Follow-up to the United Nations Committee Against Torture's Concluding Observations on Kazakhstan

In February 2016, the World Organisations Against Torture (OMCT), jointly with the Kazakhstan International Bureau for Human Rights and Rule of Law (IBHR) and the International Partnership for Human Rights (IPHR) submitted an alternative follow-up report highlighting how the concerns addressed in the CAT’s concluding observation continue to be valid. In particular, it denounces the ineffectiveness of investigations into allegations of torture as well as the lack of accessible and independent complaint and national preventive mechanisms in Kazakhstan. It further includes several case studies showing that perpetrators of torture and ill-treatment keep enjoying a high degree of impunity for their crimes.

25February 2016

FOLLOW-UP TO THE UNITED NATIONS COMMITTEE AGAINSTTORTURE’S CONCLUDING OBSERVATIONS ON KAZAKHSTAN (CAT/C/SR.1286 andCAT/C/SR.1287)[1]

TheCommittee against Torture (CAT) requested the State party to provide, by 28November 2015, follow-up information in response to the Committee’srecommendations relating to: (a) the effective investigation of allegations oftorture; (b) transfer of detention authority to the Ministry of Justice; (c)the Human Rights Commissioner (Ombudsman) and National Preventive Mechanism;and (d) the administration of justice, as contained in paragraphs 8, 10, 13 and15 respectively of the present document.

I. Effective investigation of allegations of torture

Recommendation # 8:

(a) Establishan effective, fully resourced, independent and accountable body that is able tocarry out prompt, impartial, thorough and effective investigations, includingpreliminary investigations, into all allegations of torture and ill-treatment,ensuring that such investigations are never undertaken by personnel employed bythe same ministry as the accused persons;

(b) Ensurethat such an independent body is also empowered to receive and act oncomplaints of alleged torture and ill-treatment by law enforcement officials,including complaints of sexual violence; ensure that persons deprived of theirliberty are able to transmit confidential complaints to such bodies; and ensurethat this body is able to protect effectively complainants from reprisal;

(c) Providethe Committee with information on the number of complaints of torture made bypersons deprived of their liberty, the number of claims of acts of torture andill-treatment that have been investigated and by which body(ies); the number ofpersons prosecuted and under what charges; and the penalties applied for thosefound guilty.

Thefollowing concerns addressed in the UN CAT’s concluding observations relatingto the effective investigation of torture allegations continue to be valid:

Laws and policies concerning the state’s protection ofhuman rights and prevention of torture and ill-treatment remain to be inconsistentlyimplemented in practice (point 7).

Most allegations of torture and ill-treatment continueto be referred for preliminary investigation to the same department as that inwhich the persons accused of torture are employed (point 8).

Comprehensive and disaggregated data on complaints,investigations, prosecutions and convictions of cases of torture and illtreatment by law enforcement, security and prison personnel, including indetention facilities is still absent (point 27).

Based on extensive monitoring and work onindividual cases, the NGO Coalition against Torture in Kazakhstan concludedthat investigations continue to be ineffective despite positive legislativechanges pertaining to the procedure of crime reporting and the investigation.In January 2015, the new criminal and criminal procedure codes entered intoforce. According to the new Criminal Procedure Code, crime reporting shouldtrigger immediate investigation. However, there still remains a provisionallowing law enforcers to subject the information contained in the crime reportto preliminary checks. To perform the checking, the crime report is routinelyreferred to the same body whose staff are being accused of torturing thevictim. As a result, the allegations are usually found unsubstantiated andhence not meriting investigation. Even if an allegation of torture or otherforms of ill-treatment is registered it is often dismissed due to the allegedlack of evidence. Yet, such investigations or checks are very superficial inpractice consisting typically of interviews only with the alleged perpetrators.Bodily injuries, if documented, are usually ascribed to accidents or naturalcauses. Incarcerated victims are especially vulnerable to retaliation forcomplaining about torture. There is no mechanism of transferring such victimsto institutions other than those that are also under the authority of theMinistry of Internal Affairs.

In general, torturevictims prefer not to lodge complaints given these and other problems it mightcause. The NGO Coalition against Torture in Kazakhstan is aware of cases inrecent years where perpetrators of torture or other law enforcement officersthreatened victims with further violence or other reprisals when they wanted tolodge complaints about torture or other forms of ill-treatment. Many decidednot to complain out of fear for their own or their family’s safety or theywithdrew their complaints at a later stage.

