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Committee on Enforced Disappearances reviews report of Kazakhstan
Kazakhstan reviewed
10 March 2016
Rashid Zhakupov, Deputy Minister of Internal Affairs, said that the protection of citizens’ rights within the justice system and the independence of the judicial branch in Kazakhstan had been significantly strengthened. The Government had been implementing a series of reforms to build a modern law enforcement system. The new Criminal Code had recognized crimes that contained elements of enforced disappearance and established a system of punishments for different categories of crimes, and a list of mitigating and aggravating circumstances. Compensations for material and moral harm had been provided to victims, and the Human Rights Commissioner, established as a national preventive mechanism, had been carrying out activities that would ensure that rights of detainees were respected and conditions in detention centres appropriate.
During the interactive dialogue that ensued, Committee Experts acknowledged the progress made by Kazakhstan, but noted that more needed to be done to tackle the existing problems. Special attention was paid to the definition and criminalization of enforced disappearance, since Kazakhstan had not incorporated the definition of enforced disappearance in its national legislation. Instead, the Criminal Code recognized the crimes of abduction, unlawful deprivation of liberty and trafficking in persons as the crimes in line with article 3 of the Convention. The Committee suggested that enforced disappearance should be treated as an autonomous offence. Another major issue was the question of extradition and upholding the principle of non-refoulement. The role of the Human Rights Commissioner was highlighted, including the visits its members had been undertaking to monitor the safeguarding of rights in detention facilities.
In closing, Mr. Zhakupov reiterated that Kazakhstan had been doing a lot to modernize its judicial system and adhere to the international human rights standards.
Emmanuel Décaux, Committee Chairperson, thanked the delegation of Kazakhstan for the very constructive dialogue which clarified many important issues and said that concluding observations of the Committee would be published the following week.
The delegation of Kazakhstan included representatives of the Ministry of Internal Affairs, the Supreme Court, the Commission on Human Rights under the President, the Ministry of Education and Science, the Prosecutor General’s Office, the Ministry of Health and Social Development, the Ministry of Foreign Affairs, the National Centre for Human Rights, the Association of legal entities “Union of Crisis Centres of Kazakhstan” and the Permanent Mission of Kazakhstan to the United Nations Office at Geneva.
The Committee will next meet in public on Friday at 3 p.m. for the Commemoration of the tenth Anniversary of the adoption of the Convention.
Report
The initial report of Kazakhstan can be read here: CED/C/KAZ/1.
Presentation of the Report
RASHID ZHAKUPOV, Deputy Minister of Internal Affairs, noted that Kazakhstan had undertaken a number of important steps in order to establish a modern law enforcement and judicial system. An independent judicial branch had been formed, jury trials and specialized courts had been introduced, judges had been selected by the Higher Council of the Judiciary in a transparent manner, and the new Criminal Code had been adopted. In accordance with the provisions of the International Covenant on Civil and Political Rights and in line with the national plan, the Government had initiated a comprehensive institutional reform. In the criminal justice system, the reform had achieved the following results: the number of apprehended persons had decreased three times, the number of convicted persons had decreased by 37 percent, and the number of apprehended minors had decreased seven times.
Concerning enforced disappearances, pre-trial investigations had been carried out and free legal assistance had been extended to a greater number of people. The Criminal Code had defined the crimes of abduction, unlawful deprivation of liberty and trafficking in persons as the crimes that had been in line with article 3 of the Convention. Specialized agencies had been working on those crimes, and a system of punishments had been established. Targeted measures had been undertaken to stop the unlawful detention carried by officials. In accordance with the constitutional provision, the maximum length of detention was for 72 hours, unless there had been a court authorization to prolong the time in custody. Regarding compensations, a draft law that would establish a compensation fund had been considered. Every law enforcement agency had a unit tasked to carry out internal investigations. Units within the Ministry of Internal Affairs had been performing investigations in cooperation with INTERPOL.
A national preventive mechanism had been created to prevent torture, in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The national preventive mechanism had ensured that, in line with the Penal Enforcement Code, representatives of civil society had access to the places of the deprivation of liberty, including prisons, so they could monitor and prevent torture. The Human Rights Commissioner was authorized to obtain from officials any information regarding violations of human rights as well as to perform inspections of institutions. Additionally, the Commission on Human Rights had been established under the President.
