Human Rights Committee

Replies to the list of issues (CCPR/C/KAZ/Q/1) to be taken up in connection with the consideration of the initial periodic report of the Republic of Kazakhstan (CCPR/C/KAZ/1)

International Covenant on Civil and Political R ights

Distr.: General 4 November 2010 English Original: Russian

[4 November 2010]

Constitutional and legal framework within which the Covenant is implemented (art. 2)

Reply to questions raised in paragraph 1 of the list of issues (CCPR/C/KAZ/Q/1)

1.According to article 4, paragraph 3, of the Constitution, all international treaties ratified by the State take precedence over domestic law and are directly applicable except where international instruments require the promulgation of a law.

2.Under article 4, paragraph 2, of the Constitution and article 4, paragraph 1, of the Act on Legislation, the Constitution has supreme legal force and is directly applicable throughout the territory of Kazakhstan. Article 4 establishes the hierarchy of legal instruments, with international treaties ratified by the State taking precedence over domestic law; however, the Constitution takes precedence over the international treaties, that is, treaties ratified are in accordance with the provisions of the Constitution. To ensure implementation of article 4 of the Constitution and to promote full compliance with ratified treaty standards in judicial practice, the Supreme Court has adopted a regulatory decision on the application of international treaties to which Kazakhstan is a party, which requires judges to be guided by the standards of such treaties, those standards being an integral part of current law in the country.

3.Paragraph 1 of Constitutional Council Decision No. 18/2 of 11 October 2000 provides clarification that article 4, paragraph 3, of the Constitution should be understood as follows: international treaties concluded in accordance with the Constitution, in line with the procedure prescribed in law and ratified by Parliament by the adoption of a law, have higher legal force.

4.Under operative paragraph 2 of the Decision, international treaties that do not require ratification as a condition of their entry into force and that were concluded before the adoption of the Constitution in 1995 are valid and retain their precedence over domestic legislation if such precedence is expressly provided for in laws governing the relevant areas of legal relations.

5.Operative paragraph 3 of Constitutional Council Decision No. 2 of 18 May 2006 provides clarification that international treaties that have not been ratified by Kazakhstan do not have precedence over domestic law and must be implemented to the extent that they are not in contradiction with domestic legislation.

6.To date, Kazakhstan has signed over 2,500 bilateral, regional and universal, multilateral, international treaties at inter-State, intergovernmental and interdepartmental levels. However, a certain proportion of these were signed before the adoption by referendum on 30 August 1995 of the new Constitution, which entered into force on 5 September 1995. Some of the international treaties came into force on the day of signature or in other ways, where directly provided for in the treaty.

7.As a solution to that situation and to correct the increasing disparities between the 1969 Vienna Convention on the Law of Treaties and the binding principles of international law, on the one hand, and current legislation in Kazakhstan, on the other, the Ministry of Foreign Affairs has proposed amending the Constitutional Council Decisions of 2000 and 2006.

Reply to questions raised in paragraph 2 of the list of issues

8.To ensure implementation of article 4 of the Constitution and to promote full compliance with ratified treaty standards in judicial practice, on 10 July 2008, the Supreme Court adopted a regulatory decision on the application of international treaty standards, which requires judges to be guided by the standards of international treaties to which Kazakhstan is a party, those standards being an integral part of current law in the country.

Reply to questions raised in paragraph 3 of the list of issues

9.The institution of Ombudsman was created in 2002 with wide-ranging powers, as one element in the institutional system to protect human rights and freedoms. The Government is currently studying the institutional strengthening of the Ombudsman, with the suggestion that the Commissioner for Human Rights should be included in the national preventive mechanism system. This will give both the national preventive mechanism and the Commissioner for Human Rights additional functions and a guarantee of independence, and will also strengthen the position of both institutions in line with the Principles relating to the Status of National Institutions for the promotion and protection of human rights (the Paris Principles), which established the general criteria for the independence and effective operation of the national human rights institution. A bill on the model national preventive mechanism, entitled Ombudsman +, is currently being drafted and agreed on with the State agencies.

Counter-terrorism measures and respect of Covenant guarantees

Reply to questions raised in paragraph 4 of the list of issues

10.Legislation adopted to combat terrorism includes the Counter-Terrorism Act, an act amending and supplementing some antiterrorism legislation, and an act preventing the legalization (laundering) of illegal income and the financing of terrorism (the latter act defines the legal basis for such prevention and the legal relations between the financial monitoring agencies and other State agencies therein). The act amending and supplementing some antiterrorism legislation makes the internal affairs agencies responsible for the detection, prevention, suppression and investigation of terrorist crimes, and for participating in, and ensuring the legal conduct of, antiterrorist operations. Kazakhstan’s legislation describes terrorism as one of the most dangerous crimes against public order. Its criminal law defines an act of terrorism as “violence to life or another form of violence against representatives of the State or society committed with political motives”. A perpetrator of terrorism may be any person of sound mind who is a citizen of Kazakhstan, a foreigner or a stateless person aged at least 14 years. The latter provision is of exceptional importance because many adolescents who, because of their age, fall under the influence of adults, take part in ethnic and religious terrorism.

11.The corpus delicti of terrorism is its specific aims (attacking public order, terrorizing the population, influencing the authorities in their decision-making); accordingly, the mens rea of an act of terrorism can only be that it was committed with specific intent: the guilty party is aware of the danger to society of his or her actions, foresees the possibility or inevitability of socially dangerous consequences of those actions, and intends them to occur for his or her objectives to be achieved.

12.Emotions, that is, the feelings of the individual when preparing and then committing the crime, are particularly important in the mens rea of terrorism. Most frequently, terrorist acts are committed when emotions dominate reason and lead to socially dangerous manifestations of intolerance, extremism, or political, ethnic or religious fanaticism. This is clear from the terrorist acts committed by suicide bombers. Such crimes are aimed specifically against public order, while the direct targets of the violence may be the life and health of citizens, property, or the normal functioning of the authorities. Terrorism, that is, causing an explosion, committing arson or other actions that endanger the lives of individuals, cause significant loss of property or have other socially dangerous consequences, if such acts are committed with the aim of attacking public order, terrorizing, committing violence or influencing decision-making by the authorities, or where there is the threat of such acts being committed with the same aims, is punishable by deprivation of liberty for a period of between 4 and 10 years. Such acts committed repeatedly, or with the use of firearms, are punishable by deprivation of liberty for a period of 7 to 12 years. Acts covered under either paragraph 1 or paragraph 2 of this article, if they are committed by an organized group or lead, by negligence, to the death of a person or other serious consequences, or are connected with violence against facilities where nuclear material, radioactive substances or radioactive sources are used, are punishable by deprivation of liberty for a period of between 10 and 15 years.

13.The actus reus of terrorism is the causing of an explosion, commission of arson or other acts that endanger the lives of individuals, cause significant loss of property or have other socially dangerous consequences, or the threat of committing such acts. Although “other acts” implies active behaviour, an act of terrorism may also be committed through inaction. The specifically social danger of terrorism is that the act leads to mass killings of people, and so it cannot be accepted that the severity of punishment for the most widespread and dangerous forms of terrorism should be equivalent only to that for aggravated homicide. The main principles of counter-terrorism include legal order, priority on prevention, impossibility of impunity, priority on protecting the rights of individuals exposed to danger as a result of terrorist acts, minimum concessions to the terrorist, and unity of command of the forces and resources engaged in counter-terrorist operations.

14.The act amending and supplementing antiterrorism legislation was adopted on 8 April 2010. It introduced amendments and additions to the Counter-Terrorism Act, and enshrined the State’s obligation to compensate citizens for material loss caused during antiterrorist operations as an additional measure to protect citizens’ rights in fighting terrorism. Kazakhstan is a party to the following international treaties related to counter-terrorism:

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, 10 March 1988; accession in 2003)

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Rome, 10 March 1988; accession in 2003)

Convention on the Physical Protection of Nuclear Material (Vienna, New York, 3 March 1980; accession in 2004)

Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, adopted in Montreal on 23 September 1971 (Montreal, 24 February 1988; accession in 1994)

Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague, 16 December 1970; accession in 1994)

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 23 September 1971; accession in 1994)

Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 14 September 1963; accession in 1994)

Convention on the Marking of Plastic Explosives for the Purpose of Detection (Montreal, 1 March 1991; accession in 1994)

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (New York, 12 January 1998; accession in 1996)

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of 1973 (accession in 1996)

International Convention against the Taking of Hostages (New York, 17 December 1979; accession in 1996)

International Convention for the Suppression of the Financing of Terrorism (New York, 10 January 2000; accession in 2002)

International Convention for the Suppression of Terrorist Bombings (New York, 12 January 1998; accession in 2002)

International Convention for the Suppression of Acts of Nuclear Terrorism (New York, 14 September 2005; accession in 2005)

Non-discrimination, equality between men and women (arts. 2, para. 1, 3 and 26)

Reply to questions raised in paragraph 5 of the list of issues

15.In Kazakhstan, all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

16.Article 14 of the Constitution affirms that no one may be subjected to any discrimination on grounds of origin, social status, profession, personal assets, sex, race, ethnicity, language, religious beliefs, opinions, place of residence or any other circumstances. This constitutional principle is implemented in civil and criminal law.