Cases brought to the attention of the NGO Coalitionagainst Torture in Kazakhstan in 2014 and 2015 that have either been dismissedor indefintely suspended include: (a) cases of deaths in custody undersuspicious circumstances (e.g. the case of Alexey Mamuch-Ogly, 29 year-old, whodied in a prison hospital in April 2014 allegedly of liver cirrhosis after lessthan 3 years in prison and whose death certificate did not state the cause ofhis death. According to his mother, the cause of death was never investigatedand his medical records file was not shared with her despite her numerousrequests); (b) a case of post-traumatic trauma (the case of IskanderTyugelbaev, a 25 year-old prisoner, who fell into a coma after being beatenduring a “planned search operation” in May 2015 at the ОВ-156/18 prison inEastern Kazakhstan); and c) other cases of torture or ill-treatment (e.g. thecase of Alexander Albrandt, 52 year-old, Kostanay region. By the time ofwriting, the investigation into his allegations of police abuse had been draggingon for over a year.

The Coalition observed that problems associated withinvestigations into reports of torture stem from the lack of effectiveness ofthe existing investigation mechanism and the prejudiced attitude ofinvestigatory and regulatory agencies vis-a-vis complaints by suspects, accusedor individuals who are kept in custodial institutions. At the heart of theproblem lies the authorities’ reluctance to expose the law enforcement systemto public criticism and their fear that doing so would increase public distrustof law enforcement agencies even further. The NGO Coalition documented manycases where investigations have not been conducted adequately, i.e. where notall available methods and means were responsively employed throughout theinvestigation. In those instances where criminal cases are opened intoallegations of torture, they are investigated by offices of Special Prosecutorsunder the Prosecutor General. The Coalition supports the idea that a body otherthan the police should investigate complaints of torture but points to the needfor improving the institution of special prosecutors especially in terms of itspublic accountability and transparency.

Another problem regarding the investigation oftorture is the lack of an accessible and safe complaint mechanism, especiallyfor persons deprived of or limited in their freedom, including patients ofspecial institutions for compulsory treatment and temporary isolationfacilities (special detention centres). Detainees are not always aware orinformed of what complaint channels are available to them by law. In manyclosed institutions complaint boxes are out of daily or free access ofdetainees. Often, detainees report that their complaints do not leave theinstitution after they pass them to the administration for mailing. Whendetainees complain to an overseeing prosecutor or public monitors they riskfacing even harsher treatment by the guards at the knowledge or consent of theadministration. As a result, many cases of torture go unreported. In prisons,the prisoners’ despair caused by inhuman treatment or torture – especiallyduring mass searches to uncover prohibited items – sometimes leads to riots ormassive self-mutilation to draw public attention to what is going on. In writtencomplaints to the NGO Coalition, prisoners say they do not see any other way ofcomplaining than that.

Conclusion: Kazakhstan has not implemented theUN CAT’s recommendation no. 8.

II. Transfer ofauthority over detention facilities to the Ministry of Justice

Recommendation# 10:

TheState party should transfer authority for all detention and investigationfacilities, including prisons, temporary holding facilities (IVSs) and remandcentres (SIZOs) away from the Ministry of Internal Affairs.

Thefollowing concern of the UN CAT relating to its recommendation regarding thetransfer of the authority for all detention and investigation facilities awayfrom the Ministry of Internal Affairs continues to be valid:

Authority over the penal correction system remainswith the Ministry of Internal Affairs. Places of detention are controlled bythe government ministry with responsibility for the police and internalsecurity. […] Detention is seen as a tool of theinvestigative process or a means to compel prisoners to confess to the charges against themand thus amplifies the risk of torture and ill-treatment in such places ofdetention (point 10).

VictorAkhmetov from Kostanay region was unofficially held in the police department ofthe town of Zhetikara for four hours. When he was about to leave he was chargedwith an administrative offence (“Disorderly conduct”, Art. 330, part 1 of theCode of the Republic of Kazakhstan on Administrative Offences), arrested andplaced in the Special Detention Centre for Administrative Detainees that, likeall other detention facilities, is under the jurisdiction of the Ministry ofInternal Affairs. For 7 days in a row he was repeatedly taken to the policestation and beaten to make him “confess” to murdering his mother. His complaintof torture was dismissed as unfounded, despite the broken jaw he had sustained,which the investigators said was the result of a private fight.

