Rights of the Convicted
Correctional institutions of the Republic are under the jurisdiction of the Committee of the Criminal and Executive System of the Ministry of Justice of the Republic of Kazakhstan (CCES MJ RK).
Current criminal and executive legislation of the Republic of Kazakhstan corresponds to the majority of international standards protecting the rights of individuals taken into custody and imprisoned by decision of the court.
The legal status of individuals on whom the penalty of confinement was imposed is the most restricted in comparison with other categories of convicted individuals. This situation corresponds to the Constitution of the Republic of Kazakhstan and to the criminal and executive legislation. Human rights may be restricted only by law and only to the extent that is necessary with the view of protection of the constitutional order. For instance, in accordance with Article 33 of the Constitution of the Republic of Kazakhstan, convicted individuals have no right to vote, to be elected, or to participate in the republican referendum. In addition, they are restricted with regard to their rights to freedom of movement, choice of residence, etc. However, the convicted, being the citizens of the Republic of Kazakhstan, retain their natural rights possessed by every person; such as: the right to life, protection of health, education, freedom of conscience and religion, respect for human dignity, use of native language, etc.
According to statistics from January 1, 2009, in the criminal and executive system there are 73 correctional institutions and 20 investigative jails.
During previous years, within the framework of the implementation of legal reform, considerable improvements of the criminal and executive system have been made in the Republic of Kazakhstan.
The transfer of correctional institutions and investigative jails which formerly belonged to the Ministry of the Interior to the jurisdiction of the Ministry of Justice, and activities regarding humanization of criminal and criminal-executive policy have made Kazakhstan an absolute leader in the reformation of the penal system in Central Asia.
In the context of improvement of the criminal-executive system, on August 6, 2007 the Government of the Republic of Kazakhstan adopted the Program of Further Development of the Criminal and Executive System of the Republic of Kazakhstan during 2007-2009 No. 673 (further referred to as “the Program”).
The Program is aimed at the improvement of the management of the Criminal and Executive System (further referred to as “the CES”), the improvement of conditions of confinement of individuals in institutions of the CES, the increase of the efficiency of execution of criminal sanctions, and security of employment for the convicted.
With the view of public control of the security of the rights of the convicted, beginning in the year 2005, public watch commissions (PWC) started to function in all regions of the Republic. These commissions were established on the initiative of public unions and associations.
The convicted are provided with the opportunity to render worship in specially designed facilities in compliance with religious traditions. They are allowed to have and to use religious literature and religious items of personal use. To provide spiritual assistance, the invitation of religious ministers is permitted.
Presently, in all the correctional institutions of the Criminal and Executive System there are 36 mosques and churches and 168 meeting houses of various religions. The number of believers amounts to 9,508.
Comprehensive studies arranged in the institutions of confinement ensure a link with the educational system in the country, which allows the convicted to receive further education after their liberation.
In the institutions of the Criminal and Executive System there are 52 comprehensive schools in which are studying 6,252 convicts who do not have a secondary education.
One of the most important activities in the organization of the educational work with the convicted, and in the re-socialization of the convicted and their return to the civil society is the development of psychological services. Positions of psychologists are instituted in all facilities of the CES. The total number of psychologists amounts to 224.
Nevertheless, despite the work already accomplished, there are serious problems in the penal system with regard to human rights that need to be resolved.
On the basis of statistical information on the prison population of the Republic of Kazakhstan provided by the CCES MJ RK on January 1, 2009, the International Center for Prison Studies under the London University (ICPS) has updated the information in the worldwide sheet of prison system development trends. According to ICPS estimates, in January 2009, the Republic of Kazakhstan, with a prison index of 382 prisoners per 100,000 population, ranked 17th place (for comparison: in 2008 – 18th place, in 2007 – 23rd place, in 2006 – 25th place), i.e. during the last 3 years there is a stable trend of the increase of the number of convicted. On January 1, 2009, 50,394 convicted were serving their sentence in the penal system of Kazakhstan (in 2005 – 44,076).
There have been instances of the illegal placement of the convicted into penal jails and cell-type facilities and the imposition upon the convicted of unwarranted disciplinary penalties. The administration of the institutions have allowed the illegal impedance of the right to the grant of parole, transfer to a prison colony, or the application of an order of amnesty.