17.Article 13 of the Code of Civil Procedure affirms that all persons are equal before the law and the courts. Court proceedings may be conducted in the State language as well as other languages, as stated in article 14. The Code of Criminal Procedure also bans any discrimination on grounds of origin, social status, profession, personal assets, sex, race, ethnicity, language, religious beliefs, opinions, place of residence or any other circumstances in court proceedings. Article 141 of the Criminal Code establishes criminal liability for direct or indirect restrictions of rights and freedoms on the above-mentioned grounds, including with the use of one’s position as an official or as head of a voluntary organization. The Government and women’s NGOs also pay particular attention to the development of gender policy, in which combating gender discrimination has become a priority in Kazakhstan. The legal framework and other necessary conditions have been established for the realization of the equal rights and equal opportunities for men and women proclaimed in the Constitution and international legal instruments to which Kazakhstan is a party, guaranteeing equal participation by men and women in all areas of society.

18.The National Commission for Women’s Affairs and Family and Demographic Policy has been set up under the Office of the President. One of the main priorities of the Gender Equality Strategy for 2006–2016, developed on the instruction of the Head of State, is to promote women’s participation in social and political life. The aim of the Strategy is to ensure the realization of equal rights and equal opportunities for women and men, as well as their equal participation in all areas of life and public activity. Amendments and additions have been made to the Code of Criminal Procedure and the Code of Administrative Offences. Specifically, articles have been added to the latter to make it an offence to publish information on the private life of a victim of domestic violence. Amendments are to be made to give police the power to detain and hold criminals accused of domestic violence in administrative detention. The Domestic Violence Prevention Act was passed on 4 December 2009 specifically to promote the prevention of crimes and offences in family and domestic relations. It also establishes the procedure for the work of State agencies in combating domestic violence, the rights and responsibilities of individuals subject to preventive monitoring, and liability for violating preventive monitoring regulations. Kazakhstan has ratified a series of international treaties and conventions on the situation of women, specifically: the Convention on the Elimination of All Forms of Discrimination against Women, and its Optional Protocol, the Convention on the Political Rights of Women, and the Convention on the Nationality of Married Women. A legal policy framework for the period 2010–2020 has been developed and approved, as has the National Plan of Action on Human Rights for 2009–2012, which offers a systematic programme for promoting human rights in the country.

19.A series of important human rights laws have been introduced: the Refugee Act, the Domestic Violence Prevention Act, the Act on State Guarantees of Equal Rights and Opportunities for Men and Women, the Act Amending and Supplementing Legislation Ensuring Qualified Legal Assistance, and others. The Act on State Guarantees of Equal Rights and Opportunities for Men and Women of 8 December 2009 governs social relations in that area and sets the guiding principles and standards for creating the conditions for gender equality in all areas of State and social life.

20.Violations of the Act are offences under the law. The Act also introduces compulsory gender-based evaluation of school textbooks and scholastic materials. The Act as adopted corresponds with the basic provisions of the Convention on the Elimination of All Forms of Discrimination against Women. Relevant amendments are to be introduced into sectoral legislation to ensure implementation of the national gender policy in specific sectors. Representatives of civil society and international organizations will be involved in drafting the amendments.

Reply to questions raised in paragraph 6 of the list of issues

21.The National Commission for Family and Women’s Affairs (now the National Commission for Women’s Affairs and Family and Demographic Policy) has been set up under the Office of the President. The Gender Equality Strategy, 2006–2012, was developed and introduced on the instruction of the Head of State. Its aim is to ensure the realization of equal rights and equal opportunities for women and men, as well as their equal participation in all areas of life and public activity. Under the Strategy, measures will be taken in all areas of social life towards implementing the strategic tasks involved in ensuring gender equality and preventing gender discrimination.

22.In the framework of the Strategy, the Act on State Guarantees of Equal Rights and Opportunities for Men and Women was adopted on 8 December 2009. It governs social relations in that area and sets the guiding principles and standards for establishing the conditions for gender equality in all areas of State and social life. For example, under the Act, legislation aimed at restricting or reducing equal rights and opportunities of men and women can be challenged in court, as specified in legislation on civil procedure. The Act also introduces a compulsory gender-based evaluation of school textbooks and scholastic materials.

23.The main principle of Kazakhstan’s education policy is the equal right for all, irrespective of sex, race or religious belief to receive primary and secondary education. Under article 30 of the Constitution, secondary, as well as primary, education is free and compulsory. All citizens, both men and women, have completed the full cycle of primary education. In 2009, Kazakhstan joined the list of countries with a high level of human development. Every citizen has the right to higher education. Higher education is provided free of charge on a competitive basis in State institutes of higher education.

24.In the 2009/10 academic year, 355,528, or 58.2 per cent, of the 610,264 students in institutes of higher education were women. In general, there are equal conditions for students of all categories in secondary and higher education, and it should be noted that women form the majority of both students and staff. Gender awareness is taught in different ways throughout the education system. A comprehensive gender programme has been developed for school and preschool levels. The State General Education Standard for the 12-year school cycle includes a gender component. Gender education courses have been developed: on language and gender for master’s students in institutes of education, and on traditional family education.

25.The Scientific Research Institute for Social and Gender Research of the Kazakh State Women’s University for Teacher Training and the Al-Farabi Kazakh National University’s Gender Education Centre have developed scientific approaches to implementing gender policy. In 2008, in the framework of the State information policy, approximately $150,000 was allocated to the electronic media and more than $310,000 to print publications for developing and strengthening gender equality and helping to overcome negative stereotypes in respect of women’s and men’s rights in society. Thirteen media outlets were involved. Additionally, approximately 11,000 articles were published and more than 1,000 brochures and pamphlets issued through the National Commission for Women’s Affairs and Family and Demographic Policy under the Office of the President.

26.In terms of positions of responsibility, there are 21 elected women Members of Parliament, or 14 per cent of the total. The proportion of women in positions of responsibility is 10.3 per cent. The Gender Equality Strategy sets the goal of 30 per cent female representation, in accordance with the requirements of the Beijing Platform for Action on improving the position of women. Comprehensive efforts are thus being put into:

Promoting women to various positions of responsibility

Including guidelines on the inadmissibility of gender discrimination in the job descriptions of civil servants

Training and preparing women politicians (there is a national network of women’s leadership schools with 69 NGOs representing all the regions; the Astana Women Politicians’ Club has been set up, and others are to be established in the regions during the year)

Exchanging experience and building up collaboration with NGOs working in the area of the rights and interests of families, women, children and men (for example, the Tomiris project (2007–2009) studied and made use of good practice in gender policy from Sweden)

27.Targeted work is going on with the political parties to draw up gender-balanced party lists, promoting women and men to positions of leadership and into electoral bodies. The Ministry of Justice has drawn up guidelines for a gender evaluation of legislation, which is recommended for use by State agencies at all levels.

States of emergency (art. 4)

Reply to questions raised in paragraph 7 of the list of issues

28.The State of Emergency Act of 8 February 2003 establishes limits for measures and temporary restrictions that may be adopted in the case of a state of emergency. Measures taken at such a time, restrictions on the rights and freedoms of physical persons and the rights of legal entities, and additional responsibilities that may be assigned, must be implemented within the limits dictated by the circumstances that formed the basis for the state of emergency being imposed. Measures and restrictions adopted during a state of emergency may not contravene the international human rights treaties to which Kazakhstan is a party. This Act has not been applied in practice.

Right to life (art. 6)

Reply to questions raised in paragraph 8 of the list of issues

29.Kazakhstan, in conformity with the universally recognized principles and standards of international law, is pursuing a policy of phased abolition of the death penalty. For example, on 21 May 2007, amendments and additions were made to article 15, paragraph 2, of the Constitution, those changes serving as the basis for the adoption of the 10 July 2009 act amending and supplementing certain legislative acts relating to the death penalty, which brought the provisions of the Criminal Code and Code of Criminal Procedure into line with those of the Constitution. At present, the Criminal Code establishes the death penalty as applicable only to terrorism-related offences resulting in human death or particularly serious offences committed in time of war. Since 1994, Kazakhstan, in keeping with widely accepted international trends, has been pursuing a policy of phased abolition of capital punishment. In 1997, under the new Criminal Code, the number of offences punishable by the death penalty was halved. On 19 December 2003, the President declared an indefinite moratorium on the death penalty until such time as a decision was taken with regard to its full abolition. The latest amendments to article 15 of the Constitution significantly limit the types of offence for which the death penalty may be imposed, that penalty now being applicable only to terrorist offences resulting in human death or particularly serious offences committed in time of war, the sentenced person being granted the right to seek pardon. The moratorium on the death penalty remains in force. As at December 2007, the moratorium applied to 31 persons who had been sentenced to death. By presidential decree of 6 December 2007, those persons were pardoned and the death sentence was commuted to life imprisonment. There are currently no persons sentenced to death in Kazakhstan. The penalty of life imprisonment has been applied as an alternative to capital punishment since 1 January 2004. At present, only 71 persons are serving life sentences (the sentences of 31 of whom were commuted from death). Of the 71 persons sentenced to life imprisonment, 69 are held at special-regime colony No. 161/3 in Zhitikara, Kostanay province, and two in the Arkalyk prison. The death penalty was last carried out was in 2003, when 12 persons were executed, before the presidential decree declaring the moratorium on the death penalty was adopted. The death sentence was last handed down in 2005, when two persons (from Kostanay and Karaganda, respectively) were sentenced to death, but those penalties were not carried out because the moratorium had been declared.