Conclusion: Kazakhstan has not implemented theUN CAT’s recommendation no. 10.

III. The Human Rights Commissioner (Ombudsman) andNational Preventive Mechanism

Recommendation # 13:

The mandate of the Office of the Human RightsCommissioner (Ombudsman) should be broadened to enable it to functioneffectively as both the national human rights institution in accordance withthe Paris Principles and as the national preventive mechanism (NPM).

The mandate of the National Preventive Mechanismshould be broadened to include monitoring of all places of deprivation ofliberty such as offices of police departments and of the National SecurityService, orphanages, medical social institutions for children with certaindisabilities, special boarding schools, nursing homes, and military barracksand to examine the conditions and treatment of children in penitentiary andnon-penitentiary institutions.

Measures should be taken to improve the ability of the NPM to carry out urgent andunannounced visits to places of detention upon its request.

The State party should consider authorizing the NPM topublicize its findings and recommendations shortly after undertaking visitsrather than only on an annual basis and to ensure that NPM members and thepublic can assess whether their recommendations have been acted upon. Theannual and other reports of the NPM should not be subject to prior review andapproval by the President before publication.

Thefollowing concern of the UN CAT relating to its recommendation on the NPM andthe Ombudsman continues to be valid:

TheNational Preventive Mechanism (NPM) has not always been able to undertake adhoc visits due to bureaucratic constraints. The NPM’s mandate still does notprovide for visits to all places of deprivation of liberty, such as orphanages,medical social institutions for children with certain disabilities, specialboarding schools, nursing homes, elderly homes, and military barracks. Thefindings and recommendations of the NPM are only made public in the form of anannual report that is subject to prior review and approval by the President. TheOffice of the Human Rights Commissioner (Ombudsman) is still lacking independence(point 13).

In2015, the NPM’s Coordination Council extended the monitoring mandate of the NPMto cover offices in police stations. However, this has not yet been reflectedinlegislation. Also, as before, theNPM’s mandate still does not provide for visits to all places of deprivation ofliberty as defined in the Optional Protocol to the Convention against Torture,including orphanages, medical social institutions for children with certain disabilities,special boarding schools, nursing homes, homes for the elderly, and militarybarracks. In May 2015, the NPM released its first annual report[2]. The report indicates that in 2014, apart from preventive visits, theNPM made 14 special visits in response to reports of the risk of or actualtorture or other ill-treatment. 12 of these reports came from those detained ininstitutions of the penal system under the Ministry of Internal Affairs. As aresult of these ad hoc visits, 4 criminal cases were instituted, 3 of whichwere subsequently suspended. The grounds given by investigators included thatthere was no evidence to suggest that a crime had taken place at all or thatthe suspect had carried out a criminal act. It is noteworthy that with respect toone of the suspended cases (the case of Alexey Ushenin, see below), theCoalition submitted a complaint to the UN Committee against Torture preciselyin connection with the lack of an effective investigation of Alexey Ushenin’scomplaint of torture. The case is currently pending with the CAT for a reviewon the merits.

