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Kazakhstan

last updated Mar 04, 2014



Key Facts



Size

2,724,900 sq km

Total Population

15,637,000 (UN 2009)

Prison Rate

316 (per 100,000 of national population)

Capital Punishment

retained (indefinite moratorium)

CAT

ratified (1998), declarations under article 21 and 22

OPCAT

ratified (2008)

NPM

under consideration




Background Information


Kazakhstan, a large, ethnically diverse country the size of Western Europe, is a Republic with a presidential form of government. The former Soviet Republic declared its independence on 16 December 1991. Nursultan Nazarbayev, who was elected president in 1991, has ruled the country since with extensive powers and is free to remain in office for an unlimited number of terms due to the removal of all term limits for the first President of Kazakhstan.


The world’s largest producer of uranium has vast mineral resources and huge foreign investment into the oil sector has contributed to a rapid economic growth and a decrease in the share of the population living below the poverty line from 34 to 12 per cent.1


The 1995 Constitution of the Republic of Kazakhstan was amended in 2007 and provides for fundamental human rights and freedoms as well as the independence of all courts (though judges, except for the Supreme Court, are appointed by the President). It concentrates the power in the presidency and constitutional changes can only be made with the consent of the President. In May 2011, the Parliament approved a constitutional amendment that made President Nursultan Nazarbayev “leader of the nation”, thereby granting him and his immediate family permanent immunity from prosecution.2


The country has several human rights issues. In particular, restrictions on citizens’ rights to change the government, a lack of independence of the judiciary, impunity, widespread corruption (rank 120 in the Transparency International Corruption Perception Index 2011) and restrictions on freedom of speech, assembly and press.3 The government has used a variety of means, including laws, harassment, licensing regulations, Internet restrictions and criminal and administrative charges to control the media and limit freedom of expression.4 In the Press Freedom Index 2011/2012 released by Reporters Without Borders, Kazakhstan ranks 154 of 178 countries.
Regarding the freedom of assembly the police often used force to disrupt peaceful demonstrations. In March 2012, Human Rights Watch (HRW) said that the “Kazakhstan police should respect the fundamental freedoms of expression and assembly and not interfere with peaceful rallies […]”.5


Despite promising efforts under the Optional Protocol to the Convention against Torture (OPCAT) allegations of torture and ill-treatment in police custody persist.


In the Universial Periodic Review Report of the Working Group (2010), several countries noted with appreciation that Kazakhstan adopted a National Human Rights Action Plan for 2009-2012. A number of recommendations of the National Human Rights Action Plan have been implemented, including the adoption of laws regarding health care, equal rights and opportunities for women and men, the prevention of domestic violence, and refugees.6 Nevertheless, numerous countries recommended the establishment of an independent national human rights institution in accordance with the Paris Principles since Kazakhstan’s two national human rights bodies – the Human Rights Commission and the Human Rights Commissioner (Ombudsman) – have not been provided with independence and adequate competences.


In 2009, the United Nations Special Rapporteur on Torture (UNSRT) conducted a fact-finding mission to Kazakhstan and presented his findings in a comprehensive report focusing on legal obligations, acts of torture and ill-treatment, conditions in places of detention, safeguards and prevention measures.


Situation of Torture and Ill-Treatment


Legal Framework


Kazakhstan is state party to the main international human rights treaties including the ICCPR and its first Optional Protocol as well as the CAT and its Optional Protocol. It has made declarations under articles 21 and 22 of the CAT, thus recognising the competence of the Committee against Torture to receive inter-state and individual communications.


On a national level, the Constitution specifies a number of human rights such as the right to life, freedom of speech and conscience and the protection of health. The prohibition of torture is determined in article 17 of the Constitution. Important in relation to the prohibition of torture is article 16, which limits the legal time limit for police custody to 72 hours and contains provisions for legal aid and the right to appeal.7


The definition of torture is enshrined in article 347.1 of the Criminal Code. It is more restrictive than the definition contained in article 1 of the CAT since it determines that physical and psychological suffering resulting from legitimate acts of official persons shall not be recognised as torture. In particular, the term “legitimate acts” has been declared as a concern by the UNSRT.8 Furthermore, the Criminal Code does not provide appropriate penalties proportional to the gravity of the offence, as required by article 4 par. 2 of the CAT.


Further provisions ensuring the sanctioning of law enforcement officials for ill-treatment can be found in article 307 (“Abuse of Official Powers”) and article 308 (“Exceeding Power or Official Authority”) of the Criminal Code. Several provisions in the Criminal Procedure Code guarantee the detainee’s rights such as the right to a lawyer and the maximum time a suspect may be held without a court decision (72 hours; article 14 (2) and 68 (3)(1)).


A complaints mechanism is foreseen in the Guidelines of the Office of the Public Prosecutor but it has been criticised by the UNSRT for its questionable effectiveness and independence in his follow-up report in 2012.9 In the same report, the UNSRT also voiced concerns that the Law on Refugees is not fully consistent with the provisions implementing the principles of non-refoulement stipulated by article 3 of the CAT.


Despite ratifying the OPCAT in 2008 and vivid discussions throughout the years, Kazakhstan has not yet designated an institution to act as National Preventive Mechanism (NPM) in conformity with the treaty.


