- Kazakhstan International Bureau for Human Rights and Rule of Law
- Human Rights Alliance for Fundamental Rights
When we talk about the rights of a person who has been detained on the suspicion of committing a crime, we talk about the right of any person, without any discrimination whatsoever, to freedom and personal integrity, the right to freedom from torture and other degrading, cruel or inhuman treatment during detention and all subsequent stages of investigation.
According to Article 3 of the Universal Declaration of Human Rights (UDHR), «Everyone has the right to life, liberty and the security of person». In addition, Article 9 of the UDHR reads: «No one shall be subjected to arbitrary arrest, detention or exile».
Article 9.1 of the International Covenant on Civil and Political Rights (ICCPR) guarantees that “everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.
Freedom from torture and other unlawful treatment is stipulated in Article 5 of the UDHR, and Article 7 of the ICCPR, and in detail in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).
According to the UN Human Rights Committee’s General Comment 35 on Article 9 of the ICCPR (General Comment 35), any actual detention, i.e. deprivation of liberty, “must not be arbitrary and must be carried out with respect for the rule of law.”
Guarantees of protection against arbitrary detention, and otherwise respect for the right to liberty and security of person, and from torture and ill treatment, include:
- the right to be informed of any reasons for detention at the moment of detention and later, “several hours later” (paragraph 30 of General Comment No. 35), of the charge, and always in a language that the arrested person can understand;
- the right to be informed “at the time of arrest and promptly after arrest, by the authority responsible for the arrest, detention or imprisonment, as appropriate” of his “rights and how he can exercise those rights”;
- access to a lawyer for criminal detainees “immediately after deprivation of liberty and prior to any questioning by the authorities without any reservations”. At the same time, legal assistance “should in principle be by counsel of choice” (paragraph 34 of General Comment No. 35);
- within maximum of 48 hours, the right to be brought “before a judge or other officer authorized by law to exercise judicial power”. Moreover, this condition “applies in all cases without exception and does not depend on the choice or ability of the detainee to assert it” (paragraph 32 of General Comment No. 35). This right, as further stated in this paragraph of the General Comment No. 35, “is intended to bring the detention of a person in a criminal investigation or prosecution under judicial control”. At the same time, it is especially emphasized that “any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances” (paragraph 33 of General Comment No. 35). In the case of a juvenile, they should be brought before a judge for consideration of the legality and validity of the detention and applying a subsequent measure of restraint election within 24 hours (paragraph 33 of General Comment No. 35);
- detention pending trial should not be the rule, but an exceptional measure of restraint and should be “assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused during the proceedings” (paragraph 37 of General Comment No. 35), for example, his/her “interference with evidence” and depend “on providing guarantees [by accused] to appear in court” and to exclude “the recurrence of crime”. In any case, pretrial detention “should not be applied on the basis of a potential sentence for the crime charged, rather than on a determination of necessity.” “Pretrial detention of juveniles should be avoided to the fullest extent possible” (paragraph 38 of General Comment No. 35);
- prohibition on “prolonged incommunicado detention” (paragraph 56 of General Comment No. 35). “Prompt and regular access should be given to independent medical personnel and lawyers and, under appropriate supervision when the legitimate purpose of the detention so requires, to family members.” (paragraph 56 of General Comment No. 35);
- “detainees should be held only in facilities officially acknowledged as places of detention” (paragraph 56 of General Comment No. 35). Juvenile persons shall be separated from adults, women shall be separated from men, accused persons shall be segregated from convicted persons”.
Under the state of emergency, derogations of the state from the above obligations are allowed only to the extent that “required by the actual situation” (paragraph 65 of General Comment No. 35). At the same time, for example, “the prohibition on secret detention is non-derogable” (paragraph 65 of General Comment No. 35), and arbitrary detention in general, is unacceptable, since “even the circumstances of armed conflict or other public emergency cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances”. The need for a derogation depends on “nature of a public emergency which threatens the life of the nation.” In any case, “the requirements of strict necessity and proportionality” must be met, and “security detention must be limited in duration and accompanied by procedures to prevent arbitrary application” (paragraph 66 of General Comment No. 35).
In addition to guarantees of protection against torture and arbitrary detention, every suspect, accused or defendant must be guaranteed the right to a fair trial. Among the guarantees of the right to a fair trial, according to UN Human Rights Committee General Comment 14 ICCPR (General Comment No. 32), such as:
- “that persons accused of a criminal act must be treated in accordance with the principle of the presumption of innocence”. “The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt” (paragraph 30 of General Comment No.32);
- “lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter” (paragraph 34 of General Comment No.32);
- “the right not to be compelled to testify against oneself or to confess guilt. This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt” (paragraph 41 of General Comment No.32);
- publicity and openness of the judicial process. This right, according to Article 14 of the International Covenant on Civil and Political Rights, may be restricted only “for reasons of morals, public order or national security, the interest of the private lives of the parties, or the interests of justice”. Restrictions for any other reason are generally unacceptable. Any such restriction must be proportionate and pursue a legitimate aim.
