COMMITTEE AGAINST TORTURE HEARS RESPONSE OF KAZAKHSTAN
The Committee against Torture this afternoon heard the response of Kazakhstan to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 6 November, the delegation, which was led by Dulat Kusdavletov, Vice-Minister of the Ministry of Justice of Kazakhstan, regarding the independence of the judiciary, said that, despite progress, a great deal still remained to be done in this area. Today, a number of cases of first instance were considered in courts that used juries. From 1 January 2010 Kazakhstan was looking to expand the number of cases to be decided by juries. The fact that judges were appointed for life by Presidential decree guaranteed their independence. The appointment and removal of judges was done via a complex system of legal regulations. The Prime Minister's Office approved the budget of the judiciary. It was true that ensuring independent financing for the judiciary was important, and they were working towards that end. The law on the status of judges had been amended in recent years to provide for greater independence for judges, including provision of social services, and their salaries had been increased.
With respect to the identification of the exact moment of arrest, the delegation noted that there was a three-hour time limit for police to register the actual physical apprehension of a suspect. Arrest occurred from the moment of first physical taking into custody. It was true that, in practice, that was not always followed. In that connection, the Parliament was currently considering a draft law on securing the right to legal counsel. Among others, the draft law included a detailed description on how the detainees’ counsel or the counsel provided by the State were involved during the pre-trial phase of the criminal process.
In comments and additional questions by Experts, Kazakhstan was praised for progress achieved. Remaining concerns were also expressed on a number of issues, including a continuing pattern of "low-tech" abuse – beating, threatening, and sexual abuse; a claim by the Shanghai Cooperation Organization that persons suspected of being terrorists for religious extremists entering the country were returned without adequate safeguards; and concern that the Minsk Agreement that allowed members of the Commonwealth of Independent States to travel without visas was being abused to refoul persons without due process guarantees or the need to verify if they were at risk of being tortured.
The Committee will submit its conclusions and recommendations on the report of Kazakhstan towards the end of the session on Friday, 21 November 2008.
As one of the 145 States parties to the Convention against Torture, Kazakhstan is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Monday, 10 November it will hear the answers of China to the questions posed by Experts on Friday, 7 November.
Response of Kazakhstan
Responding to a series of questions raised by Committee Experts on Thursday, 6 November, the delegation of Kazakhstan said that, with regard to ratifying the Rome Statute of the International Criminal Court, the issue was under study and consideration in Kazakhstan. There were still some issues between the provisions of the Statute and the Constitution that had to be resolved. In the meantime, Kazakhstan was ready to cooperate with other countries on a bilateral basis in the interests of international law in this area.
On trafficking, an inter-agency commission had been established in 2003 under the leadership of the Ministry of Justice, which included both government organs and non governmental organizations. Among planned activities of the commission were cooperation in fighting organized crime; consideration of best practices in international practice in dealing with victims of trafficking; and reform of legislation in this area. The Law on Protecting Persons in Criminal Proceedings allowed victims to receive protection. In 2007, seven criminal cases involving trafficking were instigated in which 31 victims of trafficking were provided with concrete assistance. Kazakhstan citizens abroad who had been victims of trafficking had also been helped via consular services. A further area of activity was the dissemination of information, and all of the media broadcast appropriate information to victims of crimes; there was a hotline for victims. In October 2008, a delegation travelled to Italy to study practices at a shelter and rehabilitation centre for victims.
Regarding the independence of the judiciary, the delegation said that, despite progress, a great deal still remained to be done in this area. Today, a number of cases of first instance were considered in courts that used juries. From 1 January 2010 Kazakhstan was looking to expand the number of cases to be decided by juries.
The designation of judges by the President in fact guaranteed their independence, the delegation felt. They were appointed for life by Presidential decree. The appointment and removal of judges was done via a complex system of legal regulations. Following initial training, judges had to be qualified by a collegiate body. The decree went next to a higher council for adoption, and thereafter to the President for final approval. In cases of removal, judges had the right to appeal to a collegiate body.
