COMMITTEE AGAINST TORTURE STARTS CONSIDERATION OF REPORT OF KAZAKHSTAN

CAT
26th session
9 May 2001
Morning



Acts of Torture Should be Investigated,
Victims Compensated, Experts Say



The Committee against Torture this morning started its examination of an initial report of Kazakhstan, saying that any acts of torture should be investigated, perpetrators prosecuted and victims compensated.

The remark was made by an Expert during the course of the Committee's consideration of the report presented by a Government delegation on how Kazakhstan was implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Abdildin Zhabaikhan, Chairperson of the Commission on Human Rights of Kazakhstan and member of parliament, said that the country was moving towards a fully democratic system and the Government was determined to promote and protect human rights.

Alexander M. Yakovlev, the Committee member who served as Co-Rapporteur to the report of Kazakhstan, said that in any detention, the first 24 to 72 hours were decisive; the individual was kept incommunicado and isolated from the rest of the society. That procedure was admissible because of the fact that his immediate contact with the outside world might compromise the investigation; the individual had the right to ask for a lawyer, which was obligatory in accordance with the provisions of the Convention. That right was one of the protective methods which prevented any ill-treatment, he said.

Felice Gaer, the Committee member who served as Rapporteur to the report of Kazakhstan, said that allegations of torture, including electro-shocks, against female detainees had been reported by non-governmental organizations. She said that about 10 per cent of the country's prisoners were female, and asked if there were mechanisms to monitor sexual abuse in prisons, and if women were guarded by female prison guards.

The Kazakhstan delegation was also made up of Rogov Igor, Minster of Justice; Danenov Nourlan, Permanent Representative of Kazakhstan to the United Nations Office at Geneva; and Akhmetov Arkin, Counsellor at the Permanent Mission of Kazakhstan in Geneva.

Kazakhstan is among the 123 States parties to the Convention against Torture and as such it is obligated to submit periodic reports to the Committee for its consideration and for verification that the State party is complying with the provisions of the treaty.

The members of the delegation will return to the Committee at 3 p.m. on Thursday 10 May to render their response to the Committee.

When the Committee reconvenes at 3 p.m., it will offer its concluding observations and recommendations on the report of Bolivia before hearing the response of Brazil to questions raised during consideration of its report.


Initial Report of Kazakhstan

The report (document CAT/C/47/Add.1) highlights the various legislative and judicial measures undertaken since the State party ratified the Convention and it entered into force in June 1998. The report gives details on how each article of the treaty is implemented through constitutional provisions and legislative acts which are designed to strengthen the treaty. It says that the Constitution stipulates that no one must be subjected to torture, violence or other treatment and punishment that is cruel or humiliating to human dignity. The use of torture is regarded as an aggravating circumstance in respect of criminal responsibility. The use of extreme violence, sadism and bullying in the commission of an offence as well as torture of the victim is regarded as an aggravating circumstance from the standpoint of criminal responsibility and punishment.

The report says that the criminal code also makes direct reference to the term "torture" under "systematic or brutal violence" and "coercion to testify"; article 107 of the code says that the infliction of physical or mental suffering by systematic beatings or other violent methods including the use of torture shall be punishable by up to five years of imprisonment. Under Kazakhstan's criminal legislation, not only public officials but also other persons using torture in order to commit an unlawful act are held criminally responsible for their acts.

Further, the report affirms that under the country's legislation, the order of a superior officer or a public authority cannot be used to justify torture. In addition, it did not contain reservations concerning the possibility of using torture in exceptional circumstances. Criminal responsibility for the use of torture and other cruel, inhuman or degrading treatment or punishment is established not only in peacetime but also at times of war.

The country's Constitution states that persons may be arrested and held in custody only in cases provided for by law and only with the sanction of a court or procurator, and that such persons shall be provided with the right to appeal, the report notes. Without the sanction of a procurator, a person may be held in custody for a period of not more than 72 hours.

Under the Constitution, everyone in the Republic has the right to judicial protection of his rights and freedoms, the report says. Any person whose rights have been violated or unlawfully restricted is entitled to appeal to State administrative bodies, law enforcement agencies, judicial bodies and the procurator's office for the protection of his legitimate rights and freedoms. The legislation states that members of law enforcement agencies who subject persons involved in criminal proceedings to torture with a view to obtaining evidence shall be held responsible for their acts.