30.In keeping with its chosen approach, Kazakhstan aligned itself with the statement made by the European Union on the abolition of the death penalty on 19 December 2006 at the sixty-first session of the General Assembly. It should be noted that the National Plan of Action on Human Rights for 2009–2012, which was approved by the Head of State, contains a recommendation that the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, be ratified. Work towards the phased abolition of the death penalty continues.

Reply to questions raised in paragraph 9 of the list of issues

31.According to statistical data for 2009, 8,350 pregnancies were registered during that year among teenage girls aged 15–18. Of that total, 4,354 (1.2 per cent*) were taken to full term and 3,996 (2 per cent) were terminated by abortion, including 2 by illegal abortion. Issues relating to the improvement and strengthening of the health of teenagers and young persons are regulated by Decree No. 491 of 19 October 2006 of the Minister of Health on the introduction of youth-friendly services. The Ministry of Health is currently conducting work relating to the implementation of the Special Social Services Act. A standard for the provision of special social services in the area of health care and a standard for the provision of services to individuals or families in difficult life situations have been adopted.

Prohibition of torture and cruel, inhuman or degrading treatment or punishment (art. 7)

Reply to questions raised in paragraph 10 of the list of issues

32.Torture is categorized as a serious offence; there is therefore no need to amend legislation with regard to the definition of the seriousness of the offence. Work to bring the definition of torture as set out in article 347-1 into line with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in progress. A bill amending and supplementing certain legislative acts relating to the continued humanization of criminal law and the strengthening of guarantees of due process in criminal proceedings was submitted to the Majilis (lower house) of Parliament for consideration on 30 December 2010 and is intended to supplement article 347-1 of the Criminal Code in order to bring the definition of torture into line with article 1 of the Convention. As regards the statement that the penalty for torture is lenient, the maximum penalty established in article 347-1 (10 years’ deprivation of liberty) corresponds to the seriousness of the offence committed. A plan of action to implement the recommendations of the Committee against Torture was adopted by Decision No. 1277 of the Government of the Republic of Kazakhstan on 26 December 2008.

Reply to questions raised in paragraph 11 of the list of issues

33.The bill amending and supplementing certain legislative acts relating to the continued humanization of criminal law and the strengthening of guarantees of due process in criminal proceedings introduces amendments and additions to article 192 (on investigative jurisdiction) of the Code of Criminal Procedure, which provides for the preliminary investigation of criminal cases involving offences covered by article 347-1 of the Criminal Code by investigators of the financial police or internal affairs agencies, except where the persons investigated are also employees of those agencies. This precludes the possibility of officials’ protecting one another from investigation during inquiries into such cases. The bill also provides for the harmonization of article 347-1 (on torture) of the Criminal Code with article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Statistical information provided by the Committee on Legal Statistics and Special Records on offences under article 347-1 (on torture) of the Criminal Code registered in 2008, 2009 and the first nine months of 2010

Period	Number of criminal cases
2008	1
2009	3
First nine months of 2009	3
First nine months of 2010	6

Statistical information provided by the Committee on Legal Statistics and Special Records on the number of decisions adopted under article 185, paragraph 1, of the Code of Criminal Procedure in response to claims filed under article 347-1 (on torture) of the Criminal Code in 2008, 2009, the first nine months of 2009 and the first nine months of 2010

	Number of decisions adopted under article 185, paragraph 1, of the Code of Criminal Procedure	Ministry of Foreign Affairs	Agency for Combating Economic and Corruption-Related Crime	National Security Committee	Pr ocurator -General ’ s Office	Committee on the Penal Enforcement System
2008	8	0	0	4	4	0
2009	13	1	0	1	11	0
First nine months of 2009	11	1	0	1	9	0
First nine months of 2010	26	2	2	3	19	0

Note: This information is taken from a No. 2-3S statistical report on the consideration of complaints and reports of offences committed by the criminal prosecution agencies.

34.In order to ensure the exercise by the prosecution agencies of their oversight powers with respect to protection of constitutional human and civil rights and freedoms during criminal proceedings and the due compliance of those agencies with obligations arising from the Convention against Torture, the Procurator-General’s Office has adopted instructions for the verification of reports of torture and other unlawful methods involving the cruel treatment of persons involved in criminal proceedings and held in special institutions, and the prevention of such methods.

35.In accordance with those instructions, procurators are required to determine, at each stage of criminal proceedings, whether persons involved in those proceedings have been subjected to torture or other forms of cruel treatment. Criminal cases relating to incidents of torture are investigated by special procurators. At present, special procurators are investigating criminal cases in connection with the use of torture against convicted persons at correctional colonies in the Almaty and Akmola provinces.

36.In order to ensure the effectiveness and objectivity of verification of complaints of torture and other unlawful methods of initial inquiry and investigation, in February 2010, a joint directive issued by the criminal prosecution agencies concerning cooperation among law enforcement agencies and civil society organizations in the verification of such complaints and the criminal prosecution of resultant cases was implemented with the participation of representatives of civil society.

37.Civil society representatives may, upon request, participate in the joint verification of incidents of use of torture. In order to ensure the timely medical examination of arrested or detained persons, conducted independently of the criminal prosecution agencies, in February 2010, the law enforcement agencies, with the approval of the Procurator-General’s Office, adopted a joint directive on ensuring the mandatory participation of forensic specialists in medical examinations of persons held in police custody, temporary detention facilities or penal institutions to determine the presence of signs of bodily injury. Medical examinations to determine the presence of signs of bodily injury are henceforth to be carried out by independent specialists of the forensic medicine centres of the Ministry of Health.

38.With regard to compensation for moral or material damage caused to victims of torture, article 922 of the Civil Code establishes that damage caused to a citizen or legal person as the result of illegal activities carried out by a body responsible for an initial inquiry or a preliminary investigation or by a prosecution agency shall be compensated in accordance with the procedure established by law. According to article 162 of the Code of Criminal Procedure, civil claims by natural or legal persons for the compensation of material or moral harm may be pursued in a criminal court. Civil claims are brought against the accused or against persons liable for damages incurred by the actions of the accused and are considered in conjunction with the criminal case. The suggestion that article 923 of the Civil Code limits the acts and conditions giving victims the right to compensation is therefore unfounded.

39.According to the information available, there have been no incidents of unlawful treatment at the detention facilities of the Committee on the Penal Enforcement System; consequently, no criminal proceedings have been instituted against the personnel of those facilities for such acts. On 28 December 2009, the Supreme Court adopted a regulatory decision on the application of provisions of criminal and criminal procedure law relating to respect for personal freedom and the inviolability of human dignity and prevention of torture, violence and other cruel or degrading treatment or punishment. The decision provides clarification regarding issues relating to the rehabilitation of victims of torture, compensation awarded to such victims for material or moral harm and the prevention of torture through the identification by the courts of the factors and conditions giving rise to torture and the issuance of special rulings against criminal prosecution agencies; the decision also addresses questions relating to the prosecution of persons that tolerate such offences. It is important to note that there are currently no barriers to obtaining compensation. Compensation may be sought through the courts by any person who has been subjected to torture.

Reply to questions raised in paragraph 12 of the list of issues

40.Units responsible for organizing the work of the internal affairs agencies in the area of protection of women from violence are currently in operation within the Ministry of Internal Affairs, with a combined staff of 126 nationwide. During the reporting period, more than 10,000 women approached those units to report that their rights had been infringed; more than 1,000 of them were referred to crisis centres, where they were provided with legal and psychological assistance by social workers.

41.In accordance with decision No. 346 of 12 March 2001 of the Government on the organization of cooperation between State agencies, organizations and voluntary associations engaged in addressing the problems of violence against women, work relating to the prevention of violence is carried out in close cooperation with non-governmental organizations (NGOs). A total of 21 crisis centres operate in Kazakhstan, each of them working with the support of officials of the local internal affairs agencies to protect women against violence. Personnel of the units responsible for protecting women against violence send women and children who are victims of violence to the crisis centres, where those victims are provided with legal and psychological assistance. In 2010, the internal affairs agencies with the participation of NGOs carried out more than 60 activities relating to the prevention of violence against women, in addition to round tables and training events. The Administrative Police Committee of the Ministry of Internal Affairs and the Union of Crisis Centres signed a memorandum of cooperation and drew up a plan of action to prevent domestic violence.

42.Under the memorandum, work is being carried out jointly with the Union of Crisis Centres, an association of legal entities, to establish a 24-hour helpline for victims of domestic violence. Following the entry into force of the Domestic Violence Prevention Act, new effective mechanisms for action against violent or abusive family members, such as the issuing of restraining orders and the establishment of special requirements of conduct applicable to offenders, have been established. Since the Act’s entry into force, some 6,000 restraining orders have been issued against persons who have committed offences in the home. In addition, administrative penalties have been imposed on more than 23,000 offenders for offences committed in the domestic environment (article 79-5 of the Code of Administrative Offences).

