Committee against Torture
List of issues in relation to the fourth periodic report of Kazakhstan*
Issues identified for follow-up in the previous concluding observations
1.In its previous concluding observations, the Committee requested the State party to provide information on the measures it had taken in follow-up to the recommendations on the following issues: the effective investigation of allegations of torture (para. 8); the transfer of detention authority to the Ministry of Justice (para. 10); the Human Rights Commissioner (Ombudsman) and the national preventive mechanism (para. 13); and the administration of justice (para. 15). Noting that a reply concerning the information sought by the Committee was provided on 20 November 2015, and with reference to the letter dated 29 August 2016 from the Committee’s rapporteur for follow-up to concluding observations, the Committee considers that the recommendations included in paragraphs 8, 13 and 15 have been partially implemented while the recommendations included in paragraph 10 have not. The Committee further notes additional information sent by the State party on 21 December 2016, the content of which is reflected in the paragraphs below.
Articles 1 and 4
2.With reference to paragraphs 16 to 22 of the State party’s periodic report, please indicate any steps taken to make legislative amendments to the article 146 of Criminal Code to bring the definition of torture fully into line with article 1 of the Convention and to punish acts of torture with appropriate penalties commensurate with the gravity of the crime, as set out in article 4 (2) of the Convention. In this connection, specify whether such a definition includes criminal liability for acts of torturecommitted by, at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Please clarify whether the national legislation makes explicit reference to the exclusion of any exceptional circumstances to justify torture. Indicate whether the reference to “legitimate acts” on the part of officials has been removed. Please provide examples wheredomestic courts have applied the laws in conformity with the Convention.
3.With regard to paragraphs 122 to 136 of the State party’s periodic report,please provide information on the status of the bill aimed at broadening the mandate of the national preventive mechanism, established within the Human Rights Commissioner office, and indicate whetherit provides for visits to all places of deprivation of liberty, as specifically listed in the Committee’s previous recommendation (para. 13). Please share the text of the relevant legal provisions in this regard. Please clarify whether all regular and ad hoc visits of the national preventive mechanism still require approval by the Commissioner, even in case of urgency, and provide detailed information aboutthe measures adopted to ensure the functional and operational independence of the national preventive mechanism in full compliance with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the guidelines on national preventive mechanisms issued bythe Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/OP/12/5). Please indicate whethera separate budget is allocated exclusively to the national preventive mechanism or whether its allocation remains under the discretion of the Commissioner. In addition, please provide information on the financial means and positions allocated to the national preventive mechanism inthe past three years and the expenses that such a budget covers (such assalaries, transportation, rent of premises and administrative expenses). Please share with the Committee the recommendations made by the national preventive mechanism in2021 and 2022 to improve thetreatment and conditions of persons deprived of liberty and to prevent torture and ill-treatment, and provide information about specific steps taken by the State party in response to those recommendations.Please explain whether any formal coordination mechanism has been established between the national preventive mechanism and the Commissioner for Children’s Rights in monitoring closed institutions for children.Lastly, in view of the recent draft constitutional law on the Ombudsperson (Human Rights Commissioner), please explainthe steps taken to ensure that such a lawfully meets the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), in particular theselection and appointment process, pluralism of staff, and reporting.
4.With reference to the information provided about the reform of the justice system, please explain the steps taken to strengthen the judicial system further in practice.Further to the amendments to the Law on the Professional Activities of Advocates and Legal Assistance adopted on 8 April 2021 thatintroduced thecentralization of the management of legal professionals, please clarify the steps taken to ensure the independence of the legal profession and non-interference with their activities bythe executive power, in accordancewith the Basic Principles on the Role of Lawyers.
5.With reference to the information provided by the State party, please indicate whether it has considered changing its position with regard tothe transfer of authority for all detention and investigation facilities from the Ministry of Internal Affairs to the Ministry of Justice.