Introduction of Report

ABDILDIN ZHABAIKHAN, Chairperson of the Commission on Human Rights of Kazakhstan and member of parliament, recalled that a new constitutional law had been promulgated at the end of last year to guarantee the independence of the judiciary. In addition, reforms had been undertaken in the judiciary with the aim of improving the courts system.

Mr. Zhabaikhan said that a new department had been created within the Ministry of Justice to deal with pre-trial detainees and other provisionally arrested persons. In cooperation with the United Nations Development Programme (UNDP) and the Office of the High Commissioner for Human Rights, the Government had carried out training programmes for law enforcement officials, including judges.

Any confession obtained through coercion or use of torture would be declared null and void by the judicial authorities, Mr Zhabaikhan said. The establishment of an Ombudsman was still under discussion. The country was moving towards a full democratic system and the Government was determined to promote and protect human rights.

ROGOV IGOR, Minister of Justice of Kazakhstan, said that the country's criminal procedural code covered a number of crimes and it provided compensation to victims of ill-treatment. It prohibited coercive methods of interrogation or forced confession. An individual had the right not to self-incriminate himself or give evidence against a family member. Persons who were not able to defend themselves were provided for by the State. Legal assistance was also given to juveniles who could not defend themselves.

Mr. Igor said that any interrogation could not be carried out without the presence of a lawyer. Video taping was introduced during interrogations to prevent any coercion against the accused or the suspect. However, it was not always possible to provide video machines for
every police station throughout the country.

The Government of Kazakhstan had transferred control of the prison administration from the Ministry of Internal Affairs to the Ministry of Justice, Mr. Igor said. Additional measures had been taken to improve prison conditions and to avoid overcrowding.


Discussion

ALEXANDER M. YAKOVLEV, Committee Expert and Co-Rapporteur to the report of Kazakhstan, asked if the Government was keeping statistics on cases of torture and the number of victims who had received compensation.


The first hours 24 to 72 hours in which a person was held in detention were decisive. The individual was kept incommunicado and isolated from the rest of the society. Although that procedure was admissible because of the fact that his immediate contact with the outside world might compromise the investigation, the individual had the right to ask for a lawyer, which was obligatory in accordance with the provisions of the Convention. That right was one of the protective methods which prevented any ill-treatment.

What was the procedure of complaints against extradition? Article 3 of the Convention stipulated that no State party should expel or extradite a person to another State where there were substantial grounds for believing that the individual would be in danger of being tortured.

Kazakhstan was moving in the right direction in the implementation of the laws with the expressed political will despite persisting traditional obstacles. That political will would also be translated into the respect of individuals and the elimination of torture.

FELICE GAER, Committee Expert and Rapporteur to the report of Kazakhstan, said that the Organization for Security and Cooperation in Europe (OSCE), in its report, had underlined the need for a change of mentality in the prison system in Kazakhstan.

Allegations of torture, including electro-shocks, against women had been reported by non-governmental organizations. Refugees and asylum seekers, including women, were all kept in the same houses. The case of an Ethiopian woman who had arrived in the country to work for an organization but had been detained for ten days needed further clarification by the delegation. What measures were taken to reduce the use of torture in the country? Was a mechanism envisaged to review the situation of prisoners?

The report had indicated that problems had arisen in finding a legislative solution to the question of vesting the procurator with procedural rights, not only in respect of criminal prosecution but also concerning the criminal proceedings initiated by the procurator himself; did the Government attempt to find legislative solutions to that problem?

About 10 per cent of the country's prisoners were female; was there any monitoring against sexual abuse in prisons? Were women guarded by female prison guards?

Could individuals bring their own pathological doctors in the event of death due to torture? Could exhumation be carried out for an examination of a deceased individual?

Other Committee Experts also raised questions. An Expert noted that the Government had to make a proper definition of torture in order to reflect article 1 of the Convention. In addition, any acts of torture should be investigated, perpetrators brought to justice and victims compensated.

An Expert alluded to the bad conditions in which juvenile offenders were imprisoned. Daily activities of the prisoners were not monitored by the prison guards themselves but by older prisoners. They lacked appropriate training and they did not receive education which might enable their reintegration into the society. Allegations of ill-treatment had been reported by a number of non-governmental organizations, including Amnesty International. In most adolescent detention centres, not only were inmates treated inhumanely but they were also denied the right to receive medical treatment.



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