43.In order to implement the Domestic Violence Prevention Act and to step up the work of the police in preventing domestic abuse, a nationwide campaign entitled “Families without violence” was carried out from 2 to 8 August 2010. The main objectives of the activity were to draw the attention of the general public and the executive and legislative branches of Government to the problems of domestic violence, to foster in society a culture of family relationships based on partnership and rejection of the use of violence in relationships and to provide psychological, educational and legal assistance to family members who have been subjected to domestic violence. More than 12,000 police officers and over 4,000 representatives of local government authorities, commissions for women’s affairs and family and demographic policy, prosecution agencies, educational, health care, labour and social welfare institutions and NGOs were involved in the campaign. As a result of the campaign, in collaboration with relevant State agencies and NGOs, more than 11,000 dysfunctional families were identified in communities and more than 3,000 cases of violence against adults and some 300 against children were discovered. On the basis of the cases identified, over 800 restraining orders were issued and administrative penalties were imposed on more than 1,500 offenders. Local executive bodies received more than 1,500 requests to provide assistance to dysfunctional families. More than 3,500 call-out visits were carried out jointly with relevant agencies in response to reported incidents of domestic abuse and more than 2,000 cases of violence against adults were discovered. In light of those cases, more than 1,000 restraining orders were issued and administrative penalties were imposed on more than 2,000 offenders.

44.During the campaign, more than 6,500 victims of domestic violence were provided with legal, psychological and medical assistance. More than 300 victims were referred to crisis centres. Police officers organized more than 3,500 presentations for businesses and organizations nationwide to explain the new legislative provisions on the prevention of domestic violence. At the initiative of the Ministry of Internal Affairs, a campaign entitled “Your right to protection” was carried out from 11 to 24 October 2010 with the participation of relevant State agencies and NGOs. The objective of the campaign was to raise public legal awareness through the mass media regarding the new legislative provision for the issuance of restraining orders, to prevent domestic abuse and to establish a relationship of trust between the police and the public. In addition, in compliance with the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, a campaign entitled “16 days without violence” is to be held in November and December 2010, again with the participation of State agencies and NGOs. In 2010, women in the various regions of Kazakhstan were surveyed using a methodology designed by the Ministry of Internal Affairs as part of a study of the extent and forms of violence in the home. A total of more than 30,000 respondents were surveyed, including women and children who had turned to women’s protection units or crisis centres for help or advice, children, parents who had lost their parental rights and persons registered with the internal affairs agencies as having a record of violent or abusive behaviour towards family members. According to the results of the survey, 24.7 per cent of respondents attributed violence to jealousy, 23.7 per cent to alcoholism, 7 per cent to disagreements, 33.8 per cent to disputes over property and 10.3 per cent to interference in family life.

45.The results obtained showed that factors contributing to domestic violence include family problems caused, inter alia, by difficult material and domestic circumstances and parental ill health. The study has made it possible to obtain information on violence not only against women but also against children, men, elderly parents and other members of the family. The results of the survey have also facilitated the development of new ways and methods of preventing and suppressing violence in the home and the formulation of recommendations regarding ways in which police and law enforcement officers can prevent such violence. The research was conducted jointly by inspectors of the internal affairs units responsible for organizing activities to protect women from violence and the Scientific Research Institute of the Academy of the Ministry of Internal Affairs.

Reply to questions raised in paragraph 13 of the list of issues

46.In accordance with the principle of non-refoulement of refugees, as enshrined in article 3 of the Convention against Torture, to which Kazakhstan acceded by its Act of 29 June 1998, and in article 33 of the Convention relating to the Status of Refugees of 28 July 1951, to which Kazakhstan acceded by its Act of 15 December 1998, the Refugee Act was signed on 4 December 2009, entering into force on 1 January 2010. Article 18 of the Act prohibits the return or expulsion of asylum-seekers and refugees to countries where their lives or freedom may be endangered on account of their race, religion, ethnicity, nationality, membership of a particular social group or political opinion.

47.According to the provisions of the aforementioned Act, only the competent State agency in this area — namely the Committee on Migration of the Ministry of Internal Affairs — is authorized to consider applications by foreign nationals and to take the decision to award an applicant the status of asylum-seeker or refugee. It should be noted that on that basis, on 6 September 2010, the Procurator-General’s Office rejected a request by the Procurator-General’s Office of Uzbekistan to extradite N.M. Nabiev, who was subsequently released from pre-extradition detention by a decision of 9 September 2010 of the procurator for the Turksib district of Almaty. In that context, article 15 of the Act stipulates that a decision by the competent agency to refuse to award refugee status may be appealed against in a court of law in accordance with the procedure established by legislation. Article 280 of the Code of Civil Procedure establishes the right of citizens to apply to a court within three months of the day on which they discover that their rights have been violated. In the event of disagreement with the decision of the court of first instance, that decision may be appealed against in a court of appeal (article 334 of the Code of Civil Procedure) or in a court of cassation (articles 383-3 and 383-4 of the Code of Civil Procedure) within 15 days of the day on which a copy of the judicial documents is served. Furthermore, legislation in force in no way impedes appeals against judicial decisions under the supervisory review procedure within one year of the date of entry of the judicial decision into force (article 388 of the Code of Civil Procedure). This procedure for appealing against decisions is explained to persons detained pending extradition proceedings. In addition to the Refugee Act, which prohibits the return of refugees to countries where they are likely to be subjected to torture, a bill amending and supplementing certain legislative acts relating to the strengthening of criminal and criminal procedure law, notably amending article 523 of the Code of Criminal Procedure, has been prepared. The proposed amendments stipulate that extradition shall not take place if information is available indicating that the person to be extradited is likely to be subjected to torture or other inhuman treatment in the State to which he or she is returned.

Reply to questions raised in paragraph 14 of the list of issues

48.In conformity with Order No. 10 of 31 March 2005 of the Procurator-General’s Office, the activities of children’s homes are monitored by the procuratorial authorities at least once every six months. As a result of such inspections, in 2008 the former director of children’s home No. 8 of East Kazakhstan province was brought to trial for cruel treatment of children and G. Kyltbaeva, a carer at the Ushtobe children’s home in Almaty province, was dismissed. In addition, in implementation of joint decree No. 6140 of the Ministry of Education and Science and the Ministry of Economic Affairs and Budget Planning on the approval of criteria for the risk assessment of establishments engaged in activities relating to the protection of the rights and interests of orphaned children and children without parental care, which was recorded in the State register of regulatory legislative acts on 26 March 2010, over the course of 2010, the Ministry of Education and Science carried out inspection visits to verify that the rights of orphaned children and children without parental care were being protected in education centres for such children in Atyrau, Mangystau, Kyzylorda, West Kazakhstan and Aktobe provinces and in the city of Almaty. Establishments in Almaty province are to be inspected from 15 to 20 November 2010.

49.Almost all cases in which the rights of children in care are violated are publicized in the mass media. However, they are not always presented objectively. Teachers working in education centres who violate or otherwise fail to abide by the rules of teaching ethics are prosecuted in accordance with national legislation. Furthermore, children cared for in children’s homes are informed about their rights and how to seek assistance if those rights are violated. It is precisely for those purposes that 211 telephone hotlines are operated by the departments for the protection of children’s rights of the Committee for the Protection of Children’s Rights in the provinces and in the cities of Almaty and Astana. There is also a national telephone hotline which operates around the clock and which children can call free of charge by dialling 150.

Right to liberty and security of person, treatment of persons deprived of their liberty and fair trial (arts. 9, 10 and 14)

Reply to questions raised in paragraph 15 of the list of issues

50.On 11 December 2009, an act amending the Criminal Code, the Code of Criminal Procedure and laws relating to the provision of qualified legal assistance was adopted with the aim of strengthening the role of lawyers in criminal proceedings and expanding the rights of injured parties to include, inter alia, the right to receive cost-free legal assistance and the right to compensation for harm caused by an offence, paid by the State.

51.The law establishes that a lawyer may participate in criminal proceedings as defence counsel provided that he or she is an accredited lawyer and has been authorized to act in that capacity. Other persons provided for in the law are permitted to participate in criminal proceedings from the time at which they present documents attesting to their right to participate in those proceedings as defence counsel. One of the key provisions of the law is the possibility for lawyers to participate in proceedings from the time at which suspects are interviewed. The effects of that provision concern not only the suspect but also the injured party and all other participants in the proceedings.

52.Court-authorized arrest was introduced on 1 August 2008. Without court authorization, a person may be detained for no more than 72 hours. A record of each such detention must be kept and the temporary detention facility must be inspected. The administrative authority of the place of detention is required to transmit to the procurator without delay any complaint of torture received.

Reply to questions raised in paragraph 16 of the list of issues

53.As at 1 October 2010, there were 75 correctional institutions in Kazakhstan, where 51,114 convicted persons were detained, 4,267 fewer than on the same date in 2009 (55,381). There was overcrowding at 10 per cent overcapacity only in ordinary-regime institutions (18,736 persons detained where the limit was 17,000). A total of 84 convicted persons were serving life sentences. A total of 7,256 suspects, accused persons and convicted persons, including 22 persons sentenced to imprisonment for a criminal offence, were being held at 19 remand centres with a combined maximum capacity of 16,230. The internal affairs agencies of Kazakhstan operate 217 short-term holding facilities, where the total number of persons detained during the first nine months of 2010 was 21,584 (26,633 in 2009). During the period under review, the State prosecution agencies carried out a total of 4,268 inspections at institutions within the penal system of the Ministry of Justice and at specialized agencies of the Ministry of the Interior, during which more than 5,000 violations of the law were discovered, including 1,406 violations of the constitutional rights of imprisoned and convicted persons. In order to address those violations, 1,746 procuratorial measures were taken. In accordance with those measures, disciplinary proceedings were brought against 1,318 officials, five criminal cases were brought in relation to 4 convicted persons and a further five were brought against 5 officials working in the penal system. The prosecution agencies took measures in response to all the violations discovered and the guilty persons were prosecuted in accordance with the law.

