Kassym-Jomart Tokayev regarding the situation with journalist Sandugash Duisenova

Dear Kassym-Jomart Kemelevich,

We sincerely regret that once again we are compelled to address you directly, as the guardian of the Constitution, with a request concerning freedom of speech. We hope for a time when personal intervention by the President will not be necessary to uphold the rule of law and the fundamental rights and freedoms of our citizens. Nonetheless, the current situation surrounding the case of Sandugash Duisenova requires your personal attention.

Sandugash, a staff reporter of Orda.kz, known for her anti-corruption investigations, was detained in Taldykorgan. Sandugash herself and Orda.kz editor-in-chief Gulnar Bazhkenova are convinced that the journalist's critical articles triggered the pre-trial investigation. Her efforts, like those of many conscientious journalists in the country, contribute practically to the realization of the reforms you have initiated, aiding in the reduction of corruption in the regions. The pressure on high-quality independent journalism, particularly in the regions, not only contradicts your directives but also undermines the central government's capacity to obtain information about regional events from alternative sources. According to the legal experts of the "Adil Soz" foundation, the accusations against Sandugash Duisenova lack the characteristics of a criminal offense and, at the very least, should be reclassified as an administrative violation.

Sandugash Duisenova is suspected of illicitly disclosing personal data (IIN) of Akzhalbekov A.K., who is incarcerated for murder. On May 22, 2022, the journalist published material aimed at aiding law enforcement in identifying the individual responsible for shooting a young man and injuring a two-year-old child he was holding. The IIN of the suspect was visibly present in the social media post. A year and a half later, Akzhalbekov submitted a statement to the prosecutor's office of the Zhetisu region, which led to the initiation of a criminal case under Article 147, Part 5.

We would like to emphasize that, firstly, the IIN of that person was already public knowledge more than a year prior to the journalist's publication. Anyone interested could access the IIN of Akzhalbekov A.K. through the "Judicial Office" and the decision of the Aksu District Court of the Almaty Region dated January 14, 2021, in Case No. 1932-21-00-3/5. Secondly, the investigation failed to provide evidence of significant harm inflicted upon the victim, nor did it clarify which specific rights and legitimate interests suffered significant harm due to the reflection of the IIN in the publication. In the absence of significant harm, initiating a criminal case based on the absence of elements of a criminally punishable act is untenable.

Thus, there are justifiable doubts regarding the presence of elements of a criminal offense under Part 5 of Article 147 of the Criminal Code. Consequently, the legality of initiating a criminal case in principle is highly questionable.
A personal search was conducted on the journalist at the police station. In accordance with Article 255 of the Code of Criminal Procedure, a personal search is performed to discover and confiscate items and documents located on the body, within the body, within clothing, and belongings of the person undergoing the search. Pursuant to Part 8 of Article 254 of the Code of Criminal Procedure, before the search commences, the option is presented for the voluntary surrender of items and documents subject to confiscation, which may be pertinent to the case. What items and documents were discussed? According to the journalist's statement, she was not informed of the specific items or documents the investigation intended to find on her person or within her body concerning the IIN publication case.

The personal search order was sanctioned by an investigating judge, based on an official statement from the Zhetisu Police Department. Prior to authorizing the investigative procedure, the investigating court should have ascertained from the investigation the precise items and documents relevant to the case that were meant to be discovered. The Foundation believes it is imperative to disclose the decision of the investigating court that authorized the investigative action, determining whether grounds for a criminal case initiation existed, as well as the necessity for a personal search under Article 147 of the Criminal Code of the Republic of Kazakhstan. During the personal search, a video camera linked to the Operational Control Center (OCC) of the police department was present. Concurrently, the journalist was subjected to complete nudity, with all OCC staff members, including males, potentially able to witness a naked woman. As per Article 17 of the Constitution, human dignity is inviolable. No one shall be subjected to torture, violence, or other cruel, inhuman, or degrading treatment or punishment. Article 13 of the Code of Criminal Procedure prohibits decisions and actions that degrade the honor or diminish the dignity of a person participating in the criminal process during proceedings.

In view of the aforementioned, the International Foundation for the Defense of Freedom of Speech "Adil Soz" respectfully
REQUESTS THAT YOU:

• Instruct the Prosecutor General's Office to verify the legality of initiating a criminal case and, in the absence of grounds, demand the immediate cessation of the pre-trial investigation. Examine the legality of the personal search conducted on the journalist, along with the procedure for conducting a personal search with complete exposure under surveillance. Should violations be identified, take necessary procedural measures against the responsible officials.
• Urge the Supreme Court to scrutinize the legality of the investigating judge's authorization for the journalist's personal search. If found unlawful, nullify the decision and undertake disciplinary actions against the investigating judge.
• Direct the Ministry of Internal Affairs to initiate an internal investigation against officials involved in the initiation of a criminal case and the execution of a personal search against the journalist. If legal infringements are identified, hold the culpable parties strictly accountable, and if misconduct is detected, initiate a pre-trial investigation.

Sincerely, International Foundation for Protection of Freedom of Speech "Adil Soz"