Human Rights Committee
15 July 2011
The Human Rights Committee this afternoon concluded its consideration of the initial report of Kazakhstan on the measures undertaken by that country to implement the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Dulat Kustavletov, Vice Minister of Justice of Kazakhstan, said that Kazakhstan had celebrated 20 years of independence and while the building of a democracy had begun under difficult circumstances, they were well on their way. Many improvements had been made in the country, such as the strengthening of social security for citizens, an increased level of literacy, reduced maternal and child mortality, a more open business environment, the renunciation of nuclear weapons and the development of regions and industries and improving the employment opportunities for the population. There was a government programme to support entrepreneurship and over the last several years they had formed their own model of state management characterized by a decentralized approach to government between the State and institutions.
Kazakhstan was party to most universal international agreements in the area of human rights. The number of executions under the death penalty had decreased markedly and there was a de facto moratorium on the death penalty. They planned to increase internet access to the legal system and they had been working on strengthening the judiciary, including the juvenile justice system and the transparency of selection process for justices. As part of the law adopted earlier this year more than 6,000 people were freed and an additional 2,000 prisoners would be released at a future time. They were continuing the process of decriminalization and 212 amendments to the criminal code had been introduced dealing with more than 260 offences. The number of people working in the criminal justice system had been reduced by 15 per cent. They had also adopted a law outlining the behaviour of law enforcement in enforcing anti-terrorism laws.
Over the course of three meetings, the Kazak delegation answered questions posed by Committee members relating to a number of issues, including the application of the death penalty, conditions in prisons, domestic violence and the laws punishing such crimes, torture and how it was defined and punished by the State party, the respect for civil and political rights in the application of anti-terrorism legislation, the right to freedom of assembly and association and the rights of children.
Committee Experts also asked questions about human trafficking and what was being done to combat this phenomenon, the juvenile justice system in Kazakhstan, the treatment of refugees and asylum seekers and whether the State party respected the principle of non-refoulement, the participation of minorities, particularly linguistic minorities, in the political and economic life of the country and the status of women in the country and their equal participation in all sectors of public life.
The delegation from Kazakhstan included members from several governmental departments and ministries including the Ministry of Justice, the Ministry of Communications, the Ministry of Internal Affairs, the Ministry of Foreign Affairs, the Commission of Human Rights, the Ministry of Education and Science, the National Commission on Women and Family Demographic Issues, the Constitutional Council, the People’s Assembly, the National Centre on Human Rights, the Ministry of Culture, the Agency on Religion Issues, the Central Election Commission, the Supreme Court and the General Prosecutor’s Office.
The Committee will hold its next public session on Tuesday, 19 July at 10 a.m. when it will continue its second reading of a draft general comment on article 19 of the Covenant pertaining to freedom of expression.
Report of Kazakhstan
The initial report of Kazakhstan (CCPR/C/KAZ/1) notes that by the presidential decree of 12 February 1994, the Commission on Human Rights was established as a consultative-advisory body under the President. As of 18 January 2007, there were 22 persons on that Commission, representing various social and economic strata, ethnic identities and political, professional and departmental groups reflecting the specific characteristics of Kazakh society. The Commission’s principal task is to assist the President in the exercise of his constitutional mandate to safeguard human rights and freedoms. The Commission prepares proposals to improve the government's human rights policies and boost the effectiveness of the human rights machinery. The position of the Commissioner for Human Rights was established by the presidential decree of 19 September 2002. The National Centre for Human Rights operates under the Commissioner for Human Rights.
Ensuring inter-ethnic harmony is an important task of the government and is pursued at all levels, including by Parliament. More than 130 ethnic groups reside in Kazakhstan. The People's Assembly of Kazakhstan has been created in order to ensure the participation of all ethnic groups in civic life. All ethnic groups and peoples living in this multi-ethnic society are represented in that Assembly. The legal basis for the creation and functioning of the Assembly is set forth in the Constitution. Nine deputies are elected by the Assembly from among the 107 deputies of the Majilis. Measures are taken at the legislative level to strengthen the legal status of the People's Assembly.
According to article 4 of the Constitution, all international agreements ratified by the Republic have priority over laws and are directly implemented, except in cases when international agreements require implementation of a law. The International Covenant on Civil and Political Rights was ratified by Kazakhstan without reservations and, therefore, has priority over domestic laws. Accordingly, norms of the Covenant may be applied directly in the territory of the Republic. International agreements to which Kazakhstan has become a party through other means of adhesion (through approval, accession or signing) become constitutional norms under current law along with other international obligations. There are no limitations on their direct application, but in the event that they are in conflict with domestic laws, the latter have priority. But that does not mean that those treaties are automatically deprived of their legal force. For those international agreements, the law on international agreements provides a compulsory procedure for their ratification (article 11). Litigation in Kazakhstan shows that courts do not yet base their decisions on widely cited norms of international agreements on human rights ratified by Kazakhstan. To address that gap, the Supreme Court drafted and adopted a resolution on application by the courts of norms for ratification of international agreements in the field of human rights.
