OF NONGOVERNMENTAL ORGANIZATIONS OF KAZAKHSTAN ON THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
FOREWORD PART I IMPLEMENTATION OF THE UN CONVENTION AGAINST TORTURE BY THE REPUBLIC OF KAZAKHSTAN ARTICLE 1. Definition Of Torture ARTICLE 2. Obligation To Prevent Torture 2.1 Safeguards at arrest 2.2 Use of officially recognized places of detention and effective registration 2.3 Access to the outside world 2.4 Safeguards during interrogation 2.5 Access to legal counsel 2.6 Access to doctors 2.7 The right to challenge the legality of detention 2.8 Safeguards for vulnerable groups: 2.8.1 Rights of Juveniles 2.8.2 Women’s Rights Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 ARTICLE 3. Principle Of Non-Refoulement ARTICLE 4. Obligation To Criminalize Torture ARTICLE 10. Training Of Personnel ARTICLE 11. Review Of Interrogation And Prison Rules ARTICLES 12 AND 13. Ex Officio Investigations and Right of Victims to Complain 7.1 Examination of reports and complaints on torture 7.2 Investigation of criminal cases on torture Chapter 8 ARTICLE 14. The Right of Torture Victims to Adequate Remedy and Reparation ARTICLE 15. Non Admissibility of Evidence Extracted by Torture IMPLEMENTATION OF THE RECOMMENDATIONS OF THE UN COMMITTEE AGAINST TORTURE RECOMMENDATIONS INDIVIDUAL COMPLAINTS OF ALLEGED TORTURE
Chapter 1 Chapter 2
16 17 19 19 22
Chapter 9 PART II
PART III ANNEX
FOREWORD The present report is about the implementation of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the Republic of Kazakhstan (hereafter, the Convention), to which Kazakhstan joined under the Law of the RK of June 29, 1998, N 247-1. This report covers the period 2001–2008 and has been developed as an alternative to the state periodic report entitled ―Additional report on measures taken by the Republic of Kazakhstan with the aim of implementing the provisions of the Convention against torture and other cruel, inhuman or degrading treatment or punishment‖ (hereafter ―State report‖), approved by the Decree of the Government of the Republic of Kazakhstan on May 16, 2006. The initial report of Kazakhstan on the implementation of the Convention was developed in 2000– 2001 by the Human Rights Commission under the President of the Republic of Kazakhstan in collaboration with the Ministry of Justice, the Ministry of the Interior, the Prosecutor General Office and the National Security Committee. One of the authors of this report, the Kazakhstan International Bureau on Human Rights and Compliance with the Rule of Law monitored the implementation of the Convention and submitted an Alternative Report to the U.N. Committee against Torture, at the hearing, which took place on May 7–9, 2001. As a result of the hearing, the Committee on the whole expressed its concern regarding the situation of human rights in Kazakhstan and made a number of recommendations, the implementation of which aimed to improve the situation in this area. Welcoming the positive changes and developments which have taken place in the legal system of Kazakhstan over recent years, the authors of the report aim at highlighting the most topical problems in the law and practice of criminal justice institutions, which contribute to the persisting occurrences of torture and ill-treatment in the country. Report structure: The 1st part of this report follows the structure of the Convention and covers only those articles on which there was substantive monitoring and analytical information. The 2nd part of this report includes information on Kazakhstan’s implementation of the recommendations of the U.N. Committee against Torture of 2001. The 3rd part of this report includes current recommendations from nongovernmental organizations to improve compliance with the Convention. Annex 1 includes information on complaints received by the NGOs. Authors of the report: Preparation and writing of the alternative report has been undertaken by the working group of nongovernmental organizations of Kazakhstan working in the area of human rights protection. In the course of assembling the report, the authors used information obtained through state statistical agencies and analytical information from state and nongovernmental organizations. The following organizations took part in the working group: Kazakhstan International Bureau for Human Rights and Compliance with the Rule of Law (hereafter ―Kazakhstan Bureau for Human Rights‖) in Almaty and branches in Astana, in the regions of Kostanai, Pavlodar, Mangistau and Western – Kazakhstan; 3
Charter for Human Rights; Committee on Monitoring the Penal Reform and Human Rights, Pavlodar; Feminist League, Almaty; Penal Reform International (PRI); Medianet.
Freedom House Kazakhstan provided financial support during the preparation of this report. The Open Society Justice Initiative of the Open Society Institute provided analytical support and financial assistance in preparing this report in the English language.
PART I Chapter 1 Article 1.
IMPLEMENTATION OF THE UN CONVENTION AGAINST TORTURE BY THE REPUBLIC OF KAZAKHSTAN
Definition of Torture
A definition of the concept of ―torture‖ appeared in the legislation of the Republic of Kazakhstan on December 21, 2002, when the Criminal Code of the Republic of Kazakhstan was complemented by Article 347-1,1 which stipulates criminal responsibility for the use of torture. In the opinion of the state, the definition of ―torture‖ in this article is in full compliance with the wording in the Convention. However in the opinion of the authors of the given report, ―torture‖ in the criminal legislation of the Republic of Kazakhstan differs considerably from that described in the Convention. The following table demonstrates the differences in definitions: Convention ―…when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official, or other person acting in an official capacity.‖ Article 347-1 CC RK ―…committed by an investigator or a person conducting an investigation, or any other public official…‖ Difference 1. In the definition of ―torture‖ given in the CC RK there is no statement, according to which the role of public officials may include not only activity but instigation, consent or acquiescence. 2. The text of CC RK articles uses the notion ―public official‖, which is much narrower than the term ―person acting in an official capacity‖. These discrepancies in the definition limit the category of persons who may be subjected to criminal responsibility for
Article 347-1. “Torture” 1. Suffering intentionally inflicted by an investigator, a person conducting an investigation, or any public official on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act he/she has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind are subject to a fine in the range of 200 to 500 value of monthly computed index or the sum of the salary or any other income of a convict for a period of two to five months or revocation of the right to hold certain positions for the term of up to three years or custodial restraint for the term up to five years, or imprisonment for the same term. 2. The same criminal act, committed: a) by a group of people or a group of people by prior agreement; b) repeatedly; c) with second degree/moderately severe harm caused to one’s health; d) with regard to a woman knowingly pregnant to the offender or with regard to an adolescent; is subject to imprisonment for the term of up to seven years with the revocation of the right to hold certain positions for the term up to three years. 3. The same criminal act entailing severe harm to one’s health or reckless death of a victim is subject to imprisonment for the term of five to ten years with the revocation of the right to hold certain positions and carry out certain activities for the term up to three years. Note: Physical or mental suffering arising from legal actions of officials is not recognized as torture.
―It does not include pain and suffering arising only from, inherent in, or incidental to lawful sanctions.‖
committing torture; thus it contradicts the Convention. ―Note: Physical and mental а) Under the Convention ―torture‖ suffering arising from lawful does not include mental anguish actions of public officials are resulting from the very fact of not considered torture‖ incarceration. The phrase ―lawful sanction‖ is generally understood as various types of punishment, which are in accordance with international law. The term ―lawful actions‖ is a broad concept and includes various types of actions by law enforcement bodies, such as: conducting of arrest or investigative actions, use of disciplinary measures, etc., which, depending on forms, methods and circumstances, may amount to violations of the Convention. Thus, the reservation in Article 347-1 of CC PK must be limited only to the concept of a ―lawful sanction,‖ as stipulated in the Convention.
Chapter 2 Article 2. Obligation To Prevent Torture
Under the Convention, the state must undertake effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction. The Legislation of Kazakhstan includes norms which stipulate responsibility for torture, however, as practice shows, this is not enough. In line with international norms, the state should develop and introduce into legislation adequate measures guaranteeing protection from torture. The most important safeguards from torture and illtreatment are: 1. 2. 3. 4. 5. 6. 7. 8. Safeguards at arrest Use of officially recognized places of custody and effective registration Access to the outside world Safeguards during interrogation Access to legal counsel Access to doctors Habeas corpus Safeguards for vulnerable groups
The following sections describe applications of these safeguards in the law and practice of criminal justice in Kazakhstan. 2.1 Safeguards at arrest
Article 134 of CPC RK2 describes the procedure of arresting a person – a criminal suspect; however, the practice greatly differs from the legal provisions. There are several reasons for the existing problems occurring at the time of arrest. First of all, the law does not clearly regulate the arrest and apprehension procedure. Thus, it does not require law enforcement bodies to register their first contact with a suspect as the moment of arrest (apprehension). Such terms as ―arrest (apprehension),‖ ―arrested person‖ and ―the moment of arrest (apprehension)‖ are not defined in Article 7 of the CPC RK, which provides definitions of some terms used in the Criminal Procedure Code. The most common problem is the time of registering an arrest report that greatly exceeds legally required period of three hours from the moment of actual apprehension. Since the ―moment of actual apprehension‖ is nowhere registered, the time of filling out an arrest report is abused and may be postponed for indefinite period of time. Given that the Criminal Procedure Code is designed in such a way that the specific rights of persons are directly linked to the formal, documentarybased recognition of their procedural status, (for instance as an arrested person or a suspect) the police do not provide the rights in Article 68 (Suspect) to arrested persons until they are recognized as such by the appropriate report (or protocol). For instance, the right of a person who is subjected to any form of arrest or detention to be informed of his/her rights at the moment of arrest or detention or shortly after it is not implemented in Kazakhstan. The rights of arrested persons are not read at the moment of arrest but only at the time when the arrest report is being concluded. The law does not require the police to notify an arrested person that he/she is being arrested, of the reasons for arrest and of his/her rights. In the city of Ekubaztuz, a woman named K.E was arrested on the suspicion of having inflicted a deadly knife wound to the victim. The arrest report was filled out almost 24 hours later than the time of actual apprehension. The whole night and the following day, K.E was held in the building of a police department, where she was ill-treated by the police officers. She sustained bodily injuries and was subjected to psychological pressure with the aim of obtaining a confession.
Similarly, the right of an arrested person to notify relatives of his/her whereabouts is not upheld in practice. Article 138 of the CPC RK lays a duty upon an interrogator or investigator to notify the detainee’s relatives within a period of 12 hours. The countdown of 12 hours as a rule starts from the time of filling out an arrest report. Since the arrest report is usually registered much later than the actual apprehension, consequently, the whereabouts of a person may not be known to relatives for a long time. Additionally, the same Article 138 contains a provision contradicting international norms: notification of a detainee’s relatives may be postponed for 72 hours from the time of detention, if sanctioned by the prosecutor and if there are exceptional circumstances.
Article 134 of CPC RK Procedure of Arrest of a crime suspect: 1. In the space of the time not exceeding three hours after the moment of actual arrest, an interrogator or an investigator shall develop a Protocol, which includes the reasons and the grounds for arrest (with an indication of hours and minutes), results of a personal search, as well as the time of Protocol development. The Protocol is made known to the arrested person and at the same time the rights of a suspect stipulated by Article 68 are explained to him/her, including the right to invite a lawyer and give evidence in his presence, which shall be noted in the Protocol. The Protocol of arrest is signed both by the person that has developed it and the arrested person. The interrogator or the investigator shall have to notify the prosecutor in writing about the arrest made within 12 hours after the time of concluding the protocol of arrest. 2. An arrested person shall be interrogated in compliance with the rules of the given Code.
As practice shows, it is during this unaccounted period of time, until the arrest report is signed, that the most serious human rights violations take place. A person is actually in a position of incommunicado, when his or her whereabouts are unknown to third parties, including either lawyers or health workers. From the complaint of P. D. : ―On November 21, 2006 officers Sharipov and Rinat (last name unknown) came to my workplace and said that I had to follow them to the regional police office. I was taken to the office of Popov and Romanov, where without explanation they stared beating me. It lasted a long time. They were saying that I would confess to everything, no matter whether I was guilty or not. …Then Popov started beating me on my neck, chin and Adam’s apple, on my kidneys and on my liver with his elbows. I was almost losing consciousness, but kept saying that I would complain about them to the prosecutor. Popov then said that he knew how to deal with me. He asked Romanov to bring a plastic bag. Meanwhile, Popov said to me that he could do anything to me and that he had worked in the police for so long that he knew how to get the right information from me and that whatever I said they would still believe him. ―Do you have any witness that I was beating you?‖ he said. ―And I have the whole police department behind me, so no one would believe you, and here we could do anything we wanted with you. No one knows where you are, so we could even kill you. You wouldn’t be the first or the last …‖ I was held handcuffed in the office room for the whole night. To the Temporary Detention Center I was taken only in the night of November 23, 2006.‖ The law gives a wide range of powers to law enforcement bodies to carry out various actions restricting freedoms of citizens, for instance to take a person to the police station to check his/her identity. Such actions are not considered to be an arrest or detention; however, a person is not able to leave the police office freely. Thus, a person’s freedom may be actually limited when in the police car, police station or in the office rooms of the police for an unlimited time, even though he/she is not recognized as having been arrested, and thereby is not guaranteed the right to be informed of his/her rights and to effectively exercise them. Thus, in Kazakhstan, the right to freedom from torture is violated mainly at the time of arrest or other forms of actual limitation of the right to liberty. The main reasons for such established practice are, among others, the following flaws in the legislation: Exercise of the rights of any person participating in the criminal procedure is directly linked to the formal, documentary-based recognition of their procedural status, instead of being guaranteed absolutely regardless of procedural circumstances. The law fails to properly regulate the procedure of arrest. It allows the police to abuse the rule of recording the actual time of arrest (apprehension) and of providing for safeguards at the moment of arrest. The law provides wide range of powers to the police to limit any person’s right to liberty, under various circumstances.
