Consejo de Derechos Humanos

37º período de sesiones

Tema 3 de la agenda

Promoción y protección de todos los derechos humanos, civiles, políticos, económicos, sociales y culturales, incluido el derecho al desarrollo

Informe de la Relatora Especial sobre los derechos de las personas con discapacidad acerca de su misión a Kazajstán *

Nota de la Secretaría

En el presente informe, la Relatora Especial sobre los derechos de las personas con discapacidad examina la situación de las personas con discapacidad en Kazajstán a la luz de la Convención sobre los Derechos de las Personas con Discapacidad. Señala los importantes avances logrados hasta la fecha, que incluyen la armonización de la legislación nacional con las normas jurídicas internacionales y las buenas prácticas más recientes. También examina los problemas que persisten en relación con el reconocimiento de las personas con discapacidad como titulares de los mismos derechos y las barreras estructurales que obstaculizan su plena inclusión e igual participación en la vida social, política y económica de la sociedad. La Relatora Especial evalúa el potencial de las políticas nacionales, incluidas las que tienen por objeto alcanzar los Objetivos de Desarrollo Sostenible, para garantizar resultados equitativos a todas las personas con discapacidad. Concluye el informe con recomendaciones para poner fin a los obstáculos particulares que impiden a las personas con discapacidad disfrutar plenamente de sus derechos, así como orientar la labor realizada por el Estado para cumplir sus obligaciones internacionales de promover y proteger los derechos humanos de todas las personas con discapacidad.

[Inglés únicamente]

Report of the Special Rapporteur on the rights of persons with disabilities on her mission to Kazakhstan

Contents

Page

I.Introduction3

A.Programme of the visit3

B.General context3

II.Current situation4

A.Legislation and policies4

B.National implementation and monitoring mechanisms6

III.Challenges and opportunities7

A.Statistics and data collection7

B.Stigma and discrimination 7

C.Accessibility 9

D.Participation 10

E.Assessment of disabilities10

F. Social protection 11

G.Independent living in the community12

H.Education13

I.Employment14

J.Legal capacity, deprivation of liberty and forced treatment14

IV. International cooperation and role of the United Nations country team 15

V.Conclusions and recommendations16

A.Conclusions16

B. Recommendations16

I.Introduction

A.Programme of the visit

1.Pursuant to Human Rights Council resolution 35/6, the Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, visited Kazakhstan, from 4 to 12 September 2017. The purpose of the visit was to evaluate and to report to the Human Rights Council on the extent to which national laws, policies and practices are consistent with the State’s human rights obligations under the Convention on the Rights of Persons with Disabilities.

2. In the present report, the Special Rapporteur focuses on priority areas of concern, including social protection, accessibility, education, employment, legal capacity, institutionalization, involuntary treatment and hospitalization. On the basis of her findings, the Special Rapporteur makes a number of recommendations addressed to the Government and other stakeholders that play a direct or indirect role in advancing the rights of persons with disabilities.

3.The Special Rapporteur is grateful to the Government of Kazakhstan for its invitation to visit the country and for its excellent cooperation. She appreciated its willingness to discuss the challenges it faced in implementing the Convention on the Rights of Persons with Disabilities and to consider ways of overcoming them.

4.During her mission, the Special Rapporteur visited the capital city of Astana, where she met with senior government representatives from different sectors, including the Minister for Labour and Social Protection, the Minister for Education and Science, the Deputy Minister for Health, the Deputy Minister for Finance and the Deputy Minister of Foreign Affairs, and representatives of the Ministry of Infrastructure and Development. She also met with representatives of the national human rights institution, members of the national preventive mechanism, the Supreme Court and the Committee on Statistics.

5.The Special Rapporteur travelled to Almaty, where she held meetings with the city mayor and with members of the local public administration, including officials from the Departments of Education, Employment and Social Programmes, City Building, Transport and Roads.

6. The Special Rapporteur visited two mainstream schools, a rehabilitation and resource centre for inclusive education, a boarding school for children with intellectual disabilities, a day-care centre and residential institution for children with severe disabilities, a residential institution for adults with disabilities and older persons, a psychiatric hospital, and the forensic psychiatric facility in Aktas.

7.In addition to her official meetings, the Special Rapporteur met representatives of a considerable number of organizations of persons with disabilities and of civil society, and human rights advocates, who provided their views and written inputs for the preparation of the present report. She expresses her sincere gratitude to all persons with disabilities and their families who shared with her their stories.

8.The Special Rapporteur met with members of the United Nations country team in Kazakhstan, who shared with her their experience in promoting the disabilities agenda. Lastly, she expresses her gratitude to the Office of the United Nations Resident Coordinator and the Regional Office of the United Nations High Commissioner for Human Rights in Bishkek, which extended their support for the preparations for and throughout the mission.

B.General context

9.After the fall of the Soviet Union, the defining priorities of Kazakhstan were dictated by the pressing need to halt a rapid economic downturn and to mitigate the consequences of an escalating social crisis. Soon after its stabilization, the State witnessed rapid economic growth, which led to the virtual eradication of extreme poverty (set internationally at an income of less than $2 a day). Today, according to the World Development Indicators of the World Bank, Kazakhstan belongs to the group of upper-middle-income States, while the Human Development Index ranks it 56th of 188 countries. Nevertheless, it has been recognized that, to sustain a growth pattern where opportunities and well-being are shared by all, including persons with disabilities, further human rights based reforms are required (see A/HRC/28/10).

10.The ratification by Kazakhstan of the Convention on the Rights of Persons with Disabilities in February 2015 reflected the State’s greater political commitment to improving the situation of persons with disabilities in the country. The Special Rapporteur’s visit was an opportunity to address the concerns of the Government relating to the implementation of Convention.

11.At the same time, the State was engaged in a process of integrating the 2030 Agenda for Sustainable Development into its broader vision of development, outlined in the “Kazakhstan 2050” strategy. In that regard, the Special Rapporteur seized the opportunity to remind the Government of its responsibility to consider persons with disabilities in all efforts aimed at achieving the Sustainable Development Goals. She also highlighted the importance of genuinely consultative processes, which would allow persons with disabilities to influence policy priorities.