Over ten thousand people, according to various estimates, were detained during and after the January events in various regions of the country. Almost all those people were later, after a few days or even weeks, released. We should note the positive role that was played by the Commissioner for Human Rights of the Republic of Kazakhstan, Elvira Azimova, and some members of the Expert Council under the HRC of the Republic of Kazakhstan, a number of members of the Majilis and the Senate of Parliament of the Republic of Kazakhstan and two public commissions headed by lawyers Abzal Kuspan and Aiman Umarova, who visited a number of detention centres across different regions of the country and, jointly with the prosecutor’s offices, helped to have many detained protesters released, the form of detention changed, and the charges requalified.
Nevertheless, hundreds of people were detained, and credible information has been received by human rights organizations from them (including via their advocates and relatives) and from those who have already been released, of serious violations of a whole number of fundamental rights and freedoms, including the right to liberty and personal integrity, the right to freedom from torture, and the right to a fair trial. In view of this, members of the Human Rights Alliance for Fundamental Rights, an association established by several human rights organizations in Kazakhstan in mid-January 2022 with the purpose of monitoring and documenting the observance of the rights of citizens over the course of investigations into the events of January 2022, have decided to carry out a research study into how the rights of citizens who were detained during and after the January 2022 events were observed.
The purpose of the study was to identify characteristic violations of the rights of persons during detention, delivery, drawing up a detention protocol, providing legal and medical assistance, choosing a preventive measure, detention, pre-trial investigation, and protection against torture and other cruel, inhuman or degrading treatment, based on Kazakhstan’s international obligations and provisions of the national legislation. As a study method, a formal questionnaire was used, mainly to document answers provided by the advocates and relatives of the detainees (Appendix 1. Sample questionnaire).
This analytical report outlines the results of aforementioned research study. The report was drafted with the support of Soros-Kazakhstan Foundation.
The authors express their gratitude to the Kazakhstan College of Advocates for the help they extended in collecting the answers to the questionnaire.
The questionnaire was distributed in June-July 2022. A total of 63 detainees, 62 men and one woman, were sent the questionnaire—as noted above, responses to most of the questions were provided by the advocates and, rarely, the relatives of those who were detained. Only in a few cases the responses came from the detainees themselves—who, at the time the questions were being asked, had already been released.
In terms of their age, the respondents fell into the following categories:
– younger than 18 – 5%;
-18 to 25 – 25%;
– 25 to 35 – 35%;
– 35 to 50 – 29%;
– 50 to 60 – 5%;
– older than 60 – 1%.
The respondents’ distribution by regions was as follows:
– city of Almaty: 62%;
– Aktobe oblast – 5%;
– Almaty oblast – 5%;
– Atyrau oblast – 13%;
– East Kazakhstan oblast – 9%.
– Zhambyl Oblast – 3%;
– city of Shymkent – 3%;
Those who had never had a criminal record – 81%.
The pre-trial investigations were/has been conducted under the following articles of the Criminal Code of the Republic of Kazakhstan:
– article 181 “Armed coup” – 1%;
– article 188 “Theft” – 12%;
– article 191 “Robbery” – 1%;
– article 269 “Assault on, or taking over, buildings, premises, means of communication” – 2%;
– article 272 “Mass riots” – 52%;
– article 274 “Dissemination of knowingly false information” – 1%;
– article 287 “Illegal purchase, transfer, sale, storage, transportation or carry of arms, ammunition, explosives and explosive devices” – 6%;
– article 291 “Theft or extortion of arms, ammunition, explosives and explosive devices” – 13%;
– article 293 “Hooliganism” – 1%;
– article 380 “Violence toward a public official” – 11%.
INTERNATIONAL STANDARDS OF DEFENSE OF THE RIGHTS OF PERSONS WHO HAVE BEEN DETAINED AND KEPT IN CUSTODY DURING PRE-TRIAL INVESTIGATION
Enshrined in international law, the term “right to freedom” concerns an individual’s personal freedom. The way this right is protected is by making sure this right is not arbitrarily deprived. The term “deprivation of freedom” which will be used throughout this text does mean a particular form of punishment but rather a generalized concept of restriction of an individual’s personal freedom in connection with such individual’s detention. It contains both an objective element which manifests itself in the individual in question being detained within a certain restricted space and for a fairly prolonged period of time, as well as an additional subjective element which means the individual in question did not give his/her consent for such detention. In addition, factors such as the individual’s ability to leave the restricted space, level of control of the individual in detention as well as control of his/her movements within the restricted space, level of isolation, and possibility to establish and maintain social contacts, should be considered. Aside from that, the element of coercion when the police exercise their authority to carry out a search or detention points at the fact that an act of deprivation of freedom has taken place, however short-term such measure is.
Defence against arbitrary detention
In order for a detention to satisfy the test of legality from the point of view of international law, it must be carried out “in a law-established procedure”. This means that a detention must comply with substantive and procedural rules of the national law.