Use of officially recognized places of custody and effective registration
The legislation in Kazakhstan stipulates the use of formally recognized detention or custodial facilities and the maintenance of effective registration only for the people with a certain procedural status, such as a suspect, the accused, or a defendant. The law does not guarantee any rights for persons who do not have a formally documented procedural status, but whose rights and freedoms are actually limited. For example, any person may be delivered to the police station for different reasons. However, he/she is not declared as the arrested or a detainee. When delivered to the police station, the time 8
and the purpose of his or her stay there are not registered. Furthermore, when entering the premises of a police station a person may stay there for an unlimited period of time. Cases are known of people kept in the basements of police departments, in locked offices and so forth, without any registration of their whereabouts. Such types of illegal detention and use of places not determined by the legislation as having the aim of limiting the freedom of an individual are the most prevalent circumstances for torture, ill-treatment and other violations of human rights.
From the complaint of V. Yermakov (born in 1972): ―I have been taken to the bank of the river Tobol for interrogation, and there they ―interrogated‖ me with the use of a plastic bag, which was put on my head. I was factually arrested on October 14, 2007, while my placement into custody was registered only on October 15, 2007.‖ 2.3 Access to the outside world
The legislation of Kazakhstan provides for the prohibition of detention without access to the outside world. Article 19 of the Law of the Republic of Kazakhstan of March 30, 1999, № 353-1 ―On Procedure and Terms of Keeping in Custody Suspects and Those Accused of a Crime‖ explains the procedures of correspondence for a suspect and the accused. The Article contains limitations of the kind that allow the pre-trial detainees to receive and send not more than two letters or telegrams per month to relatives or others. On average, the term of preliminary detention may last from two months to one year. The authors of the report consider that this legal limitation of communication for the pre-trial detainees with the outside world goes against generally recognized principles and international standards. The aforementioned Law determines the procedure of meetings: a suspect and the accused on the basis of the written permission from the respective criminal justice body may be allowed no more than two, and juveniles no more than three, meetings per month with relatives and others, with duration of up to three hours each. The Law also stipulates that the meetings with relatives and others shall take place under the supervision of members of the facility in which the inmates are kept in custody. It must be noted that when issuing permission to allow meetings, the investigator or other criminal justice official is guided by the interests of the investigation rather than by respect to the civil rights of suspects and accused who must be treated as innocent until proven guilty by the court. Article 17 of the aforementioned Law, which explains the procedure of meetings with lawyers, relatives and others, includes a discriminatory norm, specifically: the number and the duration of meetings allowed to people with infectious diseases, such as HIV/AIDS or tuberculosis, shall be decided after preliminary consultations with a health worker (doctor) and on written notification about the possibility of infection. Thus, the legislation of Kazakhstan stipulates wide limitations on the rights of people in detention with regard to communication with the outside world, which are not in compliance with international norms. Exercise of the right to communication depends upon an official body in charge of criminal prosecution, which is an impermissible limitation. 2.4 Safeguards during interrogation
Article 212 of CPC RK states that the interrogations on the criminal case shall be conducted at the place of preliminary investigation. The investigator, should he/she find it necessary, shall have the right to interrogate a person at the place where a suspect/defendant is held. Furthermore, the criminal procedure provides for the following rules: 9
- interrogation should take place during the daytime, except in urgent cases; - should not last uninterruptedly for more than four hours; - continuation of the interrogation is allowed only after a break of not less than one hour of rest and taking meals; - in total, the duration of interrogation in the course of one day should not exceed eight hours; - in case of medical indications, the duration of the interrogation should be determined based on the written conclusion of a doctor. Article 213 of the CPC RK defines general rules of interrogation, specifically: a person called for interrogation shall be informed as to why and under what criminal case he/she would be interrogated; his/her rights and responsibilities stipulated by the CPC should be explained, of which the entry shall be made in the Protocol. However, the legislative norms are not implemented in practice. The authors of this report have information that people are interrogated for several hours in succession, when not even drinking water is made available; sometimes those under interrogation are not allowed to sit down or use a toilet. Moreover, very often the first interrogations are conducted informally, i.e., no protocols are kept concerning the interrogations of those people who are not formally registered as suspects, or as other participants of the criminal process. According to the information available from the NGOs of Kazakhstan, the most frequent torture used during such non-formal interrogations include: beatings; beatings with objects on various parts of the body that do not leave physical traces, for example blows with plastic bottles filled with water or sand on the heels, blows with heavy books on the head, etc.;
From a complaint by S. Imranov: I have been subject to physical and psychological violence, I have been beaten with a plastic Fanta bottle filled with water, which leaves no marks or bruises on the body. suffocation with the use of plastic bags or gas masks with the air valves closed, or with the use of toxic substances;
From a complaint by Yu. Ponomareyov: ―They attacked me, inflicted blows to the chest, stomach, feet, between the legs and then Batyrbekov joined them; he twisted my arm, put me on the chair and fastened me with handcuffs. They insulted me in every possible way, threatened me and when they put a plastic bag on my head so that I couldn’t breathe, I gave my consent to sign all the papers.‖ threat of violence or use of sexual violence;
From a complaint by Polienko D. (Schuchinks, Akmola oblast): ―…I was taken out of the cell to the doctor’s room. There were Popov, Romanov and Sharipov, Erlan, and the man who had dictated the confession statement to me before. Erlan said: ―We shall handcuff you to the table and put the baton in your anus, or we give you the knife and you shall officially identify it as the one with which you murdered the woman.‖ I refused. They grabbed me and started putting on the handcuffs. I started screaming and biting trying to break away from them. Then out of nowhere I felt a heavy blow. I lost consciousness. When I regained consciousness they told me that I had to write a written statement that all the injuries I had sustained were a result of falling off the bed.‖ 10
keeping a person in an unnatural posture;
From a complaint by Peyotr Pirikhelanee (born in 1969): When doing the so-called search he (i.e. the policeman) put his hand into the left pocket of my jeans and just patted on the rest of the pockets through the clothes and left me; I stayed there lying on the ground for half an hour. Then he lifted me and threw me onto the trunk of the car like an object. I spent 15-20 minutes in a very uncomfortable position (feet at shoulder-width, hands behind my back, and head on the trunk of the car).
illegal use of handcuffs, for example, chaining a person to a hot central heating radiator or keeping him/her in a suspended position; abusing a dependent or diseased condition of the person.
The main purpose of torture and ill-treatment by police officers during such illegal interrogations is to obtain evidence, confessions of guilt, or self-reports of crimes. Later on, such confessions or selfreports are considered as significant evidence toward the person’s guilt. 2.5 Access to legal counsel
The Constitution of the RK, specifically Article 16, declares that each person arrested or detained on a suspicion of a crime or accused of having committed a crime shall have the right to the assistance of a legal counsel from the time of arrest, detention, or arraignment respectively. The Criminal Procedure Code, which regulates the exercise of the right to defense, formally limits its scope, by providing it only to those who have a certain procedural status of a suspect or the accused. As noted above, such formal reading of the rights does not allow persons, whose procedural status is not documented in the form of an arrest report or other, to claim a lawyer. The Criminal Procedure Code also fails to guarantee the participation of a lawyer during the first interrogation. Thus Article 68 of the CPC RK guarantees the right of a confidential meeting with a lawyer before the first interrogation, which has to take place within the first 24 hours counting from the moment of the arrest. However, there is another provision in Article 216 of CPC RK which stipulates that when it is not possible to provide for a lawyer immediately, the investigator must ensure that a lawyer is provided within the 24 hours. There is no explicit requirement, however, that the first interrogation cannot take place until the person exercises his/her right for a confidential meeting with a lawyer prior to the interrogation. The authors of this report suggest that there are two major problems related to the implementation of the right to defense: untimely access to a lawyer, and the quality of state-funded legal aid provided to indigent defendants. 2.5.1 Delays in providing access to a lawyer In practice, the requirement of the CPC RK to provide access to a lawyer in the course of the first 24 hours after an arrest (apprehension) or detention order is not upheld due to the failure of the police to register an arrest adequately and in appropriate time, as described above. During this period, when an arrested person is not able to exercise his/her right to defense, the police conduct initial unregistered interrogations. It is during such illegal interrogations that the police use torture and other forms of ill-treatment with the aim of extracting confession or obtaining any other information as evidence. As a result, a person who has been subjected to torture and is 11
feeling scared or is being threatened with the renewed ill-treatment confirms his previously forced self-report in the presence of a lawyer when the formal interrogation protocol is recorded. Such practices contradict international norms that guarantee the right to freedom from torture, given that the time of getting access to a lawyer is of significant importance from the point of view of preventing torture and ill-treatment. 2.5.2 The quality of legal assistance provided at the expense of the state Suspects or the accused have the right to a lawyer appointed at the expense of the state in case they lack their own financial means. However, the procedure of appointing a lawyer does not comply with the requirements of transparency and independence from law enforcement bodies. Thus, the police invite legal aid counsels from the list of ex-officio lawyers who have developed certain informal ties with the police. Such lawyers act not in the interests of their clients but in the interests of law enforcement bodies. The lack of mechanisms to monitor the quality of state-funded legal aid leads to an established practice of providing free legal aid with poor quality and to large-scale violations of professional standards of ethics. Thus, in the opinion of the authors of this report, state-funded legal aid is not effective to satisfy the requirements of international law. O. Panteleyeva approached the Kostanai office of the KIHRB with a request for legal assistance. Her son, V. Panteleyv (born in 1972) had been detained by the police and charged with a criminal offense; the investigator invited a lawyer on duty to provide legal assistance to the detainee. According to O. Panteleyeva, the lawyer very rarely visited her son in jail during the investigation, did not give any information to the parents regarding the case, and when the mother said that she would like to be recognized as a defense counsel for her son the lawyer answered: ―In any case you will be refused because you have no legal education.‖ The lawyer also said that there was no need to approach any human rights organizations because everything was going well. On approaching the bodies that were in charge of the case investigation, Panteleyeva was denied recognition as a defense counsel; the investigator said that her son already had a lawyer ―who had considerable experience of work in this field.‖ Only after the joint application with the KIHRB’s lawyer to the prosecutor office was Panteleyeva appointed to defend her son. ******************** With regard to the case of an adolescent F. (Kostanai city), the parents were very sorry that they agreed to have the lawyer on duty on the suggestion of the investigator. The lawyer had not explained to them their rights and the parents did not know that they could, alongside the lawyer, invite as a defense counsel someone from among their close relatives … 2.6 Access to doctors
The legislation in Kazakhstan guarantees access to a doctor for people in correctional institutions and in pre-trial detention centers that are under the Ministry of Justice, and also for those who are arrested on suspicion of having committed crimes (including juveniles) and are kept in custodial facilities (―IVS‖ – temporary detention centers) under the supervision of the Ministry of Interior. The legislation stipulates that in case a suspect or the accused receives any bodily injuries, a medical examination should be urgently (within 24 hours) performed by the health workers of the pre-trial detention centers on the victim’s request or on at the initiative of the administration. However, the aforementioned norms are not adequately implemented. When examining the inmates, the doctors most often do not record all the injuries. This practice is explained by the fact that the medial personnel of pre-trial detention centers or similar institutions are dependent upon the 12
criminal justice authorities. Failure to register traces of torture leads to the fact that these victims very rarely get medical documents certifying that they had received bodily injuries. For a medical examination aimed at detecting and registering signs of alleged torture to be performed, a person who has received bodily injuries, or his/her lawyer, has to solicit the permission to conduct such an examination before the administration of the pre-trial detention center. The law provides that the cost of administering such an examination upon request of a detainee shall be borne by the applicant. Thus, the conclusion is that the access to a doctor for torture victims is limited, both in law and in practice. Convict Leonid Melnechuk (born in 1983) addressed the Kostanai office of the KIHRB with a complaint stating that the staff of the colony had subjected him to ill-treatment on March 8, 2008 as a punishment for a conflict situation that had formed among inmates in the morning. After being ill-treated, the inmate was put into an isolated cell. When there, L. Melnechuk asked a health worker of this colony to register bruises and haematoma on his body in his medical card. However, the doctor refused without giving any explanation. 2.7 The right to challenge the legality of detention
2.7.1 One of the most significant developments in the area of legal reform over recent years has been the introduction of the judicial sanctioning of detention in July 2008. Welcoming the measures taken by the state to meet its international obligations, the authors of this report note that the new mechanism of judicial sanctioning of detention in Kazakhstan does not fully comply with the principles and goals of habeas corpus and does not provide additional guarantees of protection against torture and freedom from arbitrary arrest. First of all, the function of the court to sanction pre-trial detention is limited to examining the case materials relating to the grounds of detention, such as: presence of permanent address; establishing the identity of the person; information on prior violations of pre-trial measures; information on evidence that the person tried to escape from law enforcement bodies, etc. In case the person has been subjected to a prior arrest (apprehension), the court is not obliged to look into the legality and grounds of arrest. These crucial issues are left for review and consideration with the Prosecutor’s Office. Also, the court is not obliged to question the suspect/accused whether his or her rights were upheld during his prior arrest, such as right to freedom from torture, right to a lawyer, etc. It is not clear, how the court is to react in cases when it observes that the suspect/accused bears clear signs of violence. Secondly, the new law does not provide for the right of the defense to present evidence for the release of the suspect/accused. It also fails to provide the opportunity for the defense to be acquainted with the materials presented by the prosecution in favor of detention. Most importantly, the presence of the defense counsel is not mandatory for conducting the hearing on the pre-trial detention. Thirdly, the new law does not provide for special protection of the rights of juveniles by requiring the mandatory presence of their legal representatives or a lawyer during the hearings to sanction the juveniles’ arrest. Finally, the law does not mention the open trial nature of the hearings on judicial sanctioning of detention, which is one of the important criteria for ensuring the implementation of individual rights of persons participating in the trial.