6.With regard to paragraphs81 to 84 and 113 to 119 of the State party’s fourth periodic report, and in view of the mass arrests that were made against the backdrop of the protests that were held in June 2019 and in January 2022 or in the context of counter-terrorism operations, please comment on reports that, on numerous occasions, the police failed to inform persons they arrested of the reason for the arrest or of their rights, avoided notifying the family of arrested persons, and denied arrested persons access to a lawyer of their choice. Please provide information about police oversight and accountability measures that have been taken to address these concerns. Please provide also information aboutany new measures taken by the State party during the reporting period to ensure that all persons arrested or detained, including with regard to detained juveniles, are afforded all fundamental safeguards from the very outset of their deprivation of liberty,in particular:
(a)Any steps taken by the State party to ensure in practice that an independent and confidential medical examination is conducted upon the detainee’s request, out of hearing and out of sight of police or prison officers;please indicate how the State party guarantees the independence of doctors and other medical staff treating persons deprived of their liberty, and clarify also whether doctors may bring medical reports of injuries suspected of being caused by torture directly to the attention of the public prosecutor on a confidential basis;
(b)That law enforcement officials fullyrespect the three-hour legal timelimit of “investigative detentions”,and thatofficials record accurately and systematically the exact date, time and place of detention, including the aforesaid hours of “investigative detention”;
(c)That all detainees have prompt and confidential access to a lawyer or to legal aid services from the very outset of deprivation of liberty, and that detainees are not questioned when their lawyers are not present;
(d)That audio orvideo recordings of interviews is systematically used in criminal investigations as a basic safeguard and as part of efforts to prevent torture and ill-treatment, and that such recordings are kept in centralized secure facilities;please clarify whether the defence lawyers of interrogated persons can have access to those recordings;
(e)Any steps taken by the State party to ensure that all persons deprived of their liberty have the right to effectively and expeditiously challenge the lawfulness, necessity or proportionality of their detention;please provide the number of cases since the consideration of the State party’s previous periodic report in which detainees have challenged their detention or treatment therein before the courts, as well as the outcome of those cases, specifying in particular the number of cases in which the petitioner was released from detention.
7. With reference to paragraphs 156 and 157 of the State party’s periodic report, please provide further information about specific initiatives to combat domestic violence envisagedunder the strategic plan of the Ministry of Internal Affairs for 2017–2021, including training programmes aimed at preventing and investigating gender-based violence, notably domestic violence, for judges, lawyers, law enforcement officers, social workers, health-care professionals and others who interact with victims. Please inform the Committee about any measures planned to criminalize domestic violence as a separate offence and to increase support and services for survivors of domestic violence. In addition to information about injunctions issued to protect the victims of domestic violence, please include statistical data on the number of complaints of domestic violence and the investigations, prosecutions, convictions and punishment resulting from those complaints, as well as redress measures provided to victims, including support services and crisis shelters, during the reporting period.
8. Please provide information abouteffective measures to prevent trafficking in persons and to increase protection for victims of trafficking, particularly for victims of labour and sexual exploitation, and to provide redress and rehabilitation services to trafficking victims. Provide data, disaggregated by relevant factors, on the number of investigations, prosecutions and punishment of perpetrators of trafficking in persons. Please provide information about training programmes undertaken and plannedto detect and identify signs of trafficking in human beings for law enforcement officers, judges, labour inspectors, social workers, health-care professionals and others who interact with victims, as well as on the efforts to create standard operating procedures to implement the victim identification and referral mechanism.
9.With regard to paragraphs 43 to 45 of the State party’s periodic report, please provide information aboutthe measures that have been taken to ensure that, in practice, no person is returned to a country where that person would be in danger of torture, in accordance with article 3 of the Convention. Please comment on the allegations of forced deportation or prosecution of asylum seekers, ethnic Kazakhs, fleeing from the Xinjiang Uighur Autonomous Region in China. Please also explain whether the State party plansany legislative amendments to the Law on Refugees regarding the definition of refugee by extending it to persons unable to return to their country of origin due to danger of being subjected to torture or serious threat to their life, liberty or security as a result of an ongoing armed conflict or serious public disorder.Please indicate whether the State party plans to accedeto the Convention relating to the Status of Stateless Persons and Convention on the Reduction of Statelessness.
10.Please provide information aboutexisting mechanisms or protocols for the identification and immediate referral of persons in vulnerable circumstances seeking asylum, including victims of torture or ill-treatment, gender-based violence or trafficking, and to ensure that their specific needs are taken into consideration and addressed in a timely manner, including by providing access to medical and psychosocial services. Please indicate any measures plannedto establish an effective referral mechanism between the border guards service and competent migration authorities at all border points, including international airports and transit zones, to guarantee that the principle of non-refoulement is upheld. Please indicate whetherany steps are plannedto exempt asylum-seekers and refugees from administrative and criminal liability in cases of illegal border crossings using forged documents. Please indicate whether complementary protection status for persons who are not formally recognized as refugees have been introduced.
11.Please provide detailed statistical information relating to the period under review on the number of applications for asylum, broken down by sex, country of origin or nationality and age group (minor/adult); the number of applications for asylum that were accepted (if any), including the number of applications accepted because the applicant had been tortured or ran the risk of being tortured if he or she was returned; and the number of persons who were deported, extradited or expelled (including the reasons given and a list of countries to which individuals were returned), including the number of appeals against those decisions.