12. The use of new technologies and the firm commitment to modernization was prevalent in all discussions that the Special Rapporteur held with representatives of the Government. While Kazakhstan has already taken steps towards implementing e-governance and digitalization, it should not overlook the great potential of new technologies to improve accessibility even further and to ensure better access to services for persons with disabilities.

13.As Kazakhstan was consolidating its plans to emerge as a new donor of official development assistance, the Special Rapporteur encouraged the State to prioritize the rights of persons with disabilities, and to follow the standards of the Convention on the Rights of Persons with Disabilities in its international cooperation.

II.Current situation

A.Legislation and policies

14.At the international level, Kazakhstan is a party to eight core international human rights treaties, including the Convention on the Rights of Persons with Disabilities. The Government reports regularly to the treaty bodies, and included in its reports information on the measures taken to implement the rights of person with disabilities. In 2017, in compliance with its reporting obligations under the Convention, the Government submitted its first comprehensive report to the Committee on the Rights of Persons with Disabilities (CRPD/C/KAZ/1).

15.Kazakhstan has signed (but not ratified) the Optional Protocol to the Convention. The Special Rapporteur encourages the State to ratify the Optional Protocol, which would allow persons with disabilities to pursue justice in situations when all national remedies have been exhausted.

16.The Special Rapporteur also encourages the State to consider ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and all other international human rights treaties and optional protocols thereto pending ratification.

17.In 2009, the Government issued a standing invitation to all special procedures of the Human Rights Council as a gesture of the State’s commitment to transparency with regard to the situation of human rights in Kazakhstan.

18.At the national level, the new Constitution, adopted shortly after the State’s proclamation of sovereignty in 1990, provides for the supremacy of international human rights law and its direct application by national courts. The Constitution makes no specific reference to persons with disabilities; moreover, article 14 on equality and non-discrimination does not include disability among the prohibited grounds of discrimination.

19.With regard to access to justice and the possibility of legal recourse in cases of discrimination, the Special Rapporteur was informed that all judges are bound to follow Supreme Court Regulatory Decision No. 1 on the direct application of international treaty standards in the adjudication of cases, including non-discrimination provisions of the Convention. It was acknowledged, however, that judges have not benefited from training on upholding the standards of the Convention in their work. Although significant advances had been made in the physical accessibility of court premises, the law did not guarantee the provision of procedural and other reasonable accommodations to facilitate access to justice for persons with disabilities. In addition, the lack of awareness of procedural aspects, low-quality legal aid and direct and indirect costs of lawsuits were reportedly the most common reasons deterring persons with disabilities from pursuing a non-discrimination case in court.

20. In the lead-up to the ratification of the Convention, a series of legislative reforms were introduced. They included amendments to the Law on Social Protection of Persons with Disabilities and to other general legislative acts, including the Civil Code, the Criminal Code, the Labour Code and the Constructions Code, the Law on the Rights of the Child, the Law on Education, the Law on Transportation and the Law on Mental Health. Despite the efforts made by the State to achieve the harmonization of laws, not all provisions conflicting with the Convention have been addressed.

21.With regard to the policy framework, a section of the comprehensive Kazakhstan 2050 national development strategy is dedicated to persons with disabilities, a fact that reflects the Government’s commitment to improving their situation.

22.Kazakhstan is also implementing a national strategy and action plan to improve the quality of life of persons with disabilities (2012-2018). Developed under the leadership of the Ministry of Labour and Social Protection, the strategy and plan of action comprises measures aimed at addressing accessibility of the physical environment, transportation and communications; the provision of services and assistive devices to support the autonomy of persons with disabilities; inclusion in education; and participation in national and subnational levels of governance. They include concrete benchmark indicators and dedicated funding. Their implementation complies with the planned timelines.

23.Given that the strategy and plan of action are in their latter stages of implementation, the Government has pledged to draft a follow-up strategy. The Special Rapporteur recommends that the new strategy go beyond social protection issues to address the root causes of stigmatization, exclusion, segregation and institutionalization. When developing its follow-up strategy, the Government should give priority to the views of representative organizations of persons with disabilities led by persons with disabilities themselves.

24.Other initiatives include the Nurly Zhol infrastructure development programme (2015-2019), the Densaulyk health development programme (2016-2019), the education and science development programme (2016-2019) and the productive employment and entrepreneurship programme (2017-2021). The situation of persons with disabilities is addressed, however, only superficially, without any clear targets for reducing disparities or ensuring equal outcomes for persons with disabilities.

25.At the time of the Special Rapporteur’s visit, Kazakhstan was in the early stages of nationalizing the 2030 Agenda for Sustainable Development; it was therefore not yet clear what the way forward would be. The Special Rapporteur was nonetheless informed that the Government intended to consider the situation of persons with disabilities at all stages of implementation of the 2030 Agenda.

B.National implementation and monitoring mechanisms

26.The Ministry of Labour and Social Protection is the focal point in the Government for matters relating to the implementation of the Convention on the Rights of Persons with Disabilities. In addition, each line ministry and local public administration has an appointed disability adviser.

27.The Coordination Council for Persons with Disabilities is responsible for coordinating activities across sectors and between central and local executive bodies. The Deputy Prime Minister chairs the Council, which has the structure of and operates as the coordination mechanism, in compliance with article 33 (1) of the Convention.

28.The Coordination Council comprises representatives of 12 organizations of persons with disabilities. They are involved and participate in all activities, including in the development of policy responses, and advise the Government on matters relating to the implementation of the rights of persons with disabilities.

29.No independent monitoring mechanism is mandated to oversee the impact of national policies and plans of action on the situation of persons with disabilities or to track progress in the implementation of the Convention at the national level. In this regard, the Special Rapporteur reminds the State of its responsibility to establish, without delay, such an independent monitoring framework, in compliance with article 33 (2) of the Convention. In addition, it should ensure that members of civil society, in particular persons with disabilities and their representative organizations, are fully included in the monitoring process.