Thus, the new mechanism of judicial sanctioning of detention in Kazakhstan does not fully comply with the international standards of fair trials in general, of judicial review of the legality of arrest and detention, and does not serve as an additional guarantee of protection for persons against torture and ill-treatment. 2.7.2 The authors of the report express concern about the existing law and practice in Kazakhstan regarding forced placement of persons to medical institutions for conducing psychiatric expertise during the stage of pre-trial investigation. Thus, according to Article 14 of CPC of RK a suspect or the accused during pre-trial investigation can be subjected to forced placement into a medical institution on an order from a prosecutor for the purpose of conducting a forensic psychiatric expertise. The criminal procedure code in Article 241 stipulates quite subjective grounds for making such a decision, for instance: ―doubts regarding mental competency of a suspect or the accused‖, ―mental or physical condition‖ of the person in question, ―capacity to defend one’s rights and lawful interests in the criminal process‖. Moreover, the law fails to regulate the maximum duration of forced placement into a medical institution, as well as to guarantee the rights of persons, subjected to such form of confinement, such as: the right of visits by family, the right to legal counsel, the right to be informed of methods of medical treatment/intervention, the right to challenge the methods and scope of medical treatment/interventions, etc. Despite the presence of legal venues for challenging the prosecutor’s decision, the negative practice of judicial review of all prosecutorial decisions at present, including on this issue, allows the authors of the report to claim that there is no effective judicial monitoring of the issue of forced placement of suspects and accused to medical institutions. The authors of the report draw special attention to the vulnerable status of such persons, who are placed into medical institutions for conducting psychiatric expertise, due to the fact that such institutions are absolutely closed for any outside monitoring. In this regard, the authors of the report point out that in addition to introducing judicial sanctioning of an arrest, it is important that Kazakhstan amends the current procedure to ensure that the decisions on forced placement of suspects and the accused to medical institutions for the purpose of conducting forensic psychiatric expertise are rendered exclusively by courts. 2.8. Safeguards for vulnerable groups 2.8.1 Observance of the rights of juveniles. Legislatively, the rights of accused juveniles and juvenile suspects are protected, but the experience of human rights organizations proves that these principles are far from being implemented in practice. A.R. (born in 1989) was detained by the officials of the Almaty RDoI of Astana city on suspicion of theft of a mobile phone. The policemen did not react in any way to the request of this adolescent detainee to notify his legal representatives. Moreover, four policemen conducted an interrogation of this adolescent in the absence of his parents or a teacher, thus violating the requirements of the legislation currently in force in the RK.
According to the information available to the human rights organizations, the law enforcement bodies use illegal investigation methods during interrogation of minors. Investigators, interrogators and other police officers exercise psychological pressure on children during the initial stages of investigation. 14
Some of the boys and girls have stated that investigators had bluffed them into confession, promising to reduce their term of punishment provided they give the evidence the investigators wanted to hear. Based on complaints of juveniles, their interrogations are performed in clear violation of the criminal procedure code: that is, they are conducted during night time, last for more than two hours in a row and are often held in the absence of lawyers, psychologists, teachers or their legal representatives. It is impossible to prove that a juvenile has been forced to make a confession by way of threats, blackmail or other illegal actions by an investigator or other police officers interrogating the child, because juveniles are all by themselves when they are subjected to such treatment, or in the presence of people dependent on police, for instance witnesses of the arrest or arraignment invited by the police. The father of an adolescent S. (the name is not disclosed in order to ensure the rights of juveniles) addressed the Working Group of the Kazakhstan NGO On Child’s Right Protection on June 7, 2005 with the request to help him call to responsibility the people that had caused bodily injuries to his son. The boy (born in 1988) had been arrested on suspicion of having hijacked a car. The adolescent was interrogated without his parents or a lawyer present and he was forced to write a confession as dictated to him. They subjected him to torture by putting a gas mask on his head and almost suffocated him. There are medical certificates available confirming bodily injuries to this boy. However, the victim was denied criminal investigation of his charges. 2.8.2 Women’s rights Regarding the protection of the rights of women, the most prevalent problems in Kazakhstan remain domestic violence and sex crimes against women. Thus, from 1996 to 2007, about 600 girls and women are killed as a result of domestic violence, and about 20 000 rapes are reported each year. For the population of 8 million of women in Kazakhstan, this means that one woman in 400 becomes a victim of sex crime per year. The NGOs operating in rural areas observe that the problem of domestic violence there is the most acute. Given the local traditions rural women prefer to hide about the violence in the family. In addition, they simply lack knowledge on where and how to report it and are in need of basic legal assistance. Despite persistent practices of domestic violence in rural regions, there have not been registered a single instance of a woman suing her husband in court for domestic violence. In order to effectively address these problems, it is important that the government plays an active role in preventing crimes against women. Unfortunately the government of Kazakhstan fails to undertake adequate and appropriate measures in this direction. For instance, the Parliament of Kazakhstan is now considering already the 21st draft of the law on prevention of domestic violence. The draft law, among other shortcomings, fails to guarantee state participation and funding of the activity of women’s crisis centers. The current programs to prevent domestic violence are largely undertaken by non-governmental crisis centers for women, which have to rely on ad-hoc funding from international organizations. Overall there are 24 crisis centers for women. Under the current circumstances of gradual withdrawal of donor funding, these crisis centers are left to provide women-victims with minimum services, such as telephone consultations and referrals to the police. Meanwhile, in 2007 about 8000 crimes against women have been officially reported and more than 100 criminal cases have been initiated. 15
Thus, regardless of measures taken to draft appropriate legislation on prevention of domestic violence and on equal opportunities for men and women in Kazakhstan, and despite the presence of specific recommendations, made by the UN Committees on the Elimination of Discrimination Against Women and on the Rights of the Child in 1997 and 2007 respectively, Kazakhstan fails to undertake adequate measures in the sphere of legislation and practice to prevent domestic violence and to ensure protection of women’s rights.
Chapter 3 Article 3. Principle of Non-Refoulement
The legislation of Kazakhstan does not have a norm requiring that competent bodies should clarify the situation with the use of torture in the state where expulsion or extradition is carried out. There is no legally established principle of non-refoulement to a country where a person could be in danger of being subjected to torture, and there is no procedure for raising or considering this issue. The CPC RK declares that the terms and procedure of extraditing a person to a foreign state is determined by the norms of the CPC and a specific international agreement with that foreign state. Thus, alongside the lack of the non-refoulement principle in the law, there is no provision stating the priority of the provisions of the Convention against Torture over bilateral agreements on extradition. In practice, it leads to the fact that foreign citizens are expelled or extradited to foreign states regardless of the arguments about the danger of being subjected to torture and NGO protests. The regional agreements on extradition, for example the Minsk or Kishinev Conventions of CIS regarding legal assistance are given a higher priority by the criminal justice or other government bodies than commitments under the Convention against Torture. The legislation of Kazakhstan does not establish minimum procedural guarantees for those people on whom a decision on expulsion or extradition has been made; this together with the lack of a legally guaranteed right of such persons to appeal the actions of public officials lead to public officials using deportation mechanisms in relation to foreigners at their own discretion. The lack of special legislation regulating the process of granting refugee status to persons in need of international protection also entails the possibility of deportation to the country of his/her citizenship, where this person may be subjected to prosecution and torture. Thus, Kazakhstan authorities fail to implement the recommendations of the U.N. Committee against Torture (General Comment № 1 in Article 3 of the Convention) in practice, which lead to irreparable consequences. Eighty Uzbek citizens that have fled from religious prosecution are in Kazakhstan–in Almaty – subjected to pressure, surveillance and are in danger of being forcefully returned to their country. They are independent Muslims–a category of people whose religion, practice and relations are beyond the framework of Islam, as authorized by the state. Human Rights Watch Report "Painting the Image of an Enemy" (2004 г.) At the end of November 2005, nine Uzbek refugees were illegally returned to Uzbekistan with the support of Kazakhstan law enforcement bodies; mention should be made that two of them had been registered by the UNHCR as having applied for asylum. Later on in Uzbekistan, they were sentenced or were waiting for their court trial, under charges related to "religious extremism." 16
Chapter 4 Article 4. Obligation To Criminalize Torture
The authors of this report express a special concern about the current problems in the legislation and law enforcement practice regarding the criminal prosecution of torture perpetrators. These problems could be grouped in the following categories: 4.1 Qualification of the crime of torture
Prior to introduction of Article 347-1 into the Criminal Code on December 21, 2002 stipulating criminal responsibility for the use of torture there was no such corpus delicti in Kazakhstan as ―torture.‖ Actions that were covered by the definition of Article 1 of the Convention were considered within the following offenses: ―Exceeding one’s authorities or official powers‖ (Article 308 CC RK); or ―Coercion to testify‖ (Article 347 CC RK). In the most severe cases of torture, the actions were qualified as aggravating circumstances of corpus delicti, stipulated by part 3 of Article 308, specifically: ―actions that have entailed grave consequences and if they have been accompanied by violence or the threat of violence with the use of a weapon or special means.‖ The current practice in Kazakhstan shows that despite the criminalization of torture in 2002 in the separate article of the criminal code, the criminal justice authorities continued with the practice of using Articles 308 and 347 of CC RK to qualify the actions that fall under torture. The authors of the report note that ―diluting‖ the concept of ―torture‖ in a wider concept of ―exceeding one's authority‖ makes it possible to hide the true scope of cases of torture and to hinder effective control over the implementation of the Convention, as well as to allow for the use of amnesty. 4.2 Penalty
Article 347-1 of the Criminal Code, which defined the term ―torture‖ and provided for specific punishment in the legislation of Kazakhstan, has been introduced in order to fulfill the recommendation of the U.N. Committee against Torture made to Kazakhstan to comply with the Article 4 of the Convention. In the opinion of the authors of this report, the Article 4 is not being upheld by Kazakhstan in full, as the current criminal legislation in the article on torture does not contain an adequate measure of punishment for this crime. Article 347-1. ―Torture‖ 1. Suffering intentionally inflicted by an investigator, a person conducting an investigation, or any public official on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act he/she has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind are subject to a fine in the range of 200 to 500 value of monthly computed index or the sum of two to five months’ salary or any other income of a convict or revocation of the right to hold certain positions for the term of up to three years or custodial restraint for the term of up to five years, or imprisonment for the same term. 2. The same criminal act, committed: a) by a group of people or a group of people by prior agreement; b) repeatedly; 17
c) with second degree/moderately severe harm caused to one’s health; d) with regard to a woman knowingly pregnant to the offender or with regard to juveniles; is subject to imprisonment for the term of up to seven years with the revocation of the right to hold certain positions for the term up to three years. 3. The same criminal act entailing severe harm to one’s health or reckless death of a victim is subject to imprisonment for the term of five to ten years with the revocation of the right to hold certain positions and carry out certain activity for the term up to three years. Note: Physical or mental suffering arising from legal actions of officials is not recognized as torture. The term of punishment stipulated by Part 1 of the Article ―Torture‖ (a fine in the range of 200–500 value of monthly computed index3 or the sum of two to five months’ salary or any other income of a convict, or revocation of the right to hold certain positions or custodial restraint for up to five years or imprisonment for the same term) does not meet the acceptable level of punishment under the Convention. Only in the presence of circumstances provided in Parts 2 and 3 of Article 347-1 is imprisonment for a term of up to seven years (the 2nd Part) or ten years (the 3rd Part) stipulated. However, even now in the presence of criminal responsibility for the use of torture in the Criminal Code, law enforcement bodies try to avoid application of this Article by qualifying torture in different ways: as a crime of exceeding one's authority or of coercion to testify. The Kazakhstan Bureau for Human Rights has made a request to the Committee on Legal Statistics and Special Registration under the General Prosecutor Office of the RK with the aim of specifying formal statistics starting from June 2001 as to how often the article on torture has been applied (Article 347-1 of the CC RK) in court decisions. According to the data of the General Prosecutor Office of the RK:4
The number of registered offense cases under the Article “Torture” (347-1)
Number of offenses, regarding which criminal cases were forwarded to the court in the reporting period Period Number of offenses registered during the reporting period Number of offenses that were under consideration in the reporting period Number of offenses, regarding which criminal cases were terminated for nonrehabilitation reasons Number of offenses, regarding which criminal cases were terminated for rehabilitation reasons
2004 2005 2006 nine months of 2007
3 5 6 2
3 2 3 2
1 2 5 1
0 0 0 0
1 1 1 0
Statistical data as to the number of convicted persons for the crimes stipulated by Article 347-1; and measures of criminal punishment given for 2005–2006 and nine months of 2007
Number of sentenced in total Imprisonment Criminal punishment measures Conditional sentence to imprisonment and to correctional works 2005 2006 nine Number of convicts, released from punishment under the sentence due to amnesty or other reasons 2005 2006 nine
One monthly computed index equals 1168 Tenge, which equals about 20 U.S. Dollars. The letter of the PP RK, outg. № 20-25067-07 of November 27, 2007.
Number of offenses, regarding which criminal cases were suspended in the reporting period
0 2 1 0
months of 2007
months of 2007
months of 2007
months of 2007
Prohibition to apply amnesty, pardon, etc.
According to the Criminal Code of the RK, when applying torture of mild or medium gravity for which the term of punishment does not exceed five years, there is a possibility for reconciliation of the parties, which in practice allows the perpetrators to escape punishment given the dependent position of a torture victim, who is often under pressure to reconcile with the offender. The Criminal Code of the RK also does not prohibit the use of amnesty for persons convicted for torture under Part 1 of Article 347-1.
Chapter 5 Article 10. Training of Personnel
Based on the results of the hearings of the Kazakhstan’s initial report, the Committee against Torture recommended ensuring that training is held for personnel who examine the signs of physical and psychological torture as well as including questions in qualification exams for such personnel on the knowledge of the Convention. The Kazakhstan Bureau for Human Rights made a request to the Ministry of Justice of the RK to provide information on how this recommendation has been implemented. The Ministry of Justice gave the following information: ―…according to the curriculum of the Academy of the Committee on Criminal-Execution System of the MoJ RK, the issues relating to the study of the provisions of the U.N. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture, Inhuman or Degrading Treatment or Punishment are stipulated in both regular and correspondence courses for the personnel.‖5 It is not possible to assess the content of study materials with regards to the full coverage of the Convention or the effectiveness of the teaching methods. With regards to the second part of the Conventions’ Article 10, the authors of the report note that it was not possible to obtain the rules and instructions on the activity of law enforcement bodies and prosecutors with regards to the custody, detention and interrogation of persons subjected to any forms of arrest or detention in order to assess their compatibility with the provisions of the Convention. Most of the rules and instructions of the Ministry of Interior, the Prosecutor’s Office and especially the National Security Committee (―KNB‖) are classified as ―For internal use only‖ and are not in the realm of public documents.
