Committee against Torture

Seventy-sixth session

Summary record of the 1995th meeting*

Held at the Palais Wilson, Geneva, on Tuesday, 2 May 2023, at 10 a.m.

Chair:Mr. Heller

Contents

Consideration of reports submitted by States parties under article 19 of the Convention (continued)

Fourth periodic report of Kazakhstan

The meeting was called to order at 10 a.m.

Consideration of reports submitted by States parties under article 19 of the Convention (continued)

Fourth periodic report of Kazakhstan (CAT/C/KAZ/4; CAT/C/KAZ/Q/4; CAT/C/KAZ/RQ/4)

At the invitation of the Chair, the delegation of Kazakhstan joined the meeting.

Mr. Rogov (Kazakhstan), introducing his country’s fourth periodic report (CAT/C/KAZ/4), said that Kazakhstan was a democratic country with a constitution that protected human life and dignity as a priority and explicitly prohibited torture and other cruel, inhuman or degrading treatment or punishment. The Government was guided by the Convention in the development of its legislation and had established procedures to facilitate cooperation with the human rights treaty bodies. Since the review of its initial report before the Committee in 2001, Kazakhstan had adopted a zero-tolerance approach to torture. The focus was now on establishing the necessary conditions to prevent acts of torture and ill-treatment.

During the period under consideration, Kazakhstan had made a number of important reforms. For example, in 2021, it had taken steps to strengthen the role of Parliament, and, in 2022, it had abolished the death penalty. It had recently replaced the Constitutional Council with the Constitutional Court, to which citizens could submit individual complaints directly.

The Human Rights Commissioner (Ombudsman) played an important role in preventing human rights violations and restoring the rights of victims. The institution of Ombudsman had been strengthened, including through the introduction of new procedures for the appointment of the incumbent, which had been developed in response to recommendations of external bodies, notably the Council of Europe. Local offices of the Ombudsman had been opened in each region.

A constitutional law had been adopted to expand the functions of the Procurator’s Office, including by making it responsible for all torture investigations. Various judicial guarantees had been introduced, notably a requirement for any remand in custody to be authorized by a court. Other measures taken in recent years included the establishment of specialized investigating courts, the introduction of judicial oversight of the legality of pretrial proceedings, the creation of a bar association and the criminalization of the act of obstructing the work of lawyers.

The Government was making efforts to ensure that all law enforcement officers received extensive training on human rights law and on international best practices. In April 2023, it had worked with the Council of Europe to host a conference on the prevention of torture for the Central Asia region, which had been attended by a number of high-level experts.

A representative of Kazakhstan said that, in January 2022, peaceful economic protests in the west of the country had degenerated into riots affecting 11 regions. Following a review of evidence, some 1,300 individuals had been arrested in connection with the riots, of whom more than 1,000 had since been released following the adoption of an amnesty law; all the arrests had been reviewed by procurators. The ringleaders – members of terrorist organizations who had been planning a coup against the Government – had been identified, prosecuted and sentenced to imprisonment. No one who had committed an act of torture or terrorism was eligible for amnesty.

The use of torture by law enforcement officers was inexcusable. All complaints made against officers in connection with the events of January 2022 had been investigated. A number of police and National Security Committee officers had been tried and found guilty of unlawful conduct. Efforts were being made to prevent cover-ups and thereby combat impunity. For example, while heart disease had originally been declared the cause of death in the case of a civilian who had died in custody in Almaty, a second forensic examination, conducted after exhumation of the body, had revealed evidence of torture. A criminal investigation was under way, but the perpetrators had yet to be identified.

Rules for the investigation of torture cases had been developed, in line with the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). All allegations of torture were registered and investigated promptly. To prevent torture, interrogations took place in glass-walled rooms and were recorded on video, and law enforcement buildings were being fitted with video surveillance systems, to which procurators had access via the Internet. Footage from such systems had been used as evidence in 36 criminal cases in 2023. In addition, an electronic system for the registration of signs of psychological or physical harm had been launched.

The Government had learned the lessons of the tragic events of January 2022. It was taking steps to demonopolize the economy, prevent the embezzlement of public funds and ensure that those resources were instead used to address social problems. Given the prevalence of misinformation designed to discredit the ongoing reforms and thus destabilize the country, he would encourage the Committee to take into account only information from reliable sources when assessing the situation in Kazakhstan.

