Consideration of reports submitted by states parties under article 19 of the convention
Consideration of reports submitted by states parties under article 19 of the convention
Introduction
This report is submitted in accordance with article 19, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which entered into force for the Republic of Kazakhstan on 26 June 1998 following its ratification. It has been compiled in accordance with the guidelines on layout and content of initial reports submitted by States parties pursuant to article 19, paragraph 1, of the Convention and the amendments to the general guidelines of 26 April 1991, adopted at the 82nd meeting of the United Nations Committee against Torture.
The report covers the period 1998‑1999.
It was prepared by the Human Rights Commission attached to the Office of the President of the Republic of Kazakhstan in cooperation with the Ministry of Justice, the Ministry of Internal Affairs, the Office of the Procurator‑General and the National Security Committee.
I. GENERAL INFORMATION
A complex process of building up a democratic and social State subject to the rule of law is proceeding in the Republic of Kazakhstan in accordance with the policy outlined in its 1995 Constitution.
Kazakhstan, as a State Member of the United Nations, recognizes that the provisions of the Charter of the United Nations take precedence over those of other international agreements. It is fully committed to the implementation of the provisions of the Charter of the United Nations and their incorporation in national legislation. A significant feature of the country’s Constitution is that it embodies the widest possible range of civil, political, economic, social and cultural rights of citizens, reflecting generally recognized international human rights standards and their classification in accordance with the Universal Declaration of Human Rights. This is clear from the fact that 30 of the 98 articles comprising the Constitution proclaim the rights, freedoms and obligations of the individual. The basis for the inclusion of these articles in the Constitution is the priority given to the life, rights and freedoms of the individual.
Article 14 of the Constitution states that everyone is equal before the law and that “No one shall be subject to any discrimination for reasons of origin, social status, property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances”. On this basis, Kazakhstan’s criminal legislation provides for punishment in cases of discrimination and the use of torture.
The Constitution not only describes the various functions of the legislature, executive and judiciary but also covers basic issues connected with the reform of the law enforcement system. The new Criminal Code, Code of Criminal Procedure and Code for the Execution of Criminal
Penalties adopted in 1997 are based on the rule of law, justice, the equality of citizens before the law, personal responsibility, humanism and the individualization of criminal responsibility and punishment.
According to article 17 of the Constitution, which carries the greatest legal force and is directly applicable throughout the country, “No one must be subject to torture, violence or other treatment and punishment that is cruel or humiliating to human dignity”.
This constitutional provision is elaborated upon in the Criminal Code, the Code of Criminal Procedure and the Code for the Execution of Criminal Penalties. These Codes embody a sufficient number of norms that brand all acts of torture as offences and forbid their use in criminal proceedings as well as in the course of a sentence being served by a prisoner.
The Criminal Code is consistent in dealing with the inadmissibility of torture since its provisions provide for the criminal responsibility and punishment of officials and bodies in charge of criminal proceedings who violate due process and the execution of punishment, including the infliction of torture, and other cruel or degrading treatment or punishment.
The use of torture is regarded as an aggravating circumstance in respect of criminal responsibility and punishment.
A direct reference is made to the term “torture” in article 107, entitled “Systematic or brutal violence”, and article 347, entitled “Coercion to testify”, of the Criminal Code. Article 107 states that “The infliction of physical or mental suffering by systematic beatings or other violent methods including the use of torture shall be punishable by restriction of liberty for a period of up to five years or deprivation of liberty for a period of from three to seven years.” Article 347 states that “Coercion of a suspect, accused person, injured party or witness to testify or of an expert to present his conclusions by means of threats, blackmail or other unlawful methods on the part of an investigator or the person conducting an initial inquiry, accompanied by the use of violence, bullying or torture shall be punishable by deprivation of freedom for a period of from three to eight years.” On the basis of this article, the personnel of law enforcement agencies are held criminally responsible for the use of torture or for participating in its use either actively or by failure to act.
The definition of the term “torture” given in the Commentary on the Criminal Code of the Republic of Kazakhstan and constituting the official interpretation of the Code reflects the provisions of article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: “Torture is regarded as constituting acts that cause physical or mental suffering such as beating, twisting of the wrists, the use of painful methods, inflicting burns on the body, the prolonged and systematic infliction of pain, etc.” (article 347 of the Criminal Code). In this connection, article 107 of the Commentary states that the term “Systematic or brutal violence involving torture covers cases when, in order to cause physical or mental suffering, particularly sophisticated methods are employed to affect the human body. These include the use of electric shocks, red‑hot irons, fire, etc.”. However, in accordance with
article 4, paragraph 3, of the Constitution, “International treaties ratified by the Republic shall have priority over its laws and be directly implemented except in cases when the application of an international treaty requires the promulgation of a law.” On the basis of these provisions, the definition of the term torture given in the Constitution can be officially used for purposes of law enforcement.
According to the Convention, the term torture implies its use only by a public official or another person acting in an official capacity with his consent or acquiescence, whereas under Kazakhstan’s criminal legislation not only public officials but also other persons using torture in order to commit an unlawful act are held criminally responsible for their acts (article 107 of the Criminal Code).
In view of the fact that the Committee against Torture has expressed the view that torture should be defined as a separate offence in the domestic legislation of States parties, Kazakh jurists consider that they should explore the possibility of introducing a separate article in chapter 13 of the Criminal Code, entitled “Offences against the interests of the civil service”, with a view to holding persons engaging in torture and other cruel, inhuman or degrading treatment or punishment responsible for their acts.
There is a particularly close link between the Criminal Code and the Code of Criminal Procedure, which governs the activities of bodies responsible for criminal proceedings.
The activities inherent in and the principles of criminal proceedings place the bodies responsible for such proceedings under a duty to protect the rights and freedoms of citizens in the course of their activities.
The Constitution and the international agreements ratified by Kazakhstan are an integral part of legislation covering criminal procedure and must be strictly complied with in the course of criminal proceedings.
The Code for the Execution of Criminal Penalties has considerably extended the rights of persons who have been convicted and increased the effectiveness of the social and legal protection available to them.
The State’s policy in this area as reflected in national legislation on the subject completely excludes the use of torture and other cruel, inhuman or degrading treatment or punishment from the armoury of methods used to combat crime.
Under Kazakhstan’s national legislation, matters covered by the Convention are dealt with by the Supreme Court and the Office of the Procurator‑General. Various internal affairs bodies are also competent to consider questions that arise in connection with the functioning of the Convention (mainly the Committee on the Execution of Criminal Penalties attached to the Ministry of Internal Affairs). Citizens are entitled to appeal to these bodies, as well as to the Human Rights Commission attached to the Office of the President, in the event that they are subjected to torture or other cruel, inhuman or degrading treatment or punishment.