30.The Special Rapporteur also noted the efforts made by the national human rights institution to monitor and protect the human rights of persons with disabilities. The institution has a mandate to facilitate access to justice for victims of discrimination and to provide legal assistance, undertake adhoc monitoring visits and advise the Government and Parliament on measures necessary to ensure compliance with international human rights norms.The Special Rapporteur was informed that, together with the national preventive mechanism, the Ombudsperson undertakes monitoring visits to psychiatric hospitals, but not to institutions or other facilities providing services to persons with disabilities. She was also informed that the national human rights institution lacked the human capacity and financial resources necessaryto perform itsfunctions effectively, in particular in efforts to fight discrimination against persons with disabilities or in activities aimed at raising public awareness of their rights. Furthermore, the institution currently has“B” status, and is therefore not in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).

III.Challenges and opportunities

A.Statistics and data collection

31.At January 2017, Kazakhstan had an estimated population of 17.9 million people, of which 52.8 per cent were living in urban areas and 47.2 per cent in rural areas. Women represented 51.4 per cent of the total population.

32.According to the administrative data received from the Ministry of Labour and Social Protection, persons with disabilities accounted for 3.6 per cent of the overall population of Kazakhstan, of which 12.5 per cent were children, 62.2 per cent were working age adults, and 25.3 per cent older persons. Of the total number, 56.2 per cent of persons with disabilities were men and 43.8 per cent were women. Some 54.5 per cent of persons with disabilities resided in cities, while 45.5 per cent lived in rural areas.

33.While Kazakhstan has a sturdy administrative data collection system, demographic data on persons with disabilities is lacking. In this regard, the Special Rapporteur recommends that data collected by means of national demographic tools, and in particular household surveys, be disaggregated by disability. The Government failed to disaggregate data on the basis of disability in the 2009 national population census. The Special Rapporteur emphasizes the importance of introducing the short set of questions proposed by the Washington Group on Disability Statistics in the next census.

34.The Special Rapporteur noted that the National Statistics Committee was aware of the need to collect additional information on the situation of persons with disabilities through dedicated modules or stand-alone surveys. She commended the sample survey conducted in 2014 on the quality of life of persons with disabilities, which covered 5 per cent of the total number of persons with disabilities, and the existing plans to repeat it in 2020. She was informed that, in 2019, the multiple indicator cluster surveys will include a module on children with disabilities, and that the national population census to be held in 2020 will feature the set of questions proposed by the Washington Group on Disability Statistics.

35.Prior to the Government’s first meeting on the implementation of the 2030 Agenda, the National Statistics Committee expressed its confidence that the Government would have the ability to gather the necessary data, provided that it received sufficient budget allocations. In addition, the Committee is encouraged to work in cooperation with each thematic policymaking and executive institution in defining the indicators more suitable for tracking progress for the segment of the population with disabilities.

36.The Special Rapporteur is keen to follow the progress in the above-mentioned activities, and recommends the inclusion of the set of questions proposed by the Washington Group on Disability Statistics and the UNICEF/Washington Group module on child functioning in all instruments to be used for measuring baselines and progress in achieving the Sustainable Development Goals.

B.Stigma and discrimination

37.Social stigma attached to disability remains a major obstacle preventing persons with disabilities from developing their full potential and exacerbating the inequalities of outcome with regard to education, employment and participation in all areas of life.

38.Relevant national laws refer to persons with disabilities as “invalids”. According to the definition provided in article 1 of the Law on Social Protection of Persons with Disabilities, an “invalid” is a person with a “permanent medical condition” that prevented the person from functioning independently when support and assistance were not provided. The definition perpetuates a negative social perception of persons with disabilities and fails to take into account attitudes and environmental barriers that hinder their participation in society. The policies informed by such definitions fall short of the State’s human rights obligations.

39.The Special Rapporteur underscores the particular importance of laws in developing a human right-based understanding of disability. To that end, she urges the State to eliminate demeaning language or terminology when referring to persons with disabilities, and to bring the definition of disability into compliance with the Convention on the Rights of Persons with Disabilities.

40.For decades, specialists working with and providing professional services to children and adults with disabilities have been trained in “defectology”. Unfortunately, such an approach reinforces the idea that medical or rehabilitative response should be aimed at “correcting” or “curing” persons with disabilities, and leads to their marginalization or segregation in separate facilities, such as special schools, social care residential institutions and psychiatric hospitals.

41.Numerous accounts suggest that fear of stigma forces families to hide their members with disabilities and to avoid seeking the services and support necessary for them. Information on the difficulties that children with disabilities and their families faced would indicate that the efforts currently being made by the authorities are not sufficient to avoid family separation and institutionalization. The Special Rapporteur was informed that, for instance, parents of children with disabilities are still encouraged to place their children in institutions.

42.The Special Rapporteur heard allegations that health professionals discouraged pregnant women with disabilities from having children and that, in general, they had limited access to sexual and reproductive health and rights owing to stigma and discrimination. Misperceptions about the sexuality of women with disabilities is putting them at a greater risk of abuse and violence, of acquiring sexually transmitted diseases, and of being subjected to involuntary procedures, such as sterilizations. More efforts are needed to dispel these misconceptions and to eradicate discrimination in this area.

43.During her meetings, the Special Rapporteur heard accounts of teachers who were reluctant to accept the idea that children with disabilities should receive education in mainstream schools, and of students with disabilities confessing that the stigma placed on them had a direct negative impact on their perception of self-worth and aspirations. From the outset, they have been taught that their potential and choices were limited.

44.Both officials and representatives of civil society repeatedly emphasized that there was a tremendous amount of work to be done to dismantle the barriers raised by the deeply ingrained prejudices towards children and adults with severe cerebral palsy, psychosocial or intellectual disabilities, and persons with disabilities living with HIV/AIDS. They were generally perceived as being unable to make any contribution to their communities or to participate in activities on an equal basis with others, and faced aggravated forms of discrimination.

45.The Special Rapporteur emphasizes that persons with disabilities are part of human diversity and should be respected and embraced as such. She reminds the State of its immediate obligation to eradicate stereotypes, prejudices and harmful practices relating to persons with disabilities. She encourages the Government to do more and to allocate resources to broad and targeted awareness-raising campaigns and mass education on a human rights-based approach to disability.