Questions by Experts
LUCIANO HAZAN, Committee Member and Country Rapporteur for Kazakhstan, asked about the reason for refusing the Committee’s competence to receive and to consider individual and inter-State communications under articles 31 and 32 of the Convention.
He further stated that there had been information that on the average 3,000 persons had gone missing every year and inquired if there had been a registry for missing persons.
Concerning the Human Rights Commissioner, question was raised on how that institution could be brought in line with the Paris Principles. What measures, including legislative measures, would have to be taken? Additionally, the Expert inquired about the existing resources of the Human Rights Commissioner for performing his responsibilities.
According to the report, the statute of limitations referred to the period of time elapsed since the date the offence had been committed. How was that in line with the ongoing nature of crime of enforced disappearance?
Several questions were raised about the military jurisdiction over cases of enforced disappearance. What was the process for determining military jurisdiction? Had there been cases taken up by the military authorities? Had there been any attempts to prohibit the involvement of the military courts?
More information was requested on the divisions established at the local judicial police departments in Astana and Almaty to combat the trafficking. What had been the reason for establishing those divisions, and what had been the results of their work?
The delegation was asked to provide information on cases when internal security subunits had dealt with the offences of abduction, trafficking or illegal deprivation of liberty.
Were there any other investigative units that could conduct investigation of enforced disappearances? If so, the delegation was asked to provide the information on the structure, resources and specialized trainings of those units. The Expert also inquired about the function of the special prosecutors.
According to the report, there was no procedural mechanism to exclude a security force from the investigation of a crime committed by one of its members. In order to ensure a more effective investigation, the Committee was interested in hearing what the alternative method would be for investigating complex crimes in which public officers had been involved.
Were there any forensic services that could provide identification of bodies of disappeared persons? Did the identification process include identification by DNA, asked the Expert.
The Committee against Torture, as well as civil society organizations, had expressed concern that the cases of torture made by the law enforcement officers had been usually dealt with by administrative proceedings instead of criminal proceedings. Had there been any changes to that practice?
The Expert inquired whether the lack of the criminalization of enforced disappearance could pose an obstacle in cases when another State had requested extradition on the grounds of enforced disappearance.
Another question on extradition was posed, and the Expert asked whether the legislation had included provisions that persons should not return to countries where they could face the risk of ill treatment.
KIMIO YAKUSHIJI, Committee Member and Country Rapporteur for Kazakhstan, raised a question on the definition and criminalization of enforced disappearance. Kazakhstan did not incorporate the definition of enforced disappearance into its national legislation. The Committee firmly believed that enforced disappearance had to be treated as an autonomous offence. Moreover, it would be harder for a State party to the Convention to provide statistics on enforced disappearance if it had not followed the same categorization of crimes. The delegation was invited to share their reasoning on that matter.
Additional information was requested on the rights which could not be derogated under any circumstance, and whether the right not to be subjected to enforced disappearance had been specifically recognized under the national legislation.
Had there been any case in which death penalty had been imposed, and had the death penalty been incorporated in the new Criminal Code, an Expert wanted to know.
Concerning the responsibility of superiors and heads of unites when their subordinates committed crimes of abduction, deprivation of liberty or trafficking, question was raised if that had been administrative or criminal responsibility and whether it had been applicable to security and armed forces.
Although Kazakhstan had not ratified the Rome Statute of the International Criminal Court, the Expert was interested to hear whether crimes against humanity had been recognized under the national law.
Question was asked about the minimum and maximum punishments for the categories of crimes that had been recognized in the national legislation: minor offence, ordinary offence, serious offence and especially serious offence.
More elaboration was also requested on the issue of mitigating and aggravating circumstances, as those had been listed in the report.
A follow-up question on the recognition of the Committee’s competence was raised. Seeing how the recognition would allow the citizens of Kazakhstan to directly address the Committee through individual communications, what had been the reasoning behind denying that possibility? Did Kazakhstan recognize similar competences of other international bodies and committees under the auspices of other international conventions that the country had ratified? Had there been any possibility to alter the State party’s view on the recognition of the Committee’s competence in the future?