The common principles of international law that pertain to detention include the following: the principle of the rule of law and related principle of legal certainty; the principle of proportionality, and the principle of protection from arbitrariness.
If we are talking about keeping people in detention, then we must first ensure the common principle of legal certainty is met. Therefore, it is very important that the conditions of detention as a process and keeping people in detention be clearly determined in the national law, and that law enforcement practices are predictable so as to satisfy the international standard of “legality” which says that all laws must be to the level of certainty sufficient enough so that an individual (should they be in need of legal advice) would be able to predict, to a reasonable extent and under certain circumstances, the consequences which will ensue should he/she commit to certain actions.
Amnesty International’s Guide to Fair Trials contains a number of concepts that are accepted in international law which allow for defining of the situation of a detainee, actions taken against his/her, as well as certain guarantees and restrictions (provisions of this Guide are widely used throughout the text).
These include, in particular:
1) Arrest is the act of depriving a person of liberty under governmental authority for the purpose of taking that person into detention and charging the person with a criminal offence”. It covers the period from the moment the person is placed under restraint up to the time the individual is brought before a competent authority that orders release or continued custody;
2) Detention and remand detention, the term “detention” is used when a person has been deprived of his or her liberty by a state authority (or with the state’s consent or acquiescence) for any reason other than being convicted of an offence. The person may be held in a public or private setting that they are not free to leave, including a police station, a pre-trial detention facility or under house arrest. There are different forms of pre-trial detention, including detention in a police station before being presented to a judge and remand detention. The term remand detention is used to describe detention ordered by a judge before trial.
3) Torture and other cruel, inhuman or degrading treatment or punishment, and torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Documents in the area of human rights do not provide a definition for cruel, inhuman or degrading treatment and punishment. This is because their intent is to provide people with maximum possible protections against their rights to physical and mental integrity, and respect for their inherent dignity. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that the term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to “extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.”
It should also be noted that any act of deprivation of liberty must correspond to the purpose of protection of an individual against arbitrariness. International standards prohibit arbitrary arrests, detentions, and imprisonment. Such prohibition is the most important direct result of the right to freedom. It applies to deprivation of liberty in any context, and not only when liberty is deprived on charges of a crime. It covers all forms of deprivation of liberty, including home arrest.
The United Nations’ working group on arbitrary detentions, which includes experts authorized to investigate cases of arbitrary detentions, has clarified that deprivation of liberty is considered to constitute an arbitrary act in the following cases. Firstly, an arrest or detention that has been carried out without good reasons is considered arbitrary. An arrest or detention that is permitted under a national law might still be considered arbitrary under international law. That includes cases when the law is vague, too extensive, or encroach on individual rights, for instance the right to freedom of expression, assembly or belief, or the right to freedom from discrimination. Finally, a detention may become arbitrary if the detainee’s right to a fair trial has been violated. Forced disappearance and secret detentions are arbitrary in and by themselves.
The UN Human Rights Council has clarified that the term “arbitrary” should be interpreted widely to exclude the elements of inadequacy, unfairness, and unpredictability.
Who conducts detentions
According to international law, only persons specifically authorized by the law to do so, may conduct arrests and detentions of people as well as placing them under arrest. In doing so, this requirement prohibits certain practices that are adopted in some country whereunder arrests and detentions are conducted by certain departments of law enforcement and special services that are not properly authorized.
What is also very important, is that the personal data of those who conduct arrests or otherwise deprive other citizens of their liberty should be easily identifiable, for instance by them wearing name tags on their uniforms, or easily recognizable ID numbers.
Right to be informed
According to international standards, a detainee should always be informed of the reasons for the arrest or detention, and of their rights, including the right to have a lawyer. Individuals that have been apprehended must be promptly informed of all charges that have been put forward against them. Such information is critical for the individual in question to be able to challenge the legality of the arrest or detention, or to begin preparing to defend themselves, if any charges have been put forward against them.
The main idea of such a requirement is that a detainee must be able to challenge their detention/arrest, should they consider it illegal or without merits. Therefore, the basis for any detention should be of concrete nature. It should specify, in clear terms, under which law and based on which information an individual is being arrested or detained. This means that every detainee must be explained the legal and actual basis for his/her arrest in a plain language, one he/she will understand. In doing, the officer of law who conducts the arrest need not provide detailed information on all of the charges at the moment of the arrest; however, if the individual being detained is suspected of committing more than one criminal act, then authorities are obliged to provide at least a necessary minimum of detail about each of the crime that are being investigated and may serve as the basis for detention/arrest.
International standards clearly establish that the reasons for an arrest must be communicated without delay, or in other words, during the act of arrest. Besides, the same standards state that any arrestee or detainee must be communicated their rights and the ways those rights can be exercised.
The standards are not uniform as to the requirements for communicating information on the rights of detainees/arrestees, however all of them include:
– the right to inform a third party;
– to right to counsel;
– the right to medical assistance;
– the right to challenge the legality of the detention;
– the right not to self-incriminate themselves, including the right to remain silent;
– the right to complain against cruel treatment or conditions of detention/arrest.