Women predominate in Kazakhstan, but they are not involved in taking important decisions. The typical gender pyramid of power exists, where women are present at the lower and middle levels, but few are found at the higher offices at the decision-making level. Out of all the employees holding office in bodies of governmental authority, women make up 59 per cent and men 41 per cent. There is one woman in the national government. For the first time, the Prime Minister has named a woman as a deputy in his office. There has been an increase in the number of women heading departments of the chancellery, and there are vice ministers and permanent secretaries of ministries and other governmental bodies, but there is not one single female provincial or urban akim. It is estimated that 19.9 per cent of regional government bodies and 28.3 per cent of companies and organizations are headed by women.
Presentation of the Report
DULAT KUSTAVLETOV, Vice Minister of Justice of Kazakhstan, presenting the initial report of Kazakhstan, said that Kazakhstan had celebrated 20 years of independence and while the building of a democracy had begun under difficult circumstances, they were well on their way. Many improvements had been made in the country, such as the strengthening of social security for citizens, an increased level of literacy, reduced maternal and child mortality, a more open business environment, a renunciation of nuclear weapons and the development of regions and industries and improving the employment opportunities for the population. There was a government programme to support entrepreneurship and over the last several years they had formed their own model of state management characterized by a decentralized approach to government between the State and institutions.
There was a clear separation of state branches and parliament and the electoral process had all been strengthened. The 2007 constitutional reform had led to the movement of the government from a presidential one to a presidential parliamentary model of government. The elections of 2012 would be multi-party ones. The creation of the poly-ethnic society in Kazakhstan had been achieved by a unique mechanism, the People’s Assembly of Kazakhstan, where all ethnicities and languages were represented. The mass media were published in 15 languages and television programmes were broadcast in 11 languages. The number of registered non-governmental organizations was more than 18,000 and there had been a marked increase in the interaction of civil society and the government.
Kazakhstan was party to most universal international agreements in the area of human rights. The number of executions under the death penalty had decreased markedly and there was a de facto moratorium on the death penalty. They planned to increase internet access to the legal system and they had been working on strengthening the judiciary, including the juvenile justice system and the transparency of selection process for justices. As part of the law adopted earlier this year more than 6,000 people were freed and an additional 2,000 prisoners would be released at a future time. They were continuing the process of decriminalization and 212 amendments to the criminal code had been introduced dealing with more than 260 offences. The number of people working in the criminal justice system had been reduced by 15 per cent. They had also adopted a law outlining the behaviour of law enforcement officers in enforcing anti-terrorism laws.
The definition of torture had been brought in line with the Convention against Torture and the State had also streamlined the procedure for filing such complaints. A draft law had also been introduced for the establishment of a national preventive mechanism as well as the introduction of probation as an alternative to imprisonment. In the last year Kazakhstan had undergone its Universal Periodic Review and it had accepted 120 recommendations out of 128, or 95 per cent. They were currently working on the implementation of these recommendations.
Democracy could not be built overnight, but they would continue this work with the liberalization of their national legislation, they would continue to work with their partners and they welcomed their kind comments and open views.
Oral Answers to Written Questions Submitted in Advance by Experts
In response to the list of issues, the delegation said regarding gender equality and related legislation, article 4 of the constitution affirmed that no one could be discriminated against based on age, race, gender or any other circumstance. This principle was included in both civil and criminal codes. There was an equal opportunity law and the State gender policy was being implemented under the Strategy for Gender equality. Kazakhstan had also ratified the Convention on the Elimination of Discrimination against Women and they had a quota in place aimed at achieving 30 per cent representation of women in decision making positions. There were also programmes to increase female entrepreneurship and women’s participation in the workforce. They had also introduced child allowances and supports for motherhood and childhood. Another new allowance was introduced for families with disabled children.
Turning to states of emergency, the Committee had asked about article 39 of the constitution. There was a 2003 law on emergency situations which specified the conditions under which these states of emergency could be introduced. In practice this had not happened yet.
The State party had been implementing a step-by-step approach to the abolition of the death penalty and there were no people on death row. In 2004 they introduced life in prison and 86 people had received this sentence and 26 of them had been pardoned.
On the question of teenage pregnancy and abortions, there were 8,300 recorded pregnancies for children aged 15 to 18 with 3,900 terminated by abortion.