12.Please indicate the number of returns, extraditions and expulsions carried out by the State party during the reporting period on the basis of diplomatic assurances or the equivalent thereof. Please indicate also the minimum content of any such assurances or guarantees and the measures taken in such causes with regard to subsequent monitoring.
Articles 5 to 9
13.With regard to paragraphs 49 to 55 of the State party’s periodic report, please provide information aboutany new legislation or measures adopted to fully implement article 5 of the Convention. Please inform the Committee of any extradition treaties concluded with other States parties, and indicate whether the offences referred to in article 4 of the Convention are included as extraditable offences in such treaties. Please indicate themeasures have been takenby the State party to comply with its obligation to extradite or prosecute (aut dedere aut judicare). Please clarify thetreaties or agreements on mutual legal and judicial assistance that the State party has entered into, and whether such treaties or agreements have led in practice to the transfer of any evidence in connection with prosecutions concerning torture or ill-treatment. Please provide examples.
14.Please provide additional informationabouttraining programmes delivered during the reporting period, indicating whether they weremandatory or optional, how often they weregiven and how many officials had already completed them in relation to the total number of such officials, in particular on the following:
(a) The provisions of the Convention and the absolute prohibition of torture, as well as rules, instructions and methods of interrogation, including non-coercive investigation techniques, for law enforcement personnel, security and prison personnel, judges, medical personnel, immigration and border control officers, and other persons involved inthe custody, interrogation or the treatment of detainees;
(b) The principle of non-refoulement and the practices that make it possible to identify asylum seekers who may be victims of torture, gender-based violence or trafficking in persons, for immigration and border control officers and other public officials;
(c) The Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, for law enforcement personnel;
(d)Detecting and documenting the physical and psychological sequelae of torture for all relevant personnel, in particular medical professionals, judges, prosecutors, including so-called “special prosecutors”, staff members of the Human Rights Commissioner’s office, members of the national preventive mechanism and other public officials working with persons deprived of their liberty to enable them to improve the quality of investigations or monitoring activities, properly classify acts of torture and avoid revictimization during investigations;please indicate whether all programmes contain specific training with regard to the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol).
(e)The development and implementation of a regular assessment of the effectiveness and impact of such training and educational programmes on the reduction of cases of torture and ill-treatment;please provide information aboutthe methodology used to assess the effectiveness of those programmes in reducing cases of torture and ill-treatment.
15.In addition to the steps taken to improve the rules concerning interrogations reported by the State party, please describe any other procedure in place for ensuring compliance with article 11 of the Convention and provide information aboutany interrogation rules, instructions, methods and practices or arrangements for custody, in particular those that may have been introduced or updated since the State party’s previousperiodic review. Please indicate the frequency with which they are reviewed.
16.With reference paragraphs 87 to 89 of the State party’s periodic report, please provide further information aboutthe steps taken to improve material conditions in all places of detention and during transfers by ensuring that cells have sufficient daylight, ventilation and heating in winter, that detainees have access to proper sanitary facilities, and that facilities are suitedto the specific needs of persons with disabilities.Please inform the Committee about measures that have been taken to improve the conditions and regime of detention for juveniles and women, including mothers with children. Please provide information aboutthe steps taken to provide employment, vocational and recreational activities. Explain further efforts made to prevent and combat inter-prisoner violence, and provide data on investigations into and accountability for such incidents. Lastly, indicate the steps taken to ensure the voluntary participation of individuals with drug-use disorders in treatment programmes, with their informed consent.
17.In the light of the measures taken to reduce overcrowding in the prison system, please provide updated statistical data – if possible, for the most recent five-year period, broken down by place of detention and gender, age group (minor/adult), ethnicity and nationality of the detained person – on the capacity and occupancy rate of all places of detention (prisons, temporary detention isolationfacilities (IVSs) and remand centres (SIZOs)), specifying the number of persons in pretrial detention and those serving sentences. Please also assess the impact of initiatives to promote the use of alternatives to pretrial detention and imprisonment. Please provide information about the impact of Amnesty Law No. 81-VII KRZ of 2021, and indicate the criteria used to authorize release, conditions of release, the procedure followed, and the number of amnesties granted, disaggregated by the type of offence and sex and gender of the offender.
18.Please explain any measures adopted to review the rules governing the terms of disciplinary punishment for prisoners to ensure that they are proportional and imposed only where strictly necessary, including for juveniles. Explain whether prisoners are able to challenge these sanctions before an independent body, and provide details. Please provide data on the use of solitary confinement during the period under review, including its duration and frequency, in particular that imposed on persons charged with terrorism and extremism offences. Please indicate whether this prison regime is subject to any oversight mechanism or external supervision. Explain any steps taken to promote the reintegration and rehabilitation of prisoners.