The right to counsel
According to international standards, every person who has been deprived of their liberty or who is facing a criminal charge has the right to a lawyer to defend their rights and prepare a defence. If an individual does not have a lawyer of their own choosing, they have the right to have an effective, qualified assistance from an appointed attorney when the interests of justice so require. The appointed attorney is provided free of charge if the individual in need does not have money to pay a fee. Detainees must be provided access to the assistance of an attorney from the moment they have been taken into custody, including during interrogations. Sufficient time and conditions must be provided to enable communication with an attorney in confidence.
The right to pre-trial assistance of an attorney includes the following rights:
– the right to use the services of an attorney;
– the right to have sufficient time to enable consultations-in-confidence with an attorney;
– the right to have an attorney present during interrogations and the right to be able to consult with an attorney during interrogations.
As noted above, detainees/arrestees must be provided with access to assistance from an attorney as soon as they have been taken into custody. Under a general rule, in accordance with the right to a fair trial, a detained must be provided with access to legal assistance immediately after the actual detention/arrest, including the initial stages of a police investigation; in doing so, the right to have an attorney must be in effect even before the person in question has been pronounced as a suspect.
Even those international standards that allow for a delay in access to an attorney clearly specify that such a delay is only permissible in exceptional cases. Such circumstances must be described in the law and cover certain cases when such is necessary to maintain security and order. Such a decision must be made by courts or other bodies as appropriate. Even in those cases access to legal assistance must be provided not later than 48 hours following an arrest or detention; a UN Special Rapporteur on Torture noted that any person under arrest must be afforded a possibility to access a lawyer not later than 24 hours following the arrest.
It is noted that the right to counsel, including before trial, in general case means that a person in question has the right to a lawyer of their own choosing. International standards specifically speak of the right to have an attorney of own choosing before the trial.
Therefore, since every individual has the right to a professional legal assistance, attorneys including appointed ones must be able to work freely and diligently in accordance with the law and commonly accepted standards and ethics governing the legal profession. They have an obligation to educate their clients about their legal rights and responsibilities, as well as the workings of the legal system. They have an obligation to help their clients using all legal means and methods, and taking all necessary steps in order to protect their client’s rights and interests. While protecting the rights of their clients and promoting justice, attorneys must strive to strengthen the human rights as spelled out in the national and international law.
International standards demand that confidentiality of communications and consultations between an attorney and his client must be respected at all times. The right to confidentiality of client-attorney communications applies to everyone, including those who have been arrested or detained on a charge of crime. Governments must guarantee that client-attorney consultations and communications will not be delayed, intercepted, or censored. To ensure that, every police station and detention centres, including in villages and small towns, must provide conditions for confident communications between the arrestees/detainees and their attorneys (including via the phone). Such conditions must ensure confidentiality of both verbal and written communications between attorneys and their clients.
The right to communicate with third parties
Detainees have the right to inform a third party of their detention or arrest and of the place they are being kept at. Detainees have the right to have their relatives, attorneys, doctors, court officials, and if the detainee is a foreign national, consular officials or representatives of authorized international organisations, visit them without delay.
The rights of a detainee to communicate with third parties and have visitors constitute a fundamental guarantee of protection against human rights abuses, including torture, cruel treatment and forced disappearance. How this right is exercised will be a factor in the ability of the accused to prepare his/her defence, and respecting this right is necessary to ensure the right to privacy and family life, and the right to one’s health safety.
The UN Human Rights Committee has proclaimed that national laws must spell out the right of detainees in police custody and pre-trial detention to have visits from doctors, relatives and attorneys.
Every arrestee, detainee or prisoner have the right to inform, on their own or via representatives of authorities, someone outside the place of custody, of their detention/arrest/imprisonment as well of the location of the place of custody. They also have the right to inform a third party of their transfer from one place of custody to another.
The right to inform a third party of a detention must be fundamentally guaranteed from the moment the individual in question has been taken into custody. The third party must be informed immediately or, as a minimum, promptly without delay. In exceptional cases or circumstances the notifying may be delayed. At the same time, all exceptions must be clearly spelled out in the law, must be strictly necessary for an effective investigation, and must be strictly restricted in terms of time. Any delays of such nature may not exceed several days. Any such delays must be accompanied by guarantees, including written protocols with a description of reasons and a consent of a police head not related to the case, a prosecutor, or a judge.
Keeping detainees/arrestees in custody without communication with the external world creates conditions that are conducive to torture, cruel treatment, and forced disappearances. Depending on circumstances, this in and by itself may be viewed as torture or a form of cruel, inhuman or degrading treatment.
The right to see a doctor and to receive medical treatment while in police custody
Persons who have been deprived of liberty have the right to be seen by a doctor as soon as possible, and where necessary, to receive free-of-charge medical assistance and treatment. This right is an inalienable part of responsibility of the authorities to respect the one’s right to health safety and human dignity.