The Prime Minister's Office approved the budget of the judiciary. It was true that ensuring independent financing for the judiciary was important, the delegation recognized, and they were working towards that end. The law on the status of judges had been amended in recent years to provide for greater independence for judges, including provision of social services, and their salaries had been increased.
With respect to juvenile justice, in June 2008 the head of Government developed a proposal for improving justice for the period 2009-2011, which would provide a phased implementation of a comprehensive juvenile justice system in Kazakhstan. That involved the creation of separate departments on juveniles within the Ministry of Justice and the Prosecutor's Office. In 2007, special juvenile courts had been created in Almaty to handle cases in which minors were in conflict with the law, family cases involving minors, and cases where the rights of juveniles or minors had been violated. Over the past two and a half months, the juvenile courts had handled 240 civil and criminal and 60 administrative cases, the majority of the latter being related to adoption. It was planned to create juvenile courts in all regions of the country in coming years.
Concerning the relationship between the courts and the Public Prosecutor's Office, it was a misperception that the courts placed pressure on the Prosecutor, the delegation insisted. According to the Constitution, the judiciary was an independent branch. The Prosecutor's Office was a separate structure which prosecuted criminal cases on behalf of the State, with participation from judges. Prosecutors could consider various forms of complaints submitted to them, and could initiate criminal proceedings. It was also their role to monitor the procedures used in criminal investigations, including in interrogations.
As for compensation for damages owing to an unlawful criminal proceeding, the Criminal Procedure Code set out provisions for rehabilitation, redress and compensation as a result of unlawful activities by authorities responsible for criminal proceedings. Victims had the right to receive compensation for such acts, including for such crimes as unlawful arrest or forced medical procedures. Compensation was also provided in cases when a citizen's property was damaged or for moral hazard. Civil proceedings for compensation could also be launched.
As regards the 21 March 2008 ruling by a municipal court to pay compensation to an individual [for some form of abuse of authority or torture], on 9 September 2008 a settlement had been reached between that individual, the Ministry of Finance and the Ministry of the Interior, with the Ministry of the Interior paying out the sum ordered by the court.
Today, no one could be detained for more than 72 hours without court warrant. By saying that courts had to "sanction" all arrests, that meant that courts had to authorize the continued holding or arrest of an individual in detention following that 72-hour preliminary period. It also meant that courts reviewed the circumstances of detention and ensured the time limits related thereto were observed. When a judge found that the time of the arrest was not taken down correctly on the record, then the judge, in line with the Code of Criminal Procedure, conveyed that fact to the Public Prosecutor's Office to initiate proceedings against those responsible. It was not true, as some NGOs had represented, that detainees did not have access to lawyers at this stage; if they did not, the detention itself would be ruled unlawful, the delegation stressed.
Today, Kazakhstan had moved far from the system that had applied in Soviet times under which guilty verdicts rested largely on the basis of confessions of guilt. There was a presumption of innocence in the legal system. Evidence obtained as a result of violation of the law, including torture, was not accepted in court, the delegation said. Another protection was that, today, a court ruling could not be handed down solely on the basis of a statement by the victim, without corroborating evidence. An example included a case in August this year in which a defendant was found not guilty of charges of rape and murder as his confession had been obtained after he had been threatened and beaten in police custody. The court found no proof that the defendant had committed the crime, decided that the initial testimony had been obtained under pressure and also that it differed from indications from other material evidence.
The Criminal Procedures Code established rules for handling of complaints by the Public Prosecutor's Office, and the Government was looking to amend that process to ensure the speedy consideration of such complaints, in particular for allegations of torture, the delegation said.
On amnesty laws, amnesty was decreed by Parliament on the basis of legislation related to a certain group of individuals. There had been five amnesty laws in Kazakhstan so far, the most recent in 2006. The 2006 law had been promulgated on National Independence Day and provided for amnesty for those who committed minor crimes, and provided early release for women, and the disabled.
