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FOCUS September 2010 Volume 61

Kazakhstan: Universal Periodic Review

HURIGHTS OSAKA

The Human Rights Council (HRC) of the United Nations (UN) reviewed the human rights situation in Kazakhstan during its 7th session on 12 and 16 February 2010. Several reports submitted to the HRC provided a comprehensive update on the human rights situation in the country.1
The report2 of the government of Kazakhstan to the Human Rights Council stresses the legal support for human rights including constitutional provisions, legal policies, and a Supreme Court decision. A national policy for 2010-2020 seeks to attain to the “maximum extent possible guarantees of constitutional, human and citizens' rights and freedoms and full and strict compliance with constitutional obligations by all State bodies, officials, citizens and organizations in the process of further strengthening the rule of law.” A Supreme Court decision on 10 July 2008 prescribes the “application of international treaty standards ... to promote full compliance with ratified treaty standards in judicial practice.”
Kazakhstan has ratified a number of international human rights treaties. It ratified the Optional Protocol to the Convention against Torture in 2008 and developed an independent national preventive mechanism. The Ministry of Justice adopted a 2009–2012 National Human Rights Action Plan pursuant to the recommendations of the United Nations (UN) Committee against Torture, and coordinated measures to prevent torture.
The government has also established the Office of the Human Rights Commissioner, the Presidential Commission on Human Rights, the National Commission on Family Affairs and Gender Policy under the President and the Committee on the Protection and Promotion of the Rights of Children under the Ministry of Education and Science.
Criminal laws are being reviewed to decriminalize certain acts and make them subject to administrative measures. The review may also aim to simplify inquiry and investigation procedures, to make wider use of conciliation, and to strengthen safeguards against unwarranted prosecution. A February 2009 amendment of the law on the mass media “abolished the registration of television and/or radio broadcast media, simplified media re-registration procedures and put plaintiffs and defendants on an equal footing in contentions before the courts.” Journalists are no longer required to obtain authorization for the use of voice recorders or cameras in interviews, which had greatly hampered their work. News editors are no longer subject to administrative liability for disseminating media items and news agency press releases and reports that are not officially registered. The confiscation of print runs of periodicals issued without the publisher’s imprint has been abolished. The publication or distribution of information media may be interrupted or stopped only with the owner’s or a court’s authorization.
The consolidated report3 of the submissions of the stakeholders (human rights organizations mainly) presents a number of issues. The report discusses the considerable limitation on the Office of the Human Rights Commissioner and the Presidential Commission on Human Rights caused by the
prohibition to consider complaints regarding the activit[ies] and decisions of the President, the Parliament and its deputies, the Government, the Prosecutor General, the Central Election Committee and the courts.” Also, the Committee on the Protection and Promotion of the Rights of Children under the Ministry of Education and Science is unable to address problems related to the rehabilitation of children whose rights have been violated.
The stakeholders report states that the situation of women in Kazakhstan needs improvement in view of the following factors:

1. Women's representation in the Parliament is only at 11.1 per cent of total membership;
2. Average salary of women is only 61 per cent of that of men;
3. Women’s jobs are considered as secondary sources of income both by the family and employers that contribute to their economic dependency on the men and extended family;
4. The gendered structure of Kazakhstani society that emphasizes motherhood and preserving the family as the key goal in women's lives stigmatize on unmarried women and keep married women in violent relationships.

Laws have been amended to decriminalize homosexuality. But homosexuality is still associated with criminal behavior in its criminal code, as separate category for forced sexual contacts. Also, the stigma associated with criminalization and medicalization of same sex relationships remains. The lesbian, gay, bisexual and transgender ( LGBT) organizations in Kazakhstan are constantly under threat due to high visibility that forces them to cease public activities until tensions decrease.
Public assemblies are tightly controlled. Public activities with no permission from authorities, regardless of their peaceful nature, are severely repressed or severely punished.
Judicial bodies are seen as favoring the prosecution, police and local executive bodies. Judicial independence continues to be “hampered by executive influence, corruption, and the dominant role of the Prosecutor's office in the judicial process.” Fair trial is undermined by the “weakness of the legal profession,” and the “fight against terrorism and other threats to national security.”
The stakeholders report emphasizes that “torture, psychological pressure and threats [are] widely used by law enforcement bodies with the aim of achieving "self-reported case" and confession to a crime.” There are also “beatings by law enforcement officers [that] appear to continue to be routine, custody in places that [are] not formally recognized as detention facilities (safe houses of the national security bodies).” Detainees have no recourse, such as petition for the issuance of a writ of habeas corpus, to challenge the lawfulness of their detention.
The stakeholders report also mentions some basic causes of mass human rights violations relating to environment: lack of state environmental policy, rapacious exploitation of natural resources, destruction of the state system of environmental protection, inadequacy of the national legislations and also system corruption. There is also no legislative mechanism that would take into account public opinion and community participation in the process of decision-making. Courts do not take into account evidence obtained from expert non- governmental sources that considerably limits the rights of the community to obtain information.