The UN Committee against torture and Sub-committee on the prevention of torture stressed that doctors who conduct mandatory medical check-ups at police stations should not be subordinate to the police management and must be selected by detainees themselves.
To ensure confidentiality, medical check-ups, generally, must be conducted far enough so that police officers are not able to see or hear anything. However, in exceptional cases at the doctor’s request other safety measures may be considered, for instance a police official on standby and able to be called upon when necessary or placing a police officer within sight but far enough as to not eavesdrop. All such measures must be reflected in a doctor’s medical check-up report.
National law and certain law enforcement practices to ensure the rights of persons detained and placed under custody during and after the events of January 2022
Listed above are the minimum international standards to ensure the rights to personal freedom and integrity which, as it will be demonstrated below, are reflected in some form or another in the national legislation of the Republic of Kazakhstan. However, as the research study has demonstrated, those standards have fallen long short of being complied with as far as law enforcement practices are concerned.
According to subparagraph 29) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan (CPC of the Republic of Kazakhstan), “de facto detention is a restriction of freedom of a detainee, including freedom of movement, forced confinement in a certain place, forcible delivery to bodies of enquiry and investigation (seizure, closing in the room, forcing to go somewhere or stay there, etc.), as well as any other actions that significantly restrict the personal freedom of a person from the exact minute when these restrictions have become real, regardless of the fact that the detainee has any procedural status or other formal procedures”.
Under article 48.5 of the Criminal Procedure Code of the Republic of Kazakhstan (CPC), “when a person is being detained on suspicion of committing a criminal act, the term shall begin to run from the moment (hours to the minute precision) this measure has been actually applied.”
According to article 14.2 of the CPC, “without a court sanction, a person may be detained for a term not exceeding forty-eight hours, and a minor for a term not exceeding twenty-four hours, except for when this Code directly provides that a person may be detained without a court sanction for a term not exceeding seventy-two hours”.
Finally, according to article 128.5 of the CPC, “the term of detention of a person suspected of committing a criminal act shall be counted from the moment of actual detention and may not exceed seventy-two hours”.
In doing so, under article 131.2 of the CPC, “within the timeframe set out in part one of article 129 of the Code [that is, three hours], an investigative official shall draw up a protocol of detention”. Under article 131.3 of the CPC, “information on the detention shall be conveyed in writing by the official conducting the pre-trial investigation to a prosecutor within twelve hours from the moment a protocol of detention is drawn.”
In the research study, in over half of the cases (52%) the actual detention was never recorded in writing, and the time of detention as put in detention protocols did not correspond to the time of actual detention, in 60 percent of the cases. The difference between the actual time of detention and the time that was put into the detention protocols varied from several hours and eight days. A protocol of detention was drawn up later than as prescribed by the law, in 59 percent of the cases. A question arises, how officials conducting a pre-trial investigation communicated to a prosecutor about the detention within the law-prescribed deadline of twelve hours, and how the prosecutors oversaw the actions by the pre-trial investigative officials, when the difference between the moment of actual detention and that put in the detention protocol was as long as eight days, and when a protocol of detention in 60 percent of the cases was drawn up past the law-prescribed deadline.
The detentions were conducted by law enforcement officers not wearing a uniform in 24 percent of the cases, and it remained unknown in eight percent of the cases. Even if a detention may be conducted by plainly dressed police officers, it must be noted that no police badge was presented in 43 percent of the cases, and it remained unknown in another 30 percent of the cases. At the same time, according to article 5(1) of the Law of the Republic of Kazakhstan “On the bodies of internal affairs,” “while exercising their authority, law enforcement officers must: 1) introduce themselves and show their service badge when talking to citizens…”
In almost half of the cases, no witnesses were present at a detention, and the act of detention was not video recorded in 90 percent of the cases.
Contrary to article 5.4 of the Law On the Bodies of Internal Affairs stating that “while exercising their authority, law enforcement officers must: … respect the rights and law-protected interests of the citizens, not engage in torture, violence, cruel, inhuman, degrading treatment, not deliberately cause physical pain and moral suffering”, force was used during detention in 63 percent of the cases. With no witnesses and/or video recordings of detentions, it is impossible to verify if the use of force was justified.
According to article 59 of the Law of the Republic of Kazakhstan On Law Enforcement Agencies,  “firearms and other weapons, special means and physical force shall be used to stop acts posing danger to the public, to detain and deliver to a police station those who have committed such acts, depending on the nature of offences and particular situations.”