Regarding deprivation of liberty and fair trials, the delegation said that as of 1 August 2008 a person could not be detained for more than 72 hours without the consent of a judge. The prosecutor’s office monitored this. As of 2010 there were 75 detention facilities in Kazakhstan with more than 50,000 detainees. Improving prison conditions had been underway in the country, but this required significant budgetary commitments so they were taking a step-by-step approach. Public monitoring of prison facilities was common practice in the country. The monitoring groups included non-governmental organizations that had unimpeded access to detention facilities. There were 290 such visits in 2009. There were 18 juvenile detention centres where children stayed until the State figured out where they could be placed. These centres were under the responsibility of the Ministry of Education and were no longer under the Ministry of the Interior. Juvenile courts had been introduced in 2003 and they had adopted laws on amendment to criminal legislation and minors who committed crimes or were first time offenders were not detained. The use of unofficial places of detention was done to safeguard people and they received medical attention and psychological support.
There had been 38 cases of bribery of police officials and in 2007 1,900 special measures had been carried out to investigate these crimes. In 2010 420 crimes by representatives of law enforcement agencies were investigated. Monitoring of judges was carried out by the Supreme Court and in 2009 a Code of Ethics for Judges was adopted.
On the admissibility of evidence obtained through torture, this evidence was not admissible in court. In order to strengthen this practice the Supreme Court had adopted a code on torture or any other inhuman, degrading treatment or punishment.
The legislative base of Kazakhstan had specific measures to combat human trafficking. Victims of human trafficking were not deported.
Freedom of assembly and association were guaranteed under article 20 of the constitution and the law on peaceful assembly.
Questions by Committee Members
What was the relationship between the legislation of Kazakhstan and the Covenant, a Committee Expert asked? The report noted that international law took precedence over domestic law except for the supremacy of the constitution. Another area of concern was what happened when there was a conflict between the treaty and the constitution. Who adjudicated this matter? What was the status of other international treaties in their legislation? Regarding implementation, how were these treaties applied in practice by the courts? Were there cases in which the courts had applied the Covenant?
The National Institution of Human Rights did not meet the standards of the Paris Principles because it did not have independent funding and it was established by decree rather than by legislation so it reported to the executive rather than parliament.
Another delicate issue had to do with equality between men and women. Women held very few leadership positions in the country, with only 14 per cent representation in parliament, for example, one female minister, very few deputy-ministers and few women in regional governmental posts. How much progress had the State party been able to make in combating gender stereotypes and domestic violence against women? The domestic violence legislation was lacking and the very number of small cases of reported domestic violence was linked to the fact that law enforcement authorities urged women not to report cases, but rather to reconcile with family members who were perpetrators. Domestic violence continued to be a significant problem in the country. Abortions were high in the case of adolescents and teens should have better access to sexual and reproductive health and sexual education. In rural areas the status of women had not improved, even in the area of nutrition.
To what extent did anti-terrorism legislation affect the rights guaranteed under the Covenant? There were reports that certain religious groups and asylum seekers were the targets of this legislation. There were also reports that the security forces had used counter-terrorism measures to target vulnerable groups such as asylum seekers and suspected members of banned Islamic groups or Islamic parties. What was the role of the judiciary in applying these laws? What were the 17 acts of terrorism that were outlined in the legislation? Regarding states of emergency, the State party report said that a declaration of such a state could be done in the case of political instability. How was this defined and how did it fit with article 4 of the Covenant?
Since Kazakhstan already had a de facto moratorium on the death penalty, when would it abolish it entirely? What crimes were punishable by the death penalty, and for those people who were sentenced to life in prison, was there any possibility of parole for some of the perpetrators?
What effective guarantees were there against acts of torture? Only three cases had been investigated in four years. How many people had received compensation because they were victims of torture or inhuman or degrading treatment?
The report of the State party said that the ombudsman enjoyed wide powers, but what powers were these exactly and to what extent were their recommendations adopted and implemented? What was the staff and budget for the ombudsman?
Response by Delegation
The delegation said that the constitution of the Republic of Kazakhstan was fully in line with requirements of international law such as the United Nations Charter and the International Covenant on Civil and Political Rights. Quite naturally, the conditions of dynamic development of the country, which was one of 15 former Soviet Republics, faced many difficulties, particularly in the area of building sovereignty. Additional norms developed constitutional provisions further.
The Constitutional Council decided whether laws were contrary to the constitution and if this was found to be the case the law was repealed and was no longer applicable in the territory of Kazakhstan. Laws that were ratified before the constitution of 1995 were part of the existing law and if there was a conflict between international agreements and domestic laws, the international agreements took precedence.