Regarding concerns that the definition of torture in the Criminal Code of Kazakhstan was not exactly in line with the Convention, the delegation noted that if an act of torture was "at the instigation" of a police official, that police officer would be prosecuted under a separate article as being an accomplice to a crime. As for the comment that the use of the term "public official" in the statutory provision was narrower than saying "a person acting in a public capacity", the delegation said that in other cases the term public official had been interpreted to cover such persons.
With respect to the identification of the exact moment of arrest, the delegation noted that there was a three-hour time limit for police to register the actual physical apprehension of a suspect. Arrest occurred from the moment of first physical taking into custody. It was true that, in practice, that was not always followed. In that connection, the Parliament was currently considering a draft law on securing the right to legal counsel. Among others, the draft law included a detailed description on how the detainees’ counsel or the counsel provided by the State were involved during the pre-trial phase of the criminal process.
As for the quality of the State-provided lawyers, the delegation noted that pretty much all lawyers at one time or another had to undertake such services, and lawyers were assigned on a rotational basis. Oversight for the functioning of State-appointed lawyers was provided via the Bar Association.
In line with the Committee's recommendations, the institution of the Ombudsman had been founded in September 2002, which provided additional protections for citizens in guarantee of their human rights. The Ombudsman was appointed by the President for four years and could serve no more than two consecutive terms. The Institute of the Ombudsman could enact measures to protect human rights in Kazakhstan; the Ombudsman could petition competent State bodies or officials to institute disciplinary or administrative measures or criminal proceedings against officials who had violated human and civil rights and freedoms; and he could take measures to provide compensation for material or moral damage. The Ombudsman had an independent budget provided by the Government. The budget was originally approved by the Parliament, but today he had a three-year budget already approved.
The Venice Commission had been invited to review the Institute of the Ombudsman in 2006. On the basis of that review, and in view of the Committee’s recommendations, an amendment to the law establishing the Ombudsman's Institute was contemplated, to grant the Ombudsman greater powers. Whereas a special unit of the Ombudsman for children was not contemplated, a Children's Committee had been established under the Ministry of Education.
Turning to the issue of a national preventive mechanism needed for compliance with the provisions of the Optional Protocol to the Convention, the delegation said that that issue was still under study. The Ombudsman was of the opinion that the mechanism should be part of the Ombudsman's office, but several proposals were being considered.
Owing to time constraints, answers by the delegation to other questions that remained unanswered would be provided to the Committee in writing.
Additional Questions and Comments by Committee Experts
ALEXANDER KOVALEV, the Committee Expert serving as Rapporteur for the report of Kazakhstan, said that, overall, he was fully satisfied with the replies that had been given by the delegation. If it kept going in the direction it had marked out, Kazakhstan was on the road to becoming the first country to eliminate torture.
XUEXIAN WANG, the Committee Expert serving as Co-Rapporteur for the report of Kazakhstan, appreciated the answers of the delegation. He would, however, have liked to have heard an answer to his question on training, which was one of the most effective measures for preventing torture. Other outstanding questions included non-observance of time limits for preliminary examination and detention.
Other Experts then asked additional questions on a number of issues, including on possible extensions for the 72-hour period under which a person could be detained incommunicado; a concern that the law allowed for abuse by public officials by implying that they could not be prosecuted for causing physical and mental suffering that they caused by "legitimate acts"; what compensation had been provided to the victims of cases mentioned today involving forced confessions; a continuing pattern of "low-tech" abuse – beating, threatening, and sexual abuse; a claim by the Shanghai Cooperation Organization that persons suspected of being terrorists for religious extremists entering the country were returned without adequate safeguards; and concern that the Minsk Agreement that allowed members of the Commonwealth of Independent States to travel without visas was being abused to refoul persons without due process guarantees or the need to verify if they were at risk of being tortured.
Concluding Comments by the Delegation
In concluding comments, the delegation noted that Kazakhstan had put a number of important laws and policies in place to change the overall situation with regard to torture and ill-treatment. They did not, however, have a magic wand that they could wave to make all of those implemented perfectly right away. However, the work was continuing, and much had been achieved already. Kazakhstan was prepared to work on implementation with international and national structures, including non governmental organizations, within the framework of international documents, including the Universal Declaration of Human Rights.
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