Replies by the Delegation
Concerning the recognition of article 31 and 32 of the Convention and the Committee’s competence, the delegation stated that upon ratification of relevant international conventions, Kazakhstan had recognized competences of the Committee against Torture, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination against Women. However, during the ratification of the Convention, the provision on the recognition of the Committee’s competence had not been stated. Still, the delegation was willing to discuss the matter further with State authorities so that a decision could be reached in the near future.
With regard to criminalization, article 2 of the Convention was well understood and reflected in the national legislation as unlawful detention and deprivation of liberty by State representatives. The Criminal Code recognized the responsibility of the State for unlawful detention and deprivation of liberty, therefore the delegation considered that elements of the definition from the Convention had been adequately included in the national legislation.
On the matter of Human Rights Commissioner, an elaborate explanation was offered on the establishment, structure and the mandate of that institution, emphasizing its independence and autonomy. The Human Rights Commissioner served to protect individual rights. In 2012, the Human Rights Commissioner had received accreditation “B” status from the International Coordinating Committee of National Human Rights Institutions. That meant that partial compliance with the Paris Principles had been achieved.
According to the current legislation, the jurisdiction of military courts referred only to members of the armed forces. Courts themselves had not been part of the armed forces, but of the judiciary.
On the issue of mitigating and aggravating circumstances, the delegation presented in detail provisions of the Criminal Code that had envisioned numerous mitigating and aggravating circumstances affecting criminal liability and punishment.
Death penalty was recognized by the national legislation. However, the President of the Republic had announced a moratorium on its implementation, and it had been agreed that the life imprisonment would be used instead.
Concerning the statute of limitations, it was explained that it referred to the beginning of the criminal activity. That time limit had not been applied in the relation to the crimes of torture, crimes against peace and serious crimes against individuals.
Regarding services for identifying bodies, it was explained that investigative bodies were conducting the inquiry, expert analysis and forensic analysis. Once all those measures had been completed, the identity of the victim could be established.
In cases when there were serious grounds to believe that upon return to his country, a person would be subjected to torture or potentially an enforced disappearance, the extradition would not take place. Mechanisms and criteria were in place when assessing the risk. According to the Criminal Procedure Code, individual assessment for each extradition case was conducted. The assessment included analysis of the country’s migration policy, citizenship regime, United Nations committee reports, and the reports of special rapporteurs on the condition of the human rights in the country. The delegation mentioned a recent example of an Uzbek citizen that had participated in the uprisings in Uzbekistan. The authorities in Kazakhstan had subsequently refused to extradite him back to Uzbekistan because of the fear of ill treatment.
On the issue of the Special Prosecutor, the delegation explained that the institution had been introduced in 2001 with primary responsibility for pre-trial investigation. In 2015, the Special prosecutor had 137 cases, and 13 had been taken to courts.
Regarding activities of the subunits dealing with trafficking crimes, it was stated that since 2009, 401 people had been found responsible for abduction, unlawful deprivation of liberty and trafficking in persons.
Turning to the issue of punishment for different categories of crimes, the delegation elaborated the following categorization, depending on the nature of crime and the level of danger they pose to society. Minor offences were punishable by between two and five years of imprisonment, depending whether the crime had been committed intentionally or through negligence. Ordinary offences were punishable by more than five years of imprisonment. Serious offences were punishable by up to twelve years imprisonment, whereas especially serious offences were punishable by more than twelve years of imprisonment.
Follow-up Questions
KIMIO YAKUSHIJI, Committee Member and Country Rapporteur for Kazakhstan, asked for further elaboration on some aspects of mitigating circumstances.
Concerning the extradition, a clarification was requested on the decision process on the extradition and the rights of the person whose extradition had been requested.
LUCIANO HAZAN, Committee Member and Country Rapporteur for Kazakhstan, said that there had been reports that security forces members had been involved in trafficking. Could the delegation provide any information in that regard?
On the offence of enforced disappearance, the Expert noted the decentralized definition offered by the Criminal Code that had been broken down into several categories. However, did the delegation believe that such a decentralized definition had contributed to the prevention measures?
Caution was expressed on whether the mitigating circumstance of obeying of orders to justify the violation of rights could be used as an excuse.