Ms. Racu (Country Rapporteur) said that the Committee welcomed the adoption of a law containing provisions to distinguish between, on the one hand, cruel, inhuman or degrading treatment and, on the other, torture, and to prohibit the handing down of conditional sentences for acts of torture, as well as a definition of the term “person acting in an official capacity”. However, given that the definition of torture still lacked the word “severe” in the description of the pain or suffering inflicted, it was not clear how torture was distinguished from certain other forms of ill-treatment that had recently been established as offences in the Criminal Code.

The Russian translation of the exclusion clause contained in article 1 (1) of the Convention appeared to have led to some confusion in the State party. The definition of torture in its legislation excluded pain or suffering resulting from “lawful actions of persons acting in an official capacity or other persons”, rather than only pain or suffering caused by “lawful sanctions”. It seemed that a much broader range of actions carried out by a significantly larger number of persons was excluded from the definition of torture. Was that the case?

Regarding the national preventive mechanism, she wished to know how the constitutional law adopted in November 2022 to expand the powers of the Ombudsman, would affect the activities of the preventive mechanism, which had been established within the Office of the Ombudsman. She wondered whether the mechanism’s independence would be undermined by the requirement for a representative of the Ombudsman to coordinate all its preventive visits and to accompany its members on such visits. In that connection, it would be useful to learn whether all regional representatives of the Ombudsman had the capacities and human rights knowledge necessary to fulfil their mandates. She would also like to hear what had been done to improve the functioning of the national preventive mechanism in the light of the recommendations made by the Subcommittee on Prevention of Torture following its visit to Kazakhstan in 2016, what budgetary and logistical resources had been allocated to the mechanism, how many recommendations it had issued in relation to the prevention of torture and the protection of persons deprived of liberty, how many such recommendations had been implemented and what the results had been.

Given reports that the Office of the Commissioner (Ombudsman) for Children’s Rights lacked adequate human and financial resources, she would appreciate clarification of the role and effectiveness of the Ombudsman, along with an update on initiatives and visits carried out.

She wished to reiterate the Committee’s recommendation, made in its concluding observations on the third periodic report of Kazakhstan (CAT/C/KAZ/CO/3), for the Government to transfer authority for all detention and investigation facilities away from the Ministry of Internal Affairs, which was also the ministry with responsibility for the police and internal security, so as to reduce incentives for officials at such facilities to commit torture and ill-treatment.

While the adoption of provisions to ensure fundamental legal safeguards against torture and ill-treatment from the outset of deprivation of liberty was commendable, it was their application in practice that was of particular interest to the Committee. In that connection, it would be helpful to learn the delegation’s view on reports alleging that video recordings of investigative interviews had disappeared; inaccurate times of arrest were sometimes used to circumvent legal time limits on detention; persons deprived of liberty were not always informed of their rights; and independent lawyers often faced difficulties in gaining access to clients in pretrial detention.

The suppression of the protests that had taken place across Kazakhstan in January 2022 had reportedly given rise to torture and inhuman treatment of detainees, including minors, on an unprecedented scale. In the light of information concerning violations of the legal safeguards against torture and ill-treatment by law enforcement officials – including the reported use of irregular places of detention, denial of medical care or access to a lawyer, failure to inform detainees’ relatives of their whereabouts and a reported lack of response to complaints – it would be useful to receive replies, during the dialogue, to the questions that the Committee had raised in the list of issues (CAT/C/KAZ/Q/4-6) in that regard.

In particular, more information would be appreciated on the steps taken to ensure that detainees received a medical examination on their admission to police detention units, that they could be examined by a medical professional of their choice and that their medical status was recorded at the outset of detention. Further details regarding the Order of the Minister of Health of 30 June 2022 approving the Rules on the Provision of Medical Assistance to Persons held in Remand Centres and Prisons and other initiatives intended to improve the conduct of medical examinations of prisoners would also be welcome. In particular, it would be helpful to know whether the medical personnel performing examinations reported to a specific health authority; whether prisoners were screened for infectious diseases; whether injuries and violent incidents were recorded in specific registers; and how many cases of injury or violence had been recorded during the reporting period, what the results of the investigations had been and what sanctions were imposed for failure to report such cases. The delegation should also indicate whether medical personnel could report injuries suspected of being caused by torture directly to the procurator on a confidential basis..

