Professional bans: Adil Soz Foundation asks Supreme Court to review the application of Article 50 of Kazakhstan’s Criminal Code

In recent months, Kazakhstan has seen a growing practice of courts imposing bans on journalists’ professional activities as an additional punishment. Over the past few months, such bans have been imposed on KazTAG agency owner Asset Matayev, the agency’s editor-in-chief Amir Kassenov, journalist Alexandra Alyokhova, and, on 18 August, former Orda.kz editor-in-chief Gulnar Bazhkenova.

Against the backdrop of this growing trend, a lawyer with the International Foundation for Protection of Freedom of Speech “Adil Soz” analysed how Article 50 of the Criminal Code of the Republic of Kazakhstan is being applied to journalists. The analysis was based on the verdict against KazTAG executives Asset Matayev and Amir Kassenov, whom the court banned from engaging in journalistic and public activities for five years.

An examination of the restrictions imposed by the court shows that they go far beyond a prohibition on working as journalists. In the Adil Soz Foundation’s assessment, they also affect freedom of expression, creative freedom, the right to hold and express opinions, and participation in public life.

What exactly did the court prohibit?

Under the verdict, the KazTAG journalists are prohibited for five years from creating or participating in the activities of mass media and online platforms, working as journalists or bloggers, publishing materials, appearing on air, and giving interviews.

The restrictions also extend to participation in conferences, debates, teleconferences and television programmes, as well as the publication of opinions and other content on socio-political and socio-economic issues.

In addition, the journalists are prohibited from appearing on online platforms even on other topics unrelated to socio-political or journalistic activity. They are also barred from engaging in human rights work, including monitoring court proceedings and participating in round tables, seminars and other public events.

The Foundation considers such a range of restrictions to go far beyond the actual prohibition on engaging in a particular professional activity.

“In effect, the court prohibited the journalists not only from carrying out their professional work, but also deprived them of constitutional rights and freedoms related to freedom of expression, creative freedom and the right to hold their own opinions,” said Sergei Utkin, a lawyer with the Foundation.

The Foundation describes such a measure as, in essence, a form of “civil execution”, because the restrictions apply not only to the journalists’ professional work but also to their ability to express their views publicly and participate in public life.

A professional ban turns into censorship

Another issue highlighted by Adil Soz is whether such restrictions are compatible with the constitutional prohibition of censorship.

According to the Foundation’s reasoning, liability for the content of a publication may arise after it has been made public, if it is established in accordance with the law that the published material violates legal requirements.

A ban imposed under Article 50 works differently: a journalist is deprived in advance of the ability to create and disseminate future materials, regardless of their content.

In other words, the court does not restrict a specific publication that has been found unlawful, but any future content that has not yet even been created by a particular author.

“Even if a journalist decides to write and publish a children’s fairy tale, the judge acting as censor has already prohibited that fairy tale in advance,” the Foundation’s analysis states.

Adil Soz believes that this approach effectively creates a mechanism of prior restraint on expression. The content of any future publication becomes irrelevant; the restriction applies to the author as such.

For this reason, the Foundation links the practice of applying Article 50 of the Criminal Code to journalists with the constitutional prohibition of censorship.

Why a reference to “preventing new crimes” is not enough

The Foundation also draws attention to how courts should justify the imposition of an additional punishment.

Part 3 of Article 50 of the Criminal Code allows a person to be deprived of the right to engage in a particular activity if, taking into account the nature and degree of public danger posed by the offence and the personality of the offender, the court concludes that it is impossible to preserve that right.

According to Adil Soz, such a decision requires detailed and individualised reasoning.

However, in the verdict against the KazTAG journalists, the Foundation notes that the five-year ban was justified with the phrase “for the prevention of new crimes”.

Adil Soz believes that this practice creates a dangerous precedent: if such reasoning is considered sufficient, courts may prohibit a person from working as a journalist without providing a detailed explanation of why that particular person’s professional activity must be restricted.

At the same time, the consequences of such a decision may extend far beyond the ability to work in a newsroom.

Adil Soz calls on the Supreme Court to establish uniform rules

To clearly distinguish a professional ban from restrictions on fundamental human rights, the Foundation is calling on the Supreme Court to adopt a regulatory resolution governing the application of additional penalties under Article 50 of the Criminal Code.

According to Adil Soz, such a document should clearly define the limits of a prohibition on engaging in a particular activity and prevent it from extending to citizens’ constitutional rights and freedoms.

The Foundation also proposes establishing exceptional circumstances in which a journalist may be deprived of the right to work in the profession at all.

Article 50 of the Criminal Code should not become a tool for imposing prior restraints on any future publications, statements or creative work by journalists. The Foundation intends to seek legal clarification from the Supreme Court that would establish uniform and clear limits on the application of this additional punishment.