54.Four years ago, the Government introduced public oversight by establishing regional public oversight commissions with the participation of representatives of non-governmental human rights organizations. A total of 15 public oversight commissions operate in Kazakhstan, comprising 93 representatives of NGOs. The commissions have the right to unrestricted access to correctional institutions. Since their establishment, none of their visits to correctional institutions have been refused by the Committee on the Penal Enforcement System. It should be noted that the number of visits by public oversight commissions to penal institutions has increased, rising from 146 in 2006 to 890 in 2009.

Reply to questions raised in paragraph 17 of the list of issues

55.There are 18 centres for the temporary detention, adaptation and rehabilitation of juveniles in Kazakhstan. Street children are not confined in those centres but stay there until a decision is taken regarding their situation. Those who have relatives stay until those relatives are located and the children can be handed over to them; those without stay until they can be handed over to specialist organizations for orphaned children. The main purpose of the centres is to provide shelter and temporary care, social adaptation and rehabilitation for children between the ages of 3 and 18 until those children can be returned to their families or, if they have no relatives, handed over to the tutorship and guardianship agencies.

56.By Presidential Decree No. 1039 of 17 August 2010 on measures to increase the effectiveness of law enforcement activities and of the judicial system, the centres for the temporary detention, adaptation and rehabilitation of juveniles were transferred from the system of internal affairs agencies to the education system, in accordance with the recommendations set out in paragraph 66 (d) of the concluding observations adopted by the Committee on the Rights of the Child at its thirty-third session (CRC/C/15/Add.213).

57.A bill amending and supplementing certain legislative acts relating to enhancement of the activities of the internal affairs agencies in ensuring public security and a draft order approving regulations governing centres for the adaptation of juveniles have been prepared, providing for separate facilities for street children, neglected children, children without parental care and juvenile offenders.

58.A bill amending and supplementing certain legislative acts relating to the continued humanization of criminal law and the strengthening of guarantees of due process in criminal proceedings has been drawn up, providing for the reduction of criminal penalties and the decriminalization of offences that do not present a major threat to public security, including in the area of finance, those offences being reclassified as administrative offences and made punishable by greater administrative penalties, including through the introduction of administrative res judicata. The bill also revises the criteria for determining the seriousness of individual offences and accordingly provides for lighter penalties. It establishes that juveniles who have committed minor offences or who have committed a moderately serious offence for the first time shall not be punished by deprivation of liberty. According to the Criminal Code currently in force, juveniles who have committed a minor offence for the first time and persons between 14 and 16 years of age who have committed a moderately serious offence for the first time may not be sentenced to deprivation of liberty.

Reply to questions raised in paragraph 28 of the list of issues

59.Article 14 of the Constitution establishes that no person may be subjected to discrimination on the grounds of origin, sex, race or ethnicity. The term “illegitimate child” is not used in Kazakh legislation; rather, the term “out of wedlock” is used. The term used with reference to children with special needs is “children with developmental disabilities”. The term “lunatic” is not used. There are more than 149,000 children with disabilities in Kazakhstan. Those children receive education in 37 special kindergartens, 101 special-needs schools, 240 special groups and 1,096 special classes in general-education schools. In order to provide learning assistance and support for children up to 6 years of age, 129 rehabilitation and inclusive education offices, 123 psychological and special education centres, 15 rehabilitation centres and 345 speech therapy facilities are in operation.

60.More than 12,000 children with disabilities are taught in general-education schools and kindergartens. A total of 9,433 children receive schooling at home. Thirty-eight per cent (56,932) of school-age children with development disabilities receive special education. An intake quota of 0.5 per cent is established for children with disabilities in disabled groups 1 and 2 who apply to enter higher education institutions (colleges and universities). However, in many educational institutions there is a shortage of such students. The rights of children with disabilities are protected in accordance with the Act on Social, Medical and Educational Support for Children with Disabilities. The State provides comprehensive social, medical and educational support for children from the time they are born until they come of age. Parents and legal guardians of children with disabilities have been provided with financial assistance since 2010. Work is being carried out to introduce the latest multimedia programmes for children with disabilities who are schooled at home through distance learning. A distance-learning and homeschooling system for children with disabilities is being piloted in several regions of Kazakhstan. In homes for disabled children who do not have the possibility to study at school, where computer equipment and connection to the Internet are available, those children are taught by distance learning. These measures will make it possible, in 2011, to commence reform of the education of disabled children schooled at home. In 2010, a project to introduce inclusive education was launched in Kazakhstan. In a number of schools, classes in which disabled children study together with their non-disabled peers have already been created. A working group has been established under the Ministry of Education and Science to develop a plan of action for inclusive education.

Reply to questions raised in paragraph 18 of the list of issues

61.The Government does not have any official information supporting such allegations.

Reply to questions raised in paragraph 19 of the list of issues

62.The fight against corruption remains one of the key areas of State policy, as is borne out by the fact that Kazakhstan has ratified the United Nations Convention against Corruption. The Constitutional Act on the Judicial System and the Status of Judges establishes a comprehensive system of measures to make the competency requirements that judges are required to meet more stringent and to give judges greater responsibility for ensuring due process in the course of the administration of justice. The Act provides that any judge who is dismissed shall be stripped of all privileges and benefits of the position as are established by law. Constant attention is given to ensuring the availability of a suitably qualified pool of judges. The principles of openness, transparency and fairness are observed in selecting and appointing judges. Candidates for judges’ posts are selected by the Higher Council of the Judiciary. Candidates for inclusion in the pool are confirmed during the plenary sessions of the courts. A court panel responsible for determining the professional suitability of judges has been established. The activities of the panel make it possible to eliminate judges who are insufficiently qualified. The Institute of Justice of the Academy of Public Administration under the President is the body responsible for increasing the level of professional qualification of judges.

63.The Supreme Court and the Procurator-General’s Office constantly monitor the professional activities of judges and procurators. The bases for indicators ensuring the transparency of the activities of judges and law enforcement officers and criteria for the assessment of their professional activities are set out in the Strategic Plan for the Development of Kazakhstan for the period up to 2020.

Reply to questions raised in paragraph 20 of the list of issues

64.Article 116 of the Code of Criminal Procedure establishes that factual information may not be used as evidence if such information has been obtained by means that contravene the provisions of criminal procedure legislation and that, by infringing the rights of participants in proceedings as guaranteed by law or depriving such persons of those rights, or by violating other rules of criminal procedure during the investigation or prosecution of a case, have influenced or may influence the reliability of the factual information obtained, including the use of torture, violence, threats or deception or other illegal acts.

65.On 28 December 2009, the Supreme Court issued regulatory decision No. 7 on implementation of the provisions of criminal and criminal procedure law relating to respect for personal liberty and the inviolability of human dignity and to the prevention of torture, violence and other cruel or degrading treatment or punishment. The decision clearly defines the legal framework for criminal liability for the use of torture and abuse of authority. It also establishes that judges may not in their work make use of information declared by the accused person to have been obtained from him or her using torture or other cruel or degrading treatment. Claims filed by accused persons during proceedings to the effect that they have been subjected to torture must be registered with the court and transmitted to the police agencies, which are required to institute criminal proceedings and initiate an investigation into the torture claim.

Elimination of slavery and servitude (art. 8)

Reply to questions raised in paragraph 21 of the list of issues

66.Trafficking in human beings is an offence under the Criminal Code. The forced removal of human organs or tissue for transplantation (article 113 of the Criminal Code – deprivation of liberty for up to 10 years), kidnapping (article 125, paragraph 3 – 10 to 15 years), unlawful deprivation of liberty (article 126, paragraph 3 – 5 to 10 years), trafficking in minors (article 133 – 5 to 7 years), intentional illegal transfer across a protected border of Kazakhstan (art. 330), and the counterfeiting of documents, and preparation or sale of counterfeit documents (art. 325) are criminal offences. In the case of the unlawful departure or illegal migration of persons for the purpose of their labour or sexual exploitation, the perpetrators are also liable for human trafficking (art. 28). Article 28 of the Tourism Act has been supplemented to include a prohibition on tourist activities for the purpose of organizing the unlawful departure of Kazakh citizens for permanent residence abroad or employment abroad, or bringing into Kazakhstan foreign workers who are not covered by the corresponding quotas. Article 128 of the Criminal Code, on human trafficking, has also been amended and supplemented to make the purchase or sale of or other transactions involving individuals for the purposes of exploitation an offence. Given the international nature of transnational crime and its organized forms, the law enforcement agencies collaborate with their counterparts in the countries of the Commonwealth of Independent States (CIS) and elsewhere in preventing and combating human trafficking.