She would welcome information on the exact number and circumstances of deaths in custody during the events of January 2022 and on the efforts made to bring to justice those responsible. In addition, the State party should provide updated disaggregated data on all complaints relating to torture and inhuman treatment in the context of those events, including details of the number of criminal proceedings initiated, the penalties imposed and the redress provided to victims. Details of any measures of restraint imposed on alleged perpetrators and any protections afforded to victims during proceedings would be welcome. She also wished to know what disciplinary action had been taken against State officials for excessive use of force, whether internal guidelines as to what constituted excessive force were distributed in places of detention and whether prisoners were informed of their right to report abuse.

She wondered how many criminal cases related to the events of January 2022 had been discontinued, including because of lack of evidence, and what action had been taken to establish corpus delicti in such cases. In the same vein, it would be interesting to learn how many charges of torture had been dropped owing to plea bargain agreements under which defendants admitted lesser offences. The Committee would appreciate an update on the case of Raigul Sadyrbaeva, a human rights defender, who had reportedly been held incommunicado in January 2022, subjected to a mock execution and denied medical care.

It would be helpful to receive details of the measures taken by the State party to prevent, record and investigate violence among prisoners, including self-harm and suicide, and of any long-term strategy to tackle inter-prisoner violence. Information would be appreciated on the mechanisms in place to prevent reprisals against those who reported violence and to protect victims and other vulnerable prisoners, such as lesbian, gay, bisexual, transgender and intersex (LGBTI) prisoners and prisoners with psychosocial disabilities, and on programmes to reduce levels of violence. The delegation might provide data on the number of suicides that had taken place in prisons during the reporting period. Details regarding the implementation of the programme to support the management of violent extremist prisoners and the prevention of radicalization to violence in prison, conducted in cooperation with the United Nations Office on Drugs and Crime, would also be useful.

She would welcome clarification of the categories of prisoner subjected to solitary confinement, the types of behaviour that called for such punishment, the duration of solitary confinement, the frequency with which it was imposed and the possibility to appeal against its application. She wondered whether prisoners could receive family visits while in solitary confinement. Disaggregated data on the use of solitary confinement would be appreciated, as would details of the system of disciplinary sanctions in prisons and of any incentives for good behaviour.

She would welcome more information, including statistics, on hazing, self-harm, suicides and deaths in the armed forces, alongside details of the work of the commission established in June 2022 to investigate suicides in the armed forces. She wondered whether the Ministry of Defence had conducted the planned sociological surveys and anonymous questionnaires among military personnel, aimed at assessing morale, and what other measures had been taken to prevent violence and protect military personnel, including women. It would be useful to learn whether military units, including military academies, could receive visits from the national preventive mechanism and non-governmental organizations.

Despite the progress achieved in tackling domestic and gender-based violence, substantial improvements were needed, including in the police response to domestic violence. Information on the work of the inspectors for women’s and children’s affairs and other efforts to prevent and investigate domestic violence would be useful in that regard.

The Domestic Violence Prevention Act had been criticized for being primarily aimed at preserving the family. While it included provisions whereby a perpetrator of domestic violence could be evicted from the home, in practice, if the perpetrator had no other accommodation, he was left to live with his family. Overall, statistics showed that the Act in its current form failed to protect victims of domestic violence. The Committee acknowledged, nonetheless, the recent legislative amendments aimed at preventing domestic violence. It wished to know how many cases of violence against women had been reported since those amendments had been introduced, how many cases had been investigated and what the outcome of the investigations had been. It would also be interested to hear how the courts ensured adequate enforcement of protection orders in cases of domestic abuse, how many orders had been issued and how many persons had been convicted for non-compliance.

The Committee was concerned about the practice of abducting women and girls for the purpose of forcing them into marriage, particularly in rural and remote areas. A number of United Nations human rights bodies had also raised concerns about the practice, which, despite being illegal, appeared to be socially legitimized. In fact, bride kidnapping was surrounded by a culture of silence and impunity, and cases remained underreported as they were considered private matters that should remain within the family. She hoped that the delegation could provide the Committee with information about any sentences handed down for such offences, about measures taken to combat the abduction of young girls for marriage and about steps that the State had taken to increase public trust in the police.

