A.A. Yekhlassova
Director of the Department of International Law and Coordination of Work of the Ministry of Justice of the Republic of Kazakhstan
Torture and other forms of cruel, inhuman or degrading treatment or punishment are prohibited by international law. Such acts fall within the category of jus cogens norms and are considered inadmissible under any circumstances, whether in time of peace or in a situation of armed conflict.
The prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment is contained in the Universal Declaration of Human Rights (1948) and in many international and regional human rights treaties. These include the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1978) and the African Charter on Human and Peoples’ Rights (1981).
In addition, a number of treaties have been developed specifically to combat torture. The key instrument in this area is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereinafter the Convention against Torture), according to which “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person to obtain from him or a third person information or a confession, punish him for an act he or a third person has committed or is suspected of having committed, or intimidate him. This definition does not include pain or suffering that arises only as a result of lawful sanctions, is inseparable from these sanctions or is caused by them accidentally.
[https://www.un.org/ru/documents/decl_conv/conventions/torture.shtml ]
In addition, the Convention establishes the absolute prohibition of torture and asserts that an order from above cannot be invoked as a justification of torture. States parties to the Convention undertake not to expel or return persons to a country where there is a risk of torture. States have an obligation to punish or extradite those who violate the Convention, to keep the rules and methods of interrogation under systematic review, to conduct impartial investigations into intentional acts of torture and the lack of admissibility of evidence obtained by torture as evidence, and to provide fair and adequate reparation, including the means for the full rehabilitation of victims.
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) and the Inter-American Convention to Prevent and Punish Torture (1985) are the human rights instruments at the regional level.
The prohibition of torture is also contained in instruments of international humanitarian law, such as the Regulations annexed to the Fourth Hague Convention of 1907, the four Geneva Conventions of 1949 and the two Additional Protocols of 1977.
For context. International humanitarian law offers a slightly different definition of torture. It is not necessary that the perpetrator has official status in order for actions aimed at inflicting severe pain or suffering on a person to be considered torture. The International Committee of the Red Cross uses a broader concept of “ill-treatment,” which includes both torture and other methods of degrading treatment prohibited by humanitarian law, namely non-human, cruel, humiliating and degrading treatment, insult to human dignity, and physical or moral pressure [https://www.icrc.org/ru/doc/resources/documents/misc/69ubby.htm].
Turning to the practice of implementing the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment, it is necessary to emphasize the importance of the UN Committee against Torture (hereinafter – the UN CAT) [Analytical report on the results of fundamental and applied scientific research of 2018 on the theme: Implementation of international human rights treaties (civil and political rights) in the legislation of the Republic of Kazakhstan, Astana , 2018, www.zgai.kz].
The UN CAT Committee against Torture is a UN treaty body consisting of 10 independent experts who monitor the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by State parties. The Committee holds states accountable for human rights violations and investigates allegations of torture in order to stop and prevent such crimes [ohchr.org].
In addition, the Optional Protocol to the aforementioned Convention, which entered into force in June 2006, was the basis for the establishment of the Subcommittee on Prevention of Torture (SPT), which has the power to visit places of detention on the territory of state parties.
A set of measures is being taken in Kazakhstan to combat torture. The country has a zero tolerance towards torture and it is prohibited at the constitutional level.
For example, Article 17 of the Constitution of the Republic of Kazakhstan states that no one shall be subjected to torture, violence, other cruel or degrading treatment or punishment [See the Constitution of the Republic of Kazakhstan].
It should be mentioned that Kazakhstan acceded to the Convention against Torture (Law No. 247 of Kazakhstan, 29 June 1998) and ratified the Optional Protocol to the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment (hereinafter the Optional Protocol) (Law No. 48-IV of Kazakhstan, 26 June 2008).
According to articles 3 and 17 of the Optional Protocol, each state party creates, appoints or supports one or more independent bodies (national preventive mechanisms) for prevention of torture at the national level [https://www.un.org/ru/documents/decl_conv/conventions/torture_prot.shtml].
In pursuance of the commitments undertaken by Kazakhstan under the Optional Protocol, the Law “On amendments and additions to some legislative acts of the Republic of Kazakhstan on the establishment of a national preventive mechanism aimed at preventing torture and other cruel, inhuman or degrading treatment or punishment” was signed (Law of Kazakhstan of July 2, 2013 № 111-V), which established in Kazakhstan the National Preventive Mechanism against torture (hereinafter – NPM), which has been functioning in Kazakhstan since 2014.
