لجنة مناهضة التعذيب تنظر في تقرير كازاخستان

Committee against Torture

18 November 2014 

The Committee against Torture today concluded its consideration of the third periodic report of Kazakhstan on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Rashid Zhakupov, Deputy Minister of Internal Affairs, said that Kazakhstan was working to modernize its human rights protection system and create an independent judiciary.  It sought a zero-tolerance approach to the use of torture, cruel treatment and violence, which were prohibited in the new Criminal Procedure Code.  A national preventive mechanism had been established, which consisted of 112 civil society representatives who began visiting places of deprivation of liberty in March 2014.  Kazakhstan had made important strides to bring its judiciary, law enforcement and prison system in line with international standards in recent years.  However, it recognized that there was still a way to go to ensure effective protection against torture and cruel and ill treatment or punishment.

During the discussion Committee Experts noted positive developments such as the creation of a national preventive mechanism and the zero-tolerance policy to crimes of torture.  The use of torture and ill treatment to obtain confessions went beyond isolated incidents, said Experts, expressing concern about the gap between legislation and protection from torture.  Less than two per cent of complaints of torture led to prosecution, noted Experts, also asking about reports that the National Security Committee used rented apartments or houses as unofficial places of detention.  The events in Zhanaozen of 2011 were discussed, as well as respect for the habeas corpus principle.  The delegation was asked about reparations for victims, particularly the 60 torture victims whose cases tried in 2012 resulted in 46 convictions.  Experts also asked about prison conditions, the use of solitary confinement, and the poor success rate in tackling trafficking in persons despite Kazakhstan’s commendable legislation on the issue.

In concluding remarks, Mr. Zhakupov said that Kazakhstan was uncompromising in the struggle against torture and absolutely determined to follow the chosen path of zero tolerance to torture.

Claudio Grossman, Committee Chairperson, in concluding remarks, commented that the idea of zero tolerance to torture was the goal of the Convention against Torture.

The delegation of Kazakhstan included representatives of the Commission on Human Rights under the President, Supreme Court, Prosecutor General’s Office, Ministry of Education and Science, Ministry of Internal Affairs, Ministry of Health and Social Development, Ministry of Foreign Affairs, National Centre for Human Rights, Director of the private broadcasting channel, Association of Legal Entities “Union of Crisis Centres of Kazakhstan” and the members of the Permanent Mission of Kazakhstan to the United Nations Office at Geneva.

The review of Kazakhstan was the last country report scheduled for this session.  Summaries of all country reviews can be found on the Committee’s webpage.  The Committee will next meet in public at 10 a.m. on Thursday, 20 November to consider Follow-Up to Articles 19 and 22 of the Convention against Torture, and the issue of reprisals.

Report

The third periodic report of Kazakhstan: (CAT/C/KAZ/3).

Presentation of the Report

RASHID ZHAKUPOV, Deputy Minister of Internal Affairs, introducing the report, said the constitution of Kazakhstan fully prohibited the use of torture or ill treatment and that the Government had adopted measures to establish a ‘zero tolerance to torture’.  The legal definition of torture was identical to that of the Convention against Torture.  In 2010, Kazakhstan adopted a strategy to modernize the system of human rights protection which included the creation of an independent judiciary and in 2012 the establishment of a juvenile justice system.  The new mechanism, which provided for court authorisation for investigative actions, reduced the number of arrests by a factor of three and the number of juvenile arrests by a factor of seven.  Consequently, alternatives to arrest were being widely used, said Mr. Zhakupov.

The new Criminal Procedure Code recognized the inalienability of human dignity.  It protected everyone from cruel treatment, torture or violence and provided for quick redress for victims.  Evidence obtained through torture was considered unlawful and could not be accepted by a court.  The presumption of innocence was now the fundamental principle at the heart of criminal procedures.  Furthermore, the authorities were obliged to investigate all allegations of torture, said Mr. Zhakupov.  There had been very few complaints of torture reported.  All complaints were fully investigated, and all perpetrators were held criminally liable.  Victims of torture were entitled to free judicial and medical assistance, and a law to create a compensation fund was being prepared.  The new Criminal Code had extended the definition of the perpetrator of torture, and in relation the Supreme Court decided who was considered an official and who could be held responsible. 