19.Please describeany measures that have been takento ensure that persons in detention, including in prisons and remand centres (SIZOs),receive adequate and timely medical care and medication and that their injuries and health complaints are properly recorded by independent medical personnel. Indicate the steps taken to ensure that detention facilities are adequately staffed with medical personnel and have necessary medical equipment to performmedical examinations of detainees and to provideappropriate treatment. Please explain whether there is a mechanism for ensuring that doctors in contact with persons in detention can, in confidence and without fear of reprisals, report evidence of torture or ill-treatment, or make allegations thereof, to an independent investigating authority. Taking into account Presidential decree of 1 July 2022, please provide an update on the steps planned to transfer the responsibility for health care in the penitentiary system from the Ministry of Internal Affairs to the Ministry of Health, and specify whetherthe transfer concerns all types of health care of persons deprived of liberty. In addition, explain how the State party monitors the exercise of professional duties bymedical staff in prisons.
20.Please provide statistical data regarding deaths in custody during the period under consideration, including in mental health institutions, police custody and the detention centre of the National Security Committee, disaggregated by place of detention, sex, age, ethnic origin or nationality, and cause of death. Please provide information on the manner in which those deaths were investigated, the results of the investigations and the measures taken to prevent similar cases in the future.
21.Please explain any measures that have been takento bring the conditions of children placed in orphanages for children with physical, intellectual and psychosocial disabilities in line with the Convention. Please inform the Committee about the investigations opened into the reported death of four children during the coronavirus disease (COVID-19) pandemic lockdown, as well as into allegations of ill-treatment of children in State residential institutions for children with disabilities and about any measures plannedto move these children to family-based care.
Articles 12 and 13
22.Please describeany steps that have been taken to investigate promptly and thoroughly acts of torture or ill-treatment in places of deprivation of liberty,including measures adopted to address allegations of ill-treatment in custody, including “welcome” beatings. Furthermore, explain how the State party guarantees the confidentiality, independence and effectiveness of the system for submitting complaints of torture and ill-treatment in cases where victims are deprived of their liberty, beyond the installation of collection boxes in the facilities. Indicate whether there is a protocol to protect victims of torture and ill-treatment, members of their families, witnesses and investigators or doctors who examine them from all forms of intimidation or reprisals prompted by the submission of complaints, including charges for the crime of false reporting or for interaction with the national or international monitors.
23.In addition to the statistical data provided by the State party, please providedata collected since 2018, recorded in the unified register, and provide an update onprogress in investigations into the allegations of torture reported to the Prosecutor General’s Office,and their outcome. Please disaggregateall data by year and sex, age group (minor/adult) of the victim and agency or department of which the accused person is a member. Please indicate the number of cases investigated and prosecuted under article 146 of the Criminal Code (crime of torture), and the number of cases opened for other criminal offences, such as abuse of power and authority, and indicate the national authority that carried out those investigations. Furthermore, explain thereportedly low number of cases concerning torture reaching the court (allegedly around 2 per cent) vis-à-vis thehigh number of complaints registered by the Prosecutor General’s Office. Please clarify whether all complaints of torture and ill-treatment are referred to the special prosecutors set up under the Prosecutor General’s Office and whether they have a duty to investigate all allegations ex officio (article 193 (1), paragraph 12-1 of the Code of Criminal Procedure). Also, provide examples of complaints of torture and ill-treatment that were referred to internal affairs authorities or the anti-corruption service for further investigation (article 187 (4) of the Code of Criminal Procedure) and their outcome.
24.Please provide information about any independent investigations undertaken into allegationsof excessive use of force, resulting in death, arbitrary arrests ordetention, torture orill-treatment of protesters, including minors, human rights defenders, journalists and political activists in the context of the demonstrations held in January 2022 andin the context of counter-terrorism operations. Please provide information on the number of investigations carried out into reports of such acts by police and security forces, and the outcome of those investigations. Please provide an update on the cases of eight suspected national security officers and one police officer with regard to the aforesaid accounts received in relation tothe January 2022 protests, and indicate how many people(if any) have been suspended from their official duties in connection with above-mentioned allegations pending investigation, on which charges, and how many disciplinary investigations have been launched. Indicate whether any individuals have been convicted and, if so, specify under which article(s) of the Criminal Code or other legislation.In addition, please provide information about any cases dismissed, and on which grounds. Please inform the Committee also about any measures taken to ensure the safety and security of victims of torture and to avoid re-traumatization, including during investigation and legal proceedings, and about redress afforded to the victims, including compensation and as full rehabilitation as possible. Furthermore, please clarify which measures have been taken to guarantee that the draft law on the one-time amnesty relating to the January 2022 events, which is pending approval, is in line with the international standards. Please provide further details about the results of independent investigations and redress afforded to victims and their families following the deaths and allegations of torture made in the context of the protests in Zhanaozen in 2011,in accordance with the Committee’s previous recommendations (para. 11).