They had come a long way in introducing the principles of a democratic state and one aspect of this was an independent judiciary, which in Kazakhstan was completely separate from the executive and completely independent. Judges were independent and they were trained by the Judicial Council. The constitution and the laws of Kazakhstan fully replicated the provisions of the Covenant as far as fundamental rights and freedoms were concerned. The Supreme Court would be adopting a new decree for the procedure for applying international agreements. They did not have data on specific cases in which international agreements had been applied. Kazakhstan fully respected the rights of all people on their territory as required by the Covenant.
The institution of the ombudsman was fully in line with the Paris Principles. This person was independent and the budget was approved by the parliament with special funds earmarked on an annual basis. The mandate and prerogatives included the following key functions: he could visit any facility, including prisons and military facilities, to carry out monitoring duties; he could launch appeals to governmental branches; and he received complaints. A draft law was now being prepared for the national preventive mechanism, which would be an ombudsman plus. The lack of staff in the ombudsman’s office was being looked into and in light of the economic difficulties they had to postpone discussions on increasing staff. It was an important consultative body in the field of human rights.
Regarding the question of gender balance, the delegation said that there were two main gender laws on equal rights of men and women and gender equality between men and women. There was a presidential strategy on this issue and 60 indicators were used to achieve the strategy. There were three main areas in which they focused their work of gender mainstreaming: political socio-economic and cultural areas. The numbers of women serving in the government were higher than the numbers given by a Committee member, including 45 per cent of judges, several ministers and several female regional leaders. They had a school for women leaders and a new project to strengthen local female politicians. They had their first congress on women in Kazakhstan in which the role of women in Kazakh society was discussed and a new plan of action was adopted with the goal of reaching 30 per cent of women in decision-making positions. In the area of the economic promotion of women, every year the number of women participating in the economy grew and women made up more than half of all small business owners. Kazakhstan had also started pre-school programmes in gender mainstreaming, with textbooks such as “I’m a boy, you’re a girl”.
Follow-Up Questions by Committee Members
A Committee Expert said stereotypes existed in the media and throughout society, so what was being done to combat these stereotypes. How would they reform the ombudsman’s office to include the national preventive mechanism mandated by the Optional Protocol to the Convention against Torture?
Several Committee members reiterated their questions about counter-terrorism measures and anti-terrorism laws, states of emergency and torture. They said they could respond tomorrow morning or in writing within 48 hours.
Response by Delegation
The delegation said it did not see any contradictions between the constitution and the Covenant. They sincerely believed that all humanitarian principles and values of modern Kazakhstan had been implemented in the document.
The delegation gave an example of a case in which a plaintiff had directly invoked the Covenant in a court case asserting his right to use his language.
The State was planning to reach the 30 per cent quota of women in public and economic activity and it planned to do so at all levels. They had the full participation of political parties and were in the first phase of implementation and with the elections of 2012 the political parties would have to show the results of these measures.
With regards to combating stereotypes, Kazakhstan had a good foundation from which to work and the State policy began with children to ensure that textbooks reflected the main United Nations decisions relating to stereotypes. There were also focal points for gender equality at the local level.
Starting with the 2010-2011 school year they had introduced a programme to raise self-awareness among children in terms of sexual and reproductive health. They were not satisfied with the situation of teen pregnancies in the country so they were working with the Ministry of Education to address these issues. The life expectancy of women was 10 years longer than men as women generally took better care of their health. The rural population was predominately women as young men usually moved to the cities. Thus, they were adopting special health programmes for rural areas as well as economic programmes to help improve the status of women in all spheres of life.
In 2009 the law on domestic violence was adopted in Kazakhstan, which defined domestic violence in its difference forms including physical, psychological, economic and sexual violence. It also outlined preventive measures and a complaints procedure. The law covered the prerogatives of organizations to provide assistance to victims and to provide information to police about acts, or potential acts, of domestic violence. The police worked in close cooperation with 28 crisis centres, 20 of which were funded by the State. The law provided for the defence of victims and the responsibility for violating their right to protection as well as detention for perpetrators. They could be kept in detention for up to 48 hours for protective reasons and this detention warrant could be issued without an actual complaint being filed. Since the passage of the law more than 30,000 such warrants had been issued. In the last six years the number of domestic violence crimes in households had fallen by 50 per cent.
Kazakhstan was fully committed to its obligations under international law regarding torture. This was why the State had extended an open invitation to Manfred Nowak, Special Rapporteur on Torture, to visit the country and assess the situation. Mr. Nowak made a country visit in 2010 and he used Kazakhstan as a good example of how quickly recommendations could be implemented once they had been made by the Special Rapporteur.