Article 60 of the same Law governs the use of special means and physical force as follows: “1. Law enforcement officers shall have the right to use physical force, including by using martial art and wrestling skills, special means such as cuffs, rubber batons, tear gas, light and sound devices, means to crack open locks and doors, forced stoppage of transport, waterjets, service animals, armoured vehicles as well as other special transport according to a list defined and approved by the Government of the Republic of Kazakhstan:
1) to defend against attacks on individuals, employees and other persons discharging their service or public duty of protecting public order, safety and fight against crime;
2) to release hostages, prevent mass riots and group violations of public order (group violations of the adopted regime in a penitentiary), illegal acts by refugees when they escape a correctional facility, or to capture prisoners, suspects and accused who attempt to escape from a correctional facility or investigative unit;”
3) to defend against attacks on buildings, premises, structures, transport, land plots owned by individuals, organisations and state agencies, as well as to release them from hostage;
4) to apprehend offenders (prisoners, suspects, accused and those who have committed administrative offences), if they fight or resist police officials or other persons discharging their duty of protecting public order and safety; to deliver them to police stations; to convoy and guard those who have been detained or taken into custody; also with respect to persons who have been placed under administrative arrest, prisoners, suspects and accused, if there are sufficient grounds to believe they might attempt to escape or cause injuries to others or to themselves; and also in respect of persons who deliberately prevent law enforcement officers from discharging their law-established duties;
5) to defend against attacks, as part of self-defence by a law enforcement officer or in order to protect members of their family, should a real threat exist for their health or life;
6) as part of necessary defence, when such is critically important;
7) to deliver offenders, if such is necessary in order to prevent a crime, to identify an offender, and to draw up a protocol of administrative offence if it was impossible to draw it up on-site, provided a protocol must be drawn up;
8) to stop transport by way of damage, if the person operating it would not comply with a law enforcement officer’s lawful order to stop.”
According to article 62 of the same Law:
“1. Firearms and other weapons, special means, physical force shall be used based on a particular situation and in cases stipulated by this Law.
2. Law enforcement officers must undergo special training, periodic recertification to confirm their readiness to act in circumstances involving firearms and other weapons, special means and physical force…
4. When using firearms and other weapons, special means, physical force, law enforcement officers must:
1) issue a warning of their intent to use said means, thereby providing the individuals in whose respect it is intended to use said firearms and other weapons, special means, physical force, sufficient time to comply with orders issued by the law enforcement officer, except for cases when a hesitation to use said firearms and other weapons, special means, physical force would create direct and immediate danger for life and health of citizens, law enforcement officers, or may otherwise entail grave consequences, or when such advance warning is not advisable or possible in a particular situation.
When firearms and other weapons, special means, physical force are used by a squad (group), such warning must be issued by the officer-in-command of the squad or the highest in command in terms of their service rank, position, or qualification class;
2) take necessary measures to ensure safety for individuals and provide first medical aid to those injured;
3) immediately report to their direct supervisor the fact of use of said firearms and other weapons, special means, physical force.
5. A prosecutor must be immediately informed of every use of firearms and other weapons, special means, physical force which have caused human death or other grave consequences.
6. Use of firearms and other weapons, special means, and physical force by law enforcement officers beyond the scope of their authority shall entail responsibility as stipulated by the law.”
According to article 14.3 of the CPC, “Every detainee shall be immediately explained the reasons for their detention, and also the offense they are being suspected of committing.”
Article 131.1 of the CPC guarantees that “when an individual is being detained on suspicion of committing a criminal act, the officer of the agency of criminal investigation shall verbally explain to the detainee what criminal act they are being suspect of committing, explain their right to have an advocate, the right to remain silent, and the right to know that anything they will say may be used against them in a court of law.”
According to sub-clauses (2) and (3) of article 5 of the Law On the Bodies of Internal Affairs, “when discharging their duty, law enforcement officers shall: …inform the detainee of the reasons for their detention, that they have a right not to self-incriminate themselves and their close relatives, the right to a phone call, the right to have an advocate; inform the detainee’s close relatives of his/her detention…”
However, according to the research study, reasons for detention were communicated only in 21 percent of the cases, while in 71 percent of the cases it was not done, in violation of the law. Those [the reasons of detentions] remained unknown in eight percent of the cases. The detainees were not communicated their rights in 73 percent of the cases.
Moreover, in accordance with article 64.2 of the CPC, “the body of criminal investigation must, at the moment of detention, immediately and prior to proceeding to any investigative activities involving the detainee, explain to the detainee his/her rights as stipulated by this Code, which explanation must be recorded as a note in the detention protocol, protocol of interrogation of the detainee, and any resolutions declaring the detainee a suspect and qualifying his/her actions.”
However, in accordance with the questionnaire, in 63 percent of the cases no rights were explained when a detention protocol was being drawn – in other words, despite the fact that those rights were spelled out in the detention protocol on paper, no one drew the attention of the detainees to that fact, and no one read them out to the detainees. In another 13 percent of the cases, this remained unknown.
According to article 64.3 of the CPC, “when a suspect is detained, he/she must be interrogated within 24 hours of when a detention protocol was drawn, making sure that the detainee has the right to a face-to-face meeting-in-confidence with an advocate, appointed or of their own choosing, prior to an initial interrogation. The detained suspect has the right to immediately inform, by a phone call or otherwise, at the place of their residence or work, of the fact and place of detention. When there are grounds to believe that informing of the detention may obstruct the pre-trial investigation, the officer in charge at the criminal investigative body who conducted the detention may choose to independently inform adult members of the detainee’s family, his/her close relatives. Such notification must be made without delay. The fact of such a notification shall be recorded as a note in the detention protocol, with indication of the time of the notification and method in which it was made.”