46.Further efforts in the area of legal harmonization are also needed. The State should consider amending article 14 of the Constitution to include disability as an explicit ground of discrimination. In addition, the State should provide for complaint and enforcement mechanisms to ensure the effective implementation of article 5 of the Law on Social Protection of Persons with Disabilities and article 7 of the Labour Code, which prohibit discrimination on the basis of disability. Furthermore, the State should seriously consider adopting a comprehensive law prohibiting discrimination, including on the basis of disability, with concrete provisions on reasonable accommodation and establishing an institutional framework for remedies, allowing the investigation of complaints and providing for reparations.

C.Accessibility

47.During her visit, the Special Rapporteur observed the State’s progress with regard to accessibility, and noted with appreciation that continuing efforts were being made to render the physical environment and infrastructures accessible for all. In accordance with the accessibility objectives set under the national disability strategy and action plan (see para. 22 above), a major assessment of 30,000 public and private buildings open to the general public was conducted; it was found that 77.4 per cent had been brought in compliance with the minimum accessibility standards. These are remarkable efforts, which should be fine-tuned to ensure that all barriers to accessibility are properly removed.

48.Local intersectoral accessibility commissions are mandated to oversee progress on accessibility and to sanction lack of compliance with existing accessibility standards. Organizations of persons with disabilities are included in these commissions.

49.The law on architecture, constructions and urban planning has been supplemented with new provisions to ensure that all new buildings, public and private, are made accessible from the outset. New mandatory construction and planning standards, which provide for the application of universal design features to all new goods, products, facilities, technologies and services, have been introduced. The law also provides for an enforceable duty of reasonable accommodations in the case of buildings and existing infrastructure that cannot be rendered entirely accessible.

50.Transport regulations, including those on aviation and railway services, have been updated to include accessibility features. The bus fleet has also been progressively upgraded; for example, it is expected that, by 2020, all buses in the city of Almaty will be accessible. The fact, however, that the transportation system lacks accessibility features for blind and deaf persons, and that many drivers refuse to pick up users in a wheelchair, remains a concern. The Special Rapporteur was informed about the “Invataxi” service, which she commended, and encouraged the Government to allocate more funds to it, particularly in rural and remote areas.

51.With regard to access to information and communication, deaf persons are entitled by law to 60 hours of sign language interpretation per year and to benefit from a new relay service for access to public services. The development of e-government is a priority in Kazakhstan: Citizen Service Centres in Almaty and Astana are equipped to provide real-time online sign language interpretation. According to the law on television and radio broadcasting, at least one news bulletin a day should be captioned and interpreted into sign language. Nonetheless, sign language has not been recognized as an official language nor is it taught in universities, while access to interpretation remains very limited.

52.The Special Rapporteur commends the efforts of the Government to include accessibility features on the e-government platform. She noted, however, that while the e-government online platform was accessible for the visually impaired, a greater effort was needed to make it fully accessible to all persons, including those with intellectual disabilities.

D.Participation

53.It was widely confirmed that the Government of Kazakhstan had expressed interest in building partnerships with representative organizations of persons with disabilities. The establishment of the Coordination Council on Persons with Disabilities is an important step to ensure that persons with disabilities enjoy a certain degree of participation in the formulation of State policies and the conduct of the Government’s work on disability-specific issues through their representative organizations. Also, 16 people with disabilities have been appointed as disability advisers in line ministries and local public administrations.

54.The Special Rapporteur nonetheless found that persons with disabilities were still underrepresented in government and that their opinions were seldom sought with regard to issues affecting society at large. Kazakhstan should still make a greater effort to help representative organizations of persons with disabilities to strengthen their role in advocacy and monitoring, especially of those representing the most discriminated groups, such as persons with intellectual or psychosocial impairments, or autism, and the deaf-blind. Resources should be allocated accordingly to uphold the independence of organizations of persons with disabilities and to strengthen their role.

55.Persons with disabilities face disproportionate and different barriers that undermine their political rights and prevent them from taking part in the conduct of public affairs, holding office, voting and being elected. Persons with psychosocial or intellectual disabilities and blind persons are more affected than others. According to article 4 of the law on elections of 28 September 1995, those deprived of their legal capacity are denied the right to vote and to stand for election. Inaccessible voting processes prevent the participation of blind persons in elections. Such restrictions on political rights violate article 29 of the Convention on the Rights of Persons with Disabilities.

E.Assessment of disabilities

56.In 2015, the State reformed its disability assessment procedure by replacing a merely medical assessment with one that recognized the interactions between a person’s impairment and the environment. In the current system, persons with disabilities are categorized as mild, moderate or severe on the basis of their medical diagnosis or underlying health condition and the level of services needed to support their autonomy. The disability certificate serves as a basis for requesting financial benefits and disability-specific services.

57.Local socio-medical evaluation units conduct assessments, which are voluntary and carried out only upon request. Although the procedure itself is relatively rapid, obtaining all the necessary documentation to request an assessment can pose significant challenges. The documentation required includes medical files and other relevant information provided by the local social worker, employers and other service providers. The Government is developing a digital system to improve access to the official documents required for assessments.

58.In spite of the undeniable achievements made by the reform, several issues related to the assessment of disabilities still need to be addressed. The assessment methodology fails to reckon the social disadvantages experienced by persons with disabilities as a result of discrimination. For example, when conducting a disability assessment in the case of a deaf person, it is important to consider how lack of access to inclusive and quality education might have restricted the person’s opportunities of obtaining a well-paid job. Furthermore, in some cases, categorization as a person with a mild disability may actually limit that person’s access to benefits or services; for example, deaf persons are not eligible for housing subsidies because they do not qualify as severely disabled.

59. Measures should also be taken to ensure that persons with disabilities living in rural and remote areas have the possibility of undergoing a disability assessment procedure at no additional cost. Moreover, the Government should take steps to raise awareness of the procedure and the benefits available to support persons with disabilities.

60.The State has expressed its clear willingness to continue to improve the disability assessment procedure and to close the remaining implementation gaps. The Special Rapporteur therefore recommends that the Government engage in a process of technical assistance and exchange of good practices to further develop initiatives in accordance with the Convention on the Rights of Persons with Disabilities.

F.Social protection

61.The Government has made a concerted effort to make the social protection system more responsive to the needs of persons with disabilities. Currently, persons with a certified degree of disability benefit from non-contributory cash benefits; contributory benefits for disability-related loss of income; targeted poverty alleviation transfers; disability-specific support services and assistance for independent living, including personal and in-home assistance; and mobility aids, devices and assistive technologies.