67.One important step in combating human trafficking has been Kazakhstan’s accession to a number of international agreements: the Convention on the Elimination of All Forms of Discrimination against Women, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others and the United Nations Convention against Transnational Organized Crime. A particularity of such crimes in Kazakhstan is that the country is both a source of persons taken for criminal exploitation abroad and a host territory where illegal immigrant workers are exploited. It should be noted that the problem has fully explicable and objective causes, such as the fact that Kazakhstan’s borders with the other CIS countries are open; the increase in migration flows both between States and inside the country; its good economic situation and relatively high salaries; and the globalization of transnational crime, and the increasing possibilities it has of organizing stable channels for the supply of “living goods”, a crime in which the country is considered not only as a supplier but also as a purchaser and as a transit corridor. Seven years ago, the Government established an interdepartmental commission, of which the Ministry of Justice is the executive body, to combat the illegal transport of persons out of and into the country and trafficking in persons. Its staff include the leaders of many relevant State bodies, including the Procurator-General’s Office and non-governmental and international organizations. The Commission developed a governmental plan of action for 2004–2008 to combat and prevent offences associated with trafficking in persons; a new plan for 2009–2011 was approved in 2009.

68.An act amending and supplementing some legislation relating to trafficking in persons was developed and adopted on 2 March 2006 in the framework of the Interdepartmental Commission’s working group to bring national legislation into line with international standards on combating human trafficking. With the increase in the slave trade in the country, special legal standards have been introduced into existing criminal legislation to establish criminal liability for such illegal activities. Kazakhstan has now acceded to the United Nations core conventions on combating crime related to trafficking in persons, including:

The 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others and its Final Protocol

The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966)

The 1926 Slavery Convention, the Protocol amending the Slavery Convention (7 December 1953), and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

69.There is no information available on the prevalence of the phenomenon or statistical data disaggregated by gender, age and country of origin. As a result of the measures taken, the human trafficking unit was able to institute proceedings in 231 criminal cases during the first nine months of 2010, including:

30 for trafficking in persons, of which 13 for trafficking in minors

20 for kidnapping for purposes of exploitation

18 for unlawful deprivation of liberty for purposes of exploitation

5 for enticement to engage in prostitution

154 for procurement and keeping a brothel

4 for setting up and leading an organized criminal group

70.Signature of the draft programme of cooperation between CIS member States on combating trafficking in persons for 2011–2013 is planned for this year. An agreement on cooperation between the Procurator-Generals’ Offices of the CIS member States in combating trafficking in persons and human organs and tissue was signed in Astana on 3 December 2010. The figures show an increase in the number of reported crimes related to human trafficking, with 75 recorded this year (under articles 113, 125, paragraph 3 (b), 126, paragraph 3 (b), 128, 133 and 270 of the Criminal Code) compared to 48 in 2009. Over the first nine months of 2010, the internal affairs agencies dealt with 19 cases (the same number as in 2009) of recruitment of persons for exploitation (art. 128): 7 in North Kazakhstan province, 3 in East Kazakhstan province, 2 in each of Karaganda, Almaty and Astana provinces, and 1 in each of Pavlodar, Aktobe and Atyrau provinces. Of those, 10 cases were brought to court, compared to 12 in 2009. Proceedings were suspended in three cases, compared to one in 2009. A total of 17 cases were investigated under paragraph 133 of the Criminal Code, with 12 of them brought to court, compared to 7 cases investigated and 4 brought to court in 2009. Thirty cases (compared to 15 in 2009) were dealt with under article 125, paragraph 3 (b), and article 126, paragraph 3 (b), with proceedings brought to court in 24. In 2009, of eight cases investigated, four were brought to court. All five cases brought under article 270 were taken to court (four of seven in 2009). A total of 181 cases were investigated under article 271, compared to 228 in 2009. Proceedings were brought in 139 cases, with 132 taken to court and 27 suspended. In 2009, of proceedings brought in 152 cases, 149 were taken to court and 19 suspended. No cases were brought under article 113. Statistics show that 40 women and 20 female minors were recorded as victims in cases linked to human trafficking (under articles 125, paragraph 3 (b), 126, paragraph 3 (b), 128, 133 and 270).

Freedom of religion and belief (art. 18)

Reply to questions raised in paragraph 22 of the list of issues

71.The freedom of assembly is enshrined in the Constitution (arts. 23 and 39). It may be restricted by law where necessary to protect the constitutional system and defend public order, human rights and freedoms, and public health and morals. The possibility of restricting the human right to freedom of association with others is also provided for in the International Covenant on Civil and Political Rights (art. 22). The need to register religious associations is governed by the Civil Code (art. 42), the Freedom of Religion and Religious Associations Act (art. 9) and the State Registration of Legal Entities and Registration of Branches and Representatives Offices Act. These laws lay down the same requirements for registration of all legal entities, including religious associations. Under article 9 of the Freedom of Religion and Religious Associations Act, the Ministry of Justice and its territorial divisions are responsible for the registration of religious associations, and further explanation on the issue should be provided by that Ministry.

72.It should also be noted that the act amending and supplementing some legislation on freedom of religion and religious associations was recognized as unconstitutional by Constitutional Council Decision No. 1 of 11 February 2009. The system of legal registration of religious associations is not the same as that used in Europe and does not meet some international standards. The distinguishing feature of the Kazakh legislation is the existence of a single legal status for all religious communities registered as legal entities, and of the lowest possible threshold for numbers of participants for registration. The communities have the same rights and responsibilities, in contrast to European practice, according to which only large religious groups can be registered as religious organizations. Smaller groups are given the status of associations (analogous to NGOs in Kazakhstan) and do not have the same rights as the former, including in terms of funding from the national budget and the right to teach religion in schools. Nevertheless, since 2005, believers have had the right not only to set up religious associations (legal entities) but also to register religious groups without the legal capacity of legal entities, which is in line with the practice in European countries. The procedure is simple and involves only notification, without any expense in terms of finance or time, nor any expert review; submission of a declaration is all that is required. That being said, the State has also introduced “informational” registration to produce information on the religious situation and maintain its statistics. Religious education may be obtained in any religious community. The Licensing Act affects only those organizations that train members of the clergy. A licence for educational activities may be obtained on submission to the Ministry of Education and Science of documents including certificates of the educational establishment’s technical capacity, and the Committee on Religious Affairs’ decision on the teaching programme. That decision concerns only compliance with the law, which is necessary to prevent the emergence of extremist organizations.

73.Under article 4 of the Freedom of Religion and Religious Associations Act of 15 January 1992, all religions and religious associations are equal before the law, and no religion or religious association enjoys any advantages over any other. The State does not interfere in the activities of religious associations if they do not contravene the law. Under the same article, no religious association that is not registered in accordance with legal procedure may conduct activities. Missionary activities without informational registration are thus prohibited. A religious association acquires the legal capacities of a legal entity from the moment of its State registration; the State registration of religious associations comes under the competence of the Ministry of Justice, while the registration of local religious associations comes under that of the territorial justice agencies (article 9 of the Act).

74.National legislation sets a low threshold for participants (10 persons) for religious communities to be registered as legal entities. Communities all have the same rights and responsibilities. In 2005, the registration process was significantly simplified for religious communities that do not wish to go through State registration and receive the status of legal entities. They may take advantage of the category of informational (notification) registration, whereby a notification is submitted to the State agency showing the religious leaning of the community, the number of participants, and the place where meetings are held. Currently 561 religious groups have undergone informational registration. Given Kazakhstan’s geopolitical situation in an area of active dissemination of religious extremism, the process of informational registration is necessary.

Reply to questions raised in paragraph 23 of the list of issues

75.The Military Duty and Military Service Act (art. 27) provides for citizens to be excused from service if they have taken holy orders or are permanently employed in a registered religious association for the period of religious activities, but the institution of alternative service is not enshrined in legislation. In this regard, the competent State body is planning to study the experiences of other countries that have alternative civilian service. For example, the Russian Federation adopted the Federal Alternative Civilian Service Act in 2002; it gives citizens the right to replace military service with alternative civilian service if the former goes against their convictions or beliefs.

Freedom of opinion and expression, and freedom of assembly (arts. 19 and 21)

Reply to questions raised in paragraph 24 of the list of issues

76.Freedom of speech and creativity is guaranteed under article 20 of the Constitution. Every person has the right to freely receive and disseminate information to any other where this is not prohibited by legislation. The list of information constituting State secrets is determined by the law. Article 20, paragraph 3, of the Constitution establishes restrictions on the publication of propaganda or agitation for violent overthrow of the constitutional system, violation of the country’s territorial integrity, undermining of State security, war, social, racial, ethnic, religious, social or family superiority or any cult of cruelty and violence.

77.These restrictions comply with the requirements under article 19 of the International Covenant on Civil and Political Rights. On the basis of those standards, article 39 of the Constitution also provides that restrictions may be placed on human and civil rights and freedoms only by legislation and only to the extent necessary to defend the constitutional system and protect public order, human rights and freedoms, and public health and morals. The Media Act sets restrictions prohibiting: the disclosure of information containing State secrets or other confidential data protected by law; propaganda for and justification of extremism or terrorism; the dissemination of information revealing the techniques and tactics of antiterrorist operations in progress; the promotion of narcotic drugs, psychotropic substances and their precursors; and the culture of cruelty, violence and pornography. Its article 5 also prohibits use of the media for purposes of committing administrative offences or criminal acts.

