The following is based on a communication sent by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of Kazakhstan on 18 March 2024. The communication remained confidential for 60 days before being made public, giving the Government time to reply. The Government replied on 27 May 2024.
Since the communication was sent, the prosecution of Ms. Smailova has continued, and she still faces the risk of deportation to Kazakhstan. The government reply has been received and will be studied.
This is a shorter version of the original communication.
BACKGROUND
Topic: the criminal charges against woman human rights defender Ms. Dinara Smailova and her placement on an international wanted list.
Ms. Dinara Smailova is the founder of the “NeMolchiKZ” Foundation, an organisation that promotes women’s rights and freedoms, and gender equality, and fights against discrimination. It has had a particular focus on domestic and gender-based violence since 2017. The “NeMolchiKZ” Foundation uses social media networks to provide information on cases of violence against women, the alleged inaction of law enforcement agencies, guidance on the protection of human rights, statistics on human rights violations and other information on the human rights situation in Kazakhstan.
ALLEGATIONS
Over the past seven years, there has been a pattern of persecution targeting Dinara Smailova. Criminal cases against her have reportedly been opened, suspended or closed, and then reopened 16 times.
In July 2016, Ms. Smailova posted on her Facebook page that she survived gang rape in her youth, and that she no longer intended to remain silent about it. She called on the women of Kazakhstan not to remain silent about gender-based violence. In the days following this call, the social movement #NeMolchiKZ (#Don’tSilenceKZ, in English) was formed in the country. Those participating in the movement soon began to be smeared and threatened online by representatives of pro-government NGOs and by the authorities.
In December 2016, a public statement was made by a civil activist who later became the country’s childrenombudsperson, stating that #NeMolchiKZ was a destructive organization that the National Security Committee of Kazakhstan should be obliged to investigate. This statement caused a wide public outcry and drew the attention of public and government agencies to the activities of #NeMolchiKZ.
On 11 January 2017, the civil activist filed an application addressed to the Prosecutor General of Kazakhstan to prosecute Ms. Smailova under Article 274, Part 2 of the Criminal Code of the Republic of Kazakhstan (Dissemination of knowingly false information). On 3 February 2017, a criminal case was opened, but a number of months later was discontinued due to lack of sufficient evidence that this crime had been committed.
In March 2017, the civil activist continued to write to various authorities, including to the President and the Prosecutor General of Kazakhstan, requesting that they recognize #NeMolchiKZ as a ‘destructive organization’.
In April 2017, Ms. Smailova and her husband, human rights defender Mr. Almat Mukhamedzhanov, founded a hotline for women survivors of domestic violence. In the same month, Ms. Smailova and Mr. Mukhamedzhanov registered the #NeMolchiKZ movement with the justice authorities as a public foundation, “Public Movement Against Violence ‘NeMolchi.KZ’”.
On 21 September 2017, Ms. Smailova spoke at the 72nd Session of the UN General Assembly at the invitation of UN Women and the UN Deputy Secretary-General, where she stated: “We are not the ones to be shamed! Our attackers should be ashamed and prosecuted!”[1] Shortly after her speech, a press conference was organized in Almaty at which she was accused of fraud and of disclosing confidential data of women victims of sexual violence who sought help from “NeMolchi.KZ”.
In September 2019 a former member of the Parliament brought a case against Ms. Smailova under criminal articles 130 part 2 (Slander) and 131 part 2 (Insult) of the Criminal Code of Kazakhstan. She was acquitted in May 2020, however, she continued to be publicly accused by the former member of the Parliament of having committed a crime against them.
In late 2019 and in large part due to the work of “NeMolchi.KZ”, new legislation tightening responsibility for rape and strengthening the prevention of domestic and sexual violence was adopted in Kazakhstan, including the law on the prevention of domestic violence.
In December 2020, based on a report from a police officer in the Turksib district of Almaty, another criminal case was opened against Ms. Smailova under Article 274 Part 2 of Criminal Code of Kazakhstan (Dissemination of knowingly false information). This case was subsequently dismissed.
On 6 April 2021, Ms. Smailova and her husband Mr. Mukhamedzhanov left Kazakhstan for security reasons and relocated to Georgia, from where they continued to help women and children in Kazakhstan.
In July 2022, another criminal case was opened against Ms. Smailova by the Bostandyk district court of Almaty. She was accused of discrediting the honour and dignity of three defendants on trial for murdering a six-year-old girl. At the time of her post, the three had been publicly named as suspects in the case and as such the court did not have any grounds under Kazakh law to bring such a charge against the woman human rights defender. This case was also dismissed.
On 14 August 2023, Ms. Smailova and her husband Mr. Mukhamedzhanov registered the organisation “Break the Silence Worldwide” with the Georgian justice authorities.
On 27 September 2023, upon returning to Georgia from Türkiye, Ms. Smailova and Mr. Mukhamedzhanov were not permitted to enter the country. Georgian border guards were provided with documents issued by her attending physician stating that Ms. Smailova was preparing for emergency surgery in Georgia, but this document was ignored. Border guards reported that the Georgian Ministry of Internal Affairs had banned Ms. Smailova and Mr. Mukhamedzhanov from entering the country. No reason was provided as to why. The couple travelled to Montenegro following their refused entry to Georgia.
On 16 October 2023, the police of the East Kazakhstan region opened yet another criminal case against Ms. Smailova under Article 190 of the Criminal Code of the Republic of Kazakhstan, accusing Ms. Smailova of embezzling funds voluntarily donated to “NeMolchi.Kz”. Ms. Smailova’s lawyer was denied access to the case materials.
Shortly after opening the criminal case against Ms. Smailova, Kazakh police obtained data from 7,053 bank customers who had donated to “NeMolchi.KZ”. Donors were allegedly incorrectly told by police that Ms. Smailova had already been found guilty of committing the crime of fraud and were instructed to write statements accusing the human rights defender of further fraud.
On 27 December 2023, Ms. Smailova was officially declared a suspect in this case. If convicted, Ms. Smailova could face up to ten years in prison. Ms. Smailova and her lawyer have been informed by the Montenegrin authorities that the Kazakh authorities are requesting her deportation.
Since 2020, Ms. Smailova has reportedly not been given access to official documents from the Kazakh police and the Ministry of Internal Affairs of Kazakhstan regarding the criminal cases opened against her. When she was still in Kazakhstan, Ms. Smailova personally appeared on subpoena to answer the charges against her, and after she left the country, her lawyer did so on her behalf. However, neither she nor her lawyer were provided with any documentation regarding the procedural status of the cases against her.
CONCERNS
In the communication, we express our serious concern over the attempts to criminalise Ms. Smailova which appears to be in retaliation against her work as a woman human rights defender and exercising her rights to freedom of peaceful assembly and association. In addition, we are concerned that the legal proceedings against Ms. Smailova are not being carried out in accordance with due process guarantees, not allowing her legal representation to access material related to her case.
[1] https://www.unwomen.org/en/news/stories/2017/8/from-where-i-stand-dina-smailova
