COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF KAZAKHSTAN

The Committee against Torture this morning began its consideration of the second periodic report of Kazakhstan on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Dulat Kusdavletov, Vice-Minister of the Ministry of Justice of Kazakhstan, said that, in order to ensure the implementation of the Convention against Torture, Kazakhstan had introduced new provisions into its criminal code, including a provision that arrests had to be by judicial order. Kazakhstan had also been moving gradually ahead towards the elimination of the death penalty, and had kept a moratorium in place since 1 January 2004. An important step on the path to development of legal protections for citizens had also been Kazakhstan's recognition of the Committee's competence to examine situations under articles 21 and 22 of the Convention (covering, respectively, claims by other States that a State party had violated its obligations and claims by individuals). In addition, they were now working on the ratification of the Optional Protocol to the International Covenant on Civil and Political Rights, and had laid down the foundations for a national preventive mechanism required by the Optional Protocol to the Convention against Torture.

Kazakhstan was also carrying out its policy of humanizing the prison system, Mr. Kusdavletov stressed. As a result of reforms carried out, the prison population had decreased, with the inmate population dropping from 66,000 in 2002 to 49,000 today. The drop in the number of inmates had been the result of radical measures, including amnesties. Moreover, conditions of detention were gradually being brought in line with minimum standards. They were renovating old prisons and building new ones, and prisoners’ conditions had been improved by 28 per cent.

Serving as Rapporteur for the report of Kazakhstan, Committee Expert Alexander Kovalev expressed concern that rights of persons to due process protections, such as the presence of a lawyer and the right to contact family members, only ran from the time when an arrest was actually registered. However, in practice the registration of arrests occurred long after the first apprehension of the suspect. Furthermore, those rights could be abrogated in "special circumstances" without setting out what those circumstances were. Information had been received that, in practice, detentions in policy custody frequently exceeded the statutory time limits.

Xuexian Wang, the Committee Expert serving as Co-Rapporteur for the report of Kazakhstan, expressed concerns about whether there were systematic reviews of conditions of detention, and whether prompt investigations were provided for complaints of torture. He also observed that the fact that the investigation of torture complaints brought against the police were undertaken by a branch of the police called into question the impartiality of the investigations undertaken.

Other Committee Experts asked questions and made comments on a number of issues, including a lack of protections to ensure the independence of the judiciary; the fact that Kazakhstan's Security Service operated detention centres that were not open to monitoring; that persons continued to be sentenced to the death penalty, despite a moratorium on the carrying out of those sentences; poor conditions in juvenile detention centres; additional information on amnesty laws, and assurances that they did not reduce responsibility for law enforcement officials; a lack of proper habeas corpus procedures to allow individuals to challenge the basis of their detention; and what was meant by saying that now all arrests had to be carried out with the "sanction" of the court.

Also representing the delegation of Kazakhstan were the Chairman of the Criminal Issues Board of the High Court; and representatives of the Ministry of Internal Affairs; the Public Prosecutor's Office; the Ministry of Health; the Agency against Financial Corruption and Crimes; the National Centre of Human Rights; the Ministry of Foreign Affairs; and the Ministry of Justice.

The delegation will return to the Committee at 3 p.m. on Friday, 7 November to provide its responses to the questions raised today.

Kazakhstan is among the 145 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Serbia to the questions posed by Experts on Wednesday, 5 November.

Report of Kazakhstan

The second periodic report of Kazakhstan (CAT/C/KAZ/2) notes that, over the reporting period (2001-2005), Kazakhstan has implemented a number of significant reforms with a view to improving national legislation to prevent torture and other cruel, inhuman or degrading treatment or punishment. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights have been ratified; the administration of the penal correction system has been transferred from the Ministry of Internal Affairs to the civilian Ministry of Justice; the programme for the further development of the penal correction system of the Republic of Kazakhstan for 2004-2006 has been approved with a view to improving the system for protecting citizens’ constitutional rights and freedoms; the office of the Human Rights Commissioner has been established; and steps have been taken to humanize criminal punishment and strengthen interaction between the penitentiary system and civil society. In addition, law enforcement agencies have established special units to deal with questions of internal security. There are also general-education and vocational schools in correctional institutions. Convicts have an opportunity to exercise their constitutional right to freedom of conscience and religion. There are functioning mosques, churches and prayer rooms on the grounds of correctional institutions. And the prison system has become more open to the mass media.

Moreover, in accordance with the Act of 21 December 2002 on amendments and additions to the Criminal Code, the Code of Criminal Procedure and the Penal Enforcement Code of the Republic of Kazakhstan, article 347-1 was added to the Criminal Code; the article criminalizes the use of torture, the definition of which is in full accordance with the wording of the Convention.

