23.02.2026 23:37:00
Дата публикации
Centre for Law and Democracy (CLD) 39 Chartwell Lane, Halifax, N.S., Canada
January 29, 2026
Re: Constitutional Review of Paragraphs 1–2 of Article 41‑1 of the Law of the Republic of Kazakhstan “On Communications”
To the Members of the Constitutional Court of the Republic of Kazakhstan,
I am writing to you as the Executive Director of the Centre for Law and Democracy (CLD) to express our position on this case.
CLD is an international human rights organization based in Canada that promotes fundamental rights for democracy worldwide, including freedom of expression. We are widely recognized for our high‑level legal expertise in these matters, acknowledged by leading international human rights bodies.
As we understand, the facts of the case are as follows: between January 5 and 10, 2022, access to telecommunications services, including the Internet, was blocked in Almaty, Kazakhstan. This was justified under paragraphs 1–2 of Article 41‑1 of the Law of the Republic of Kazakhstan “On Communications” (July 5, 2004, No. 567), which allow such measures in urgent cases that may lead to serious crimes.
The shutdown was challenged in three levels of courts in Kazakhstan, each of which held that the conditions of Article 41‑1 were met. The matter is now before the Constitutional Court on the grounds that these provisions do not comply with constitutional and international standards on freedom of expression, particularly Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
Freedom of expression is guaranteed by Article 20(2) of the Constitution of Kazakhstan (limitations are set out in Article 39(1)) and Article 19(2) of the ICCPR (limitations in Article 19(3)).
The international law test for restricting freedom of expression under Article 19(3) ICCPR has three parts:
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The restriction must be provided by law;
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It must pursue a legitimate aim;
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It must be necessary to protect that aim.
We are not experts in Kazakh law and will focus only on the third requirement — necessity. We understand that the same requirement exists in Article 39(1) of the Constitution.
This necessity test is complex, but authoritative interpretations highlight three key features:
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Restrictions must not be overly broad;
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They must be rationally connected to the aim and minimally impair freedom of expression;
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They must be proportionate, meaning the benefits outweigh the harm.
CLD’s position is that no Internet shutdown can ever be legitimate as a restriction on freedom of expression. Shutdowns fail the proportionality requirement and usually also fail the other two.
Therefore, we urge the Constitutional Court of Kazakhstan to declare these provisions unconstitutional.
Sincerely, Toby Mendel, Executive Director
Expert Opinion on the constitutionality of paragraph 1.2 of Article 41‑1 of the Law “On Communications”
Submitted by:
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International Human Rights Group “Agora”, Sofia, Bulgaria
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Kenya Human Rights Commission, Nairobi, Kenya
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Commission for the Disappeared and Victims of Violence (KontraS), Jakarta, Indonesia
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Legal Resources Centre, Johannesburg, South Africa
The Constitutional Court of Kazakhstan has accepted the petition of citizen E.M. Kabyshev to review the constitutionality of paragraph 1.2 of Article 41‑1 of the Law “On Communications”.
This provision allows the suspension of networks and communication services, access to Internet resources, and information hosted on them, by decision of officials of the National Security Committee of Kazakhstan. In other words, the Committee may decide to impose an Internet shutdown.
According to Article 32 of the Rules of the Constitutional Court (adopted January 5, 2023), human rights, academic and other organizations may submit expert opinions (amicus curiae) to assist the Court. Such opinions, based on legal analysis, may be attached to the case materials and published on the Court’s website.
The undersigned organizations are human rights groups with long experience representing citizens whose rights were or could be violated by Internet shutdowns before national and international courts.
In this submission, we argue that Internet shutdowns ordered by state authorities have been assessed by numerous international courts and quasi‑judicial bodies, and international law has developed clear criteria for evaluating their compatibility with human rights treaties. Since the applicant also refers to restrictions during states of emergency, relevant international norms on emergency regimes are considered.
Rights affected by Internet shutdowns International law recognizes that shutdowns interfere with multiple rights guaranteed by the ICCPR, including privacy of correspondence, freedom of thought, conscience and religion, freedom of opinion and expression, freedom to seek and receive information, and freedoms of peaceful assembly and association (Articles 17–19, 21–22 ICCPR).
UN Special Rapporteurs have noted that restricting Internet access seriously obstructs journalistic activity, as all actors rely on reliable communications. The Human Rights Committee in General Comment No. 37 emphasized that much assembly activity occurs online and is protected under Article 21. Shutdowns have also been condemned as violations of international law.
Therefore, any interference must strictly comply with legality, legitimate aim, and proportionality.
Compliance with international norms in Internet shutdowns
Interference with rights guaranteed by the ICCPR cannot be considered lawful unless the law meets the requirements of accessibility and foreseeability — the principle of legal certainty. The Human Rights Committee in General Comment No. 34 stated: a “law” must be clear enough to allow individuals to regulate their conduct, accessible to the public, and must not grant unlimited discretion to authorities.
In 2020, the Committee reaffirmed this in General Comment No. 21, stressing that laws must be detailed enough to guide society and not provide broad discretionary powers.
International case law is limited, but in Amnesty International Togo and Others v. Togo, the ECOWAS Court held that shutdowns imposed after protests lacked legal basis and violated freedom of expression and assembly.
National courts have also ruled shutdowns unlawful. In Anuradha Bhasin v. Union of India (2019–2020), the Supreme Court of India recognized Internet access as essential for exercising fundamental rights. It required publication of shutdown orders, judicial review, and compliance with necessity and proportionality.
In Zimbabwe (2019), the High Court ruled in Zimbabwe Lawyers for Human Rights v. Minister of State for National Security that mobile Internet shutdowns during protests were unlawful, violating constitutional rights.
Conclusion These precedents show that Internet shutdowns consistently fail international tests of legality, necessity, and proportionality. They interfere with multiple fundamental rights and cannot be justified under human rights law.
Final Conclusion and Appeal
The undersigned organizations emphasize that Internet shutdowns ordered by state authorities have repeatedly been found unlawful by international and national courts. They interfere with multiple fundamental rights guaranteed by the ICCPR and fail the tests of legality, necessity, and proportionality.
We therefore respectfully urge the Constitutional Court of the Republic of Kazakhstan to declare paragraph 1.2 of Article 41‑1 of the Law “On Communications” unconstitutional. Such provisions grant excessive discretionary powers to state bodies and enable measures that are incompatible with Kazakhstan’s constitutional guarantees and its international human rights obligations.
Signed,
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International Human Rights Group “Agora”
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Kenya Human Rights Commission
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Commission for the Disappeared and Victims of Violence (KontraS)
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Legal Resources Centre
