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The UN Working Group on Arbitrary Detention has published an Opinion concerning Karim Massimov, the former Prime Minister of Kazakhstan. Mr Massimov was arrested and detained by State forces on or around 5 January 2022. In a petition to the UN Working Group, it was alleged that Mr Massimov had been arbitrarily detained, on the basis that: (i) it was not possible for Kazakhstan to invoke any legal basis justifying Mr Massimov’s arrest and detention (a Category I violation); and (ii) the non-observance of the international norms of fair trial were of such gravity as to give his deprivation of liberty an arbitrary character (a Category III violation).

The Working Group upheld both of the complaints.

As regards the legal basis for detention, the Working Group noted “its discomfort with the scarcity of the information provided to it”, and that the “exact date and circumstances of [the] arrest and the reasons for it remain unclear” (§101). The Working Group considered that “the secrecy surrounding the factual basis for [the] arrest clearly must have had a negative effect on [the] ability to challenge the legality of [the] detention”. The Working Group criticised the facts that the decision to impose pretrial detention was not made public, that the hearing concerning the detention was held in secret, and that the Government had provided no explanation for “this degree of secrecy” (§§104-107). For all of these reasons, the Working Group concluded that the arrest and pretrial detention of Mr Massmiov was arbitrary as it lacked a legal basis.

As regards the observance of fair trial rights, the Working Group was “seriously concerned about the way in which Mr Massimov’s right to legal assistance has been respected” (§109). In particular, “Mr. Massimov is not only prevented from having legal assistance of his own choosing, for reasons that the Government has failed to explain in a satisfactory manner, but his State-appointed lawyer is also unable to engage effectively in his defence due to the confidentiality protocols in place” (§114). The Working Group was also concerned about the fact that all pretrial hearings to date had been conducted behind closed doors, and the negative impact this secrecy had on Mr Massimov’s family.

In light of the above, the Working Group rendered the following opinion (at §121): “The deprivation of liberty of Karim Massimov, being in contravention of articles 3, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 9 and 14 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I and III”.

The Working Group called on the Government of Kazakhstan to allow the Working Group to conduct a State visit (§120). The Working Group also called for the Government of Kazakhstan to release Mr Massimov immediately and unconditionally and accord him an enforceable right to compensation and other reparations (§123).

Lord Pannick KC, Tim Otty KC and Jason Pobjoy acted for the petitioner to the UN Working Group on Arbitrary Detention, instructed by Mishcon de Reya LLP.

A copy of the Opinion is available here.


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