Kazakhstan had established a national preventive mechanism provided with sufficient financial resources to function, said Mr. Zhakupov.  It was staffed by 112 civil society representatives, and in March 2014 the mechanism started undertaking visits to places of deprivation of liberty.  To improve prison conditions, a series of measures had been undertaken, and 24 remand centres had been closed.  To date 70 per cent of all remand centres were in line with international standards and Kazakhstan was moving towards a system of holding inmates in cells.  Medical stations were available in all prisons and mortality among inmates had been reduced by 14 per cent.  The governance of medical services for detainees would gradually move from the Ministry of Interior to the Ministry of Health. 

Regarding law enforcement reform, Mr. Zhakupov said work to confirm with high international standards by 2020 was ongoing.  Law enforcement bodies had been demilitarized and moved away from simply identifying crimes to establishing confidence among the population.  Kazakhstan paid special attention to the protection of women and children, and was implementing the 2006-2016 Gender Strategy.  A law on gender equality and the prevention of domestic violence had been adopted, and special measures to protect women from violence in police stations had been taken.  Training on the Istanbul Protocol would be undertaken next year.  In conclusion, Mr. Zhakupov said Kazakhstan had made important strides to bring its judiciary, law enforcement and prison system in line with international standards in recent years.  However, it recognized that there was still a way to go to ensure effective protection against torture and cruel and ill treatment or punishment.

Questions by the Country Rapporteurs

FELICE GAER, Committee Expert acting as Country Rapporteur for the report of Kazakhstan, said that there continued to be a gap between the expanded legal framework and the prevention and protection from torture and the use of torture and ill treatment to obtain confessions went beyond isolated incidents.  Threats of sexual violence, torture and ill-treatment by the police were ongoing.  There were allegations of torture in temporary detention facilities, and judges often dismissed complaints against officials.  However, the Country Rapporteur noted positive developments in the legal system to prohibit and protect against torture, including the creation of a national preventive mechanism and a zero tolerance policy for crimes of torture.  The Committee’s concern was that those changes be as practical as possible to reduce the number of torture incidents by police and prison officials. 

Prosecutors had received many complaints of torture in recent years: In 2012 there were 602 complaints, and in 2013, there were 965 complaints.  Less than two per cent of the complaints were prosecuted.  The Country Rapporteur asked the delegation to comment on those reports and to provide information about a number of individual cases, including that of poet Aron Atabek, anti-corruption activist Zinaida Mukhortova and the allegations of torture and ill treatment of activists detained in connection with the December 2011 violence in Zhanaozen, including whether Kazakhstan would accept an independent international inquiry into this case.

The Committee had previously made a number of recommendations concerning changes to the legal system which would contribute to the prevention of torture, including separating the management of the prison and detention system from the Law Enforcement Ministry to avoid abuses.  The Committee was concerned about the transfer of the penitentiary system from the Ministry of Justice to the Ministry of Interior, said Ms. Gaer.  The fact that the Executive controlled the judiciary was a further concern, she said, asking what changes were being contemplated to increase the independence of the judiciary, subject prosecutors to greater oversight by judges and increase the authority of defence lawyers.

The Country Rapporteur asked for comments on reports that the National Security Committee continued to use rented apartments or houses as unofficial places of detention.  She also asked about procedural safeguards, including the provision of information on procedural rights, on the right to independent medical services, on the right to notify relatives of a detention, and of the right to access a defence lawyer.

The delegation was asked about visits by the national preventive mechanism, the Public Monitoring Commission, to places of detention, the number of allegations of torture identified and prosecuted as a result of those visits, measures to protect detainees from reprisals, the number and type of detention facilities visited and the main findings.  The Committee was concerned that the visits by the national preventive mechanism were not made public and that they had to be approved by the President before being published.  Concern was also expressed about the mandate of the mechanism, as it did not have full and unfettered access to all places of detention, for example police departments or orphanages.  Furthermore, visits had to be announced and be authorized by the Ombudsman.