Were there registers of family members of disappeared persons?
Another Expert suggested that enforced disappearance should be defined as autonomous offence, due to the seriousness of the offence. A civil servant could be an accomplice to the offence, in which case he would be considered as a perpetrator, under the definition of enforced disappearance.
An Expert mentioned reports that had pointed out that police officers in Kazakhstan had been indicted for trafficking. The delegation was asked to provide statistics on how many cases had been investigated, how many had been resolved and how many of those cases could potentially be considered as enforced disappearances.
Replies by the Delegation
On the issue of extradition, the delegation explained that the new Criminal Code governed the rights of persons who were subject to extradition. Their rights included free legal assistance and a right to a defender. If the person in question was a foreigner, he had the right to meet with diplomatic representatives of his country. Throughout the process, person had the right of appeal to any decision. The timeframe for appealing to any decision was 24 hours, including the deportation order. It was also mentioned that from the moment a person was detained, his rights were fully explained to him.
The delegation noted that human trafficking was not present in Kazakhstan on a large scale. There were 300 to 350 cases every year. The law on prevention of human trafficking contained four lines of action in combating trafficking, in line with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Those four lines of actions were: preventing, assisting to the victims of trafficking, prosecuting persons who engaged in trafficking, and developing partnerships with civil society actors who were implementing specialized assistance programmes.
The Human Rights Commissioner was also involved in anti-trafficking activities, the delegation explained. Recently, the Government had organized a special project with the International Organization for Migration on devising recommendations to strengthen the anti-trafficking activities in the country. In 2015, 72 persons had been apprehended for trafficking, out of whom 32 had been put to trial. No representatives of law enforcement agencies had been involved in the crime of trafficking.
The delegation noted that electronic recording of detainees was conducted from the first moment of detention.
As for the DNA database for identifying missing persons, the delegation explained that that was a recent endeavour in Kazakhstan, still underway.
Regarding the ratification of the Rome Statute of the International Criminal Court, the delegation stated that the matter was still being considered by the authorities.
Questions by Experts
LUCIANO HAZAN, Committee Member and Country Rapporteur for Kazakhstan, returned to the issue of extradition and non-refoulement. According to the findings of the Committee against Torture, there were recorded cases of asylum seekers who had been returned to their countries of origin before they could have lodged an appeal, although they had been risking exposure to ill-treatment and potential enforced disappearance. He asked the delegation whether, during their risk assessment, public officers had predominantly relied on the diplomatic assurances of the countries that had requested the extradition.
On the issue of detention centres, the Expert noted that the report had stated that visits had been organized to the National Security Committee, military detention barracks and military detention units. What kind of detention institution were those, what kind of persons had been detained in them and what had been the organizational and communication arrangements for the stay of detainees?
In addition, the Committee had the information that the national preventive mechanism could not visit some detention centres without a prior permission of the Human Rights Commissioner or outside of normal visiting hours. The delegation was asked to comment on the matter, as well as to provide more information on the draft law proposed in the Parliament on extending the list of places that could be visited by the members of the national preventive mechanism.
Regarding the access of civil society to prison facilities, the Expert said that the report of the Committee against Torture had pointed to the restrictions that civil society organizations had faced in accessing some institutions. The delegation was asked to elaborate on that matter.
Concerning the registers on detainees, the Expert stated that the reports of the Committee against Torture, the Human Rights Council as well as the reports of civil society organizations had all pointed out to a number of police officers who did not fill in registers in accordance with prescribed rules. How prevalent was that practice?
What safeguards against abuse were ensured during the initial 72 hours that a suspect would spend in custody? What was the timeframe to inform the family members of a suspect of his detention?
Further information was requested on the number of detainees that had used legal counsel. According to the Code of Criminal Procedure, a suspect could refuse legal counsel. Did that imply that legal assistance had only been provided to those detainees who had specifically requested it? The question was very important, since the observations of the Committee against Torture showed that there had been no adequate access to legal assistance. Did the delegation have data on the percentage of detainees who had accepted and those who had refused the lawyer?