In addition, according to article 5.3 of the Law On the Bodies of Internal Affairs, “in performing their duty, law enforcement officers must: “…explain [to the detainee] that he/she has the right not to self-incriminate him/herself and his/her close relatives, the right to a phone call and an advocate; inform the detainee’s close relatives of his/her detention…”
However, despite all these procedural guarantees, in 76 percent of the cases the detainees were not able to contact an advocate of their own choosing, and in 71 percent of the cases they were not able to exercise their right to “a phone call”. Moreover, those individuals who were detained during the first few days of the January 2022 events, neither advocates nor their relatives were able to contact them for several days, on the pretext of a state of emergency.
According to articles 129.1 and 129.2 of the CPC, “delivery is a measure of procedural enforcement applied for a term of not more than three hours, to ascertain whether the person in question is implicated in a criminal act. If it is ascertained that the person is indeed implicated in the criminal act, the law enforcement body has the right to detain such person; and the time it has taken for delivery shall be included in the total term of detention, as stipulated by article 131.4 of the CPC of the Republic of Kazakhstan.”
According to the research study, delivery was carried out in police cars in 46 percent of the cases, in other vehicles in 41 percent of the cases, and in 13 percent of the cases the way in which the people were delivered to police stations remained unknown.
In 35 percent of the cases, delivery was carried out promptly and without delay, and in 33 percent of the cases it was done with unjustified delays, while in 32 percent of the cases it remained unknown.
In 33 percent of the cases, the detainees were kept at some other place until the detention protocols were being drawn, i.e. at other police stations or even locations that were not properly suited for such purposes.
After delivery, only 22 percent of the detainees were registered in a log, while for 54 percent of those delivered it remained unknown whether they were registered or not.
It should be noted that under article 5.2 of the Law of the Republic of Kazakhstan “On the procedure and conditions for keeping detainees at special establishments, special premises that provide temporary isolation from society” the reasons for placing individuals into special-purpose facilities are stated as follows: “…placing individuals detained on the suspicion of committing a criminal act into a temporary holding unit shall be carried out on the basis of a protocol of detention which must be drawn up by an investigator or interrogator.”
Access to legal and medical aid
According to article 68.4 of the CPC, “in the event of a detention or taking into custody, if a defender chosen by the suspect, accused, defendant, convicted, acquitted is unable to appear within a twenty-four hour period, then the body conducting the criminal process shall offer the suspect, defendant, convicted, acquitted to invite a different defender, and if refused shall take measures to appoint a defender via a professional organization of advocates or its structures.”
As noted above, according to article 64.3 of the CPC, “when a suspect is detained, he/she must be interrogated within 24 hours of when a detention protocol was drawn, making sure that the detainee has the right to a face-to-face meeting-in-confidence with an advocate, appointed or of their own choosing, prior to an initial interrogation.”
In addition, under article 17 of the Law On the Procedure and Conditions for Keeping Detainees at Special Establishments, Special Premises that Provide Temporary Isolation from Society, “from the moment of detention, a suspect, accused or defendant shall be afforded the possibility to have face-to-face meetings-in-confidence with an advocate. There shall be no limits on the number and duration of such meetings.”
According to the research study, in 62 percent of the cases no meeting-in-confidence with an advocate was offered within the first 24 hours of detention, because advocates were simply not able to get access to detainees. In 73 percent of the cases, first legal aid was provided by an appointed advocate, because detainees were not able to contact advocates that would be of their own choosing or selected by their relatives.
After that, in a number of cases the detainees had to use the assistance of appointed advocates, because there were serious complaints of the quality of legal aid provided by appointed advocates, including that provided to minors. The study demonstrates that several appointed advocates did not inform the relatives of the detainees, often failed to challenge the rulings of preventative measures, failed to take steps to initiate investigations into communications of torture, etc.
Also of note was the fact that in a whole number of cases, when filling in the questionnaires advocates said they were not aware whether the police officers presented a badge during detention (in 30 percent of cases), or if the reasons for detention were explained (7 percent of cases), or if the rights were read out to the detainees (5 percent of cases), or if the delivery to a police station was prompt and without delay (32 percent of cases), of if the detainee was registered in a log (54 percent of cases), or if a protocol of detention was drawn up in a timely manner (13 percent of cases), or if the time of detention as indicated in the detention protocol corresponded to the actual time of detention (12 percent of cases), or if the rights of the detainee were explained to him/her during detention (13 percent of cases), or if the detainee was allowed to have a face-to-face meeting-in-confidence with an advocate prior to an initial interrogation (30 percent of cases).