Chapter 6 Article 11. TREATMENT OF PERSONS SUBJECTED TO ANY FORM OF ARREST, DETENTION OR IMPRISONMENT
The letter of the MoJ RK, outg. № 5-7/leg.-698 of April 9, 2008.
During the last several years, certain progress has been made in Kazakhstan in the area of human rights protection in penitentiary institutions, which resulted from the reforms of the penal system and state policy on humanization of criminal legislation, aimed at lowering the levels of prison population. One of the major developments has been the transfer of the pre-trial detention centers from the Ministry of Interior to the Ministry of Justice in January 2004. Regretfully, this transfer excluded the pre-trial detention centers of the National Security Committee. Public control over the implementation of legal rights and freedoms of persons in penitentiary institutions is stipulated by the Law of the RK as of December 29, 2004 ―On Introduction of Amendments and Additions into Some Legislative Acts of the Republic of Kazakhstan Regarding Issues of Justice Agencies.‖ The law establishes the procedures and powers of the Civil Monitoring Commissions, such as: to visit without hindrance the penitentiary facilities and pre-trial detention centers by no less than 2 members of the Commission, according to the procedure set up by the body of criminal-execution system; to have meetings with prisoners at their permission and to register complaints and statements of prisoners on violation of their rights; address the administration of prisons and pre-trial detention centers or the prosecutor’s office with the requests to ensure protection of rights and interests of prisoners and detainees.
The law, however, fails to provide the Commissions with the power of undertaking unannounced visits to the above mentioned facilities. This shortcoming prevents the Commission members from obtaining objective information on the status of prisoners and detainees and on the exercise of their rights. 6.2 Problems in the legislation regarding the rights of prisoners
The legislation of Kazakhstan allows for the use of solitary confinement with regards to pre-trial detainees and prisoners. With regards to pre-trial detainees the Law of the Republic of Kazakhstan of March 30, 1999, № 353-1 ―On Procedure and terms of Custody for Criminal Suspects‖ states that: ―suspects and the accused shall be kept in general and solitary confinement cells […].‖ Article 31 of the Criminal Execution Code of RK declares: ―Placement of suspects and the accused in solitary confinement cells for a term of more than 24 hours shall be possible only under a special order of the Chief of administration of custodial facility, which shall be authorized by the prosecutor.‖ Article 31 of the Criminal Execution Code of RK stipulates cases when the prosecutor’s authorization is not required to order placement of suspects or the accused into solitary confinement cells, such as: in the absence of any possibility to implement the requirement of separate detention in another place; in the interests of security for the life and health of the suspect or the accused or other suspects or the accused; in the presence of a written application of a suspect or the accused requesting solitary custody; when placing a suspect or the accused into solitary confinement for a night in cases where they are kept in general cells during the day. 20
With regards to convicted prisoners, Article 161 of the Criminal Execution Code of RK among the measures of punishment to be used with regards to prisoners prescribes the use of arrest in special single occupancy cell (―gauptvahta‖) for up 30 days. Such cells are situated in the military quarters of prisons. According to Article 66 of the Criminal Execution Code of RK prescribes that in cases of violations by prisoners of the rules of incarceration, the inmates can be subjected to warnings or placement in the disciplinary cells (―SHIZO‖), which imply solitary confinement, for the period of up to 10 days. The law, however, fails to regulate the number of times a prisoner could be subjected to the solitary confinement per month. The convicted S. Kaliev reported that he was illegally placed into the disciplinary cell (―SHIZO‖) on a regular basis. Thus, S. Kaliev was placed into ―SHIZO‖ on February 8, 2008 for 15 days for refusing to get out of the prison cell; on February 25, 2008 he was placed again for 15 days for aggressive behavior during a morning round; on March 13, 2008 he closed the window with a towel, which led to disciplinary confinement for nine days. Thus, current procedures in the legislation, which allow the use of solitary confinement, contradict Kazakhstan’s international commitments, including the Convention against Torture. 6.3 Problems in practice
In 2006, several human rights organizations of Kazakhstan conducted monitoring of the places of detention and incarceration with the support of the Prison Reform International. The results of the monitoring demonstrated that the practice of observance of rights of detainees and prisoners is not in compliance with the UN Standard Minimum Rules For The Treatment of Prisoners. Thus, the pre-trial detainees complained on the practices of unlawful limitations of their rights to correspondence, telephone calls and meetings with relatives regardless of the period of their detention. The powers of the administration of detention facilities to allow the meetings of detainees with the third persons have often been abused. In a number of correctional institutions, the prisoners complained of practices of public humiliation, insults, use of obscene language, battery for refusals to comply with orders of prison guards, of being stripped naked on the drill square under the pretext of searches and of arbitrary use of violence, justified as ―lawful use of restraining measures against physical resistance of prisoners‖. Special attention was made to the practice of open and regular carrying of batons and other restraining measures by the prison guards. The human rights organizations raise special concerns regarding the frequent instances of group self-mutilation as well as disobedience by prisoners as protest against ill-treatment by the prison administration. Regretfully, the human rights organizations do not have a right to participate or have access to the procedures of official investigation of such cases. Thus, in April 2007, about 100 prisoners in the penitentiary facility LA №155/8 in the village of Zarechnyj of Almaty oblast, committed acts of self-mutilation by inflicting various degrees of injuries to themselves as a protest against violations of their rights by the prison administration. On April 16, 2007 a member of the Kazakhstan HR Bureau and the Civil Monitoring Commission for Almaty region visited this facility. The monitors observed physical signs of beatings on prisoners, including the signs of beatings on hands, legs, backs, in area of kidneys and upper part of buttocks, and bruises from prolonged use of handcuffs. They registered 35 complaints from prisoners about ill-treatment and violence. According to these complaints, the prisoners upon admission to the penitentiary facility were beaten with police batons and other means of restraint, 21
were forced to strip naked to wash toilets or to stand on the wet floor in front of prison guards, were forced to squat for long periods of time, were forced to march during 5 hours non-stop and etc. In cases of refusals or protests, the prisoners were heavily beaten. The beatings were undertaken by prison guards or other inmates. Despite the calls by human rights organizations to conduct investigation into allegations of torture and ill-treatment, the criminal case against the prison guards was shortly closed. The protests of prisoners against the practices of torture and ill-treatment expressed in the form of self-mutilations are not single incidents. These protests have been taking place in a number of penitentiary institutions of Kazakhstan over the course of several of years.
ARTICLES 12 AND 13. Ex Officio Investigations and Right of Victims to Complain
According to international norms, governments have to investigate reported cases of torture promptly and impartially. The main requirements to any investigation of torture cases are its promptness, impartiality, and thoroughness. These elements may be adapted to any legal system and they should be the guiding principles when carrying out the investigation of torture and ill-treatment allegations. In 2001 the U.N. Committee against torture expressed its concern about the fact that in Kazakhstan there were cases when officials, including the public Prosecutor’s Office, have not carried out a prompt, impartial and thorough investigation of torture complaints and have not ensured the prosecution of alleged offenders in contradiction to Article 12 and Article 13 of the Convention. Thus, the Committee has recommended to Kazakhstan ―to take urgent and effective measures in order to ensure an effective mechanism to investigate complaints, to carry out a prompt, impartial and thorough investigation in connection with complaints of torture reported to the authorities and, consequently judicial prosecution and punishment of the alleged offenders.‖ At present, however, there is still no effective mechanism to investigate complaints of torture and to ensure criminal prosecution of those guilty in the law enforcement practice of the state. The official statistics, presented in the state report, demonstrate this failure. According to the government figures, since the time of the enforcement of Article 347-1 (―Torture‖) in Kazakhstan, criminal proceedings have been instituted against the following number of people: in 2003, one police member; in 2004, three police members; in 2005, two police members; in 2006, seven police members.
In order to assess the adequacy of these figures it is necessary to take into account statistics regarding such key issues as detention, illegal confinement, deaths in penitentiary institutions, which are the most probable context for torture. For comparison: the number of detainees in 2005 comprised 22,481 people; the number of deaths in penitentiary institutions in 2005 comprised 218 people; the number of people illegally kept in the office premises of the police and set free in 2005 comprised 571 and 751 in 2007. 22
Violations of the state’s obligations under Article 12 and 13 of the Convention take place on all stages of investigation from the time of the complaint or the report about torture is submitted up to the final procedural decision. The following sections present detail discussion of such violations. 7.1 Complaints and reports on torture 7.1.1 Registration of reports and complaints of torture The Convention obliges state parties to investigate all complaints and reports of torture. The Committee points out that it is not mandatory to have formal written complaints in order for the state to carry out its responsibility to investigate allegations. The Committee also requires that investigation of such complaints and reports of torture must be carried out immediately. The CPC RK in Article 183 has a norm, according to which a body of criminal prosecution has to admit, register and examine a report or information about any crime which has been committed or is under preparation. An applicant must be given a document certifying the registration of the submitted report or information regarding the crime with the indication of a person who has received it, time of registration and the time when the decision regarding this report/information is to be made. Appeals regarding the unjustified refusal to accept a report/information can be submitted to the prosecutor or the court under the procedure established by the CPC. There is also an instruction endorsed by the General Prosecutor of the RK, under which a criminal prosecution body must accept without delay, register and examine reports or any other form of information about a crime being prepared or committed–regardless of the time and place of the alleged offence, jurisdiction or completeness of the information provided. In practice, the situation with reports and complaints is quite different from what is prescribed by law. For example, a victim often faces a problem with the formal registration of his or her report/complaint. The authors of this report are aware of situations when a victim was forced to withdraw his/her complaint about torture, which was used as a pretext not to register and investigate the alleged violations. Information about torture may be received by law enforcement bodies in the form of complaints from suspects, the accused, or witnesses on criminal cases, or from prisoners. The prisoners held in penitentiary institutions experience the greatest difficulties with complaint registration. Visits to penitentiary institutions by civil monitoring commissions showed that inmates have no possibility to send a complaint to the prosecutor regarding the actions of prison administration on the use of torture and cruel treatment without hindrance from the prison guards. The complaints are reviewed by prison administration and are used as a pretext for punishment. From an explanatory note to a lawyer of one of the accused who suffered group self- mutilation, in LA-155/8, February 2008) ―If it happens that the Chief of the institution gets your complaint, then later on an officer of an operational or a custodial department will by all means find some pretext to subject you to beatings. Usually during the visits of the prosecutor or representatives of nongovernmental organizations, the Chief of the institution himself would be present as well as officers of operational or a custodial department. Prior to such a visit we would be informed that in case somebody dares to complain, they would be punished at the first opportunity and we understand that we would be beaten or placed into a punishment cell.‖
7.1.2 Preliminary examination of reports or complaints of torture and practice of not initiating criminal investigation According to the CPC RK, examination of a report/information on a committed crime is undertaken by that law enforcement body which has registered the initial report/information. Based on the results of a preliminary examination, the given body must make one of the following decisions: 1. to initiate a criminal investigation; 2. to refuse to open a criminal case; or 3. to refer the report/information to the proper jurisdiction. According to Article 186 of the CPC RK and in presence of reasons and grounds necessary for initiating a criminal case, an interrogator, interrogation body, the chief of investigation unit, investigator and a prosecutor must initiate a criminal case. Article 177 of the CPC RK says that one such reason is a statement by individuals which contains sufficient data indicating the presence of the elements of a crime. So, for example in cases when a statement or a complaint from a victim about assault and battery is supplemented by medical documents registering any signs of injury, initiation of a criminal case is mandatory. This is what usually happens when a person brings a complaint against another individual accusing him/her of inflicting bodily injuries. However, if a person complains of injuries that have been sustained as a result of torture by police, in majority of cases the criminal investigation ends with a preliminary examination of the facts of the complaint. It has been established in practice that the preliminary examination of reports and complaints of torture is mostly undertaken by the Department of Internal Security (DIS) of the Ministry of Interior, rather than the Prosecutor’s Office or the National Security Committee who are also empowered by law to conduct a preliminary examination of such reports/complaints. It’s important to note that the DIS belongs to the same institution of the Ministry of Interior as the entire police force and is under the same supervision as the police officers whose actions they scrutinize. Such an institutional arrangement prevents the impartial and thorough investigation of complaints against police actions, as evidenced by practice. To support this conclusion in addition to practical examples, it would be useful to look into the regulations governing the DIS. Unfortunately, the attempts of the authors of this report to become familiarized with the provision regulating the activity of the DIS were fruitless. When approached by the authors of this report, an official of the Almaty Department of Internal Security under the Ministry of Interior explained that this document is classified information. It is also worth mentioning that according to the information provided by the same Department of Internal Security of Almaty: the procedure of examining statements or complaints of individuals on torture is laid down in the Law of the RK ―On the Procedure of Consideration of Inquiries by Physical or Legal Entities.‖ In other words, a complaint on torture can be treated not as a report on crime, but as some kind of ―an inquiry‖. The official response to inquiries from individuals or organizations, according to this law, does not require a formal procedural decision, as is the case according to the criminal procedure. This position of the DIS of Almaty contradicts Article 2 of the given Law, which declares that ―the present Law does not apply to statements by physical or legal entities, the examination procedure for which is established by the legislation of the Republic of Kazakhstan on administrative offenses, by criminal procedure and civil-procedure legislation of the Republic of Kazakhstan.‖ The authors of this report conclude that it is difficult to evaluate the functioning of the DIS Almaty based on such incompetent information, without having access to its regulatory bylaws and being able to analyze its powers and obligations in full. As far as the scope of preliminary examinations is concerned, the law enforcement bodies, as a rule, limit themselves to obtaining explanations from the police officers who have allegedly committed violations. Naturally, the police officers deny the use of torture, after which an examining body 24
reaches the conclusion that there are no grounds to initiate a criminal case. No investigative actions necessary to confirm the facts mentioned by the complaining party are performed. The most prevalent violations during this kind of examination are as follows: failure to interview a complainant; failure to interview witnesses indicated by the complainant; failure to seek medical evidence by organizing initial or additional medical examinations and tests, as well as inquiries with medical facilities or interview medical personnel, etc.; failure to examine the crime scenes, where torture is alleged to have happened, for example, premises of the bodies under the Ministry of Interior in which some evidence of torture could be found—objects used to beat a victim, blood or other debris of the crime; biased assessment of the testimonies of the complainant and his/her witnesses compared to the testimony of the police, etc.