The delegation should indicate whether, since the submission of the previous periodic report, the State had received any requests for the extradition of individuals suspected of having committed torture and, if so, what measures were in place to ensure that the requesting State did not subject the individual to torture or ill-treatment upon arrival. The Committee would also be interested to hear about any occasions when the State party, having rejected such an extradition request, had then started prosecution proceedings of its own.

Ms. P ‎ ūce (Country Rapporteur) said that she commended the Government for its stated intention of eradicating the culture of impunity that had enabled torture and ill-treatment to be used as a law enforcement tool in the past. Such a change could not be accomplished overnight, however. It required, above all, training at many different levels. In that regard, she had been pleased to learn that members of the national preventive mechanism had received training from a number of international stakeholders, including the Council of Europe and the United Nations. The mechanism seemed, however, to have a large turnover of staff. She wondered how knowledge was imparted to new members so as to preserve the mechanism’s institutional memory.

She had also been pleased to hear that cases of torture were now being investigated directly by the Procurator’s Office and wished to know what specialized training was given to the officials involved. At the same time, it was worrying that cases of cruel, inhuman or degrading treatment were investigated by the police, who could not be relied upon to conduct such investigations impartially. She understood that police officers were given online training in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), but the Committee would be more interested to hear about any specific anti-torture training they received. In order for cases of torture to be correctly identified and documented, it was important for forensic medical personnel to receive appropriate training, specifically on the Istanbul Protocol. She wished to know what steps the State party was taking to prevent medical staff from colluding with law enforcement personnel to conceal cases of torture.

The delegation should inform the Committee about the avenues of complaint open to persons wishing to report instances of torture or ill-treatment, including persons detained in prisons or psychiatric institutions. In that regard, the Committee had received reports that online terminals for filing complaints from inside closed institutions were located too close to staff facilities to ensure confidentiality. She wondered who received such complaints. The Committee also wished to hear about the complaints mechanisms available to children who had been institutionalized owing to mental or psychosocial disabilities. Information would be particularly welcome about the outcome of investigations into the deaths of four children in an institution during the coronavirus disease (COVID-19) pandemic, three of whom had apparently died as a result of physical injuries.

She hoped that the delegation could tell the Committee exactly how many complaints relating to torture or ill-treatment had been received over the previous two years, how many investigations had been launched as a result of those complaints, whether the investigations had led to any trials and criminal convictions and, if so, how many persons had been convicted under article 146 of the Criminal Code and what penalties had been handed down. It would be interesting to know what criteria were used to screen complaints and who determined whether a case was one of torture, and hence directly referrable to procurators, or of ill-treatment, and therefore a matter for the police. The delegation should tell the Committee about actions taken by the authorities to protect from reprisals persons who reported instances of torture or ill-treatment and about cases where the courts had dismissed proceedings on the grounds that a confession had been extracted under torture.

The Committee wished to know whether prison overcrowding was increasing or decreasing, what action the State party was contemplating to address the problem and whether that would include the use of non-custodial measures. The lack of medical care inside closed institutions entailed additional suffering for inmates, particularly those with disabilities, and the Committee would like to hear what steps were being taken to improve that state of affairs. It would be useful to know the ratio of medical staff to inmates and how many medical staff posts were currently vacant. She was greatly concerned about continuing reports of sexual abuse against women in prison, which was apparently due in part to a lack of female staff. In that connection, she wished to know how women’s prisons were supervised and what investigations had been conducted into cases of abuse.

The Committee would appreciate information about persons serving terms of life imprisonment, including those whose death sentences had been commuted. Since they could apply for parole after 25 years of detention, it was vital that steps should be taken with a view to their eventual reintegration into society. In that connection, she was particularly concerned about the low number of visits such persons were allowed to receive, just two or three a year according to reports. It would be interesting to know why informal hierarchies inside prisons continued to exist despite the action that the State party had taken to address the problem. She was concerned about reports of police intimidation against LGBT+ persons and of the use of corporal punishment on children, which was apparently still legitimate in the domestic setting and in alternative care institutions.