Practice of Torture and Ill-Treatment


During his fact-finding mission in 2009, the UNSRT received many allegations of ill-treatment and corporal punishment in penitentiary institutions, in particular in notorious prisons such as the UK-161/3 in Zhitykara. Arriving detainees were often subjected to brutal medical examinations.


The UNSRT was particularly concerned over the number of incidents in police custody and stated that the “use of torture and ill-treatment certainly goes beyond isolated instances”.10 Several allegations were supported by forensic medical evidence.


In the summary of 16 stakeholders’ submissions to the Universal Periodic Review in 2009, it was noted that torture, psychological pressure and threats were widely used by law enforcement bodies with the aim of achieving “self-reported case” and confession to a crime.11


In December 2011, a month-long peaceful strike in Zhanaozen in Western Kazakhstan for improved working and remuneration conditions at a large oil company erupted into violent clashes between demonstrators and the police. Twelve people were killed and dozens injured. The police reacted with arresting a large number of protesters. Many of them had allegedly been tortured to obtain evidence and confessions that were later used in court against other detained persons. Human Rights Watch (HRW) has criticised the convictions of 34 people despite evidence of coerced testimony.12


Despite a high prison rate (316 per 100,000 of the national population), the conditions of detention prove to be generally in line with international minimum standards. However, problems related to inter-prisoner violence and medical care persist. The prison system follows a highly punitive approach with long sentences and restrictions on contact with the outside world. Contact with family members is further impeded by transfers to remote prisons.


There are several complaints mechanisms enshrined in the national legislations (articles 177, 183 and 184 of the Criminal Procedure Code) but the law does not specify the responsible authority for investigations of alleged torture cases. In practice, many cases are investigated by the police against their own officials, which clearly pose a high risk to an independent procedure. Furthermore, the burden of proof remains with the alleged victim of torture, thus, contributing to a certain level of impunity. An increase in the number of allegations of torture and ill-treatment is not reflected in the number of cases initiated against alleged perpetrators.


Despite a number of monitoring bodies (Prosecutor’s office, Human Rights Commissioner, public monitoring commissions) independent and transparent visits of detention facilities remain the exception.


The UNSRT, in his 2011 follow-up report, has welcomed the normative decree of the Supreme Court providing for the compensation and rehabilitation of victims of torture.


Regarding the principle of non-refoulement, the Committee against Torture in 2008 voiced concerns that individuals have not been afforded the full protection provided for by article 3 of the CAT in relation to expulsion, return or deportation to neighbouring countries, and this, in the name of regional security, including the fight against terrorism.13 In particular, Uzbek nationals seeking asylum from religious persecution in Uzbekistan face a high risk of being extradited to their home country where they are at risk of prosecution, torture and ill-treatment. In 2011, 28 men were returned to Uzbekistan in clear violation of international human rights law and the non-refoulement principle and despite interim measures of the Committee against Torture.14


1UPR (2009) State Report (A/HRC/WG.6/7/KAZ/1), para. 11.
2Amnesty International (2011) Annual Report
3See also: http://www.kuramshyn.org/ (only available in Russian)
4US State Department (2011) Human Rights Report
5http://www.hrw.org/news/2012/03/27/kazakhstan-allow-peaceful-protests; see also: http://www.independent.co.uk/voices/commentators/kazakhstan-is-a-land-of-few-freedoms--as-i-discovered-6255022.html
6UPR (2010) Working Group Report (A/HRC/14/10), para. 65
7UNSRT (2009) Mission Report (A/HRC/13/39/Add.3), par. 12.
8Ibid. par. 13.
9UNSRT (2012) Follow-up Report A/HRC/19/61/Add. 3
10UNSRT (2009) Mission Report (A/HRC/13/39/Add.3), para. 22.
11UPR (2009) Summary of Stakeholder Information (A/HRC/WG.6/7/KAZ/3), para.16.
12See: http://www.hrw.org/news/2012/06/04/kazakhstan-oil-workers-convicted-flawed-trial
13CAT (2008) Concluding Observations (CAT/C/KAZ/CO/2, para. 15.)
14See: http://www.hrw.org/world-report-2012/world-report-2012-kazakhstan


Sources: http://data.un.org/CountryProfile.aspx, King’s College (International Centre for Prison Studies), http://www.bayefsky.com/pdf/kazakhstan_t1_ratifications.pdf, http://www.apt.ch, BBC Country Profile, CIA World Factbook, US State Department Human Rights Report 2011, Transparency International, Economist Intelligence Unit, Human Rights Watch, Amnesty International, http://www.nytimes.com/2011/04/01/world/asia/01kazakhstan.html?ref=kazakhstan&_r=0, http://en.rsf.org/press-freedom-index-2011-2012,1043.html


Documents: UNSRT (2009) Mission Report (A/HRC/13/39/Add.3), UNSRT (2011) Follow-up Report (A/HRC/16/52/Add.2), UNSRT (2012) Follow-up Report (A/HRC/19/61/Add. 3), ICCPR (2009) State Report (CCPR/C/KAZ/1), CAT (2008) Concluding Observations (CAT/C/KAZ/CO/2), UPR (2009) State Report (A/HRC/WG.6/7/KAZ/1), UPR (2009) Summary of Stakeholder Information (A/HRC/WG.6/7/KAZ/3), UPR (2010) Working Group Report (A/HRC/14/10)



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