The NPM in Kazakhstan is based on the “Ombudsperson+” model, which ensures a partnership between the Commissioner for Human Rights and representatives of civil society in the prevention of torture and ill-treatment [(https://cdn.penalreform.org/wp-content/uploads/2021/12/ENSURING-INDEPENDENCE-OF-THE-NPM-IN-KAZAKHSTAN_RUS.pdf).
Criminal liability for torture is established by Article 146 of the Criminal Code.
The punishment was increased by introducing a ban on exemption from criminal responsibility for torture due to an act of amnesty or statute of limitations (Art. 71, 78 CC), as well as in connection with active repentance (Part 2 Art. 65 CC) and reconciliation of the parties (Part 4 Art. 68 CC) (since 2014).
In order to bring the national legislation in line with the Convention against Torture, a new corpus delicti is introduced into this article. To date, the Mazhilis of Kazakhstan (lower chamber of Parliament) is considering a draft law “On amendments and additions to the Criminal, Criminal Procedure and Criminal Execution Codes of the Republic of Kazakhstan on human rights in the field of criminal justice, execution of punishment and prevention of torture and ill-treatment” developed by the Ministry of Internal Affairs[https://www.parlam.kz/ru/mazhilis/post-item/36/15626]. One of their proposals is to precisely define the concept of “torture” and add a new concept of “cruel treatment”. As noted above, the Constitution states that no one shall be subjected to cruel or degrading treatment or punishment, but these concepts are not reflected in the legislation. The introduction of the corpus delicti “cruel or degrading treatment” would help to distinguish between cruel treatment and torture. In addition, it would solve the problem regarding the qualification of crimes under the Convention against Torture and help reduce the number of such facts in educational, medical, and social institutions and organizations.
In addition, a draft Law of the Republic of Kazakhstan “On amendments and additions to some legislative acts of the Republic of Kazakhstan on the optimization of the Criminal Code, Criminal Procedure Code and Criminal Executive Code” was published for public discussion on the site “Open normative legal acts”, according to which the Criminal Code proposed to supplement the list of persons to whom conditional release is not applied [https://legalacts.egov.kz/npa/view?id=14377605]. According to part 6 of Art. 63, it is proposed not to apply conditional release when a person is convicted of torture.
At the level of the Government, a “Plan of further measures in the field of human rights and the rule of law” (Decree of the Government of Kazakhstan dated April 28, 2022, № 258) was approved which covers human rights measures in the field of criminal justice, execution of punishment and prevention of torture and ill-treatment. In implementing this paragraph, the General Prosecutor’s Office adopted the Instruction “On the organization of pre-trial investigation of criminal cases of torture in the prosecutor’s office”. The Instruction contains provisions aimed at using the recommendations of the Istanbul Protocol.
Issues of investigative jurisdiction in the investigation of torture cases are under special control.
President Kassym-Jomart Tokayev, in his address to the people of Kazakhstan on March 16, 2022, “New Kazakhstan: the path of renewal and modernization”, noted the importance of a systematic approach to investigating crimes involving torture and the lack of a specific body responsible for this area. In this regard, he instructed to assign to the General Prosecutor’s Office the function of investigating crimes of torture, justifying it by the fact that this approach will ensure objectivity and impartiality of the investigation, and will ensure the inevitability of punishment for arbitrariness in the law enforcement sphere [https://www.akorda.kz/ru/o-merah-po-realizacii-poslaniya-glavy-gosudarstva-narodu-kazahstana-ot-16-marta-2022-goda-novyy-kazahstan-put-obnovleniya-i-modernizacii-292959].
Since January 1, 2023, only prosecutors can investigate torture in Kazakhstan.
The process to transfer medical support for convicts from the Ministry of Interior to the Ministry of Health has been completed.
Installation of terminals (243) to submit complaints by convicted persons and introduction of continuous video surveillance is ongoing (this has been completed in 33 out of 79 prisons, 20,000 cameras have been installed in operational and investigative units of criminal prosecution bodies).
In Kazakhstan, particular attention is paid to the issue of prevention of torture or other ill-treatment. In addition to completed work, Kazakhstan will continue to implement measures on the prevention of torture and to strive to bring its national legislation in line with international standards in the field of human rights protection.