Recommendations

The HRC members commented on the report of Kazakhstan and provided their respective recommendations on how to address the human rights situation in the country. The HRC report on the results of the review of the situation in Kazakhstan mentions a long list of recommendations. Following are some of the recommendations given by HRC members.
While human rights treaty bodies encouraged Kazakhstan to ratify a number of international human rights instruments,4 several members of the HRC (Brazil, Republic of Korea and Thailand) focused their recommendation on the ratification of the Convention on the Rights of Persons with Disabilities and its Optional Protocol. Thailand, in recommending the ratification of the Convention on the Rights of Persons with Disabilities, likewise noted the “ongoing work being done in [Kazakhstan] to protect the rights of persons with disabilities.”5 Spain, on the other hand, recommended the signing and ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

Children

The Czech Republic and the United States of America both recommended the continuation of efforts to eliminate childlabor, while the Czech Republic joined the Islamic Republic of Iran, Slovenia and Thailand in suggesting other concrete measures regarding children:

1. Protect girls, children with disabilities, children in institutions and children born out of wedlock against discrimination; ensure the use of vocabulary that does not stigmatize them; and redouble efforts to eliminate the stigmatization of and discrimination against persons, especially children, infected and affected by HIV/AIDS;
2. Increase the attention accorded to protecting the rights of the child in the area of juvenile justice;
3. Implement the programs recommended by the World Health Organization (WHO) with a view to improving the medical assistance provided to women and children (Islamic Republic of Iran).

Kazakhstan, however, commented that these recommended measures have either al ready been implemented or were in the process of implementation.

Women

Kyrgyzstan, Sudan and Pakistan recommended that Kazakhstan continue its efforts to eradicate discrimination against women in all areas of life (Kyrgyzstan) and including domestic violence (Pakistan). Sudan likewise recommended the continuation of efforts to “improve the situation of women and to combat discrimination against them.” Kazakhstan commented that these recommendations have either already been implemented or were in the process of implementation. Germany recommended to ensure that the “recently adopted law on domestic violence [be] in full compliance with international standards, and the awareness of legal officials [be raised] regarding the need to act against violence against women within the family.”

Freedom of religion

A number of recommendations from several members focused on freedom of religion, suggesting that Kazakhstan

1. Maintain interfaith harmony, in particular the very useful initiative to hold conferences such as those held in 2003, 2006 and 2009, which brought together senior representatives of world and traditional religions (Algeria); and continue its advocacy for interfaith dialogue, and to share its best practices and experiences with other countries (Philippines); and continue its achievements in the area of freedom of religion (Kuwait);
2. Raise the awareness of its law enforcement officials so that individuals may exercise their right to freedom of religion or belief free from harassment or threat of human rights violations (United Kingdom of Great Britain and Northern Ireland);
3. Extend the rights enjoyed by traditionally established religions to believers of non-traditional religions, and enable them to carry out their peaceful activities free from government interference (Netherlands).

Trafficking

Several members recommended the continuation of the fight against trafficking in persons in Kazakhstan and to

1. Continue to apply a victim- centered approach to the fight against trafficking and consider the use of the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking as a reference tool (Philippines);
2. Continue the public awareness campaign and cooperation with the relevant non-governmental organizations (Japan);
3. Make it a priority of the various governmental agencies entrusted with implementing the third action plan to combat human trafficking, for the period from 2009 to 2011 (Morocco);
4. Strengthen law enforcement and the judicial system in the effort to address impunity and prevent trafficking and domestic violence, as well as the sexual abuse of women and girls (Malaysia).

Kazakhstan commented that these recommendations have either al ready been implemented or were in the process of implementation.

Torture

Several HRC members recommended the eliminationof torture, a recommendation that Kazakhstan generally considered as either already implemented or was in the process of implementation. But several HRC members also gave very specific recommendations to address torture as in the following:

1. Establish torture as a serious crime punished with appropriate penalties, or amend the law on torture, in keeping with the definition set out in the Convention against Torture (Germany, Australia);
2. Continue efforts to eliminate torture and improve the conditions of detention and the protection of the rights of detainees, and to share relevant experiences with interested countries (Algeria);
3. Adopt strict safeguards to ensure that no statement obtained through torture can be used in courts (Czech Republic);
4. Establish an independent monitoring mechanism for all places of detention, or an independent national preventive mechanism, in keeping with the provisions of the Optional Protocol to the Convention against Torture, in order to effectively prevent torture (France and Ireland);
5. Establish effective complaint mechanisms for the victims of torture, with a special focus on persons in detention, so that any misconduct by police, prison or detention staff receives a full and independent investigation and regular punishment (Czech Republic);
6. Share its experience regarding its innovative independent national mechanism for the prevention of torture, whose establishment could serve as an example of best practices in the fight against torture (Morocco).