A body conducting a preliminary examination or investigation often ignores the obvious evidence of the use of torture. For example: a forensic-medical examination registered signs of heat burns in Yesimbaiev; presumably the time he got them coincided with the time of his arrest. Nevertheless, the criminal justice body conducting a preliminary review of the complaint decided that no corpus delicti had been found in the actions of the police. According to the results of the monitoring performed by the Kazakhstan Human Rights Bureau, many defendants (victims) are not even aware of the fact that torture is a criminal offense. This is the reason why suspects and the accused complain about the actions of the police officers rather than report a crime. Although according to the Convention, any form of information on torture should be enough to trigger an obligation to conduct a prompt and impartial investigation, in Kazakhstan the general complaints of torture committed by the police do not lead to comprehensive investigations that would meet the requirements of Articles 12 and 13 of the Convention. The most common reasons used to justify the refusal to initiate criminal proceedings on torture allegations are as follows: infliction of bodily injuries to a complainant happened during his/her arrest as a result of his/her active physical resistance; infliction of bodily injuries to a complainant happened prior to his/her detention, or being a result of assault by cellmates; complainant injured him- or herself; lack of any medically supported evidence of injuries resulting from violence or use of weapons (such a conclusion is often made when the medical examination was conducted with delays after the signs of violence have diminished).
Thus, in practice, the preliminary examinations of reports and complaints of torture and illtreatment by police officers are undertaken by a non-impartial body of the Department of Internal Security, which is placed within the same police force, and consequently do not lead to prompt and thorough examinations. They, at best, result in some kind of disciplinary action for violations of internal rules and regulations, for instance of registration of visitors, etc. For example, according to the information provided by the General Prosecutor’s office of RK, in 2007 for the violation of constitutional rights of citizens at the preliminary investigation stage, the following measure have been taken: 570 police officers were subjected to disciplinary measures; 51 criminal cases have been opened against police officers; from these, 24 cases related to the use of violence and only 3 cases were opened under the Article 347-1 ―Torture‖. 25
In the space of an entire year, Gerasimov, who alleged to have suffered from torture during his illegal detention in the premises of the Yuzhniy DOI, Kostanai in March 2007, was refused an initiation of a criminal case based on his complaint. Investigation bodies explained their refusal to initiate a criminal case basically by the lack of an entry in the Police Registry of the Yuzhniy DOI, Kostanai about the delivery or detention of A. Gerasimov, and also by the fact that these allegations have been denied by the police officers of the Yuzhniy DOI, Kostanai. The investigation carried out by the Department on Control of Economic and Corruption Crime in Kostanai oblast confirmed the fact of ―illegal detention‖ of F. Gerasimov in the premises of the Yuzhniy DOI, Kostanai, and for this, some of the officials of this institution were punished in a disciplinary way. At the same time, the investigation has not given any logical or legal explanation about how a previously absolutely healthy Gerasimov was later hospitalized with multiple bodily injuries, including cerebral trauma, immediately his release from the Yuzhniy DOI, Kostanai. 7.1.3 Duration of preliminary examination of report and complaints of torture Article 184 of the CPC RK determines the term, within which statements and reports of crimes should be examined; and pursuant to it, decisions regarding a statement or a report of a crime should be made not later than three days after the date this information was received. In the case of a necessity to obtain additional information (to request documents or other materials, to examine the site of the alleged crime or to make an expert examination) this term may be expanded by the Chief of the interrogation or investigation body for up to ten days and in some exceptional cases up to two months, of which the prosecutor has to be notified within three days. The term of two months to examine a report about a crime and to make a decision whether or not to initiate criminal case is unjustifiably long in cases of reports of torture. Such a long period provided for an examination of a report, may in cases of torture prevent promptly and effectively securing evidence as well as identifying alleged offenders. Thus, the legal provision on the duration of an examination may potentially worsen the situation of torture victims. The average period it takes to examine a torture statement or complaint is about one month, which violates the requirement of promptness under Article 13 of the Convention. As to complaints about the actions of law enforcement bodies, they should be examined by the prosecutor within a period of three to a maximum of seven days prior to making a well-grounded decision. In cases of complaints on torture, the prosecutor may forward them to the respective body, usually the Department of Internal Security with the task of conducting an examination. In practice the examination of complaints may also take up to one month. Thus, in Kazakhstan the preliminary examination of reports and complaints of torture take on average one month with the possibility to prolong the examination procedure for up to two months under the legislation currently in force. Such a long period for a preliminary examination which only aims at determining the well-foundedness of allegations to merit a full-scale criminal investigation is far too long to satisfy the requirements of prompt investigations under Article 13 of Convention. 7.2 Investigation of criminal cases on torture 7.2.1 Jurisdiction and independence of criminal investigation The Istanbul Protocol declares: authorities conducting examinations should be independent from the alleged offenders and institutions in which they work; should be competent and impartial (P. 79). The CPC RK stipulates a special jurisdiction for investigating cases under Article 347-1 ―Torture,‖. The investigation of such cases may be carried out either by the internal affairs bodies under the Ministry of Interior (police) or national security (―KNB‖). However, as a rule, examination of 26
reports or complaints of torture with the aim of initiating criminal investigation are conducted by the Departments of Internal Security. As mentioned earlier, such practice hinders impartial examination of the reports/complaints of torture because officers, whose actions are challenged, belong to the same institution and under the same supervisors as the investigating authority. Ultimately, the absence of a specialized impartial body to be responsible for the examination of torture complaints results in the practice of non-investigation of reported torture cases and consequently to the impunity of torture perpetrators. The authors of this report draw special attention to the role and functions of the persecutor’s office in the process of investigating cases of torture. Kazakhstan legislation provides for the following main functions of the Prosecutor’s Office: it prosecutes on behalf of the state, representing state interests in the court, and it carries out general supervision over the legality of the criminal prosecution, interrogation and preliminary investigation. In the first function, the prosecutor endorses the indictment prepared by the police after a preliminary criminal investigation. In its second function, the Prosecutor’s Office shall have to intersect any breaches of the law on the part of criminal justice bodies and law enforcement officials and to ensure protection of the rights and freedoms of individuals. State prosecution and supervision of legality are performed by all prosecutors on duty. The law on prosecutors does not address the issue of the conflict of interests when performing these two functions. Whatever internal regulations exist to address the issue of conflict of interests, they are unknown to the general public and the authors of this report due to the classified nature of internal rules and regulations. Review of the existing practice demonstrates the tendency among prosecutors to give priority to the goals of the state prosecution and side with the police rather than protect individuals whose rights have been violated during the investigation. For instance, the Prosecutor, having received a torture-related complaint, has more incentives to put it on hold and slow down its progress than to push it through criminal justice procedure leading to investigation. The rationale behind such practice is that the complaint against police on torture during a criminal investigation casts a shadow on the role of the prosecutor to supervise the legality of police actions. The fact of the complaint itself, although directed against the police, gives a message that the prosecutor has not done his or her job of ensuring the legality of the investigation properly. Furthermore, if the violations by the police are confirmed, they may lead to several legal consequences from inadmissibility of evidence up to finding groundless the indictment which the Prosecutor’s Office has endorsed. Such prospects behind complaints of torture create disincentives for the Prosecutor’s Office to eagerly examine allegations of torture. According to information obtained from the Committee of Legal Statistics and Special Registration of the General Prosecutor’s Office RK, there have not been issued any administrative, normative and internal acts on the rules of investigating torture complaints. 7.2.2 Evidence It is well-known that medical documents are one of the most important pieces of evidence when investigating reports about torture. They may include medical records, acts of medical-forensic examinations, opinions of medical-forensic experts and etc. Under Kazakhstan legislation currently in force (Article 115 of the Criminal Procedure Code) ―evidence under the criminal case comprises the facts that have been obtained legally [...] facts which are significant for the lawful judgment of the criminal case are determined based on: statements of a suspect, the accused, victims, witnesses; expert conclusion; material evidence; protocols of procedural actions and other documents.‖ As a rule, the court seeks the opinion of a certified medical-forensic expert as proof of the use of violence. The forensic medical examination, aimed at detecting bodily injuries, how they were inflicted and the time of their formation, is performed only under the instruction of the law enforcement body in charge of the criminal investigation, or a prosecutor, or a court. A defense 27
lawyer can only request to perform an unofficial medical examination. In comparison to the decisions of the formal medical forensic experts from the state institutions, the results of the informal medical examination presented by the lawyer usually carry less evidentiary weight for the prosecution and the courts. Pursuant to the law, the transfer of detainees to pre-trial detention centers implies that they shall be examined by a health worker, who must register in the medical record any information about any signs of injuries on the body of the detainee. In practice, however, the health workers very often ignore this requirement. This is due to the fact that the medical personnel in pre-trial detention centers, as well the police officers that use torture, belong to the same law enforcement institution. From the complaint of the mother of a convict D. S. (born in 1989) [name of the juveniles is undisclosed] it follows that her adolescent son had been subjected to battery during interrogations and on the hands of her son there appeared scars from burns. When his mother requested that a forensic medical examination should be performed, she was categorically refused. 7.2.3 Procedure of appeal The legislation of Kazakhstan stipulates the procedure of appealing decisions of law enforcement bodies, specifically, refusals to open a criminal case. The problem in practice is that the body in charge of the investigation very often does not provide the victim with a procedural document–a resolution on the refusal to initiate a criminal case. Article 185 of the CPC RK–the legal provision regulating this process, does not contain a clear procedure for providing a complainant with the corresponding resolution and explaining him/her the grounds for denial to open a criminal case. Instead, the article says that the law enforcement body ―informs‖ the complainant with the procedural decision on his/her complaint. Therefore, a complainant would only receive an informal letter, which from the criminal procedure point of view is not an official procedural document. Usually the letter contains general phrases of the following kind: ―the facts indicated in the complaint have been found groundless according to the results of the preliminary examination.‖ Thus, the victims in practice are deprived of the opportunity to study the materials of the examination on the subject of their thoroughness and the grounds on which their requests to open a criminal investigation have been denied. This prevents them to effectively appeal to the court or the higher instance authority the decisions not to initiate criminal proceedings. It has been established in the practice of courts to demand the procedural documents from applicants when appealing the decisions regarding denials to open criminal proceedings. The authors of this report also note the practice when the victim’s complaint is forwarded to the same body for consideration, the decisions of which the victim is appealing. This is despite the clear prohibition in the criminal procedure law of such actions when it comes to examining complaints. In view of above, the authors of this report consider that in Kazakhstan the procedures of appealing the decisions of law enforcement bodies or prosecutors regarding statements and complaints about torture are not effective. 7.2.4 Rights of torture victims Paragraph 81 of the Istanbul Protocol declares: alleged victims of torture or cruel treatment and their legal representatives shall be notified of any hearings and any information related to the investigation, shall have access to them and also shall have the right to provide other evidence. In line with Article 75 of the CPC RK: ―in the criminal process a person shall be recognized as an official victim starting from the moment when the body in charge of the criminal procedure makes a respective decision.‖ A preliminary examination of a complaint is not the basis to recognize a 28
complainant as a victim. Thus, a de facto torture victim is deprived of all the rights stipulated by the Criminal Procedure Code prior to being formally recognized as a participant of the criminal procedure in the status of victim. Legislation does not guarantee legal assistance to persons whose complaints on torture are being examined. The victims without legal counsel are not able to effectively claim their rights using all legal remedies. The authors of this report have information about cases when a de facto torture victim was forced to withdraw his/her complaint. Then, the law enforcement bodies use this fact as a pretext to report that the torture allegations have not been confirmed. Thus, a torture victim in the absence of legal guarantees of protection to his/her rights is deprived of the possibility and motivation to address the government and to seek protection and restoration of his/her violated rights.