Regarding the investigation of crimes where police officers were involved, the report stated that in the first nine months of 2015, 114 pre-trial investigations had been initiated in cases involving deliberate, unlawful detention. Of those, two had been sent to court, 83 had been discontinued with removal from the record and in 17 cases the term for the pre-trial investigation had expired. The low rate of cases which had ended in courts could point to the certain level of impunity of the police officers and could have an impact on the criminal justice system. The delegation was asked to comment on that claim.
KIMIO YAKUSHIJI, Committee Member and Country Rapporteur for Kazakhstan, asked whether there had been specific trainings on the Convention and obligations of the State Party. What kind of trainings had been provided to the members of the military, police and members of security forces who might be directly involved in the detention of individuals?
Concerning the definition of the victim, the Expert noted that the definition from the Criminal Code had not been in line with the Convention, and asked whether the State Party was planning to amend the definition.
A series of question was raised on reparations. Were family members of victims included in the compensation scheme? Were all forms of reparations funded from the state budget? Was it necessary for victims of enforced disappearances to initiate criminal proceedings to obtain compensation?
The delegation was asked to provide additional information, including statistics, on the ongoing search for disappeared persons, including cases where foreign agencies had assisted in the search.
Question was asked on the legal regulation of the status of disappeared persons whose fate had not been clarified. What had been the consequences for their family members in matters such as social welfare, financial matters, family law and property rights?
Regarding adoption of children, a clarification was sought regarding the jurisdiction of courts which had the power to nullify decisions on adoption. Were legislative provisions on adoption in line with the Convention?
Another Expert raised a follow-up question on the issue of non-refoulement since that was an obligation under the Convention relating to the Status of Refugees, which Kazakhstan had ratified.
Replies by the Delegation
On the issue of extradition, the delegation informed the Committee that changes on the matter had been implemented with the new Criminal Code and the Code of Criminal Procedure. Thus, the bilateral agreement on extradition was not the only criterion anymore. When deciding on extradition, the authorities would also take into account the country’s track record in respecting human rights and implementing the Convention. The asylum procedure had been explained in detail, including the process of deciding on asylum requests and the institutions involved. The delegation reaffirmed that Kazakhstan had been consistent in implementing the recommendations of the United Nations committees.
Decisions on deportation were taken by courts. However, if there were proofs that the life of a person could be endangered, a specialized administrative decision could be taken to refuse the deportation. In such a case, the deportation could be replaced with the financial fine.
A detailed answer was provided on the activities of the national preventive mechanism in relation to detention centers. The list of detention facilities had been provided and it was stated that it included a range of institutions: correctional institutions, custody centres, military detention barracks, specialized psychiatric institutions that could provide medical care, special temporary detention institutions and juvenile institutions. Military staff who had been subject to disciplinary actions had been detained in military barracks. In answering to the Expert’s statement that the psychiatric institution could not be visited without a prior notification and approval of the Human Rights Commissioner, the delegation stated that psychiatric institutions were on the list of institutions visited regularly. In 2014, 25 psychiatric institutions had been visited, and in 2015, the number was 33. The delegation reiterated that all visits, whether periodic or special, of the members of the national preventive mechanism could be conducted at all times, without prior notification.
As regards the expansion of the list of facilities that could be visited by the members of the national preventive mechanism, the delegation said that that had been a recommendation of the Committee against Torture. In order to implement that recommendation, the Parliament had drafted a law that expanded the range of places that could be visited, including a number of social facilities. In 2015, 30 police departments had been visited.
On the issue of registries, the delegation said that information was recorded in journals and time cards. The instructions on data needed for registers were provided to the staff. Date of arrival, serial number, date of birth, place of origin and other information would be inserted and recorded in a file. Thus far, no complaints had been received on the state of registries. Moreover, the established electronic database included information on all individuals held in all detention facilities. The database was integrated with other databases of healthcare and judicial institutions.
The delegation noted that the Ministry of Internal Affairs and correctional facilities had signed the Memorandum of Understanding with 56 civil society organizations, and in 2015 over 600 visits had been conducted. Just during January 2016 civil society organizations had carried out 22 visits to correctional facilities.
Additionally, since 2010, the Public Monitoring Commission could visit the detention facilities. It had visited 271 detention and correctional facilities in 2015, out of which 30 visits had been conducted to special institutions and 241 to regular correctional facilities. In January 2016, 25 correctional facilities had been visited by the Commission.