Prisons

The United Kingdom of Great Britain, Northern Ireland and Sri Lanka recommended the establishment of a national preventive mechanism in accordance with the provisions of the Convention against Torture and its Optional Protocol. The United Kingdom of Great Britain and Northern Ireland further recommended that such mechanism should have adequate resources, and comply with the requirements of full legal, functional and financial independence and of staff composition, immunities and privileges. Slovenia and Azerbaijan recommended further improvement in the prison conditions, while Slovenia additionally recommended the carrying out of an independent investigation into cases of violence in prisons.

Death penalty

A number of members recommended to Kazakhstan to completely abolish the death penalty and to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, as provided for in the 2009-2012 National Human Rights Action Plan (France, Belgium and Spain). France welcomed the moratorium on executions, the commutation of death penalties into prison sentences, and the efforts made to restrict, in the Constitution, the application of the death penalty to a reduced number of crimes.” Spain noted with satisfaction “the abolition of the death penalty for civilians.”
The Russian Federation, the United States of America, Slovenia and Armenia recommended the full implementation of Kazakhstan’s National Human Rights Action Plan. Armenia also recommended that Kazakhstan work closely with different institutions such as the UN on this issue. Brazil recommended the strengthening of the policies in promoting child rights and the implementation of the Guidelines for the Alternative Care of Children, according to Human Rights Council resolution 11/7 and General Assembly resolution 64/142. Kazakhstan, however, commented that this matter was either already implemented or was in the process of implementation by the Kazakh government.

Judiciary

A number of members recommended the strengthening of the independence of the judiciary and the impartiality of court processes in accordance with the international legal standards or ratified international treaties. They also recommended the following:

1. Strengthen the roles of judges and defense lawyers in the criminal procedure, and to guarantee full access of defendants to the legal counsel of their choice (Czech Republic);
2. Take measures to prevent any interference in the exercise by defense lawyers of their functions, in accordance with the International Covenant on Civil and Political Rights (Spain);
3. Take measures to limit the powers of public prosecutors and bring criminal procedure into greater conformity with article 14 of t he International Covenant on Civil and Political Rights (Netherlands);
4. Adopt strict safeguards to ensure that no statement obtained through torture can be used in courts (Czech Republic); ensure that all trials, including those of terrorism suspects, comply with international standards for fair trials (Norway);
5. Implement existing judicial procedures and tackle the issue of corruption in its courts (Canada);
6. Reform the penal centers and the system for the administration of juvenile justice (Mexico); guarantee the rights of those in detention or in prison (Japan);
7. Address impunity and prevent trafficking and domestic violence, as well as the sexual abuse of women and girls (Malaysia).

Kazakhstan commented that these recommendations have either al ready been implemented or were in the process of implementation.

National institution

Algeria, Ireland, Germany, Malaysia, the Philippines and Thailand recommended the establishment of an independent national human rights institution in conformity with the Paris Principles.6 Algeria recommended the transition” of the Human Rights Commissioner (Ombudsman) into an independent national human rights institution, while Ireland recommended taking measures necessary to bring the Human Rights Commission and the Human Rights Commissioner in conformity with the Paris Principles. The Islamic Republic of Iran recommended the establishment of the “post of the national ombudsman for the rights of the child with a view to the effective promotion and protection of children’s rights.”
Norway, United Kingdom of Great Britain and Northern Ireland also recommended the involvement of the civil society organizations in the follow-up to the review process. Norway recommended t he establishment of an “effective and inclusive process that includes independent non- governmental organizations, not funded by Governments, to follow up on the recommendations resulting from the present review.”

 

For further information, please contact HURIGHTS OSAKA.

Endnotes

1. The reports consisted of the report of the Kazakh government and the reports of the stakeholders (various international and national human rights organizations, A/HRC/WG.6/7/KAZ/3, 24 November 2009), the human rights treaty bodies and special procedures (A/HRC/WG.6/7/KAZ/2, 30 November 2009), and the Working Group of the HRC (A/HRC/14/10 23 March 2010).
2. National report submitted in accordance with paragraph 15(a) of the annex to Human Rights Council resolution 5/1 – Kazakhstan, A/HRC/WG.6/7/KAZ/1, 3 November 2009.
3. Summary Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(C) of the Annex to Human Rights Council Resolution 5/1 - Kazakhstan, A/HRC/WG.6/7/KA/3, 24 November 2009.
4. Compilation Prepared by the Office of the High Commissioner for Human Rights, In Accordance With Paragraph 15(B) of the Annex to Human Rights Council Resolution 5/1 - Kazakhstan, A/HRC/WG.6/7/KAZ/2, 30 November 2009, page 2.
5. Report of the Working Group of the HRC, page 14.
6. Principles relating to the Status of National Institutions (The Paris Principles), United Nations General Assembly resolution 48/134, 20 December 1993.


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