62.All persons with a certified disability status receive a non-contributory and non-taxable disability pension, regardless of their income or whether they were employed. Pension is adjusted to one of the three levels of disability. The lowest pension (approximately $75 per month, approximately equivalent to the minimum legal wage)) is payable to persons with a mild disability. The highest benefit (almost double the lowest amount) was paid to persons with a severe degree of disability.

63.According to the law on compulsory social insurance, all persons employed in formal labour are required to pay monthly contributions to the State-run social insurance scheme. On the basis of the contributions made, individuals may claim social benefits in the event of lack of work-related income caused by a sudden life-changing experience, such as disability-related loss of employment.

64.With regard to poverty alleviation programmes, all households living below the official poverty line in Kazakhstan are eligible for targeted social assistance. The benefit does not, however, take into consideration the extra costs of living with a disability due to, inter alia, additional health expenses and the lack of accessibility and support services. The Special Rapporteur therefore underscores the importance of taking additional costs into full consideration if the link between disability and poverty is to be tackled.

65.Disability status is also linked to other support measures covered by local public budgets, such as access to free assistive devices. In this regard, the Special Rapporteur noted that devices were purchased from a fixed list of items, which limited the possibility of choice and control of beneficiaries; she therefore calls upon the Government to ensure that, in future, all devices are tailored to the specific needs of persons with disabilities.

66.With regard to community support services, since 2009, the Government has outsourced the provision of disability-specific services to private service providers, including organizations of persons with disabilities, that were more effective in reaching out to persons living in remote areas. This framework allowed non-governmental organizations a unique opportunity to design better service models. In 2016, almost $2 million was invested in the provision of disability-specific support services. During her mission, the Special Rapporteur was informed that the Government was planning to evaluate all piloted service models and to develop standard minimum rules for each type, on the basis of good practices.

67.Since the entry into force of the law on compulsory medical insurance in January 2017, Kazakhstan has moved from a State-financed national health system to a contribution-based system. The Government had taken positive measures to ensure that the health insurance costs of persons with a certified disability status and parents who have in their care a child with disabilities are covered entirely by the State. Health care provides for primary and specialized medical interventions, treatment and rehabilitation.

G.Independent living in the community

68.Living independently in the community is a major challenge for persons with disabilities in Kazakhstan. As at September 2017, nearly 18,000 children and adults with disabilities in Kazakhstan had been placed in segregated residential institutions, where they had little to no interaction with the community. In addition (as recognized also by the Government), psychiatric hospital wards are used for institutionalizing persons with mental or intellectual disabilities that lacked any support in the community (commonly referred to as “social cases”).

69.During her visit, the Special Rapporteur received troubling allegations of violence against and abuse and degrading treatment of persons placed in those institutions, in particular girls and women with disabilities.

70.The country has not yet developed an official deinstitutionalization strategy; in fact, the national disability strategy and action plan provides for the creation of even more smaller-scale institutions. The Special Rapporteur was informed, for example, that the local social protection authorities in Almaty were considering making substantial investments in the construction of a new residential institution with a capacity of 300 beds, and of building smaller ones for 25 to 30 people. The Special Rapporteur draws the attention of the local administration that the existing plan does not comply with article 19 of the Convention on the Rights of Persons with Disabilities, and strongly recommends that the existing resources be used to provide services for independent living instead.

71.During her visit, the Special Rapporteur met representatives of several non-governmental organizations that, with the Government’s support, were piloting a number of commendable initiatives aimed at empowering persons with mental or intellectual disabilities to become more independent and at supporting their transition from institutions into the community. Their financial and activity reports showed that community-based support ensured a better quality of living and was more cost-effective than institutional care.

72.Despite their good results, pilot initiatives were too small to reduce significantly the number of persons in institutions. As at August 2017, in Almaty, 1,150 children and adults with disabilities were institutionalized, while another 150 people required immediate preventive support. The resources actually allocated were sufficient to secure the deinstitutionalization of only 40 people.

73.The Special Rapporteur urges the Government to introduce a moratorium on new admissions to institutions and to reallocate existing resources from residential institutions towards the provision of support services in the community, including personal assistance and supported housing arrangements. A concrete plan with clear and short deadlines for phasing out all institutions for persons with disabilities should be developed as soon as possible.

74. Concurrently, national efforts to provide social housing to persons with disabilities should be expanded. According to the Government, in the past four years, only 2,021 persons with disabilities received access to social housing through its subsidized Nurly Zhol housing programme. More than 26,000 people with disabilities are still on the waiting list for subsidized housing.

75. The recent introduction of a personal assistance scheme is an important step towards the promotion of independent living for persons with disabilities. At the time of the Special Rapporteur’s visit to the country, 19,000 persons with disabilities benefited from State-funded personal assistance; this service was provided, however, only to adults with a certified severe disability, and did not cover children with disabilities. Also, existing eligibility criteria denied access to personal assistance to persons with psychosocial and intellectual disabilities, and also to those persons with disabilities living with HIV/AIDS.

H.Education

76.While Kazakhstan is continuously increasing its investments in education, children with disabilities in Kazakhstan still have limited access to inclusive and quality education. In 2011, at the conclusion of his mission to Kazakhstan, the Special Rapporteur on the right to education alerted the Government that segregated schools invariably provided poorer quality of education and affected negatively the perspectives for social inclusion (see A/HRC/20/21/Add.1). Moreover, in 2015, the Committee on the Rights of the Child found that abuse in institutions, including segregated boarding schools, was commonplace (see CRC/C/KAZ/CO/4, para. 30). Although there have been some improvements since then, the measures taken have been insufficient to guarantee access to inclusive education to all students with disabilities.

77.Article 1 of law No. 319-III on education (2007) defines “inclusive education” as a process aimed at ensuring that all students, regardless of their background or personal characteristics, receive the necessary support to receive education. According to estimates, 144,783 children in Kazakhstan need support for inclusive education, of which 79,662 are children with disabilities.