On the issue of property rights of persons that had disappeared, the delegation said that the practice was that the court would recognize that the person had disappeared and subsequently all property rights would be upheld. According to the Tax Code, the taxation of those persons would immediately cease. Their property would be protected by the law and handed over to heirs.
As for the percentage of people that had refused a lawyer, the delegation went through the list of all the instances in which lawyers had to be present. Refusal of a lawyer had been an option allowed by law, but in practice it was hardly ever used.
The delegation said that the investigator conducting pre-trial investigation would inform the suspect about his rights. The suspect had to be interrogated within the first 24 hours, with a lawyer present during the interrogation. If the suspect could not provide a lawyer, the authorities would provide one using the state resources. Relatives could also serve as defenders of the suspect, in which case they could also meet with a suspect on the daily basis.
The next procedural step was informing the relatives of a detainee. In case of foreigners, the Ministry of Foreign Affairs had to notify the family within 24 hours.
A delegate stated that if a crime had been committed by a State representative, the compensation would be paid from the State budget. Victims could also seek compensation in civil courts. If a crime had been committed by an unknown person, victims would be compensated from the State compensation fund.
Regarding the definition of victim, the national legislation aligned to the common concept of an injured party, not just in case of an enforced disappearance, but also in similar crimes. Social services had been provided to victims. Large set of supportive measures included psychological and pedagogical assistance, medical and socio-economic service.
On the issue of trainings of the law enforcement personnel, the delegation explained that trainings for police officers were organized every three years. Courses, inter alia, included lectures on how to deal with missing persons. Training of judges was done by the Supreme Court on two levels, both with future and existing judges. Persons had been trained about the international law as well as on practical implications stemming from the implementation of international law. High ranked judges went through continuous trainings and all judges had access to online database that contained all relevant case law. Since 2006, constant appraisal of judges had been performed. Regarding the training of staff of correctional facilities, it was explained that in 2015 five seminars and 200 courses had been organized, and the necessary modules had included human rights. The Ministry of Defence organized trainings for military staff on an ongoing basis.
Regarding the protection of children from enforced disappearance, Kazakhstan had acceded to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography and was implementing a wide range of measures to ensure protection of children. Criminal responsibility was established for taking a minor outside of Kazakhstan, depriving children of liberty and trafficking of children. Strict measures were in place for adopting and moving children from one place to another. For that reason, legislative measures were also in place to hold accountable persons who violated procedure related to adoption.
The delegation explained that the authorities in charge for pre-trial investigation offices werethe police, the Ministry of Internal Affairs, bodies in the National Security Committee and the Special Prosecutor. Therefore, investigations in complex crimes involving public officials could be conferred to any of those institutions, so that a more impartial investigation would be ensured.
Concluding Remarks
KIMIO YAKUSHIJI, Committee Member and Country Rapporteur for Kazakhstan, expressed his thanks to the delegation for the constructive dialogue. Thanks to their answers, the understanding of the Committee expanded on the context in which the Convention was implemented. Kazakhstan’s progress had been acknowledged in many areas, and a broader knowledge of the remaining issues had been reached. Mr. Yakushiji expressed hope that Kazakhstan would consider recognizing the Committee’s competence under articles 31 and 32 of the Convention, and that the Human Rights Commissioner would be brought in line with the Paris Principles.
LUCIANO HAZAN, Committee Member and Country Rapporteur for Kazakhstan, said that doubts were dissipated on many aspects of the national legislation and the implementation of the Convention. Concluding observations would be published next week.
RASHID ZHAKUPOV, Deputy Minister of Internal Affairs, expressed his gratitude, on behalf of the delegation, for the interest that Committee Experts had shown in the state of the implementation of the Convention. It was reiterated that Kazakhstan was firmly committed to building a state based on the rule of law. The improvements of national legislation would continue in line with the international standards.
EMMANUEL DÉCAUX, Chairperson of the Committee, reaffirmed the impression of the country rapporteurs that the dialogue had clarified many important questions. He recalled that Kazakhstan had been the first country in the region to ratify the Convention and said that it should continue to strive for further improvements of its law enforcement and judicial system.
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