Chapter 8 ARTICLE 14. The Right of Torture Victims to Adequate Remedy and Reparation
The Kazakhstan Bureau for Human Rights made a request to the Committee on Legal Statistics and Special Registration of the General Prosecutor’s Office RK as to the number of civil cases considered by the court and decisions made with regard to disputes over compensation for the harm caused by illegal acts of the interrogation bodies, preliminary investigation, the Prosecutor’s Office and the court for 2000–2005: Regions Year Republic of Kazakhstan Considered and the court ruling made 2001 2002 2003 2004 55 54 78 43
The issue of compensation and moral damages to the victims of torture is not adequately regulated in the legislation. After Kazakhstan has prohibited torture as a criminal offense in its penal code in 2002, it has failed to follow up with the respective legal amendments guaranteeing reparation to the victims of torture. Thus, the CPC RK contains general provisions stipulating reasons and terms under which the right to compensation arises and the procedure of payment from the state budget. Article 40 of the CPC RK contains a list of people who are eligible for compensation and damages for harm sustained as a result of unlawful actions by the body in charge of the criminal investigation. The victims of torture are not covered by this article, because the CPC’s definition of unlawful actions of the body in charge of criminal proceedings does not include actions which would constitute the crime of torture. The Resolution of the Supreme Court of the Republic of Kazakhstan of July 9, 1999, №7 ―On Practical Application of the Legislation on the Compensation for the Harm Caused by Unlawful Actions of the Bodies in Charge of the Criminal Process,‖ which serves as general guidelines for judges on this issue, refers only to broad notions that do not fully comply with the definition of ―torture‖ in the Convention. For instance, the Supreme Court Resolution defines unlawful actions as including ―use of violence, cruel and degrading treatment,‖ and in the list of persons eligible for compensation it include suspects, and those people arrested, accused and convicted, who in the course of the criminal proceeding have been subjected to ―violence and cruel treatment.‖ 29
In Article 923 of the Civil Code of the RK (hereinafter ―CC of RK‖) ―Responsibility for the harm, sustained as a result of unlawful actions of the state bodies of interrogation, preliminary investigation, the Prosecutor’s Office and the courts‖ also contains a narrow list of persons and conditions which give rise to the right for compensation and damages from state. Thus, part 1 of Article 923 runs as follows: ―Harm caused to a person as a result of unlawful conviction, criminal prosecution, unlawful use of restrictive measures during preliminary investigation in the form of detention, home arrest, confinement of the right to movement, unlawful use of administrative penalties in the form of arrest or correctional labor, unlawful confinement to the psychiatric institution or any other medical facility is compensated by the state according to the procedure, established by the respective legislation, regardless of the guilt of state officials.‖ The effective exercise of the right to compensation by the victims of torture in Kazakhstan is further hindered by strict procedural requirements. First of all, the right to compensation for harm caused by the actions of the law enforcement bodies in charge of criminal proceedings is recognized only after a respective procedural decision has been made, for instance: a verdict or a decision of the criminal court against the offenders or a decision made by the body of interrogation, a preliminary investigation and the Prosecutor’s Office, establishing unlawfulness of actions by state officials. Taking into consideration isolated instances of criminal investigation and indictments against law enforcement officials based on allegations of torture and other unlawful actions, the practice of compensation from the state in Kazakhstan to victims of torture becomes rather limited. Secondly, the state body, which according to the law on state budget has been allocated funds in the current year to cover the costs of compensation for harm to individuals caused by unlawful actions of state bodies in charge of criminal proceedings, is recognized as the respondent on behalf of the state. And since the notion ―unlawful actions of state bodies in charge of criminal proceedings‖ according to the CPC and CC of RK do not specifically mention the actions qualified by Article 347-1 ―Torture‖, the state bodies use this legislative gap as a way of not recognizing a compensation claim or significantly delaying actual payments. For example, in the case of Amantaj Usenov, who has been gravely incapacitated, sustained a loss of memory and became handicapped as a result of torture by police officers at the Satpaev Department of Internal Affairs in the city of Zhezkazgan, the state has still not paid compensation and pecuniary damages. The city court of Zhezkazgan on March 21, 2008 ordered the Ministry of Finance to pay the victims and his family five million tenge6 as compensation. The Ministry of Finance appealed the decision, arguing that Article 923 of the CC RK does not stipulate torture, used against Amantaj Usenov, as being an unlawful action for which the state is responsible to provide compensation for; therefore, the state organ which is responsible for the violations must be ordered to pay compensation, that being the Satpaev Department of Internal Affairs or the Ministry of Internal Affairs. The victim and his family have not been able to receive compensation since May 14, 2008, when the appeals court order entered into force.
Chapter 9 ARTICLE 15. Non Admissibility of Evidence Extracted by Torture
Under the legislation of Kazakhstan the courts have the power to rule on the inadmissibility of evidence either on its own initiative or based on the motions from parties to the trial.
Roughly equivalent to 42,000 USD.
Article 116 of the Criminal Procedure Code RK lists the types of evidence inadmissible in court, including inter alia evidence obtained through the use of torture, violence, threats, fraud and by other unlawful actions. The CPC establishes the general principles that the validity of evidence must be decided by the court through evaluation and comparison with other evidence and after taking into account all the circumstances of the case. The practice runs contrary to the legal provisions. The judges, having received the statement of the defendant that his/her confession and/or other types of evidence have been obtained as a result of torture, tend to evaluate such statements as attempts by defendants to abuse the justice system and to avoid criminal prosecution. Such biased attitude is well demonstrated by the superficial nature of the examination of torture allegations when conducted by judges before deciding on the admissibility of evidence. In a substantial number of cases judges plainly ignore such statements. According to the results of the NGO monitoring of court trials during 2005–2006 funded by the OSCE Center for Kazakhstan, out of the 79 registered cases of complaints of torture by the defendants, 40 percent were completely ignored by the judges; and with regard to the rest, only a superficial examination was undertaken. Uralsk City Court № 2 found A. Vaskovskiy guilty of a robbery attack (Article 179 of the Criminal Code of the RK) and sentenced him to five years of imprisonment. During the trial, A. Vaskovskiy made a statement that he gave his confession under torture during the preliminary investigation. The court failed to examine his complaint and rule on admissibility of evidence. ************ The same Uralsk city court found Islamov Ermek guilty of having committed thefts. The defendant during trial informed the judge that he was tortured during the preliminary investigation of charges. The judge failed to order an examination of the allegations.
The OSCE report points out that when the judges did conduct an examination of complaints and allegations, they were performed in a superficial manner. The examination procedure is often limited to hearing the alleged perpetrators in the court, who obviously deny any accusations. For instance:
On April 2, 2007, members of the Kostanai KIHRB branch participated in the trial of Nikoforov Alexander (born 1984) on charges of murder (Art. 96 part 1 of CC of RK) at the request of the defendant. In the course of the court hearing the defendant made several statements that he had been repeatedly subjected to torture to obtain from him a confession and other statements on the case. Nikiforov described the following treatment he was subjected to: the police officers placed a gas mask on him and blocked the air, burned him with cigarettes, broke his fingers, threatened him with HIV infection and subjected him to psychological pressure. The judge limited the examination of the defendant’s complaints by summoning only one officer— investigator Kudaibergenov—out of four officers indicated by the defendant, including the Chief of the Severniy (Northern) Department of internal affairs of Kostanai city, Mr M. Isergepov. The judge asked this investigator: ―Have you applied cruel treatment or physical pressure to the defendant?‖ and the investigator naturally answered in the negative. Then the judge said: ―Thank you, we will not take any more time of the investigator; he is very busy. You may be free.‖ Based on such an examination the judge ruled that the defendant’s allegations were groundless.
According to the current practice in Kazakhstan, the defendants practically bear the burden of proof when they are asked to prove their allegations that they were subjected to torture with the aim of obtaining a confession. The internationally recognized principle that the burden of proof in such cases is shifted to the prosecution is not known and consequently not applied by the judges in Kazakhstan. The judges do not take into account the hidden nature of the crime of torture and use any doubts in the statements of the defendants against them. The active role of defendants’ lawyers who request to question additional witnesses to support the allegations of torture, or to conduct additional expertise in order to prove torture, are not of much help in promoting the defendants’ cause. The courts simply deny such requests and rule on the admissibly of all evidence. For instance: For example, in the case of T. Bolganbaev the lawyers requested to examine three instances of documented use of violence in relation to a defendant during a preliminary investigation. The judges ruled only with regards to the first instance, concluding that the injuries sustained by the defended were the result of the lawful use of force during apprehension by the police. The remaining two facts of violence in relation to the defendant were simply ignored by the court in the final decision. This decision was later supported by the Supreme Court regardless of the grounded arguments of the lawyer, including references to international standards with regard to the consideration of torture-related complaints, when the burden of proof shifts from a complainant to the prosecution.
The most common evidence obtained through the use of torture and ill-treatment by the police is a self-report on having committed a crime, and a statement of confession. The first is used by the police as the grounds for opening a criminal case against such persons and the second document as the grounds for indictment. Despite the requirements of Article 119 of the CPC of RK, which says that the confession of a defendant can be used as evidence of his/her guilt only if supported by other evidence in totality, the statement of confession is still used by the prosecution and courts as the key evidence of defendant’s guilt. The Almalinsky regional court of Almaty sentenced the brothers O. Khamraiev and M. Khamraiev to long-term imprisonment. In court, O. Khamraiev stated that he had signed his self-incriminating statement under psychological and physical pressure by the investigators. The fact of beating had been confirmed by the head of the pre-trial detention center, where the defendants were placed after the interrogation. However, upon hearing this, the court did not order any review of the complaint; the lawyer’s complaints in the same regard were not taken into account, and the sentence was not changed.
The list of examples could be continued. But the conclusion, however, is simple: courts in Kazakhstan do not effectively examine defendants’ allegations that the evidence against them has been obtained through torture and ill-treatment, and as consequence pass decisions based on unlawfully obtained evidence.
IMPLEMENTATION OF THE RECOMMENDATIONS OF THE UN COMMITTEE AGAINST TORTURE
In 2001 the U.N. Committee Against Torture considered the Kazakhstan initial report on the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment and made the following recommendations: (a) Proceed promptly with its stated plans to amend its domestic penal law to include the crime of torture, fully consistent with the definition contained in article 1 of the Convention and supported by an adequate penalty. (b) Take urgent and effective steps to establish a fully independent complaints mechanism and to ensure prompt, impartial and full investigations into the many allegations of torture reported to the authorities, and the prosecution and punishment, as appropriate, of perpetrators. (c) Expand the powers of the Presidential Human Rights Commission so that it may become an independent and impartial governmental and nongovernmental national human rights commission in conformity with the Paris Principles, with effective power, inter alia, to investigate all complaints of human rights violations, in particular those pertaining to the implementation of the Convention. (d) Ensure in practice absolute respect for the principle of the inadmissibility of evidence obtained by torture. (e) Take measures, including a review of the Constitution, laws and decrees, to establish and ensure the independence of the judiciary and defense counsel in the performance of their duties in conformity with international standards. (f) Proceed with the adoption of measures to permit the defense counsel to gather evidence and to be involved in cases from the very start of the detention period, and to ensure that doctors will be provided at the request of detained persons, rather than the orders of prison officials. (g) Improve conditions in prisons and pre-trial detention centers and establish a system allowing for inspections of prisons and detention centers by credible impartial monitors, whose findings should be made public. The State party should also take steps to shorten the current 72-hour pre-trial detention period and avoid prolonged arrest and detention prior to trial. (h) Complete the transfer of responsibilities for prisons from the Ministry of Internal Affairs to the Ministry of Justice, thereby permitting the demilitarization of the penitentiary system. (i) Provide independent judicial oversight of the period and conditions of pre-trial detention. (j) Review cases of convictions based on confessions that may have been obtained through torture or ill-treatment, and ensure adequate compensation to victims. (k) Make the declarations under articles 21 and 22 of the Convention. (l) Ensure that specialized personnel are trained to identify signs of physical and psychological torture and that their examinations for qualification include awareness of the Convention's requirements. 33
(m) Provide data in the next periodic report, disaggregated, inter alia, by age, gender, ethnicity and geography, on civil and military places of detention as well as on juvenile detention centers and other institutions where individuals may be vulnerable to torture or ill-treatment under the Convention; provide information in the next periodic report regarding the number, types and results of cases of punishment of police and other law enforcement personnel for torture and related offences, including those rejected by the court; provide full information on the results of criminal cases described in the State party's initial report and on the compensation provided, if any. (n) Widely disseminate the Committee's conclusions and recommendations, the summary records of the review of the State party's initial report and the State party's report in the country, including to law enforcement officials and by means of publication in the media and through distribution and popularization efforts by nongovernmental organizations. (o) Consider consulting with nongovernmental and civil society organizations when preparing all parts of the next periodic report. At present, out of 16 recommendations made by UNCAT only the following have been implemented: 1. On December 21, 2002 under the Law RK № 363-II ―On Introduction of Amendments and Additions into the Criminal Procedure Code and Criminal-executive Code of the Republic of Kazakhstan‖ the Criminal Code of the RK was complemented by Article 347-1, which defined and criminalized the crime of ―torture‖. The text of the provision, however, does not fully comply with the definition given in the Convention, including the failure to establish adequate punishment for the use of torture. 2. On December 21, 2002 the same Law introduced an addition to Article 116 of the Criminal Procedure Code of the Republic of Kazakhstan, according to which the information obtained through torture is included in the list of evidence inadmissible in court. 3. Penitentiary institutions and pre-trial detention centers have been transferred over to the Ministry of Justice RK from the Ministry of Interior RK. However, pursuant to the legislation, some of the pre-trial detention centers continue to remain under the authority of national security bodies. Temporary detention centers (places of police custody) are still under the Ministry of Interior of the RK and national security bodies of the RK. 4. Under the Decree of the President of the Republic of Kazakhstan as of December 19, 2007 the decision was made to sign the Statement of the Republic of Kazakhstan on recognition of the authority of the Committee against Torture stipulated by Articles 21 and 22 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and punishment. 5. On July 5, 2008 the Law of the RK ―On introducing amendments and additions to selected legislative acts of RK on the question of application of restrictive measures in the form of detention and home arrest‖ introduced the judicial sanctioning of detention. The authors of this report bring to attention the fact that the majority of the Committee’s recommendations have not been implemented: there is still no effective mechanism of prompt, impartial and thorough investigation of reports about torture and ill-treatment; the exclusionary rule of non-admissibility of evidence obtained through torture is not adequately applied in practice by courts; the recommendations of the Committee have not been publicized. 34
Of special concern is the failure to implement the following recommendations of the U.N. Committee against Torture: e) Take measures, including a review of the Constitution, laws and decrees, to establish and ensure the independence of the judiciary and defense counsel in the performance of their duties in conformity with international standards. The independence of judges is proclaimed by the Constitution of the RK, the Constitutional Law of the RK ―On the Judicial System and the Status of Judges in the Republic of Kazakhstan‖ and by numerous other regulatory acts. At present, however, the independence of judges remains more of a declaration than an objective reality. Thus, by law, the judges of different levels are appointed in one way or the other by the President. Contrary to the separation of powers and the system of checks and balance, the judiciary remains dependant on the executive branch. f) Proceed with the adoption of measures to permit the defense counsel to gather evidence and to be involved in criminal cases from the very start of the detention period, and to ensure that doctors will be provided at the request of detained persons, rather than the orders of prison officials. The Criminal Procedure Code of the RK empowers lawyers to ―to present evidence and collect information necessary for rendering legal assistance, including the possibility to interview private persons, to request certificates, references and other documents‖ (Article 125 of the CPC RK). A similar right is ensured to the lawyers by the Law RK ―On Advocacy.‖ The lawyers must request from the bodies in charge of criminal proceedings to include the collected evidence and information to support the defendant’s position to the criminal case file. Such requests as a rule are granted by the investigators, prosecutors or judges. The more difficult situation is with the lawyers’ requests regarding performance of certain investigative actions or rendering of procedural decisions with the aim of determining the circumstances of the crime and ensuring the protection of a defendant’s lawful rights and interests in accordance with Article 102 of the CPC RK. For instance, the requests of lawyers to conduct additional medical examinations or other types of forensic expertise, or to question additional witnesses and conduct other investigative actions necessary for the objective and thorough investigation of a criminal case, are often denied by investigators, prosecutors and judges. Such decisions are often rendered without any explanations as to the grounds for denial. Thus, the lack of equal procedural opportunities for both sides of criminal proceedings—defense and prosecution—in Kazakhstan violates the international standard of equality of arms in the criminal process. Currently the Law ―On Introduction of Amendments and Additions into Some Legislative Acts of the Republic of Kazakhstan on Issues of Ensuring Qualified Legal Assistance‖ is under consideration by the Parliament. According to this draft law, the possibility for the defense counsel to collect evidence will be enhanced. The legal profession, however, is of the opinion that the suggested amendments will not improve the situation considerably, given the fact that a defense lawyer will remain dependent on the bodies of state prosecution to document and to include the defense evidence to the criminal case file. The legislation also lacks the requirement of a mandatory legal representation for suspects from the moment of actual arrest. The problems related to the period of arrest and detention are described in detail in Chapter 2 of the current report. g) Improve conditions in prisons and pre-trial detention centers and establish a system allowing for inspections of prisons and detention centers by credible impartial monitors, whose findings should be made public. The State party should also take steps to shorten the current 72-hour pre-trial detention period and avoid prolonged arrest and detention prior to trial. 35
The 72-hour term of police custody has not been reduced in the legislation. In practice, the duration of police custody is often violated extending beyond the required 72 hours. As described in Part I of this report, the police records the time of arrest of a suspect much later than the time of actual apprehension, which is a de facto limitation of freedom. In this unaccounted for period of time, the person is under the full control of law enforcement officials, being held incommunicado, without access to a lawyer or the opportunity to inform relatives of his/her arrest. The access of civil society organizations to the places of police custody, which would allow the documenting of instances of unlawful arrests, is still prohibited in the legislation. j) Review cases of convictions based on confessions that may have been obtained through torture or ill-treatment, and ensure adequate compensation to victims. There is no information regarding the review of criminal cases with the convictions where the defendants claimed that the confessionary statements had been obtained through torture.
