The Right to Freedom from Torture and Other Cruel or Degrading Treatment or Punishment
Since the date of its independence, the Republic of Kazakhstan has taken a number of systematic measures in the field of combat against torture and other cruel treatment and punishment.
These measures were implemented both in legislation and the institutional and practical fields.
Thus, in the sphere of legislative reform, it should be noted that on June 29, 1998, the Republic of Kazakhstan ratified the UN Convention against Torture and other Cruel, Inhuman, or Degrading forms of Treatment or Punishment (further referred to as “the Convention against Torture”).
On March 30, 1999, the Law of the Republic of Kazakhstan “On the Procedure for and Conditions of Custody of Individuals Suspected and Accused of Crimes” was adopted, which stipulated a number of guarantees of the rights of the arrested individual, including the right to protection against torture.
On December 21, 2002, some amendments and additions were made to the Criminal Code, the Code of Criminal Procedure, and the Criminal Executive Code of the Republic of Kazakhstan. Thus, to the Criminal Code of RK was added Article 347-1 stipulating criminal liability for application of torture. Criminal procedure legislation was supplemented with a provision stipulating the inadmissibility of evidence obtained by the application of torture.
On November 21, 2005, the International Covenant on Civil and Political Rights was ratified.
In 2008, the Optional Protocol to the Convention against Torture was ratified and statements were made as to Articles 21 and 22 of the Convention against Torture.
On July 10, 2008, the Supreme Court of RK made a statutory decision on the application of the provisions of international treaties in judicial practice.
On February 11, 2009 Kazakhstan ratified the Optional Protocol to the International Covenant on Civil and Political Rights, which allows citizens to lodge individual complaints with the UN Human Rights Commission.
In the field of institutional reforms:
On September 19, 2002, the position of the Human Rights Commissioner (Ombudsman) of RK was instituted by the Decree of the President of RK.
In the years 2001-2002, it was decided to transfer the penal system and the system of preliminary imprisonment (investigative jail) from the jurisdiction of the Ministry of the Interior to the jurisdiction of the Ministry of Justice, and the implementation of this decision began on January 1, 2003. However, this reform has not been completed, since the temporary jails remain under the jurisdiction of the Ministry of the Interior, and the investigative jails of the National Security Committee still have not been transferred to the jurisdiction of the Ministry of Justice.
On January 16, 2006, jury legislation was adopted, which became an important step towards the improvement of the justice system.
In addition, positive steps include:
- Creation of the system of public watch commissions in the years 2004-2005 which would inspect places of custody.
On December 29, 2004, the Law of the Republic of Kazakhstan “On Amendments and Additions to Some Legislative Documents of the Republic of Kazakhstan with Regard to Agencies of Justice” (further referred to as “the Law”) was signed, which stipulates the arrangement for public control of the observance of the rights, freedoms and legitimate interests of individuals retained in institutions and agencies for criminal penalty.
Public control is realized by public associations in an effort to assist individuals in correctional institutions and investigative jails regarding exercising their rights and legitimate interests as to the conditions of their custody, medical and sanitary provisions, labor organization, spare time, and training as stipulated by the legislation of the Republic of Kazakhstan.
The Enactment of the Government of the Republic of Kazakhstan of September 16, 2005 ratified the Rules of establishment of district (cities of state importance) public watch commissions for public control.
In addition, in pursuance of Paragraph 11 of the Development Program of the Criminal Executive System (CES), the Committee of the Criminal Executive System of the Ministry of Justice of the Republic of Kazakhstan has developed and sent to all public watch commissions the Recommendations on Control of Observance of the Rights and Legitimate Interests of Suspected, Accused, and Convicted Individuals.
Public watch commissions (PWC) were established in almost all regions of the country and include representatives of law-enforcement organizations.
However, the status and activity of these commissions are not stipulated in the law, and they have no right to the unexpected access to institutions of confinement.
- Creation of the work group for prevention of torture under the Human Rights Commissioner of RK (Ombudsman) with the participation of representatives of law-enforcement organizations. The functions of this group include visits to places custody and the preparation of recommendations on the model and procedure of establishment of national preventive mechanisms. In October 2008, the work group made the first visit to custody institutions;
- Creation of the public council under the Ministry of the Interior and implementation of the pilot project in Almaty in 2008 for the establishment of a monitoring group of representatives of human rights NGOs for monitoring of observance of the rights of arrested individuals. This group has the right to unexpected visits of police stations and temporary jails that are under the jurisdiction of the Ministry of the Interior. The project is being implemented upon the initiative of the Ministry of the Interior and will be expanded to other regions of Kazakhstan.
Despite these positive steps, the situation in whole causes serious concerns due to the scope of illegal methods of inquest and investigation including torture and other cruel treatment, and due to the inefficiency of the fight against them.
So, in 2001, Kazakhstan presented its initial report on the fulfillment of the Convention against Torture. At the same time, the human rights non-governmental organizations of Kazakhstan presented an alternative report on the fulfillment of this Convention. On the basis of the results of the consideration of the official report of the Government of Kazakhstan and considering the provisions and recommendations of the alternative report, the UN Committee against Torture made 16 recommendations. According to information from the non-governmental organizations of Kazakhstan, by 2008, the Government has implemented only 5 of the recommendations.
The existing problems can be divided into two groups.