78.The Constitution is thus not in contradiction with international legal standards, including the International Covenant on Civil and Political Rights. The legal framework governing the activities of the electronic media is based on the Media Act, the Licensing Act and other regulations and legislation that set specific requirements for activities. There is no information that the Government monitors e-mail or Internet use.

Reply to questions raised in paragraph 25 of the list of issues

79.Kazakhstan has established all the conditions for freedom of assembly (demonstration) and free expression by citizens of their wishes and opinions by any lawful means, including through protest actions. Freedom of assembly is guaranteed under article 32 of the Constitution and an act on the functioning of organizations and the holding of peaceful meetings, rallies, demonstrations, picketing and demonstrations. The direct or indirect restriction of citizens’ rights and freedoms on the basis of belief, membership of a voluntary association or any other circumstance is punishable under article 141 of the Criminal Code. The legal regulations governing meetings thereby comply with international legal standards, specifically those of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and the practices of countries recognized as having a developed democratic system.

80. It should be noted that Kazakhstan’s legislation does not contain any conditions or restrictions on publication in the media of information on or observation of meetings. In practice, over the past few years, no journalists or observers have submitted any complaints concerning the restriction of their rights during meetings. Kazakhs make use of their legal guarantees and freely express any social, group or individual interests and opinions. The only legal condition for peaceful events is that permission should be obtained beforehand from the local authorities. However, such permission is required only when meetings are held in a public place. This legally established procedure is necessary to ensure public order and to protect citizens from any encroachment or mass disorder that could result from an unlawful protest action.

81.In the large towns, to ensure public safety, the representative bodies have set specific places for rallies to be held. As a rule, these are large, quiet squares with enough room for thousands of people. This complies with the principle of the State’s responsibility to protect peaceful meetings. There are no restrictions or conditions on meetings or rallies in closed premises. Moreover, any person who so wishes may at any time join a meeting at any place without having to follow any permission or registration procedure, which fully complies with the principle of presumption in respect of meetings. Kazakhstan does not keep official statistics on protest actions, which means that the data available are not complete. Unofficial data show that, over 10 months in 2010, there were 233 protest actions throughout the country in which 12,000 people participated. Of those, 113 were spontaneous, contravening the act on the procedure for meetings, rallies, processions, picketing and demonstrations, whereby prior permission must be requested from the local authorities for such mass events. There were also 98 protest actions (outside of public places) that did not require legal permission. Despite the significant number of protest actions that contravened legislation (113), the authorities did not take severe measures against the organizers or active participants but rather conducted information campaigns. Administrative penalties were imposed only in exceptional cases and only by the courts.

82.Thus, over 10 months of 2010, administrative measures were taken for contraventions of legislation on the procedure for meetings, rallies, processions, picketing and demonstrations, in strict observance of judicial procedure for consideration of such cases, against 107 persons (mainly — 45 — in the form of warnings), or 0.4 per cent of the total number of participants in protest actions; of those, only 7, or 0.06 per cent, were held in administrative detention (as a form of punishment). Since 1991, no one has been subject to criminal prosecution for contravening the procedure for gatherings. Over the past two years, no participant at a gathering has suffered from the actions of law enforcement officers, and only 23, or 3.7 per cent, of the 617 meetings were halted by the authorities and only then for serious breaches of procedure. However, recognizing that freedom of association is a democratic institution for citizens’ political activity that is constantly developing, a national plan of action on human rights for 2009–2012 has been drawn up and approved to enhance the role of the civil sector and NGOs, and better protect human and citizens’ rights and interests in the country. It includes the drafting, by State agencies and with the participation of NGOs, of a new bill on freedom of assembly. The bill is intended to make the legal mechanism regulating peaceful meetings more effective, possibly change the authorization mechanism to one of notification, and contribute to the fuller realization of citizens’ rights.

Reply to questions raised in paragraph 26 of the list of issues

83.On 31 July 2006, Medeu district court, Almaty, found Kunyshalin Zhasaral (publicist, journalist) guilty of offences under article 318, paragraph 2, of the Criminal Code, and sentenced him to 2 years’ deprivation of liberty. The case was terminated under a declaration of amnesty.

84.Bostandyk district court, Almaty, on 22 January 2007, found Kazis Togizbaev (journalist) guilty of offences under article 318, paragraph 2, of the Criminal Code and sentenced him to 3 years’ deprivation of liberty in an ordinary regime colony.

85.On 16 January 2009, Medeu district court, Almaty, partially granted the claim by R.R. Madinov for protection of honour and dignity, and for compensation for moral damages against the Dat-XMedia limited partnership and the journalist A.A. Kusherbaev. The court recognized information published in the article “Poor latifundista” in the Taszhargan newspaper (No. 15 of 24 April 2008) as unfounded and tarnishing the honour, dignity and professional reputation of R.R. Mandinov, and awarded moral damages against Dat-XMedia and A.A. Kusherbaev jointly and severally to a sum of 3 million tenge. On 2 February 2009, both parties submitted appeals, which were to be considered on 26 February 2009. On 26 February 2009, the Civil Division of Almaty municipal court ordered Dat-XMedia and A.A. Kusherbaev jointly and severally to pay compensation for moral damages in favour of R.R. Mandinov, to a sum amended to 30 million tenge, of which 10 million tenge were to be paid to the State-run No. 3 Children’s Home for Orphans and to Malotimofeevka and Shortandy Senior Citizens’ Homes.

86.In Order No. 79 of 27 July 2009, the Ministry of Culture and Information’s Information and Archive Committee deemed the Taszhargan newspaper’s registration certificate void because of a lapse in the publication time for a periodical print publication. As of 30 September 2009, the editorial staff transferred to the publication of the Obschestvennaya Pozitsiya (Social Position) newspaper. On 9 September 2009, Medeu district court, Almaty, recognized information published in the article “Horseradish is not sweeter” in the Respublika – delovoye oboreniye. Dubl 2 (Republic – Business Review. Take 2) newspaper (No. 8 of 6 March 2009) as unfounded and tarnishing the professional reputation of the BTA Bank joint stock company. It awarded compensation for moral damages in favour of BTA Bank from the publisher Shabyt-info limited partnership, owner of the DPA limited partnership, and G. Baidalinova, chief editor of the newspaper, to a sum of 20 million tenge each. The editorial board transferred to publication of the newspaper Golos respubliki – kaleidoskop sobytii nedeli (Voice of the Republic – Kaleidoscope of the Week’s Events).

87.In issues 26 and 27 of the newspaper Taszhargan (9 and 16 July 2008), Gul’zhanat Shonabai, a journalist, and the editorial board published two articles entitled “Бір қазақты екі ұйұғыр неге өлтірді” and “Малыбайдағы Маңқа Қазақ”. Psycho-philological expert review No. 1475-1 of 8 August 2008 concluded that the articles contained statements inciting ethnic discord.

88.On 24 December 2008, Medeu district court, Almaty, reclassified the criminal actions of G. Shonabai from paragraph 2 to paragraph 1 of article 164 of the Criminal Code and she was sentenced to a fine equal to 25 monthly notional units (29,200 tenge). The legality of the sentence passed is currently being examined. In a decree dated 27 November 2008, Bakytgul Makimbai, chief editor of the newspaper, was found guilty by the Almaty Specialized Interdistrict Administrative Court of administrative offences under articles 343 and 344 of the Code of Administrative Offences and sentenced to fines of 300 monthly notional units (350,000 tenge) and 25 monthly notional units (29,500 tenge).

89.Publication of the articles “Who is leading our country – the President or the National Security Committee (KNB)?” and “Should the KNB agencies be responsible for their actions?” in the newspaper Alma-Ata Info (No. 31 (155) of 21 November 2008 and No. 32 (156) of 28 November 2008) contravened the legislation on State secrets and on the media through the publication of materials containing State secrets. The Zhambyl province National Security Committee Department (DKNB) charged Ramazan Yesergepov, editor-in-chief of Alma- Ata Info, with unlawful gathering and the dissemination of information containing State secrets under article 172, paragraph 1, of the Criminal Code. On 8 August 2009, Municipal Court No. 2 of Taraz, Zhambyl province, sentenced R. Yesergepov to 3 years’ deprivation of liberty in an ordinary regime correctional colony with forfeiture of the right to practise journalism for two years.

90.Tokbergen Sakenovich Abiev, general director of the newspaper Zakon i Pravosudiye (Law and Justice), is currently held in Akmola province DKNB correctional institutional YT-166/25. On 11 July 2008, he was sentenced by Saryarqa district court No. 2, Astana, for bribery of an official under article 312, paragraph 2, of the Criminal Code to 3 years’ deprivation of liberty in an ordinary regime correctional colony. On 31 July 2006, Medeu district court, Almaty, found Kunyshalin Zhasaral (publicist, journalist) guilty of offences under article 318, paragraph 2, of the Criminal Code, and sentenced him to 2 years’ deprivation of liberty. The case was terminated under a declaration of amnesty. Bostandyk district court, Almaty, on 22 January 2007, found Kazis Togizbaev (journalist) guilty of offences under article 318, paragraph 2, of the Criminal Code and sentenced him to 3 years’ deprivation of liberty in an ordinary regime colony.