There was a comprehensive list of restrictions and limitations in the anti-terrorism laws. The provisions of the constitution and the International Covenant on Civil and Political Rights and the list of these rights could not be limited even during anti-terrorism operations. The monitoring of these laws was done by the prosecutor’s office. If excessive harm was done during the carrying out of anti-terrorism operations, the perpetrator could be punished for inflicting serious harm and exceeding the limits on self-defence or as required by the situation.
A state of emergency could be invoked during extremely dangerous situations such as a threat to political stability.
The constitution provided for the death penalty as an extreme form of punishment for terrorist crimes that led to the death of people or serious crimes committed during the time of war. This meant the constitution posed strict limits on the imposition of the death penalty. Kazakhstan spared nothing in the eradication of torture and it viewed this problem first and foremost as a question related directly to the rights of citizens. The definition of torture had been brought fully in line with that of article one of the Convention against Torture and included incitement and tacit agreement.
A law passed on 8 January 2011 provided for the decriminalization of 24 crimes, dropped deprivation of liberty as a form of punishment for 24 articles, and prison time had been reduced under 15 articles. Torture was considered one of the most serious crimes. In the first three months of this year the prosecutor’s office had received 70 notifications of torture and all had been investigated. They had an active approach to addressing this issue and took it very seriously. Recently two police officers were sentenced to several years in prison for the application of torture against a prisoner and this prisoner was entitled to compensation for what he experienced. All victims were entitled to compensation if they were subjected to torture.
In terms of the Shanghai Cooperation Organization, no international treaty was accorded more importance than others in Kazakh law. Before treaties were ratified they were reviewed to ensure that they were in accord with previous treaties and prior obligations stemming from treaties already adopted by Kazakhstan. With respect to Kazakhstan unjustifiably including people on so-called blacklists, Kazakhstan could not propose that any individual at all be included in such lists until such time as such corresponding decision was taken by a court. It would have to be the result of legal arbitration carried out in accordance with all obligations for fair judicial arbitration and human rights.
Regarding conditions in prison for those who had been sentenced to life imprisonment, these conditions were set out in the criminal code. Those who had been sentenced to life in prison served in two person cells in correctional facilities. They had the right to six visits from family and religious counsellors every year. They were also guaranteed unlimited confidential meetings with lawyers and legal advisors and they had the right to daily walks for 90 minutes; if convicts showed exemplary behaviour this time could be increased to two hours. They were also entitled to hot food three times a day and could acquire additional food and hygiene products. They had the right to telephone conversations, medical care and education as well. They planned to move to individual cells for prisoners and to continue improving prison conditions and applying alternative measures of punishment to modernize safety systems with new technology and to try to address the idea of providing jobs for convicts. Civil society would continue to be involved in prison monitoring and they were planning a joint project to monitor the facilities where people sentenced to life imprisonment were housed.
Additional Questions by Committee Members
How did other members of the Shanghai Cooperation agreement deal with persons who had been blacklisted by Kazakhstan? There was a basic conflict between anti-terrorism laws and human rights. How did the State deal with extradition in cases in which people might be subject to torture in the country of destination? Did they comply with the principles of non-refoulement?
Could the delegation elaborate on the framework of the terrorism legislation and clarify whether there were some rights suspended under this legislation? Was this the case or was it simply that rights that could be derogated under the Covenant could also be derogated under the terrorism legislation? How many times had this legislation been applied?
Could the delegation also clarify whether someone who was sentenced to life in prison could possibly be released on parole?
Response by Delegation
In response to these questions and others, the delegation said that there was a normative framework in place to regulate the application of life sentences and this could be found in the code on the execution of the criminal procedure. On the question of parole for those sentenced to life in prison, the specific procedures and relevant legal provisions could be found in article 170 of the criminal execution code. There were currently 86 persons facing life sentences and 28 of them had been paroled.
In terms of the anti-terrorism law, the laws that could be restricted were only those allowed for in the provisions of the constitution and the Covenant. They were bound not to use torture in their application of anti-terrorism laws. There was a zero-tolerance policy for the use of torture by the State or any participants in an anti-terrorist operation; such action was inadmissible and would be strictly punished.
In terms to extradition or deportation of people to a country where they might face torture, the delegation said that in the case of the Uzbek citizens who had been deported they had been denied refugee status, an extradition request from Uzbekistan was honoured because these people were wanted in that country for crimes they had committed. However, they were deported only after the Special Prosecutor’s Office of Kazakhstan had received written assurances from Uzbekistan that they would not be subjected to torture and representatives of international organizations such as the Red Cross and the World Health Organization would be given full access to places of detention to monitor the conditions of their imprisonment.
Kazakhstan would accede to the second Optional Protocol only after their domestic legislation had been brought into line with the requirements of the protocol.