Regarding Article 1 of the Convention Bring the definition of ―torture‖ in Article 347-1 of the CC RK into compliance with the Convention. Regarding Article 2 of the Convention Introduce into the legislation adequate measures that would guarantee protection from torture by the following means. 1. Enhance guarantees of the protection of the rights of individuals during arrest or any other form of limitation of the right to personal liberty, by taking the following measures: a) introduce into the legislation the right of all people to have a lawyer during any contact with law enforcement bodies that limit a person’s legal rights and interests regardless of procedural status; b) introduce detailed procedures regulating arrest and provide a clear definition of such notions as ―the time of arrest‖ and ―an arrested person.‖ 2. Introduce into the current criminal and administrative procedure an obligation for the law enforcement officials to notify all persons during arrest or other forms of limitation of their right to personal liberty, of the reasons and grounds for arrest, of the right to remain silent, of the right not to give statements that could be used against him/her, of the right to be represented by a lawyer, and of the right to inform relatives and close people about their arrest/detention. 3. Introduce into the legislation a provision on the right of an arrested person to have a lawyer at the expense of the state budget immediately from the moment of arrest, which should be linked to the time of actual limitation of the right to liberty. 4. Amend the legislation to regulate the involuntary placement of suspects and defendants at the stage of pre-trial investigation into medical facilities to conduct forensic psychiatric expertise, based exclusively on court’s decision. Introduce additional guarantees to protect the rights of suspects and defendants involuntarily placed into medical institutions at the pre-trial stage, including the right to challenge the methods, duration and scope of medical interventions. 5. Introduce into the criminal procedure the rule, according to which a statement of confession can be recognized as admissible evidence only when it is given to the judge during the trial investigation of the criminal case. Any confessionary statements obtained by the law enforcement officials during a preliminary investigation should be accepted as admissible evidence, only if confirmed in the court before the judge during the trial of the criminal case. 6. Eliminate unreasonable limitations for the maintenance of family contacts via correspondence and regular meetings with family members for persons held in pre-trial detention. 7. With regards to the rights of juveniles: а) Set up a specialized juveniles justice system according to the requirements of the UN Convention on The Rights of The Child; 37
b) Take immediate measures to tighten the control over the observance of the rights of juveniles in criminal justice system, guaranteed in the legislation, by introducing special registration and supervision procedures on the cases of juveniles with the participation of civil society organizations; c) Increase the level of accountability and punishment measures for the violations of the rights of juveniles during the criminal procedure. 8. With regards to the women’s rights: а) Facilitate prompt adoption of the legislation on the prevention of domestic violence and on equal opportunities for men and women in Kazakhstan with the participation of civil society organizations; b) Support the functioning of the crisis centers and hot-lines for women-victims from the state budget as of 2009; amend the legislation to allow women’s organizations to apply for state funds to promote protection of women’s rights. Regarding Article 3 of the Convention 1. Introduce into the legislation a prohibition to expel, return or extradite a person to another state, where there are substantial grounds for believing that he/she would be in danger of being subjected to torture. 2. Introduce a judicial procedure to consider and appeal decisions on expulsion, forced return and extraditions. Define in the legislation the issues to be considered by the courts when making a decision to expel, return or extradite a person who claims to be in danger of being subjected to torture. Regarding Article 4 of the Convention 1. Introduce an adequate level of punishment for torture in Article 347-1 of the CC RK. Include torture to the list of grave crimes with an adequate punishment term. Exclude the possibility of qualifying unlawful actions, stipulated by Article 347-1 of the CC RK ―Torture,‖ as crimes of minor or moderate severity. 2. Exclude the possibility of qualifying cases of deaths resulting from torture as crimes committed by negligence. Consider setting the punishment level for causing death as a result of torture to a similar level for the punishment prescribed by Article 96 of the CC RK for murder with exceptional cruelty. Regarding Article 11 of the Convention 1. Bring the legislation and practice of Kazakhstan in full compliance with the UN Standard Minimum Rules for the Treatment of Prisoners and the Basic Principles for the Treatment of Prisoners to in order to strengthen the safeguards against torture in places of detention and incarceration. 2. Amend the legislation and improve the practice regarding the use of solitary confinement in accordance with international standards and requirements of the Convention. 3. Amend the legislation to allow public oversight of police stations, places of police custody under the Ministry of Interior of RK and of other detention facilities, including closed medical institutions. 4. Increase the powers of the Civil Monitoring Commissions to allow their members to undertake unannounced visits to the penitentiary facilities, pre-trial detention centers and other places of confinement under the Ministry of Interior and other agencies, including under the authority of the National Security Committee. 38
5. Undertake examination and investigation into allegations of torture and ill-treatment by prisoners, in accordance with the requirements of the Convention, in cases of reported group self-mutilation during the period 2002 to 2008. Regarding Articles 12 and 13 of the Convention 1. Designate a specialized body to examine and to investigate all reports and complaints of torture in a manner of promptness, impartiality and thoroughness. Provide for the accountability and oversight mechanism to monitor the performance of such a body in examining and investigating allegations of torture. 2. Introduce in the legislation a specialized procedure for the examination of reports and complaints on torture with the following requirements: a. the period of preliminary examination of reports and complaints of torture must be limited to a maximum of 10 days; b. upon receiving/registering a report or a complaint of torture the specialized body in charge of examination must order an immediate forensic-medical examination to promptly record any physical injuries. 3. Provide in the legislation for the special rights of the victims of torture during preliminary examination, including, but not limited to the following: a. to be informed of the process of a preliminary examination; b. to raise questions and put forward requests to examine the additional facts and circumstances of alleged torture; c. to have a right to state-guaranteed legal aid in cases of indigent victims, etc. 4. Integrate the principles of effective investigation of torture (Istanbul protocol) into the respective legislation and regulatory acts governing the process of examination and investigation of torture complaints and conduct of medical examinations and forensic expertise. Regarding Article 14 of the Convention 1. Provide in the legislation for the specific rights of the victims of torture to claim compensation from the state in civil courts independent from the criminal proceedings on the same case. Ensure that the process of payment of compensation from the state budget is adequate and timely. 2. Establish a mechanism of providing for the psychological and medical rehabilitation for torture victims. Regarding Article 15 of the Convention 1. Introduce in the legislation a special procedure to examine allegations of the defendant that the evidence against him/her has been obtained as a result of torture. The procedure among others must follow the following requirements: a. The examination into the allegations of torture and inadmissibility of evidence must be ordered immediately upon a defendant raising such allegations in courts or on the initiative of the judge, if the circumstance so dictate; The trial on the criminal charges against the defendant must be suspended pending the decision on admissibility of evidence. b. The burden of proof during examination process must be shifted to the prosecution, which has to prove that the evidence has not been obtained through torture. c. The defendant and his/her legal representative must have the right to call additional witness, present additional information and evidence, to have any additional forensic expertise conducted on their requests and so on; d. A judge must issue a separate decision upon the completion of an examination of allegations, indicating the scope of examination, reasons and grounds for the concluding decision. 39
INDIVIDUAL COMPLAINTS OF ALLEGED TORTURE
1. Case of Yuri Poloneichik On the afternoon of December 11, 2007, Yuri Poloneichik (born in 1983) on his way home was stopped by two men in civilian clothes. Yuri knew one of them - he worked in the rayon police department. After some questions and verbal abuses, they twisted Poloneichik’s hands, handcuffed him and forced him into the car. At that time, one more person came up, also in civilian clothes. Yuri was taken to the regional police department at around 22:30. While being handcuffed from behind, he was forced to go up to the second floor. Then these three people started beating him. When Poloneichik tried to resist, one of the policemen sprayed gas into his face (a special chemical, ―Cheryomukha‖). He covered his face with his hands, and the policemen continued beating him all over his body until Poloneichik lost consciousness. Later, police justified their use of the special restraining means against Poloneichik - handcuffs, the sambo technique (unarmed self-defense) and ―Cheryomukha‖ – as being necessary due to active resistance of the suspect. Poloneichik, who sustained injuries from beatings, spent almost a day without any medical aid. During all this time his father Leonid Poloneichik was standing in front of the building of regional police department with doctor’s referral letter his son was in need of hospitalization. Only on December 12, late in the afternoon was Yuri delivered to the surgery unit of Mednykarinsk regional hospital with a diagnosis: acute closed craniocerebral trauma, acute period. A CT-scan in Kostanai oblast hospital showed brain cerebral edema. At present, Poloneichik’s request to open criminal investigation against police officers of Mendykarinsk Regional department based on his allegations of torture was refused due to the fact examination into his complaints did not establish any elements of crime in the actions of police officers. 2. Case of Dmitriy Filimonov Based on a complaint by Tatyana Filimonova - mother and legal representative of adolescent Dmitriy Filimonov (born in 1991): On September 26, 2007, law enforcement officials came to the house of Dmitriy Vladimirovitch Filimonov, 15 years (born in 1991), and asked him to follow them without explaining the reasons. The juvenile’s father accompanied him to ―Yuzhniy‖ Regional Police Department. Dmitriy’s mother came there later, at about 21:00. For a long time an officer on duty did not let her in, explaining that her husband was there and that was enough. After some time she was allowed to go to the office of the chief of this police department. There she saw her husband without her son. The parents were not informed of where their child was or of the reasons for his arrest. All what the Chief of ―Yuzhnyi‖ Regional Police Department, Zhumabaiev, told them was that an officer from the department on the affairs of minors was talking to their son, without explaining the reasons for that conversation in the absence of juvenile’s parents. The parents’ complaints that interrogating a juvenile without the presence of his/her parents was illegal did not produce any effect. They were not allowed to see their son. The parents did not see the inspector either. They do not know this inspector’s name or his rank. The juvenile was interrogated for more than two hours by officers of the criminal investigation department. The parents believe that their son was subjected to psychological and physical pressure. Before his arrest, Dmitriy Filimonov’s medical record did not contain any psychiatric referrals, but after the psychological trauma sustained at the police station his diagnosis is so serious that the child is in need of medical treatment. His parents are concerned about the consequences of this trauma and possible health complications for his son. Only after the parents were allowed a confidential phone talk with their son did they learn that he had made statements under pressure from the officers of the criminal investigation department. During the first interrogation he was subjected to psychological pressure and he took all the guilt 40
upon himself. Later, Dmitriy told his mother that they had ordered him to strip naked, showed him a police baton and a condom and said that if he did not take the guilt upon himself then those things would be applied to him through anus. And they demonstrated how. Later on Dmitriy said to his mother that he was afraid for their lives and for the life of his younger brother and urged his parents not to take their eyes off the younger brother. The parents believe that Dmitriy had been threatened with possible violence against his whole family. The parents think that as a result of this kind of treatment their son signed statement of confession. 3. Case of Malika Shakirova On November 26, 2006, at about 15:00hrs, police officer S. Krikun and two other officers from ―Severniy‖ Regional Police Department of Kostanai broke into the apartment of Malika Shakirova. She was sleeping at the time after a night shift at her job. The police did not show their IDs or explained the reasons for their visit. Instead they forced Malika into their car and brought her to ―Severniy‖ Regional Police Department. There she was taken to an office room on the second floor. There were police officers Bilaylov, Kaskabaiev, Semyonov and three other unidentified policemen. Shakirova was informed that she was suspected of having stolen 170,000 Tenge. When Shakirova told the policemen that she had not taken any money they started beating her and verbally insulting her. Then they brought a gas mask, put it on her face and started blocking the air. When the woman began to lose consciousness they took off the gas mask and started beating her with rubber batons on her kidneys. Then they took off her hair pin and began dragging her by the hair around the room. They threatened to kill her and to throw her body out to a dump where nobody would look for her. In this way she was kept there until midnight. Then the theft victim came and withdrew her complaint. After that, Shakirova was set free to go. Downstairs Shakirova’s acquaintance helped her to get out and take a taxi home. In the morning Shakirova went to a traumatology center, where she registered her bodily injuries. She went to the Prosecutor’s Office and wrote a complaint about the actions of the policemen of ―Severniy‖ Regional Police Department. After the preliminary examination of her complaint, Shakirova was informed in writing that this investigation did not reveal any corpus delicti in the actions of the police officers of the ―Severniy‖ Regional Police Department of Kostanai. The investigator who performed that preliminary examination of Shakirova’s complaint did not interrogate either Shakirova or the witnesses who could testify to the fact that Shakirova had been taken to the police office in a healthy condition and without bruises. Her acquaintance, who had taken her from the police office with the signs of violence, had not been interrogated either. The investigator limited the examination process to questioning the theft victim and the policemen who denied their having anything to do with the bodily injuries inflicted upon Shakirova, which were registered by the forensic-medical examination. 4. Case of Yuri Ponomariov Yuri Ponomariov (born in 1962), convicted by the 2nd Almalinsky District Court of Almaty, approached the Kazakhstan International Human Rights Bureau in Almaty with the following statement . The complainant stated that on October 8, 2007 during his arrest conducted by police officers of the Almaly Regional Police Department (S. Ablaiev, M. Alimbetov and A. Batyrbekov) he was subjected to physical and psychological pressure by these officers. The beating, according to the complainant, took place in a deserted place behind nine-storey apartment buildings within the block of Brusilovsky and Raimbek streets. The complainant alleges that he was beaten on his feet, stomach and chest. The beating continued after Yuri Ponomariov was delivered to Almaly Regional Police Department. In the police department, after Ponomariov refused to admit his guilt, Ablaiev and Alimbetov attacked him, beating him on the chest, stomach, and between the legs. After this, A. Batyrbekov joined the two police officers, and they twisted his arms behind his back, put him on the chair and fastened him to it by handcuffs. They accompanied these actions by verbal insults and abuses. Then they put a plastic bag over his head and blocked the air. After this, Yuri agreed to sign all the papers, and he was taken to Investigator Tumadze. In the office of the investigator Ponomariov again refused to sign anything. Then the aforementioned police officers changed their 41