She wished to know how the State party reconciled its non-refoulement obligations with the fact that irregular migrants entering Kazakhstan could potentially face criminal charges and expulsion. Lastly, the Committee would welcome updated information on action that the State had taken in the light of findings by the Committee against Torture, the Human Rights Committee and the Working Group on Arbitrary Detention in individual cases, including those of Dmitry Rakishev and Oleg Evloev.

Mr. Iscan said that he wished to commend the State party for the efforts it had made to implement the Convention. He was confident that the authorities would take additional steps in the light of the interactive dialogue and the Committee’s concluding observations.

Kazakhstan was known for its willingness to host persons in need of international protection, and the Committee recognized that recent amendments to a presidential decree made specific provision for refugees and stateless persons and that the Refugees Act prohibited the return or expulsion of asylum-seekers to a country where their life or freedom would be endangered. The Committee also noted the claim that, during the reporting period, no one had been extradited from Kazakhstan to a country where they risked torture or been deported merely on the strength of diplomatic assurances. He hoped, nonetheless, that the delegation could provide details about the deportations that had taken place and, more broadly, what plans the Government had to bring national legislation into line with article 3 of the Convention. What action did the authorities intend to take to ensure that all refugees and asylum-seekers were treated equally and without discrimination and to provide mechanisms for the review of deportation decisions?

He wished to know if the State party intended to set up accessible asylum and referral procedures at all border crossing points, including airports and transit zones. Currently, the lack of clear referral procedures between border guards and other national authorities meant that persons seeking asylum at the border risked being returned to a country where they could face torture or ill-treatment. Although the Committee had been heartened to learn that around 2,000 stateless persons were able to acquire Kazakh nationality every year, it regretted the fact that Kazakhstan deemed it “premature” to accede to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. The Committee called on the Government to reconsider that position and to expedite the procedure for acceding to the two Conventions.

The meeting was suspended at noon and resumed at 12.20 p.m.

A representative of Kazakhstan said that efforts were being made to bring national legislation into line with the Convention, including through amendments to article 146 of the Criminal Code to ensure that it covered all cases that fell within the scope of the definition of torture set out in the Convention. The elements of the offence of torture were now clearly defined. In determining whether an act of torture had been committed, the authorities took account of medical evidence and the position of authority of the perpetrator over the victim, among other factors. National legislation had a broader scope than the Convention in terms of criminal liability because it covered officials, those acting in an official capacity and certain other persons. At the same time, the legislation afforded protection to persons who might be called upon to employ force or to use firearms or physical or chemical restraint in the performance of their duties. Such persons included law enforcement officials who used force to restrain violent persons or those who presented a danger. While the lawful use of force might result in pain or suffering, it was not equivalent to torture.

Procurators had exclusive jurisdiction over cases of torture and were involved from the beginning of all criminal proceedings, exercising oversight over the investigative process. They would verify the facts and decide how to proceed in any given case. Criminal proceedings were transparent and had the main aim of establishing the truth and upholding the constitutional rights of all parties.

Mr. Rogov (Kazakhstan) said that the point raised by Ms. Racu with regard to the definition of torture in article 146 of the Criminal Code, which did not refer to “severe” pain or suffering, required further consideration. Issues related to the interpretation of the Russian translation of the English term “sanctions” in the Convention would have to be referred to the Supreme Court.

A representative of Kazakhstan said that there was a single system for the registration of crimes in the country. All complaints of torture were registered and transmitted to the Procurator’s Office. A pretrial investigation was always completed before any decision regarding proceedings was taken. Failure to register complaints of torture was a crime.

A representative of Kazakhstan said that the Ombudsman had recently initiated a bill and established a new working group on the national preventive mechanism. The independence of the mechanism and its members was enshrined in law. Following its visits to places of detention, the mechanism published a report signed by the members present during the visit. If any of the members disagreed with the content of the report, their opinions were included in an annex. The regional representatives of the Ombudsman who participated in visits were appointed in accordance with the procedures set out in the Act on the Civil Service of Kazakhstan and were tested on their knowledge of the relevant legislation. Currently, 40 per cent of those representatives were lawyers and human rights advocates, 15 per cent were medical professionals, 11 per cent were teachers, 9 per cent were social workers and 3 per cent were psychologists and journalists.