78.While 38,255 children with disabilities are formally enrolled in mainstream schools, still more than half are placed in segregated settings. The Special Rapporteur was informed that nearly 10,000 children with disabilities enrolled in mainstream schools were in fact following a home schooling programme, and did not come to school at all. According to the accounts received, home schooling was sometimes delivered remotely via Skype. Students only had brief contact with their teachers, once or twice a week, and did not maintain any contact with their schoolmates. The Special Rapporteur is therefore concerned that the quality of home education is inadequate.

79.Even though schools are becoming increasingly accessible, children with physical impairments are referred to home schooling. The Special Rapporteur did not seen any children using a wheelchair in the inclusive schools that she visited.

80.The Special Rapporteur is concerned that nothing has been done to ensure inclusion in the mainstream education system of children with sensory impairments. The system favours auditory-oral approaches and lip-reading to education in sign language for deaf children, even when it is taught in segregated schools. The number of braille learning materials and publications for blind children was also limited.

81.Although the Special Rapporteur did hear encouraging accounts that autistic children were successfully receiving education in general schools, the parents of these children have to overcome many obstacles to make it possible. For many, the most difficult obstacle was the pressure of psycho-medico-pedagogical commissions, which insisted on referring children with disabilities to segregated schools. Furthermore, education in mainstream schools does not provide for the possibility of curricular adjustments.

82.As part of its efforts to ensure inclusive education, the Government has introduced development and pedagogical support units and one-on-one support teachers; nonetheless, only one quarter of children with disabilities enrolled in mainstream schools receive the necessary support. Even though according to the national education programme 70 per cent of schools will be inclusive by the end of 2019, the Special Rapporteur is concerned that this objective will not be reached if the reforms continue at their current pace. She strongly recommends therefore that the Government scale up its efforts.

83.The Special Rapporteurs commends the Government for its efforts to provide training opportunities and incentives for teachers working with inclusive classes. A module on inclusive education has been included in the compulsory university curricula for teachers, and seven resource centres for continuous education and methodological support have been opened throughout the country. She encourages the Government to ensure that all teachers have access to this training.

84.The Special Rapporteur reminded the Ministry of Education that it had the primary obligation to ensure that all students with disabilities attend mainstream schools. Segregated schools should be phased out, while students with disabilities should be provided with the necessary assistance and support to help them to succeed. The Special Rapporteur therefore encourages the Ministry to make every effort to ensure a successful transition towards a fully inclusive education system in Kazakhstan. To that end, a national strategy with concrete benchmarks and responsibilities is needed.

I.Employment

85.The national disability strategy and action plan (see para. 22) has identified two main obstacles with a particularly detrimental effect on the inclusion of persons with disabilities in the open labour market: the low educational and professional qualifications of persons with disabilities; and the reluctance of employers to hire persons with disabilities.

86.In response, the Government has resolved to introduce a number of measures aimed at facilitating labour inclusion for persons with disabilities. A mandatory quota on hiring persons with disabilities in public and private enterprises, ranging from 2 to 4 per cent, was introduced in 2016. In addition, subsidies for the provision of reasonable accommodation for persons with disabilities were to become effective on 1 January 2018.

87.According to the data provided by the Government, as at August 2017, 39 per cent of working-age adults with a certified disability status were employed. Some 7,782 persons with disabilities were receiving employment support under the development of productive employment and entrepreneurship programme (2017-2021), which accounted for 3 per cent of all beneficiaries. The support provided included access to free professional training.

88.While the intention to open the labour market to persons with disabilities was clearly present, persons with disabilities remain largely excluded from employment. The issue of discrimination and inaccessible work environments remains unaddressed. The Special Rapporteur encourages the Government to making every effort to render the labour market and working environments inclusive of and fully accessible to all workers with disabilities.

J.Legal capacity, deprivation of liberty and forced treatment

89.Under current laws, persons with psychosocial or intellectual disabilities may be deprived of their legal capacity through a judicial procedure. All power to make any decision on behalf of the incapacitated person is held by the person’s legal guardian.

90.According to the Code of Civil Procedure, incapacitated persons are also deprived of their legal standing; they are therefore unable to appeal against any incapacitation measure or initiate judicial procedures to have their full legal capacity restored. This may only be done at the request of a person’s own guardian or the public prosecutor.

91.Legal incapacitation bears the most severe consequences in an individual’s life, such as restrictions on the exercise of civil and political rights, and puts them at a greater risk of forced treatment and institutionalization, and denial of sexual, reproductive and family rights. The Special Rapporteur urges the State to initiate a comprehensive legislative reform aimed at eliminating the outdated guardianship system and developing systems of support for the exercise of legal capacity. She emphasizes that the full recognition of legal capacity was a core element of the implementation of the Convention on the Rights of Persons with Disabilities.

92.The law on mental health (No. 96-1 (1997)) is in open contradiction to the Convention, in particular the provisions of article 29 relating to involuntary hospitalization and non-consensual administration of psychiatric treatment on grounds of mental or intellectual disabilities. In the Astana Psychiatric Hospital, which hosts 365 beds, the Special Rapporteur met persons held an involuntary basis who had been waiting for months for the doctors to make a decision on their release.

93.Mental health treatment is only available in large psychiatric hospitals, located in the outskirts of large cities and separated from regular health-care facilities. Moreover, non-medicalized interventions and support are virtually absent. The Special Rapporteur was, however, informed about plans to incorporate mental health services into primary care and general medicine and to pilot community-based alternatives. Human rights-based alternatives are not yet available.

94.In the Aktas forensic psychiatric facility, of the 781 persons undergoing forced psychiatric treatment, many were being detained for considerably longer than the term of the maximum sentence for the crime committed.

95.The Special Rapporteur was particularly concerned to note that autistic children and children with intellectual or psychosocial disabilities were confined for months under “psychiatric observation” to determine their disability status. She draws attention to the devastating impact such practices have on young children, and calls upon the Government to bring them to an end immediately and to offer alternative assessment methods that are respectful of the rights of the child.

96.Women with disabilities are disproportionately exposed to forced medical interventions in the context of their sexual and reproductive health and rights. Guardians can decide to request termination of pregnancy or sterilization without obtaining free and informed consent.