While in 2002 Kazakhstan held third place in the world for the number of persons being held in places of detention, by 2004 it had fallen to nineteenth place in the world, having succeeded in reducing its prison population at a faster rate than many other countries. As of 1 March 2005, with a prison index of 342 persons per 100,000 of the population, Kazakhstan held twenty-fifth place in the world. Since 1 March 2005, the trend towards a reduction of the prison population has not abated, and has enabled Kazakhstan to move from twenty-fifth place to thirty-fifth place in the world.

Presentation of Report

DULAT KUSDAVLETOV, Vice-Minister of the Ministry of Justice of Kazakhstan, said that, just recently, Kazakhstan had adopted amendments to its Constitution which showed its readiness to embrace greater liberalization and modernization. Kazakhstan was fully convinced that human rights should play a role in the development of legislation and justice. Currently, they were preparing a national plan of action in the area of human rights, with the participation of state agencies, non governmental organizations and international organizations.

In terms of international human rights instruments, Mr. Kusdavletov noted that Kazakhstan had ratified the International Covenant on Economic, Social and Cultural Rights, as well as the United Nations Convention on Transnational Organized Crime, and acts on nuclear terrorism, corruption, slavery and against financial funding for terrorism.

In order to ensure the implementation of the Convention against Torture, Kazakhstan had introduced new provisions into its criminal code, including a provision that all arrests had to be by judicial writ. Kazakhstan had also been moving gradually ahead towards the elimination of the death penalty, and had kept a moratorium in place since 1 January 2004. They had also severely limited the number of crimes for which the death penalty was applicable, such as terrorism.

An important step on the path to development of legal protections for citizens was Kazakhstan's recognition of the Committee's competence to examine situations under articles 21 and 22 of the Convention (covering, respectively, claims by other States that a State party had violated its obligations and claims by individuals). In addition, they were now working on the ratification of the Optional Protocol to the International Covenant on Civil and Political Rights, and had laid down the foundations for a national preventive mechanism required by the Optional Protocol to the Convention against Torture.

Mr. Kusdavletov noted that penitentiary institutions in Kazakhstan were visited by the Ombudsman, non governmental organizations and members of the mass media. In all regions of the country, the rights of persons in penitentiary institutions were monitored by civil society commissions. The Government had also taken measures to strengthen the role of the Ombudsman.

The process of the reform of the judicial system was continuing, Mr. Kusdavletov said. In January 2007, the Institute of Jurists to train judicial officials had been established. They had also been establishing special courts for a number of areas, including juvenile justice and financial affairs.

Amendments had been made to the Criminal and Civil Procedure Codes to allow for greater protections for individuals, including, in September this year, the provision that all arrests could only be made by sanction of the court. Draft legislation would also expand the rights of lawyers in defending their clients, Mr. Kusdavletov added.

Kazakhstan was also carrying out its policy of humanizing the prison system. As a result of reforms carried out, the prison population had decreased, with the inmate population dropping from 66,000 in 2002 to 49,000 today. The drop in the number of inmates had been the result of radical measures, including amnesties.

Moreover, conditions of detention were gradually being brought in line with minimum standards, Mr. Kusdavletov observed. They were renovating old prisons and building new ones, and prisoners’ conditions had been improved by 28 per cent. Some $183 million had been allocated for the building of new prisons. In addition, there was a special training course for prison officials.

Mr. Kusdavletov concluded by noting that, currently, the Government was considering a draft law on domestic violence and a draft law on violations by State officials of citizens’ rights.

Questions Raised by Committee Experts

ALEXANDER KOVALEV, the Committee Expert serving as Rapporteur for the report of Kazakhstan, noted, with regard to the definition of torture in Kazakhstan, that it was narrower than the definition given in the Convention. For example, it did not provide for the fact that torture could also be "at the instigation" of public officials, as well as owing to their direct activity. It also used the notion “public official”, which was much narrower than the term “person acting in an official capacity”.

Another concern was that rights of persons to due process protections, such as the presence of a lawyer and the right to contact family members, only ran from the time when an arrest was actually registered. However, in practice the registration of arrests occurred long after the first apprehension of the suspect. Furthermore, those rights could be abrogated in "special circumstances" without setting out what those circumstances were. Information had been received that, in practice, detentions in policy custody frequently exceeded the statutory time limits.

On juvenile justice, Mr. Kovalev asked what measures had Kazakhstan taken to ensure protections for minors. He also requested statistics on juvenile cases.

Were there any normative acts in Kazakhstan's legislation that provided, in accordance with the Convention, that there were "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency" that could be invoked as a justification of torture, Mr. Kovalev asked?