GEORGE TUGUSHI, Committee Expert acting as Co-Country Rapporteur for the report of Kazakhstan, asked about training being offered to law enforcement officials, and how the effectiveness of training programmes was evaluated.  Regarding prison reform policies, the Committee was seriously concerned that apprehending authorities ran penitentiary facilities, as that made space for abuse and torture to take place.  It was also concerned about the use of security forces in prison, for example in general searches, which were reportedly conducted in a degrading manner.  What measures were in place to prevent reprisals and protect persons and detainees who cooperated with regional and international monitoring bodies, asked Mr. Tugushi.  He also asked for statistics on cases of self-mutilation. 

Tuberculosis seemed to be the principal cause of death of inmates, said Mr. Tugushi, asking what measures had been taken to eradicate the disease and whether an autopsy was conducted for every case of the death of an inmate.  Did inmates have the right to confidential correspondence with human rights monitoring bodies, he also asked; was their correspondence screened?

Efforts to bring domestic legislation on redress for torture victims in line with international standards and the recommendations of the Committee against Torture were enquired about.  Mr. Tugushi also asked about rehabilitation centres and the steps to provide reparations to victims of torture.  The delegation was also asked about rules governing the inadmissibility of evidence obtained under torture, about measures to prevent hazing in the military, and about the use of corporal punishment on juveniles in places of detention. 

Questions by the Committee Experts

CLAUDIO GROSSMAN, Committee Chairperson, asked the delegation to explain who the prohibition of torture included, raising concerns about the lack of habeas corpus in the past.  Referring to Article 3 of the Convention, the Chairperson asked how the legislation on refugees was implemented in practice.  He also requested statistics on asylum seekers.

Concerning living conditions in prison facilities, an Expert asked about the legislation on increased living space per detention and about the use of solitary confinement.  Under what supervision was solitary confinement used, and were there plans to abolish it, he asked. 

Court investigations of complaints of torture were enquired about – how impartial were those investigations and how equipped and competent were those mandated to come to a conclusion, asked an Expert.  If an administrative decision was made that there hadn’t been a case of torture, could a defendant refer his case to a court for a judicial determination?  The use of tags on detainees seemed to be an administrative decision and the Expert wondered how it is possible to have administrative and not judicial decision regulating a measure of deprivation of liberty.

Other questions asked included on reparation and remedy to those whose rights had been violated, notably reparations to the 60 torture victims whose cases were tried in 2012 resulting in 46 convictions.  Experts asked whether Kazakhstan intended to guarantee obligatory medical examinations for detainees immediately upon arrival to penal facilities to screen for signs of torture.  The system of non-governmental organization registration was also raised, in particular reports of repressive selection and de-selection of human rights non-governmental organizations.  The delegation was also asked about the poor success ratio of human trafficking cases, despite the commendable legislation on the issue.

Response by the Delegation

Regarding the events in Zhanaozen of 2011, a delegate said that more than 200 investigations had been undertaken and more than 1,200 witnesses had been interviewed.  Criminal charges had been lodged only against those who actually took part in the riots.  For the first time in Kazakhstan, a public committee had been formed to monitor the investigation; the committee consisted of members of political parties, non-governmental organizations, the media, medical and legal experts, and representatives of penal reform organizations.  Of the 97 persons who stood trial, 16  had received sentences and five police officers were criminally charged for their conduct in curbing the riots, said the delegate. 

In order to humanize medical care provided to the inmates, medical services in the penitentiary system would be transferred to the Ministry of Health and Social Development.  Work had begun to register each of the detainees with the primary health service to facilitate their access to preventive care.  A budget of US$250 million had been allocated to fight tuberculosis in 2014.  Kazakhstan was one of the countries with the most precise electronic registration of tuberculosis cases, and as a result, over the last five years the mortality rate had decreased by 65 per cent and morbidity rate by more than 30 per cent. 