97.The Special Rapporteur urges the State to take immediate action to abolish the legal provisions that allow for the detention of persons with disabilities and their subjection to non-consensual interventions, and to ensure that all health-care interventions are provided on the basis of free and informed consent.

IV.International cooperation and role of the United Nations country team

98.The Special Rapporteur commends the Government for its recent adoption of the United Nations Partnership Framework for Development (2016-2021), which explicitly refers to persons with disabilities as primary beneficiaries and partners in promoting development in Kazakhstan. She also notes the engagement of the United Nations country team in working on different disability-related issues falling within the scope of its mandate.

99.The Special Rapporteur nonetheless noted vast disparities in the degree of disability awareness in the country team in Kazakhstan. She reminds the country team that all technical and policy advisory support provided to the Government should be compliant with the Convention on the Rights of Persons with Disabilities.

100.The Special Rapporteur encourages the United Nations country team to focus on supporting the structural transformations necessary in deinstitutionalization and the transition to community-based mental health treatment and support alternatives. She encourages UNICEF to scale up its efforts in supporting inclusive education reform. Lastly, she recalls the important role of the country team in advocating for the full inclusion of persons with disabilities in the implementation of the Sustainable Development Goals.

V.Conclusions and recommendations

A.Conclusions

101. Since its ratification of the Convention on the Rights of Persons with Disabilities in 2015, Kazakhstan has made considerable progress in improving the situation of persons with disabilities through legislative reforms and policy measures, especially in the area of social protection.

102. State authorities have shown a keen interest, the commitment and the political will to continue their commendable work and to scale up efforts, an essential prerequisite to mak ing change happen. Consequently, Kazakhstan has a great opportunity to drive the reform process forward in an accountable, innovative and cost-effective way by meaningfully engaging persons with disabilities in all public decision - making processes and involving them in defining development priorities.

103. N evertheless , the findings made by the Special Rapporteur during her mission suggest that Kazakhstan is facing, like many other countries, challenges in meeting its obligations under the Convention on the Rights of Persons with Disabilities. In this regard, it is important that policymakers and public officials strengthen their understanding of the human rights-based approach to disability to be able to plan for and carry out the required structural transformations .

104. To create an enabling environment for the full inclusion and equal participation of persons with disabilities in society, t he State should remove all physical barriers and address the negative attitudes that persons with disabilities encounter. It should aboli sh immediately all legislation and practices that openly contradict the Convention on the Rights of Persons with Disabilities , including the denial of legal capacity, forced medical interventions, institutionalization and detention on the basis of impairment, segregat ion and exclusion from mainstream services and lack of support for independent living. It is important that independent monitoring and accountability mechanisms accompany reform initiatives and implementation of policies. Furthermore, the State should take steps to ensure that persons with disabilities a re included in all efforts aimed at implementing the 2030 Agenda for Sustainable Development and the Kazakhstan 2050 n ational development s trategy.

105. The Special Rapporteur is grateful for the chance to visit Kazakhstan at such an opportune moment , and makes the recommendations set out below to guide the State in it s efforts as it moves forward . She remains committed to a continued dialogue and collaboration with the Government of Kazakhstan and other actors i n the implementation of her recommendations.

B.Recommendations

106. The Special Rapporteur encourages the Government of Kazakhstan to co ntinue its efforts to promote and protect the rights of persons with disabilities . To that end, she makes the recommendations below .

107. With regard to its general obligations, the Special Rapporteur recommends that the Government of Kazakhstan:

(a) Ratify the Optional Protocol to the Convention on the Rights of Persons with Disabilities , the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and all other international human rights treaties and optional protocols thereto that are pending ratification ;

(b) E liminate the use of demeaning language or terminology when referring to persons with disabilities and bring the definition of disability in to compliance with the Convention on the Rights of Persons with Disabilities;

(c) S cale up efforts and invest resources in broad and targeted awareness-raising campaigns and mass education on the human rights-based approach to disability , with the involvement of persons with disabilities and their representative organi z ations .

108. With reference to non-discrimination, e quality and access to justice, the Special Rapporteur recommends that the Government:

(a) Consider amending article 14 of the Constitution to include an explicit prohibition of discrimination on the grounds of disability;

(b) Consider the adoption of a comprehensive law prohibiting discrimination on the basis of disability and including the obligation to provide reasonable accommodations to persons with disabilities in all areas ;

(c) Establish legal remedies and sanctions to uphold the prohibition of disability-based discrimination, including the possibility of submitting complaints to courts ;

(d) Make all justice proceedings accessible to all persons with disabilities, including through the provision of free legal aid and of information in accessible formats, sign language interpretation and protocols for gender-sensitive, procedural and age-appropriate accommodation s;

(e) Provide training on the concept of reasonable accommodation and non-discrimination of persons with disabilities to public and private actors, in particular members of the legal profession, the judiciary, law enforcement officers, and persons with disabilities themselves.

109. With re gard to the institutional and policy framework in Kazakhstan, the Special Rapporteur recommends that the Government :

(a) Ensure that the new n ational d isability s trategy is fully informed by the Convention on the Rights of Persons with Disabilities and address the root causes of stigmatization, exclusion, segregation and institutionalization ;

(b) Consider the rights of persons with disabilities at all stages of the implementation and monitoring of the S ustainable D evelopment G oal s ;

(c) Expedite the establishment of an independent monitoring mechanism that is in compliance with the Paris Principles and that has the required expertise and access to sufficient resources in accordance with article 33 (2) of the Convention ;

( d) Ensure that the labour market and working environments are inclusive of and fully accessible to all workers with disabilities ;

(e) Increase efforts to ensure access to information and communications to all persons with disabilities, including blind, deaf and deafblind persons, and those with intellectual impairments;

(f) Strengthen the capacity and the mandate of the Office of the Ombudsperson to make it an “A ” status n ational h uman r ights i nstitution able effectively to promote, protect and monitor the rights of persons with disabilities, including through the identification of different forms of discrimination and the promotion of equality ;

(g) Ensure that any official development assistance is inclusive of and accessible to persons with disabilities.