25.With reference to paragraphs 101 to 107 of the State party’s periodic report about article 923 of the Civil Code, under which harm attributable to illegal acts by government agencies is fully compensated by the State, and about the law adopted on 10 January 2018 providing for the establishment of a fund to compensate victims in specific circumstances, please provide information about the compensation,if any,afforded to the victims of torture and ill-treatment from the fund since its establishment. Please also provide information aboutany ongoing reparation programmes, including treatment of trauma and other forms of rehabilitation provided to victims of torture and ill-treatment, and the material, human and budgetary resources allocated for their effective functioning. Furthermore, please provide updated information on the work and outcome of the working group established to develop a legal mechanism for implementing treaty body recommendations on individual communications and inform the Committee about the implementation of its decisions,and about measures taken to guarantee the right of victims to obtain adequate and appropriate redress, including compensation and as full rehabilitation as possible.
26.With regard to paragraphs 109 to 112 of the State party’s periodic report, please provide information on the measures taken to ensure respect in practice for the principle of inadmissibility of evidence obtained through torture, ill-treatment or duress. Please provide information for the reporting period on the number of cases in which accused persons (or their lawyers) claimed that their (or their clients’) statements had beenobtained under torture,the number of cases in which courts have declared evidence inadmissible on the grounds that it was obtained through torture or ill-treatment, and the number of cases in which law enforcement officers involved in such illegal interrogation techniques were investigated and prosecuted.
27.With reference to the Committee’s previous concluding observations (para. 19), please provide information on legal and other measures takento put an end to institutionalization and detention on the basis of impairment, and to ensure effective legal safeguards, supervision and periodic monitoring by judicial organs of placement in psychiatric hospitals and institutions for persons with intellectual and psychosocial disabilities, and that all health-care interventions and treatments are provided on the basis of free and informed consent.Please indicate any steps taken to investigate incidences of forced medical intervention in the context of sexual and reproductive health and rights, notably of women with disabilities, in particular those living in institutions, and their outcome.
28. Please describe measures taken to protect human rights defenders, lawyers and journalists from harassment, surveillance, intimidation, threats and arbitrary arrest and detention in connection with their human rights work and activities, including those working on terrorism and extremism cases, defending political opponents, protecting the rights of persons deprived of liberty or promoting the rights of women and combating discrimination based on sexual or gender identity. Please indicate whether reports of such harassment are promptly, impartially and thoroughly investigated, prosecuted and punished, including the number of investigations carried out during the period under review.
29.Please provide updated information on the measures taken by the State party to respond to threats of terrorism. Please describe whether those measures have affected human rights safeguards in law and in practice and, if so, how so. Please describe also how the State party has ensured that those measures are compatible with all its obligations under international law, in particularthe Convention. Moreover, please explain any measures that have been takento ensure the principle of the equality of arms in judicial proceedings, in particular in weighing counter-evidence presented bya defendant aided byprivate experts vis-à-vis the evidence provided byjudicial experts who have undergone training at the national Centre of Judicial Expertise and who have access to confidential information that other experts cannot see.Furthermore, please indicate whether any steps have been taken by the State party to implementthe recommendations made bythe Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism following her visit in May 2019, in particular concerning the overly broad and ambiguously worded legislation regulating offences of terrorism. Please indicate thetraining that isgiven to law enforcement officers in this area; the number of persons who have been convicted under legislation adopted to combat terrorism; the legal remedies and safeguards available in law and in practice to persons subjected to antiterrorism measures; and whether there have been complaints of the non-observance of national and international standards in applying measures to combat terrorism and, if so, what the outcome was.
30.As the prohibition of torture is absolute and non-derogable, including in the context of measures related to states of emergency and other exceptional circumstances, please provide information on the measures taken by the State party during the COVID-19 pandemic to ensure that the State party’s policies and actions were compatible with its obligations under the Convention. In addition, please describe the measures that have been taken in relation to persons deprived of their liberty, including in places of confinement, such as homes for older persons, hospitals or institutions for persons with intellectual or psychosocial disabilities.