The nature of appeals of the convicted testifies to the low level of knowledge of the procedure and conditions for the granting of parole, including due to sickness, the procedure and time limit for appeal of denial of parole, and also the right to the appeal of penalties imposed by the administration of institutions.
There are cases of violation of the rights of the convicted to the access to the court in the course of investigation of the grant of parole.
To the question: “What do you think, has the situation of the convicted in correctional institutions been improved after the transfer of the functions of the MI to the Ministry of Justice RK?” which was asked of 1,500 respondents by experts of the Association of Sociologists of Kazakhstan, 21.4% of respondents confirmed the improvement of the situation of the convicted, 58.4% found it difficult to respond, and 20.2% of respondents believe that the situation was not improved. The results of sociological studies prove that there are serious problems with regard to the security of the rights of the convicted guaranteed by the Constitution, the CEС RK, and Kazakhstan’s international obligations in the sphere of human rights.
The right of citizens serving a sentence in an institution of confinement to the protection of health is not secured in full measure. Opportunities for medical consultations and examinations by medical specialists of civil health care institutions are limited in penal institutions. The securing of medical assistance is adversely affected by the lack of medical personnel and the low level of their salaries, due to which the majority of them is poorly motivated to properly fulfill their duties.
For instance, currently, the death rate among the convicted is a serious problem.
According to data from January 1, 2009, there are 4,347 tuberculosis patients in correctional institutions (according to data from January 1, 2008 – 3,460). The death rate among the convicted has increased from 268 (during 2007) to 328 (according to data from January 1, 2009).
The growth of the death rate is caused not only by the fact that in the regions mentioned there are tuberculosis treatment institutions, but also by the fact that medical commissions do not certify the presence of seriously sick people in a timely manner, and management does not submit records to the court for early liberation due to sickness in a timely fashion.
Inspections have revealed numerous violations of law by institutions with special regimes. Thus, the overcrowding of such institutions and reduction of financing for sustenance of the convicted have become the main reasons for violation of the rights of the convicted guaranteed by criminal and executive legislation and by the Standard Minimum Rules for the Treatment of Prisoners, adopted at the first UN Congress in 1955. Moreover, the convicted were forced to stay in unfavorable conditions, which contradict sanitary and hygiene standards.
It should be noted that the condition of the majority of buildings and facilities does not meet the International Rules, which clearly determine that the convicted should be provided with sufficient space, air supply and illumination in order to preserve their health. The majority of correctional institutions are located in buildings constructed during the 30s – 60s of the twentieth century.
As a rule, the convicted live in barrack type hostel buildings (100-150 people), which significantly impedes the reformation of the convicted and the insurance of their safety.
Overcrowding of places of confinement leads to the deterioration of sanitary and hygiene conditions, deprives the convicted of an opportunity to be alone, causes a great overload of services systems, in particular, medical care, to a great extent hinders the realization of program activities, and inevitably results in tension of relationships between the convicted themselves and between the convicted and personnel, which increases the risk of violence.
In closed institutions, the risk of cruel treatment of the convicted increases.
In April 2007, there were instances of the torture of the convicted serving their sentence in the institution LA-155/8 of the Administration of the Committee of the Criminal and Executive System (further referred to as “the ACCES”) of the Almaty region, and in Prison No. 1 of the city of Arkalyk of the ACCES of the Kostanay region. In a protest against illegal actions of the employees of these institutions, more than 30 convicts organized a mass mutilation. Owing to the efforts of the Prosecutor General’s Office, an objective investigation of the commencement of criminal prosecution of the convicts who organized the mass mutilation as a sign of protest was carried out. On the basis of the Enactment of the Constitutional Council of the Republic of Kazakhstan of February 27, 2008, the first and the fourth parts (with regard to determination of the qualifying features of the first part) of Article 361 of the Criminal Code were admitted as unconstitutional.
On the basis of the Enactment of the Constitutional Council of February 27, 2008, the court of the city of Kapshagay of the Almaty region halted the criminal procedure with regard to the convicts who participated in the mass mutilation in the institution LA-155/8.