On 28 August 2011, for 12 consecutive hours, Alexey Ushenin, then 34years old, was tortured by a group of police officers in the building of theDepartment of Internal Affairs in the city of Uralsk. They tried to obtain aconfession from him that he had engaged in “hooliganism with the use orattempted use of a weapon”. Police hit Alexey on his hands and feet and bashed his head against the wall. Hewas choked with a plastic bag that was pulled over his head until he lostconsciousness, and then he was reanimated with ammonia. Police officers burnedhis body with cigarettes including his anus after they had pushed a rubbertruncheon into it. The offices threatened to kill his pregnant wife. Alexeylost consciousness five times. After this torture, Alexey Ushenin was unable tomove for several days. Both the medical records of the temporary detentionfacility and of the investigation-isolation facility where he was placed afterbeing tortured contained information about injuries. On 31 August 2011, duringthe authorization of Alexey Ushenin’s arrest, a judge of Terektinsky DistrictCourt in the village of Fedorivka in West Kazakhstan region ignored theinjuries on his body and his allegations of torture. On 14 September 2011, theprosecutor’s office of Uralsk initiated a criminal case for aggravated torture(Art. 141-1, part 2, para. “a” of the Criminal Code of Kazakhstan). On 23September 2011, the case was referred for additional checks to the financialpolice of Uralsk. On 30 September 2011, a forensic medical examination wasconducted, with the participation of an assistant of the city prosecutor, whichconfirmed the presence of burn wounds, contusions on the neck, abrasions, andscars on the abdomen. The expert concluded that “given the localization of theburn wounds on the anatomical parts of the body, the wounds could have beenself-inflicted by Ushenin”. On 30 December 2011, the case was dismissed “forlack of evidence”. In protest, Alexey Ushenin attempted suicide by swallowing 8nails folded in a cross. In response to the West Kazakhstan branch of theKazakhstan International Bureau for Human Rights and Rule of Law, a memberorganisation of the NGO Coalition, the prosecutor's office of West Kazakhstanregion reported in February 2012 that “the arguments set out in Mr Ushenin’sappeals about sustaining injuries and burns were refuted by the testimony ofthe medical staff, police and detention center officers of SI-170/1 of Uralskcity, as well as during the confrontation of Mr. Ushenin Alexey with others,and other collected materials of the criminal case”. During the main trialAlexey Ushenin repeatedly informed the court that he had signed the confessionunder torture, but to no avail. AlexeyUshenin was sentenced to five and a half years in prison.

TheNPM’s official report, in the Coalition’s view, lacks firmness in itsconclusions. Thus, according to the NPM’s report on its activities in 2014, nottorture – which the report addressed as well – but “poor sanitary conditions,lack of necessary medicines and poor food”, “the need to make minor or majorrepairs of buildings and facilities, or to construct new ones”, and “inadequatecontrol and supervision by the state authorities” were named as the main problems with regard to theprevention of torture, cruel, inhuman or degrading treatment in places ofdetention.

The NPM has notproved effective in responding to calls for urgent monitoring in cases ofalleged torture. This is mainly due to the bureacratic process of coordinatingsuch visits by the Ombudsman. Moreover even when the NPM visited theinstitution in response to a complaint, in most cases it did not report anyviolations. At the same time, the NGOCoalition against Torture in Kazakhstan continues to receive manycredible complaints of torture or other ill-treatment from closed facilities.There have been cases where the Coalition received complaints about tortureshortly after the NPM had visited the institution in response to a complaint, butfailed to report any violations. Indeed, not all regional NPM groups are seento be unbiased and many detainees do not see the NPM as a safe and effectivecomplaint mechanism.

TheCoalition sees the NPM as a government-censored mechanism lacking operationalindependence.

Conclusion: Kazakhstan has only partlyimplemented the UN CAT’s recommendation no. 13.

IV.The administration of justice

Recommendation # 15

The State party should undertake a structural reformof the system of administration of justice with a view to balancing in practiceand ensuring equality of arms between the respective roles of the prosecutorand the defence counsel in judicial proceedings and ensuring the independenceof the judiciary. The State party should reform the system of prosecution andsubject prosecutors to greater oversight by judges. Defence lawyers should beallowed to collect and present evidence from the outset of judicial proceedingsas well as to call defence witnesses and should have prompt, effective andunimpeded access to all evidence in the hands of the prosecution.

The following concern of the UN CAT relating to the above recommendationremains valid today:

There continues to be a lack of balance between therespective roles of the prosecutor, the defence counsel and judges. Thedominant role of the prosecutor throughout judicial proceedings remains inplace. There is a lack of judicial control over the actions of prosecutors andthat judges are overly deferential to prosecutors due to a lack of theirindependence from the executive branch. [Defense lawyers continue to lack power to collect and present evidence.] Defendants are notpermitted to attend appeal proceedings in person and investigators canhand-select state-appointed defence lawyers, which serves as a disincentive fordefending their clients (point 15).

[1] Some of the NGOs whoprepared this document – the NGO Coalition against Torture in Kazakhstan,Helsinki Foundation for Human Rights (Poland), International Partnership forHuman Rights (Belgium) – received financial assistance from the EuropeanUnion and Open Society Foundations that contributed to its production, withinthe project “Action for Freedom from Torture in Kazakhstan and Tajikistan”. The contents of the documentare the sole responsibility of the organizations issuing it and can under nocircumstances be regarded as reflecting the positions of the European Union.

[2]http://www.ombudsman.kz/en/publish/docs/doklad_spec/detail.php?ID=2865