strategy and started exercising psychological pressure on Ponomariov. Finally Yuri was forced to sign a statement of confession. After this incident, Yuri tried to commit suicide by cutting his wrist with the edge of the cigarette lighter. On October 9, 2007 he was delivered to Almaty City Hospital №4, where he was diagnosed with multiple cut wounds of the left forearm. This was confirmed by a certificate: a conclusion by the Emergency Traumatology Unit of Almaty City Hospital № 4 of October 9, 2007. 5. Case of Dadelkan Sabitov Dadelkan Sabitov, a businessman from Ust-Kamenogorsk addressed the branch office of Kazakhstan International Human Rights Bureau in Ust-Kamenogorsk with a complaint against police. Sabitov explained that on September 26, 2007 he was beaten by officers of the Specialized Police Unit during his arrest. Sabitov was punched, beaten with police batons and kicked. As a result of this treatment, Sabitov sustained the following injuries: closed craniocerebral injury, mild brain contusion with obvious focal signs, haematoma of the left eyelid, facial injuries, and bodily injuries on the left shoulder, left shank, and left knee joint, which were evaluated as light bodily injuries. The nature and localization of these injuries exclude the possibility of their formation as a result of a fall from any height of around two meters. An ambulance was not allowed to take Sabitov to hospital, and only after the ambulance doctor demanded that the policemen give him a formal refusal to take the injured person to hospital did it become possible to take Sabitov out of the police station. Sabitov was charged with resisting police officers. As it was explained to Sabitov, he had supposedly run his car over one of the police officer’s foot. Despite the fact that there is documented evidence of the beatings: results of forensic examination, and the report from the ambulance, no action has been taken regarding Sabitov’s torture allegations. 6. Case of Nikolay Gunchak In a news report shown on one of the national TV channels, it was said that in May 2007 Nikolay Gunchak was in the ―Severniy‖ Regional Police Department where he was delivered as a witness. Regardless that both his lawyer and his mother tried to find Nikolay, including in the ―Severniy‖ Regional Police Department, the fact of him being in the ―Severniy‖ Regional Police Department was denied, citing the lack of his registration by the police. And it was only when the son was being escorted through the yard of the police office, that his mother saw him by chance. As his mother stated, her son was hardly moving his legs, he had been beaten all over and worn out. Later on, on May 4, 2007, the parents of the missing children including Nikolay himself addressed the branch office of the Kazakhstan International Human Rights Bureau. The parents stated that in the course of the investigation into the murder of an adolescent girl, the rights of their child had been violated. Thus, Nikolay Gunchak was subjected to physical torture, intimidation and threats of sexual violence with the purpose of extracting confession from him. Replies from the oversight bodies to the requests related to the given statements were usual: ―the allegations about the use of impermissable interrogation methods have not been found sustainable‖, regardless of the fact that the signs of the violence were recorded by forensic medical examination. 7. Case of A. Ageenko In June 2006, the family of a juvenile A.A. Ageenko complained to a branch office of Kazakhstan International Human Rights Bureau about torture and ill-treatment of Ageenko as a result of which he signed confession of guilt and is now serving his 5-year prison term based on a court’s guilty verdict of May 16, 2006.
In her written statement, the mother of Ageenko, Olga, states that during the entire criminal investigation, the rights of her under-aged son and other juvenile witnesses were grossly violated. Through threats, violence, and cheating, the law enforcement officers forced the juvenile witnesses to confess into having committed a criminal offense. The children and their parents were kept at the City Police Department from 9 in the morning till 23:00 at night (the details of the violation are described in the convicts’ appeal against the lower court verdict). According to juvenile witness D. Gatin, his first testimony he gave under the pressure from the law enforcement staff of the City Police Department, whom he did not know. One of the police officers said to Gatin that if he did not make the requested confession he would be sent to prison. Many of the witnesses in this case have stated that all of their testimonies were forced out from them. For instance, the mother of an adolescent witness Vadim Vasiliev was told that if her son did not sign a confession, he would be sent to jail. Police told her that her son would be raped by other prisoners and that it would break him up. Because of the fear for her son she told him that he should do whatever the policemen wanted from him. Witness A. Stepanov stated that the entire testimony he made on November 25, 2005 was forced out from him. The chief of the investigative unit Kunaev beat him on the head. A legal representative of adolescent A. Ageenko stated that she, too, was confronted with rudeness of the employees of the City Police Department of Ekibastuz: they shouted at her and kept her in fear demanding her to sign the requested papers. The Prosecutor’s Office of Ekibastuz city, according to the mother, did not react in any way to any complaints or requests. Disregarding the statements of witnesses in the court who claimed that during the pre-trial investigation the officers of investigative bodies had put moral and psychological pressure on them, the court accepted the evidence of the police officers as valid. Meanwhile the court evaluated the statements and evidence from more than ten witnesses pointing out the innocence of the defendant, as ―lies‖ 8. Case of A. Braichenko A. Braichenko addressed the Kazakhstan International Human Rights Bureau with a complaint, in which he stated that he had been subjected to physical violence for the purpose of extracting confession of guilt from him He complained to the Prosecutor’s Office, to the local investigative department, the department of internal affairs, and sent an enquiry to the city hospital for the certificate certifying his bodily injuries. In the answers received, the possibility of physical violence against Braichenko was denied despite the fact that prior to his admittance to the preliminary detention center, Braicheko had been examined by a city hospital’s doctor who registered the injuries to his head and chest. No explanation about the cause of these bodily injuries was offered. 9. Case of V. Bolgov The Kazakhstan International Human Rights Bureau has registered an ill-treatment complaint by V. Bolgov, who stated the following. On November 11, 2006, V. Bolgov was delivered to Iliyisk Regional Police Department, where he was kept for two days without any explanations. After that, on November 23, 2006, he was taken to Iliysk Police Station and brought into one office where he had to spend two consecutive nights. In 43
the night of November 24, 2006 he was taken to a dark room, where he was fastened by handcuffs in the ―swallow‖ position. They put a sack over his head, and subjected Bolgov to cruel beating. As the complainant states, the marks of these beatings were later registered by a forensic medical examination of Talgar regional hospital. Specifically, as a result of the beatings he sustained a craniocerebral trauma. Apart from that, the policemen threatened Bolgov with male rape if he refused to confess to the crime he was suspected of having committed. Unable to stand the beatings and insults Bolgov was obliged to do what the policemen demanded from him. The Human Rights Bureau submitted a written intervention on behalf of Bolgov to the Internal Affairs Department of Almaty Region demanding an investigation into Bolgov’s ill-treatment allegations. As of to-date, no reply has been received to this intervention by the Bureau. 10. Case of T. Valiev The Kazakhstan International Human Rights Bureau has registered an ill-treatment complaint by T. Valiev, who stated the following. On February 6, 2008, T. Valiev was detained by police officers of the district police department of Turksib region in Almaty, on suspicion of having committed a crime prohibited by Article 121 Criminal Code of Kazakhstan. When Valiev denied his guilt, the policemen started beating him mercilessly with a rubber hose, then they placed him into handcuffs and threatened him with rape and a hard life in jail. After beatings by the policemen Valiev had his fingers broken. According to Valkiev, as a result of this torture he was forced to sign a confession of a crime which he did not commit. 11. Case of Ramazan Tugelbay The Kazakhstan International Human Rights Bureau has registered a complaint by Ramazan Tugelbay, in which he stated that police officers of Uzun-Agash Regional Police Department of Almaty Region subjected him to physical pressure by striking him so hard that he lost his consciousness. When he regained it, he found himself in a police car on the way to the police department. He was not provided medical assistance despite his bleeding mouth and nose. After that, the police officers hit Ramazan’s head against the car’s door. According to Tugelbay, this kind of treatment continued for three days. Allegedly, police wanted him to sign a guilty confession. The Human Rights Bureau submitted a written intervention on behalf of Tugelbay to the Internal Affairs Department of Almaty City demanding an investigation into Tugelbay’s torture allegations. As of to-date, no reply has been received to this intervention by the Bureau. 12. Case of Igor Rozhkov The Kazakhstan International Human Rights Bureau has registered a complaint by Igor Vladimirovitch Rozhkov, in which he stated that he was detained on December 15, 2007. His detention was carried out in violation of the acting criminal procedure legislation of Kazakhstan. During his apprehension, Rozhkov was unjustly subjected to physical violence by police. Later, Rozhkov was held without cause or warrant in the basement of the building of Almalinsky District Police Department of Almaty for three consecutive days. Only on December 18, 2007, Rozhkov was delivered to a pre-trial detention facility. Based on the reply by Under-Colonel Demeev, the Head of the Medical Nursing Unit of that facility, Rozhkov had hypodermic haematoma on his left cheekbone. Rozhkov submitted a written complaint against illegal actions of the employees of Almalinsky District Police Department of Almaty. On January 19, 2008, he received a reply signed by Major of Police Begaly rejecting his request for investigation of his complaint. The Human Rights Bureau appealed this rejection to an upper-instance law enforcement body, but has yet received no reply from there. Rozhkov was found guilty by court and is presently serving his term in one of the prisons in Kazakhstan. 44
13. Case of Zufar Akhmetov The Kazakhstan International Human Rights Bureau has registered a complaint by Zufar Akhmetov, in which he stated that, de facto, he was detained on August 18, 2005 and was forced to spend 24 hours at the Zhetisu Regional Police Station, where he was subjected to physical and moral pressure during the night and the following day on August 18-19, 2005. According to Akhmetov, he was beaten all over his body in order to make him file a self-arrest form for having murdered the family of the Kirgintsevs. The beating lasted for over 12 hours, and only then he was allowed a phone call to his family. Akhmetov submitted a written complaint to Almaty City Police Department, in which he stated that the criminal case against him was falsified and that the charges against him were based on a confession that had been forced out from him. In the reply to his complaint Captain of Police Stybaev rejected Akhmetov’s request for his allegations to be investigated. Rozhkov was found guilty by court and is presently serving his term in one of the prisons in Kazakhstan. 14. Case of Alexander Gerasimov In May 2007, Alexander Gerasimov of Kustanay was detained on murder charges along with two of his adult foster sons. In order to extract a confession from him, Alexander was heavily beaten by several police officers. They also made him believe he was suffocating by placing a plastic bag over his bag and tightening it around his neck. They were threatening him with male rape. They beat him with a heavy book on the head. Gerasimov and his foster sons did not confess to the murder and were released the next day. Gerasimov was treated in hospital for the injuries received during the torture including closed intracranial trauma, concussion, kidney and head injuries, and others. At present, Gerasimov is seeking justice. He is helped by the Kazakhstan International Human Rights Bureau in Kostanai and by the Open Society Justice Initiative. Gerasimov’s foster sons have refused to join in with him for prosecuting the perpetrators. 15. Case of Denis Polienko Denis Polienko, male, 19, married, employed, was detained at 9 am at his work on November 21, 2006, in Schuchinsk, after which he was brought to the local police department. His detention was nowhere registered. He was not allowed a call to his family, nor was he provided an attorney. During the following 36 hours of this unacknowledged custody, until midnight of November 23, 2006, Denis Polienko was tortured in order to extract a guilty confession from him. He was accused of having robbed and strangled his neighbor to death. The methods of torture included heavy battering by two policemen, strangulation by a plastic bag, threats of rape, and threats against the family. Unable to stand the torture any longer, Denis wrote a ―voluntary confession‖. On 23 November 2006, Denis Polienko was ―officially‖ detained and placed to the local pre-trial detention center. His torture allegations against the police officers were disregarded as unsubstantiated. Currently, the trial of his murder charges continues. Denis Polienko is represented by an attorney and his mother. This case is being monitored by the Kazakhstan International Human Rights Bureau in Astana and by the Open Society Justice Initiative.