Additional Questions by Committee Members
Did the criminal code provide any provisions for domestic rape, an Expert asked?
Did the laws of Kazakhstan prohibit extradition or deportation in all cases where there was the danger of refoulement or a real risk of torture, inhuman or degrading treatment or were there exceptions? How did these prohibitions apply in practice? Was the Minsk Agreement being applied in a way that was contrary to the Covenant? They had been informed of some cases in which there might be problems in practice? Did Kazakhstan deport people based on diplomatic assurances and did they come with procedures to ensure these assurances had been honoured by other States? Was the work of the United Nations High Commissioner for Refugees being restricted and if so why?
Regarding corporal punishment of children, the Committee welcomed the fact that this was prohibited under law, but how was this applied in practice? There were reports that corporal punishment was carried out in juvenile detention centres, orphanages and other group settings. Was this the case and did the prohibition of corporal punishment extend to military schools?
Regarding prison conditions, the philosophy in the Covenant was that prisoners were human beings and enjoyed the same rights as other people. What was being done to eliminate the use of the solitary confinement cells and what access did public oversight commissions have to prisons in practice in order to inspect prisons and monitor their conditions. Could the delegation provide information on intra-prisoner violence and abuse including sexual assault? There were troubling statistics about deaths in custody and prison overcrowding. What steps were being taken to address both these problems? Were there plans to release prisoners to relieve overcrowding, build more prisons or adopt alternatives to imprisonment?
Were police required by law to inform detainees of their right to a lawyer? How long could juveniles be held in detention? Oversight and handling of juvenile justice had been moved from the Ministry of the Interior to the Ministry of Education, but what did this mean in practice? When could they expect the addition of juvenile courts and the full juvenile justice system to be fully implemented in the country?
Were there locations where people were held incommunicado under the anti-terrorism laws?
The picture the Committee had of the judiciary was one that was very much controlled by the executive arm of the government. How could this body be independent if the executive branch controlled the Supreme Judicial Council? When it came to disciplining justices accused of corruption, what statistics were available on the disciplining of justices and how many cases had been tried? There were reports that some 400 judges were dismissed as part of budget cuts, but there were allegations that this was done to get rid of independent minded judges. Had the adversarial system been introduced to the legal system in Kazakhstan, since only 1 per cent of all criminal indictments resulted in acquittal? This could indicate one of two things: either prosecutors were very good and they only tried cases they were sure would result in convictions, or there were vestiges of the old Soviet system in which the prosecutor was considered more important than the defence attorney and the judge rarely ruled against the prosecutor.
Had there been any cases in which evidence had been thrown out because it was obtained using torture?
There were reports that human trafficking was increasing, despite laws on the books. Why was this so? Only 30 cases had been brought under article 128 dealing with trafficking. Most cases that were tried were brought under laws dealing with prostitution. Were they going after the small fish versus the actual traffickers? Was there a practice of deporting foreign sex workers before their cases were heard, thus not allowing them to participate in trials to bring their abusers to justice? What measures were taken in practice to support victims?
A Committee member asked about the treatment of refugees, including expulsions from the country.
Response by Delegation
Law enforcement officials were required to tell detainees about their right to a lawyer and they had the right to meet with their lawyers in private.
A lot of attention was being paid to human trafficking and police had stepped up their work in this area and this had yielded results in the form of more arrests and prosecutions. Some cases were filed under prostitution because the women were running a brothel and providing sexual services for pay.
Juvenile justice was moved to the Ministry of Education in order to humanize their treatment of minors accused of a crime. With the support of UNICEF they had held a number of seminars and developed recommendations and guidelines for juvenile justice centres. They had also developed guidelines for group home settings which included support for families, psychological services and rehabilitative services. More focus was given to families who had fallen on hard times in an effort to help the family stay intact rather than removing children from the home.
Judges could only be removed from office using guidelines from the constitution and by a special independent body called the Supreme Judicial Council. The Supreme Judicial Council was composed of scholars, members of the bar, jurists, members of parliament and judges. The Supreme Judicial Council selected candidates and gave the list to the president for their appointment. In local regions, judges were appointed by presidential decree in order to keep them independent of local governments and politicians. There had never been an instance in which the president had disagreed with the Supreme Judicial Council. The nominations of judges and their appointments were transparent and widely publicized by the mass media. Supreme Court judges could only be dismissed by the parliament, in particular the senate. The disciplining of judges was done by a commission composed solely of judges. The final decision on the dismissal of judges was taken by the Supreme Judicial Council. In 2010 there were about 125 judges disciplined out of 2,000 working in Kazakhstan. The delegation considered this number too high.
Regarding juvenile courts, two specialized courts had been established in the country’s two largest cities and in the near future they planned to establish such courts in all regions of the country.