The convicted find it problematic to receive qualified legal assistance guaranteed by Article 13 of Part 3 of the Constitution and by Article 10 of the Criminal Executive Code. Legal services for the convicted is not included in the list of free legal assistance; and when an accusatory conviction comes into legal force, the convicted, if he has no money to pay for the services of the a lawyer, is deprived of the right to the receipt of qualified legal assistance.
A special concern of the Human Rights Commission is the protection of the rights of minors in correctional institutions.
In the territory of the Republic, there are 5 correctional institutions that contain convicted minors.
Violations of the right of the children to the receipt of survivors’ benefits and other social benefit payments were discovered in all correctional institutions. According to the Law of the Republic of Kazakhstan “On Marriage and Family” children left without the support of parents and staying in educational, medical, or other institutions have the right to the alimonies, pensions, allowances and other social benefit payments due to them.
According to information from the Prosecutor General’s Office, out of 437 convicted minors living in correctional institutions, there are 122 orphans and children left without the support of parents.
However, the administration of the correctional institutions did not take action to secure their rights to the receipt of state social survivors’ benefits, which is a violation of Article 108 of the Law of RK “On Marriage and Family.”
Thus, the right of 122 convicted minors to the receipt of survivors’ benefits and other social allowances guaranteed by Article 28 of the Constitution of the Republic of Kazakhstan was violated.
In an effort to secure the rights of the convicted guaranteed by the Constitution, the CEС RK, and international documents in the field of human rights, we recommend the Government of the Republic of Kazakhstan jointly with the authorized governmental agencies implement the following measures during the period of 2009-2012:
- Provide the institutions of the Criminal and Executive System with competent and qualified personnel.
- Create the organizational and legal conditions for the expansion of application of kinds of criminal penalty alternatives to imprisonment.
It is necessary to establish probation services and renew the fixed assets and production facilities of criminal and executive institutions, which would contribute to wider application of all kinds of criminal penalty alternatives to imprisonment, the more complete employment level of the prison population, and the successful re-socialization of liberated citizens.
- Provide safe and adequate conditions of life for the convicted in institutions of confinement.
Continue the construction of the necessary number of institutions, which would conform to the Standard Minimum Rules for the Treatment of Prisoners.
- We recommend that the Ministry of Justice jointly with the Committee of Criminal and Executive System and the Republican State Enterprise “Yenbek” take the required actions to increase the employment of the convicted, which would contribute to the timely repayment of suits and the realization of their right to grant of parole.
- Develop a governmental program aimed at the increase of awareness and legal competence of the convicted and employees of correctional institutions with regard to issues of early liberation.
- Develop clear criteria for the assessment of reformation of the convicted; for instance, starting to reform, is clearly on the path of reform, and has proven to be reformed.
- Legislatively establish a procedure for the provision of qualified legal assistance to the convicted.
- Correctional institutions and investigative jails should be open to the maximum possible extent for control by agencies of civil society. The activity of correctional institutions and investigative jails must be made public. The closing of these institutions to the public creates ideal conditions for torture and violence.
In 2012, adopt the individual Law “On Public Control of the Observance of Human Rights in Institutions of Confinement” which would regulate the procedures for independent public, medical and other control, and the forms and methods of interaction between the administration of correctional institutions, investigative jails, and psychoneurological health care centers with NGOs and the mass media.
- Before the adoption of the individual Law “On Public Control of the Observance of Human Rights in Institutions of Confinement,” legislatively grant public watch commissions the right to the unexpected visit of correctional institutions, investigative jails, and jails for temporary custody in order to monitor the observance of human rights.
- We recommend that the Human Rights Commission under the President of the Republic of Kazakhstan and the Ministry of Justice take necessary actions to give the members of public watch commissions an opportunity to freely visit correctional institutions and investigative jails.
- Establish Adaptation Centers for individuals who served their sentence in institutions of confinement, since the current conditions of their confinement in criminal and executive institutions of Kazakhstan cripple their physical and psychological health, so that they typically are not capable of joining normal society life for an extended period.
- We recommend that the Ministry of Justice of the Republic of Kazakhstan take measures to exclude violations of the property and social rights of the minors living in the correctional institutions of the Committee of the Criminal and Executive System.