Between 2020 and 2023, more than 10,000 recommendations had been submitted to regional and central government bodies by the national preventive mechanism. Around half of those recommendations had been implemented and the other half were under review. It had been decided to discontinue the review of 4 per cent of the recommendations.

A large proportion of the communications received by the Ombudsman concerned the quality of legal assistance. In response, in June 2022 the list of persons who were guaranteed free legal assistance had been expanded to include victims of domestic violence, sexual violence, trafficking in persons, terrorism and torture.

Since the beginning of 2023, the Office of the Ombudsman had administered its own budget, which amounted to US$ 120,000 per year. Travel and subsistence expenses were covered for persons participating in visits. Places of detention typically received a visit once every four years. However, there were also interim visits, special visits following reports of torture and visits focused on particular topics. Between 2014 and 2022, some 4,500 visits had been conducted; 500 were planned for 2023. Some military establishments – military police premises and detention barracks – and special educational establishments also received visits from the national preventive mechanism.

The Office of the Ombudsman for Children’s Rights was separate from the Office of the Ombudsman. Nevertheless, the two bodies had a memorandum of understanding and cooperated at the regional level.

A representative of Kazakhstan said that Decree No. 971 had established the requirement for police officers to videorecord their work. A new system was being implemented with video badges, chest cameras and other equipment that automatically uploaded video footage to a cloud hosted on centralized servers in police stations. Previous systems had required police officers to manually upload the recordings. The new system was designed to minimize the risk of data loss. Disciplinary action was taken against any officer who was found to be involved in data loss. Video recordings were made to preserve evidence and ensure that police officers always acted in line with the law.

A representative of Kazakhstan said that one of the obstacles to investigating torture in his country was the phenomenon of closing ranks. In some cases, including in the context of the events of January 2022, data had been deleted from servers. Steps had therefore been taken to restrict access to the servers, and any loss of data was investigated with the possibility of the perpetrators being disciplined or, where appropriate, held criminally liable for destruction of evidence. Great effort had been made to ensure that cameras provided to police officers were used in practice, and rules had been introduced stipulating who was responsible for ensuring that video monitoring was carried out. Video evidence had been used to convict two police officers who had been found to have been responsible for the death of an individual who was being held in a police station.

Mr. Rogov (Kazakhstan) said that a previous attempt to transfer authority over detention and investigation facilities from the Ministry of Internal Affairs to the Ministry of Justice had failed because, while the necessary legal and regulatory framework had been put in place, the Ministry of Justice had lacked the financial, material and human resources to operate such facilities effectively. He would raise the issue with the authorities in his country in the hope that, if the Committee’s recommendation in that regard was accepted, an appropriately funded and pragmatic solution would be found.

The former Constitutional Council had declared the legislation that established the criminal liability of prisoners for self-harm to be unconstitutional. The Council had considered that prisoners used acts of self-harm to express their opinion and that such acts were therefore protected under the right to freedom of expression. The new Criminal Code established criminal liability for self-harm only when it was done with malicious intent.

A representative of Kazakhstan said that, in 2021, the maximum length of solitary confinement had been reduced from six to four months. Health checks were carried out before prisoners were placed in solitary confinement. The use of solitary confinement was decreasing. Over the preceding five years, some 1,500 prisoners had been placed in solitary confinement, with only 281 in the preceding year. Minors could not be placed in solitary confinement. Prisoners could appeal against a decision to impose solitary confinement and, if the decision was found to be unlawful, it would be rescinded.

The main reasons for suicide among prisoners were long sentences, an increased awareness of the consequences of their actions, family situations and psychological issues. Measures had been taken to improve psychological support in the penitentiary system, especially for prisoners serving long sentences. The authorities had collaborated with non-governmental organizations, libraries and educational institutions to provide training and support for prisoners and prison guards. Events, such as creative writing and art competitions, had been held for prisoners at risk of suicide.

Mr. Rogov (Kazakhstan) said that, while his country was not a party to the 1954 Convention relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness, the Constitution included content directly quoted from both those instruments.

The meeting rose at 1 p.m.