Protection of minors (arts. 23 and 24)

Reply to questions raised in paragraph 27 of the list of issues

91.Over the past three years, there has been a decrease of 5–7 per cent in the number of crimes committed against minors (from 6,488 to 5,769). The trend is continuing this year. Over nine months in 2010, 4,389 crimes against minors were reported, of which 161 involved rape, 94 sexual acts of a violent nature, and 83 intercourse or other acts of a sexual nature with persons under the age of 16. More than 5,000 parents have been sentenced this year for administrative offences under article 111 of the Code of Administrative Offences (failure of parents or persons acting in their stead to fulfil their responsibilities for children’s upbringing). Cases were brought against 23 parents under article 137 of the Criminal Code (neglect of duties in the upbringing of minors). Twelve adults were charged with enticement of a minor to commit antisocial acts (article 132 of the Criminal Code). There are more than 13,000 dysfunctional families, with approximately 25,000 children, on the registers of the internal affairs agencies. The Ministry of Internal Affairs is taking many organizational and practical measures to prevent juvenile crime and protect the rights of minors.

92.Parliament has considered a bill amending and supplementing some legislation on protecting children’s rights. It would: tighten up the accountability of parents, teachers and other persons with responsibility for a child’s upbringing in cases of rape, sodomy or other acts of a sexual nature, and of corruption of minors; and introduce criminal and administrative responsibility for the sale to minors of print publications, films or other items with erotic content, and pornographic materials.

93.A single report on adolescents in difficult life situations is being compiled on the basis of the Ministry of Internal Affairs’ integrated databank. The databank contains information on children who are absent from school without justifiable reason, children in special educational establishments, including those with a special custodial regime, victims of cruelty and violence, children from dysfunctional families, neglected and homeless children and those held in centres for the temporary isolation, adaptation and rehabilitation of minors. Some of the most effective methods for early crime prevention among minors are the organization of free leisure activities for them and their involvement in the activities of sports sections and circles. In this connection, activities are being organized for free in sports halls of all the Ministry of Internal Affairs subsections for juveniles who are on preventive lists and for children from dysfunctional families. Currently these activities attract about 10,000 young people. Basketball, volleyball, football and chess are popular.

Reply to questions raised in paragraph 28 of the list of issues

94.An act amending and supplementing legislation on prevention of child neglect and juvenile crime adopted on 10 July 2009 provides for time restrictions on juveniles in entertainment facilities at night, and makes parents or those acting in their stead responsible for them.

95.Parliament is currently considering a bill amending and supplementing some legislation on protecting children’s rights that, as well as establishing criminal liability for the dissemination, public demonstration or advertising of pornographic materials that portray minors, also restricts (mitigates) the measures to prevent and punish minors who commit a first offence not related to causing death or serious harm to human health.

96.Under Kazakhstan’s criminal law, minors are protected in the context of nine categories of offences against families and minors. They include: enticement of a minor to engage in criminal activities, enticement of minors to commit antisocial acts, trafficking in minors, substitution of a child, disclosure of the secret of adoption, wilful evasion of the payment of child maintenance and non-fulfilment of responsibilities for the upbringing of a minor. Undue failure to comply with the obligation to safeguard the lives and health of children, and abuse of the rights of tutorship or guardianship are laid out in chapter 2 of the Criminal Code (arts. 131–139). Statistics show that the high crime rates in Astana, East Kazakhstan, Pavlodar, Karaganda and South Kazakhstan provinces are detrimental to young people (see diagram 1).

Diagram 1

Crimes committed against minors by region over nine months of 2010

The crimes committed against minors are primarily crimes against property, the person, public order, public health and morals. More than half (52 per cent) of such crimes involve theft. In terms of crimes against property, children are often victims of blackmail (6.2 per cent) and robbery (4.8 per cent).

97.A specialized databank has been set up on offences related to human trafficking and its perpetrators, in implementation of paragraphs 12 and 13 of the Government’s Plan of Action to combat and prevent offences related to human trafficking, 2006–2008, approved in Government Decision No. 261 of 10 April 2006, and in line with paragraphs 1.7 and 1.9 of the Procurator-General’s Order No. 12/20r of 6 May 2006 and Order No. 67 o/d of 7 August 2007 of the Deputy Procurator-General and President of the Committee. According to figures for the first nine months of 2010, there has been a decrease in the number of crimes committed under article 133 of the Criminal Code (trafficking in minors), from 15 in 2009 to 13 in 2010.

98.To protect the rights of children in difficult life situations, the Government’s Interdepartmental Commission for Minors and their Rights made a recommendation to the Ministry of Internal Affairs that the temporary isolation, adaptation and rehabilitation centres for minors should be gradually transferred from the internal affairs agencies to educational bodies, since the Juvenile Justice System Development Framework, 2009–2011, which had been approved by a decree of the Head of State on 19 August 2008, included plans for the reorganization of the centres. Figures show that more than 9,500 minors are held in the centres each year, and 150 (1.5 per cent) of them are children accused of crimes. Under the reform of the law enforcement agencies, the centres have been transferred from the internal affairs agencies to the authority of educational bodies. Juvenile adaptation centres will be set up on their premises. Children with special needs are given free treatment and rehabilitation in the framework of guaranteed free medical care. Specific categories of the population with certain types of illness, including children with special needs, are given free medicine and special dietary products on an outpatient basis, in line with the Minister of Health’s Order No. 446 of 4 September 2009. Rehabilitation care is provided at regional and national levels for children with special needs. Comprehensive rehabilitation includes medical treatment, psychological and educational corrective treatment and social adaptation.

Diagram 2

Structure of violent crime against minors over nine months in 2010

Rights of persons belonging to minorities (art. 27)

Reply to questions raised in paragraph 29 of the list of issues

99.There is a stable and fully functioning system of language teaching in the country. An integrated network organizes training in the State language for the country’s adult population, including State employees. This work is conducted under articles 7, 19 and 93 of the Constitution. Under article 7, the State promotes conditions for study of the development of the languages of the people of Kazakhstan. This is the subject of specific legislation on languages, education, culture and the media. Moreover, in the Languages Act, the legal bases are laid for the development of languages, to help strengthen the country’s stability and international relations. The State uses only this legislation in its activities on language policy and language building. Every individual has the right to communicate in his or her native language and to freely choose his or her language of communication, education, teaching and creation. Every citizen has the constitutional right to publish newspapers, magazines and books. Kazakhstan provides secondary, specialized secondary and higher education in the State language, in Russian and, where necessary and possible, in other languages. Prejudice on the grounds of language is not allowed. Thus no cases have been reported of restriction of the rights of citizens of other ethnic groups in employment because of inadequate knowledge of the language.

100.The People’s Assembly of Kazakhstan Act was adopted in 2008. It defines the status, procedure and organization of the work of the People’s Assembly in implementing ethnic policy and ensuring the social and political stability of the country, as well as greater effectiveness in collaboration between State and civil society institutions in the area of inter-ethnic relations. The main area of the Assembly’s activities are:

Development and implementation of State ethnic policy

Promotion of patriotism

Development of the State language and other languages of the people of Kazakhstan

Improvement of regional policy in inter-ethnic affairs

Participation in developing and implementing plans and events in the areas of demography and migration

Promotion of Kazakhstan’s model for inter-ethnic and interreligious harmony in the country and abroad

Educational and publishing activities aimed at achieving friendship among ethnic groups

Monitoring of the state of inter-ethnic relations, including in the use of the State language and other languages of the people of Kazakhstan

Participation in social and political expert reviews of bills on State ethnic policy

Support for the Kazakh diaspora in maintaining and developing their native language, culture and ethnic traditions, and strengthening their links with the historic homeland

Development of recommendations and implementation of conflict-solving measures to prevent conflict situations arising in inter-ethnic relations and participation in their solution

Methodological, organizational and legal assistance for ethnocultural NGOs

The holding of seminars, conferences and other events to encourage dialogue between State bodies and NGOs on inter-ethnic relations

Dissemination of information relating to the Covenant and the Optional Protocol (art. 2)

Reply to questions raised in paragraph 30 of the list of issues

101.There has been fairly frequent and broad publicity in the media and in general of the standards enshrined in the Covenant since preparations began for its ratification by Kazakhstan. Non-governmental and governmental bodies hold periodic campaigns and round-table meetings on its content and principles. The signing of the Optional Protocol recognizing the Committee’s competence to receive and examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol raised particular interest among the public. All State bodies have received communications from citizens on the issue.

102.All appropriate governmental and non-governmental bodies participated in the preparation of the initial report on implementation by Kazakhstan of the International Covenant on Civil and Political Rights (CCPR/C/KAZ/1). The non-governmental bodies included: the Charter for Human Rights Foundation, the Kazakhstan International Bureau for Human Rights and Rule of Law and the Freedom House observer group. Of the international organizations, the Organization for Security and Cooperation in Europe (OSCE) Centre in Astana played an active part. The report was drafted on the basis of legislation, material and information from government bodies and non-governmental organizations, including a preliminary report by non-governmental human rights organizations in Kazakhstan concerning compliance by Kazakhstan with the International Covenant on Civil and Political Rights and the results of sociological research by the independent Association of Sociologists of Kazakhstan entitled “Human Rights in Kazakhstan: Public Opinion”, commissioned by the United Nations Development Programme.