The legal system of Kazakhstan recognized the adversarial system of trials and the judge had to be neutral when considering a case and both the prosecutor and defence attorney had the same rights. About 88 per cent of court decisions were in favour of citizens. When the actions of the State party were recognized as being illegal they were ordered to eliminate provisions in the law that might allow the offence to happen again. The budget of the courts was provided by the legislature and not the executive branch so their funding was completely independent. The idea that one had to bribe someone to become a judge was not true because everyone had to pass a competitive exam to be considered for the position. Judges had a very heavy workload and it was a strenuous job so many people would not bribe their way into it because it was not easy work.
The number of acquittals was small because only cases that had been thoroughly investigated and found to have merit went to trial. Any cases found lacking in merit during pre-trial investigation were usually dismissed before they ever made it to court so this was why the conviction rate was high and the acquittal rate was low. If one looked at all the cases that were dismissed before they got to trial and included this number then the acquittal rate was about 10 per cent, which was in line with other European countries.
Kazakhstan would not extradite someone back to a country that did not observe democratic principles and where they would be subject to torture.
In 2010 one judge was convicted of corruption and thus far in 2011 two judges had been accused of corruption, but the trials had not taken place yet. Kazakhstan had shown that it was committed to fighting corruption and it was resolute in its actions to eliminate this scourge.
There were two constitutional laws concerning the government and the president and these ensured a separation of powers.
Regarding conditions in prisons, Kazakhstan had ratified the Optional Protocol to the Convention for the Prevention of Torture and had set about establishing a national preventive mechanism. There were 15 public observation commissions in Kazakhstan with 103 members who had carried out more than 400 visits to prisons in 2010 and had organized more than 300 talks, seminars and similar activities. They accepted complaints and communications of violence and members of these commissions could speak directly to prisoners. The work of these commissions had proven that all penitentiaries were accessible. As a result of this work they had solved major problems and many recommendations that had been made to the Ministry of Justice had been applied to improve conditions for detainees. They were currently building a new prison in line with international standards. It was a big, modern, expensive prison so it would take a few years to complete. This spring they opened another prison where more than 200 prisoners had been housed and thus far there had been no complaints from prisoners about the conditions there.
Regarding refugees and asylum seekers, as of 1 July 1997 persons who had a passport under the former Soviet Union received a Kazakh passport. People without citizenship from a former Soviet country were given certificates as stateless persons or another document. At one point Kazakhstan had 8,096 stateless persons living in the county. There was no stipulation in Kazakh legislation regarding foreigners and stateless peoples that contradicted international law. Children born in Kazakhstan to stateless people who were permanent residents of Kazakhstan were entitled to citizenship, but their parents did not always get passports for them because they planned to move to other countries and obtain citizenship there so they usually just got certificates. The State had also undertaken a comprehensive survey of internally displaced persons and internal migrants with a view to collecting data to provide services such as schools, hospitals and post offices where they were needed.
Counter-terrorism measures could only be adopted after the issue had been discussed in the National Court so just because someone was on the Shanghai Cooperation Agreement watch list, this was not enough for them to be put on a black list in Kazakhstan.
Further Questions by Committee Members
One Committee member said that he was confused because on the one hand 400 judges had been laid off, yet they were overworked. Could the delegation help reconcile these seemingly contradictory ideas?
Another Committee member expressed concerns about the right to assembly and association as there seemed to be no law requiring the government to explain why it banned certain assemblies or justify decisions in which assemblies were banned as a threat to peace and order. Also, it was alleged that in some cities 94 per cent of applications for assemblies were rejected. A new law on assemblies was supposed to be drafted, but apparently this process had been suspended. Could the delegation provide more information on these matters?
The delegation was asked about freedom of religion and non-governmental organization reports that indicated that religious registrations were delayed on various pretexts. Was there a need for registrations at all and if so how could they work to ensure that it was a right and not an obligation? According to the State party report, extremist or fanatical religious propaganda was prohibited, but how was this defined exactly? Had there been events involving such propaganda? Were there political parties affiliated with religious groups that espoused such extremist religious views? Moving on to the issue of conscientious objection, the speaker noted that currently there were none in the country, most likely because the bulk of them were Jehovah’s Witnesses who were exempt from military service. The Expert was encouraged by the fact that the State was looking for alternative means of service in lieu of military service.
Regarding minorities, particularly linguistic minorities, the Expert asked about their rights and their participation in the public and economic spheres and their access to services.
Response by Delegation
The delegation said that people detained on anti-terrorism matters were entitled to a lawyer, but this was a procedural issue because the lawyer had to be someone who could be involved with cases where there were State secrets involved.