Complaints had been made that police officers had beaten detainees with water bottles on their feet and in other places where the beatings would not show. Had those cases been investigated, Mr. Kovalev asked?

On medical assistance, Mr. Kovalev had reports that the right to obtain a medical examination within 24 hours of arrest was often violated. In addition, they had had reports that the reports filed in such cases often did not contain full information on all the wounds and injuries of the detainees. It was suggested that the medical staff monitoring detainees and prisoners were not independent and that there was not sufficient monitoring of their activities. In that connection, did the medical staff use the Istanbul Protocol for determining whether an act of torture had been perpetrated?

With regard to preventive detention, was there a complaints procedure for detainees in place, Mr. Kovalev asked?

Mr. Kovalev was concerned that, in 2007, 600 women had been killed in women in domestic violence incidents. In addition, every year, 20,000 women in Kazakhstan were raped. What were the measures being taken in Kazakhstan to reduce the number of rapes and acts of cruelty against women?

Mr. Kovalev then drew attention to information in reports of the United Nations Refugee Agency (UNHCR) related to the refoulement of Uzbek and Chinese refugees by the Kazakhstan law enforcement bodies. In particular, he was worried about the case of nine Uzbek citizens sent back to Uzbekistan in 2005, two of whom had registered asylum claims with UNHCR, and who had subsequently been tried for "religious extremism" in Uzbekistan. What had been the fate of those refugees? Moreover, how many people in 2007 had requested asylum and how many had been granted asylum status? Finally, how many people had been expelled from the country and what countries had they been sent to?

On habeas corpus procedures, Mr. Kovalev was concerned that Kazakhstan had still not fully established such procedures in line with the International Covenant on Civil and Political Rights. In particular, he asked whether a detainee had the habeas corpus right to demand that a court review the basis for his or her detention.

Finally, Mr. Kovalev asked about compensation paid out to victims of torture, and the number of officials prosecuted for torture, as well as the number of convictions obtained.

XUEXIAN WANG, the Committee Expert serving as Co-Rapporteur for the report of Kazakhstan, noted that the Convention required a "systematic" review of conditions of detention, and wondered if Kazakhstan had a systematic programme in place. Another concern was whether "prompt" investigations were provided for complaints of torture. That was especially important for two reasons, to prevent continuing harm, and to ensure evidence of torture was not erased. According to reports, investigations on torture complaints took an average of two months to complete.

For crimes of torture committed by police or other law enforcement officials, Mr. Wang was concerned that the investigation of that crime was undertaken by a branch of the police – the Department of Internal Security – which was under the same chain of command. That called into question the impartiality of the investigations undertaken.

As for complaints of torture, the report noted that complaints would be sent "to the competent authorities". Mr. Wang asked who those authorities were.

Moreover, was there a procedure for civil suits for compensation or reparations for acts of torture, Mr. Wang asked?


Other Committee Experts then asked questions and made comments on a number of issues, including on a lack of systemic protections to ensure the independence of the judiciary; the lack of an independent mechanism to carry out impartial and prompt investigations of torture; the fact that Kazakhstan's Security Service operated detention centres that were not open to monitoring by civil society organizations, thus creating "secret prisons"; the fact that persons continued to be sentenced to the death penalty, despite a moratorium on the carrying out of those sentences; poor conditions in juvenile detention centres; whether there were public awareness campaigns to combat violence against women and children; and detention centres for asylum-seekers, and monitoring mechanisms for such centres.

An Expert raised concern over the lack of independence of the Ombudsman's Office, which did not have an independent budget, in particular in light of the fact that it was the Ombudsman that would be the national preventive mechanism required by the Optional Protocol to the Convention to independently monitor places of detention, among others.

Other questions concerned protections for detainees against sexual violence; additional information on amnesty laws, and assurances that they did not reduce responsibility for law enforcement officials for their actions; which acts had been decriminalized, as the delegation had mentioned in the context of judicial reform; a lack of proper habeas corpus procedures to allow individuals to challenge the basis of their detention; a need for proper training of law enforcement, prisons and immigration officials; and what was meant by saying that now all arrests had to be carried out with the "sanction" of the court.

An Expert cited a specific case in which a detainee had committed suicide while in custody, and asked how that was possible, given the detailed procedures for safeguarding of detainees. Another specific case raised by an Expert was one in which a claimant had been awarded $42,000, on 21 March 2008, by a city court for torture suffered at the hands of government officials, to be paid out by the Ministry of Finance. Allegedly, the Ministry of Finance was appealing that decision on the basis that torture could not give rise to a claim for financial compensation against the Government. If that was true, that was in direct contravention of the Convention.

For use of the information media; not an official record

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