Forcible hospitalization in psychiatric facilities was carried out on the basis of a court order.  However, a court order was not obligatory for preventative forcible hospitalization in cases of grave psychiatric disorders, confirmed a delegate.  An Inter-Ministerial Order obliged law enforcement bodies to inform the local prosecutor’s office within 24 hours if signs of injury were detected among pre-trial detainees.  A medical inspection must take place in such cases, which could also be carried out by registered independent medical experts. 


Since 2010, 26 remand centres had been shut down, including those located in basements.  The activities of a number of other temporary remand centres had been curtailed, added a delegate.  Five new remand centres had been built since 2009 and about 60 per cent of the remand centres in the country were in line with international standards. 

The independence of judges was guaranteed by the constitution, and courts were not held accountable by anyone but the judicial commission.  Complaints of torture or inhumane or degrading treatment or punishment were immediately seen.  The Criminal Procedure Legislation contained the habeas corpus principle, added a delegate.  In keeping with the constitution, persons suspected of crimes could be held for a maximum of 72 hours following arrest.  They had the right to legal representation and the right to lodge a complaint.  A prosecutor had 60 hours from the time of the arrest to request an extension of pre-trial detention from an investigating judge.

Victims of crimes of torture and unlawful treatment were entitled to redress, and to that end the Victims Compensation Fund was established.  Redress could include material compensation, medical coverage, legal expenditure or compensation for damages.  Since 2009, a total of 408 persons had received various forms of compensation.

Regarding human rights education and training in Kazakhstan, a delegate informed the Committee that training materials for human rights education had been developed with the help of international partners.  In 2012 and 2013, courses on identification of signs of torture were provided for 170 doctors and 265 medical workers, and the International Office for Human Rights provided training on national and international mechanisms for promotion and protection of human rights, including the prevention of torture.  The State policy of Kazakhstan was aimed to support civil society and to broaden the partnership with the private sector; as of 1 November 2014, more than 27,000 non-governmental organizations had been registered and US$20 million was paid annually to fund social projects run by the civil society organizations.

Kazakhstan was growing economically and intended to become one of the strongest countries in the world within the next few years, commented a delegate.  Consequently, a number of foreign workers were coming to Kazakhstan and some were victims of trafficking in persons.  Kazakhstan had signed and ratified the Istanbul Protocol and its Criminal Code, which would enter into force on 1 January 2015, criminalizing trafficking in persons.  The maximum sentence for trafficking would be 12 years of deprivation of liberty as well as the seizure of assets.  The attention was on the protection of the rights of victims and to that end an Inter-agency Commission had been established with participation from the relevant Government agencies and non-governmental organizations. 

In 2014, there were 20,200 women engaged in prostitution, said a delegate, of which 97.3 per cent received free preventative care.  Some 1.5 per cent were HIV positive, he noted.  Kazakhstan was considering amendments to the law to ensure free medical care for refugees, added the delegate.

The ratification of the Optional Protocol to the Convention against Torture was followed by the adoption of the law which established the national preventive mechanism, recalled a delegate.  Kazakhstan had chosen the Ombudsman Plus model for its national preventive mechanism; the role of the Ombudsman was to ensure interaction and understanding between the Government and non-governmental organizations.  The national preventive mechanism had 112 members from 15 regional groups and had the mandate to carry out visits to 597 prisons.  The Ombudsmen coordinated the work of the participants in the national preventive mechanism, which was completely independent from the Government and could act without any interference.  The national preventive mechanism could identify violations of rights.  It could also issue recommendations.  As a result of the visits, three criminal cases against prison officials had been filed and more than 60 complaints had been lodged with the Ombudsman.  The financial resources for the functioning of the mechanism were provided from the regular State budget and the 2014-2016 budget was in the order of US$1,000,000 million per year. 

The establishment of the national preventive mechanism was one of the most important steps Kazakhstan had undertaken to improve human rights situation and prevent torture, commented a delegate.  The Ombudsman was the national human rights protective mechanism in Kazakhstan.  The Ombudsman was appointed by the President and completely independent from the Government in discharge of his or her mandate. 