Judges did have a very heavy workload and they were looking at ways to hire more judges. In terms of hiring judges, they were subjected to objective, quantifiable criteria such as tests and educational achievement. This process was open and transparent so if someone was appointed on the basis of anything except qualifications people would know about it and there would be an outcry.
Just to dispel any doubts, the delegation said that the president of the government of Kazakhstan was not above any other branch of government. The president did have many powers, one of which was to appoint judges, but he was not above any other branches of government. He was a coordinator and elected by the adult population of Kazakhstan. The president could be impeached by the parliament in the case of high treason.
The State was moving toward the decriminalization of slander, libel and defamation. It was possible to place restrictions on the freedom to disseminate information to protect the rights of other people.
In terms of political registration, the registration law was applied to all parties equally, whether they were an opposition party or another party. This law was applied uniformly and fairly to all and was not used to discriminate or restrict some parties.
Regarding freedom of assembly, since 2008 Kazakhstan had seen 1,115 political meetings and half of these were spontaneous without any prior authorization from authorities. The right to freedom of assembly was open to all people in Kazakhstan, including foreigners. Freedom of assembly was not limited to citizens and the delegation could not think of any case in which a citizen of another state was prosecuted for participating in an assembly.
On the question of the law on the internet, there was no law as such but rather a law on communications information networks and their use in the commission of crimes. The language of the law was changed to reflect the changing nature of technology, but the shutting down of any website or internet resource could only be done by order of the court. Several court decisions had been handed down that showed that any exaggerated use of this law by the State was not allowed. The grounds for closing down websites included disclosing of state secrets, revealing anti-terrorism tactics, propaganda for drugs, violence, racial or religious superiority, pornography, pre-electoral agitation, propaganda for the overthrow of the government, undermining state security and the incitement to racial or religious hatred. To date there had been 33 such website closures, 20 of which were terrorist resources. One of them described how to make bombs in one’s home. On the question of how this law had impacted internet usage in Kazakhstan, before the law was passed in 2008 there were 17,000 domain names and at present there were 58,000 domain names so the law had not had a chilling effect on internet usage at all.
It was illegal to found a political party based on religious background. In Kazakhstan there was a law on extremism that defined what it was, including the calling for violence against people of other faiths. This was the definition law enforcement officials used in their work.
Kazakhstan was guided by the belief that a multi-ethnic society was the basic prerequisite for economic and social development. Eleven articles of the constitution were devoted to the question of inter-ethnic harmony in one way or another. Any activity that undermined social harmony was considered unconstitutional. The multi-ethnic society, rather than being seen as a disadvantage, had been turned into a factor for development. The State party had undertaken measures to foster multilingualism and there were three official languages – Kazakh, Russian and English. They also encouraged people to learn their traditional languages as well. They had also made efforts to revive the Kazakh language because at one point it had practically disappeared so they took pains to support native languages.
Concerning discrimination against children, the delegation noted that much of the confusion came from the fact that the translation of the report had numerous problems. For example, they did not refer to children born out of wedlock as “invalid” children, which was how it had been translated from Russian to English in the report.
Regarding religions, Kazakhstan was a secular state and the constitution guaranteed freedom of religion and belief and freedom of association. In order for a religion to be considered valid it had to have at least 10 practicing adults and the constitution did not allow religions to be denied registration except for reasons laid out in the law. People could be excused from military service if they had taken holy orders and Kazakhstan was in the process of setting up military service on a contract basis. In reality, there was no problem with military service for people who did not want to serve in the military due to their religious beliefs. Religious extremism was a challenge in the region and as such certain legal procedures were necessary as preventive measures. There was concern about the spread of radical and extremist groups in the area. Since independence 19 years ago the number of religious associations had grown from 671 to more than 4,500. The law stipulated criminal and administrative penalties for the violation of rights of worshipers and any State intervention into religious affairs. Kazakhstan had also hosted three religious conferences for dialogue among religions and for the promotion of inter-religious tolerance.
DULAT KUSTAVLETOV, Vice Minister of Justice of Kazakhstan, in concluding remarks, thanked the members of the Committee for the congenial atmosphere and he hoped Kazakhstan would be able to undertake all its obligations that came to light from this dynamic process. This distinguished Committee could help the young country on its path to democracy and the delegation looked forward to their continued support.
ZONKE ZANELE MAJODINA, Committee Chairperson, said the constructive dialogue had been made possible by the attendance of the large delegation made up of high level ministers. The discussion was wide ranging and covered numerous topics such as the independence of the judiciary and freedom of religion. She hoped the commitment shown thus far by Kazakhstan to its obligations under the Covenant would be a long standing one.
For use of the information media; not an official record