110. With regard to access to education, the Special Rapporteur recommends that the Government :

(a) Revise the l aw on e ducation in accordance with article 24 of the Convention on the Rights of Persons with Disabilities, and include the provision of support services to enable students with disabilities to attend mainstream schools and receive quality education;

(b) Adopt and implement a national strategy on inclusive education ; t he Ministry of Education should ensure appropriate coordination of reform efforts, and allocate effective and adequate financial, material and properly trained human resources for their implementation ;

(c) Ensure the accessibility of school environments, the provision of reasonable accommodation, and accessible and suitable materials and curricula .

111. With regard to social protection, the Special Rapporteur recommends that the Government :

(a) Ensure that poverty alleviation programmes take into account the higher cost s of living for persons with disabilities , and provide sufficient and fair financial assistance to ensure that a person can live independently in the community ;

( b) Engage i n a process of technical assistance and exchange of good practices to develop further the disability assessment system in accordance with the C onvention on the Rights of Persons with Disabilities .

112. With regard to data collection , the Special Rapporteur recommends that the Government :

(a) Improve the collection and increase the availability of internationally comparable data on persons with disabilities, following existing guidelines on disability statistics and using the set of questions proposed by the Washington Group on Disability Statistics ; And in the case of disaggregation by disability among children, use the UNICEF/Washington Group module on c hild f unctioning ;

(b) C ollect additional information beyond disaggregation either through additional modules or stand-alone surveys, to give policymakers a more complete picture of the situation of persons with disabilities and to inform policy reform.

113. With regard to participation , the Special Rapporteur recommends that the Government:

(a) Recognize in national legislation the right of persons with disabilities to participate in political and public life on an equal basis with others, including through consult ations with their representative organizations, in the development and implementation of legislation and policies that directly or indirectly concern them ;

(b) Abolish the discriminatory provisions of the law on elections in Kazakhstan that deny persons with mental and/or intellectual disabilities the right to vote and to stand for election ;

(c) Ensure that voting procedures, facilities and materials are accessible to all persons with disabilities , easy to understand and use ;

(d) Create an enabling environment for the establishment and functioning of representative organizations of persons with disabilities, including by means of dedicated allocation of necessary funding or the conduct of independent monitoring and advocacy activities ;

(e) Include persons with disabilities in all national delegations reporting to the treaty bodies , and support their participation in international decision-making processes.

114. With regard to deinstitutionalizat ion , the Special Rapporteur recommends that the Government:

(a) Adopt a comprehensive strategy for the deinstitutionalization of persons with disabilities within concrete and short timelines and indicators ;

(b) Take immediate steps to phase out institutional-based care for pe rsons with disabilities , and enforce a moratorium on new admissions of children and adults with disabilities into institutionalized care ; and r efrain from using national funds for the construction of new institutions for persons with disabilities , and redirect funding and resources into community-based services, to ensure their availab ility in all geographic regions and rural areas ;

(c) Reduce excessive waiting time for receiving social housing and support services, which prevent person s with disabilities from leaving institutions and transitioning back into their communities ;

(d) Establish a framework providing for legal entitlement s to personal assistance services to enable persons with disabilities to live independently in the community ; e nsure that children are eligible and provided professional personal assistance services, in accordance with their own choice ; and, a t the same time, ensure that parents caring for children with disabilities and other family members are gra n ted the necessary support as well ;

(e) Accelerate efforts to mak e local communities and mainstream services accessible to persons with disabilities.

115. With regard to l egal capacity and the deprivation of liberty , the Special Rapporteur recommends that the Government :

(a) Recognize the full legal capacity of persons with disabilities in all aspects of life, regardless of disability or decision-making skills ;

(b ) Repeal the provisions of the Civil Code and the Civil Procedure Code on incapacitation of adults on grounds of their psychosocial and/or intellectual impairment, and aboli sh the guardianship regime for persons with disabilities ;

(c) Recognize by law that person with disabilities may enjoy s upport in the exercise of their legal capacity if they so wish, while at the same time retaining their autonomy to make decisions based on their own will and preferences ;

(d) Take action to develop and provide formal supported decision-making assistance that respects the person’s autonomy, will and preference ; and e nsure that the person can refuse support and terminate or change the support relationship at any time ;

(e) Create appropriate and effective safeguards for the exercise of legal capacity to ensure the person’s rights, will and preferences are respected at all times , and provide protection from abuse and undue influence in the interaction between the support person and the person being supported ;

(f) Abolish all legal provisions, in particular the l aw on m ental h ealth and the relevant provisions of the Criminal Code, by which persons with disabilities are subjected to forced medical interventions, including involuntary hospitalization and the administration of mental health treatment ;

(g) Recognize by law the right of persons with disabilities to provide free and informed conse nt to all health - care interventions, including mental health treatment in emergency or crisis situations ;

(h) Accelerate efforts to reform the mental health system and to make the shift towards rights-compliant and community - based services and support for mental health ;

(i) Enforce the prohibition of torture in all health-care institutions ;

(j) Provide appropriate human rights education and information , and promote a culture of respect for human diversity, integrity and dignity ;

(k) Train doctors, judges, prosecutors and police personnel on free and informed consent standards ;

(l) Ensure monitoring of all facilities and programmes that serve persons with disabilities in order to prevent all forms of exploitation, violence and abuse.

116. With regard to girls and women with disabilities, the Special Rapporteur recommends that the S t ate:

(a) Recognize by law the sexual and reproductive health and rights of girls and young women with disabilities, and remove all legal barriers that prevent them from having access to sexual and reproductive health information, goods and services ;

(b) Prohibit by law the forced sterilization of girls and young women with disabilities, and other compulsory or involuntary practices affecting their sexual and reproductive health and rights, and ensure adequate procedural safeguards to protect their right to free and informed consent ;

(c) Mainstream disability in all laws, policies, strategies and action plans on gender equality, and ensure that gender is mainstreamed in all legislation and policies on disability rights ; and e stablish specific policies on the empowerment of women with disabilities in close consultation with them through their representative organizations.

117. The Special Rapporteur recommends that the United Nations and international actors:

(a) E ngage d irectly with and support representative organizations of persons with disabilities when seeking to mainstream disability rights in all their programmes, strategies and projects , and make them accessible to persons with disabilities ;

(b) Continue efforts to promote the participation of persons with disabilities in all national international decision-making and reform processes, especially in the implementation of the Sustainable Development Goals.