A law on domestic violence was adopted in 2009 which provided the basis for the prevention of the phenomena, including the creation of the new preventative mechanism.  Domestic violence was prohibited by law.  Investigations into acts of domestic violence took place over a 30 day period.  In 2013 approximately 100,000 cases were registered, and a similar number had been registered so far in 2014.  To support victims of domestic violence, a system was in place which could provide assistance via a network of 28 crisis centres throughout the country.  Eight of those centres also provided refuge.

Further Questions by the Committee Experts

FELICE GAER, Committee Expert acting as Country Rapporteur, thanked the delegation for the wealth of information it had provided, noting that the Committee’s duty was to press on issues of implementation.  To that end, the establishment of the national preventive mechanism was one of the two most important developments in Kazakhstan since its last report in 2008.  The delegation to provide information on the 11 special visits undertaken so far. 

The delegation was also asked how much State assistance had been given to victims of domestic violence and how many women had used the services of the 28 crisis centres.    

Ms. Gaer recalled the Ombudsman’s recommendation made in his 2012 report that the law be changed to make the mechanism compatible with the Paris Principles, asking about the status of those recommendations.  The delegation was asked to comment on the capabilities of the special prosecutor for investigation of complaints of torture.  It was also asked to provide statistics on exclusion of confessions extracted under torture, and the issues related to Article 3 of the Convention against Torture. 

GEORGE TUGUSHI, Committee Expert acting as Co-Country Rapporteur, asked the delegation whether there were any independent medical investigations for detainees, and about how the independence and integrity of the medical doctors and medical staff providing services in prisons was guaranteed.  The role of the Ministry of Health in the provision of health care to prisoners, and the state of affairs on the possible transfer of medical services from the Ministry of Interior to Ministry of Health, were also enquired about. 

Other Experts asked the delegation about its application of universal competence on acts of torture, the procedure and authorities involved in expulsion procedure, and the comments on the effectiveness of the appeal procedure.  The delegation was also asked to comment on reports that the authorities condoned violence, including sexual violence, in prisons.

CLAUDIO GROSSMAN, Committee Chairperson, noted the lack of balance in the resources, including financial, provided to the public defender, which directly affected the poor.  What could be done to strengthen the services of public defender? 

Response by the Delegation

Responding to follow-up questions, the delegation said in 2002, Kazakhstan had moved the oversight of its penitentiary system from the Ministry of Interior to the Ministry of Justice.  In 2011, it returned the oversight to the Ministry of Interior.  It was important to note that criminal police were not connected with the penitentiary system and that the positive aspects of the penitentiary system developed during the Ministry of Justice oversight had been maintained. 

The Prosecutors Office had special status and did not report to Government, parliament or any other body beyond the President, and was not dependent on the justice system.  The Criminal Procedure Code had been amended in 2011, prohibiting the investigation of torture by law enforcement bodies.  The Compensation Fund for Victims was a new institution for Kazakhstan, and did not undermine the already existing compensation system, but was the first one to respond to the needs of victim of torture. 

In determining torture, Kazakhstan looked into articles of the constitution which obliged the law enforcement to ensure legality of all measures undertaken.  The procedure of extradition was fully compliant with international standards, and no extradition was carried out if there was a suspicion of discrimination on any ground. 

A delegate explained that criminal liability for self-mutilation had been removed and that criminal liability occurred only when the purpose of self-mutilation was undermining the regular order of the establishment.  The last time self-mutilation had been punished was in 2011. 

Concluding Remarks

CLAUDIO GROSSMAN, Committee Chairperson, thanked the delegation for the dialogue, concluding that the concept of zero tolerance to torture was the goal of the Convention against Torture.

RASHID ZHAKUPOV, Deputy Minister of Internal Affairs, thanked the Committee, adding that Kazakhstan would be uncompromising in the struggle against torture and was absolutely determined to follow its chosen path of zero tolerance to torture.

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