The way we see it, the results of the study speak of the fact that often advocates do not consider such procedural violations as something important, or worthy of attention, because in Kazakhstan’s criminal process, substantive rules, rather than the rules of procedural law, prevail. In other words, it is more important to pay attention to the circumstances of the criminal event rather than to material evidence, and certain violations of a procedure by the pre-trial investigative bodies are not that important from the point of view of an effective defence.
Under article 131.2 and article 129.1 of the CPC, “an official of the investigative body, an interrogator, investigator must draw up a protocol of detention” within three hours of the moment of detention. “The detainee (suspect) must be checked upon in a procedure stipulated by article 223 of the CPC of the Republic of Kazakhstan to ascertain his/her general status of health and identify any injuries,” and “the detention protocol must specify information on the detainee’s health status” and “be accompanied with a statement of a medical check-up.” However, in 60 percent of cases no medical check-up was conducted, and in another 22 percent of cases such information was not available.
At the same time, according to the detainees’ accounts, in 55 percent of cases they were beaten up during delivery, and in 65 percent of cases they told their advocate about those and other violations during delivery.
Sanctioned preventative measures
Under article 14.2 of the CPC, “without a court’s sanction, a person may only be detained for a period of not more than 48 hours, and a minor may only be detained for not more than 24 hours, except when this Code directly provides that a person may be detained without a court’s sanction for a period of not more than 72 hours.”
However, in more than half of the cases this legislative requirement was not respected. For all respondents, only in two percent of the cases no preventative measure was selected, in another two percent a measure in the form of a pledge not to leave town was selected, and in another two percent of cases it was a house arrest, and the remaining 94 percent it was arrest. In 60 percent of the cases, the preventative measure was later changed from arrest to a pledge not to leave town or a house arrest.
Unlike the right to medical aid (medical check-up) immediately after detention, when such right was not observed in 60 percent of cases, when detainees were placed under arrest in an investigative unit, they were inspected by medical staff in 72 percent of cases, and in 10 percent of cases this remained unknown. In 43 percent of cases bodily injuries were registered, and in 36 percent of cases it remained unknown.
Relatives were informed in a timely manner of the location of arrest after the detainees were delivered to investigative units in 55 percent of cases; however, in 30 percent of cases detainees went incommunicado, and in 13 percent of cases it remained unknown.
The conditions in which the detainees were kept both during initial stages and after being delivered to investigative units were assessed by both detainees, their advocates and relatives as inhuman in more than 64 percent of cases, and in another eight percent of cases it remained unknown.
In 20 percent of cases the detainees who had not been imprisoned before were kept together with those who had, and in another 35 percent of cases it remained unknown.
In 68 percent of cases, meetings with advocates were regular, and in 72 percent of cases advocates challenged courts’ rulings on preventative measures in the form of arrest. Arrests were extended in 57 percent of cases, however in more than 50 percent of cases the preventative measure was changed from a house arrest to a pledge not to leave town.
According to the study data, investigative activities were carried out with an advocate in presence in 76 percent of cases; motions by the defence were not granted in 22 percent of cases, and were granted only partially in 41 percent of cases. At that, in 65 percent of cases the advocates challenged the investigative activities conducted in respect of their clients and associated violations. However, those complaints were granted only in 10 percent of cases, and in another 30 percent of cases, the complaints were granted only partially. In 60 percent of cases, no complaints were granted.
Torture and inhuman treatment
According to responses to the questionnaire, in 71 percent of cases detainees were subjected to torture. In 83 percent of cases, advocates filed complaints of their clients being subjected to torture. In 83 percent of cases, inspections were conducted following the filed complaints, and in 77 percent of cases it was possible to identify the perpetrators, however some results in terms of identifying the status of victims and holding suspected perpetrators accountable were achieved only in 18 percent of cases.
Conclusions and recommendations
Even though the questionnaire and the study meet the requirements of validity and relevancy, a sample based on responses from 63 advocates (and in some cases detainees and their relatives) can hardly be considered representative, because a total of more than ten thousand people were detained during and after the events of January 2022, several hundreds were detained for a period of several days, and many were arrested. However, the questionnaire covered between approximately 10-20 percent of those who were detained, across seven regions, which allowed us to make assessments and identify some of the systemic problems as it comes to observing the right to freedom and personal integrity, to a fair trial (at the stage of pre-trial investigation), to legal aid, and to freedom from torture and cruel treatment.
To this end, below are the summary and recommendations following the analysis which, while not claiming the precision of a sociological research, will nevertheless give some food for thought and point at the necessity for serious legislative, institutional and practical reforms to ensure the rights of detainees are respected.
As already noted, part 2 of Article 14 of the Criminal Procedure Code of the Republic of Kazakhstan contains a very clear definition of actual detention, which means “restriction of freedom of a detainee, including freedom of movement, forced confinement in a certain place, forcible delivery to bodies of enquiry and investigation (seizure, closing in the room, forcing to go somewhere or stay there, etc.), as well as any other actions that significantly restrict the personal freedom of a person from the exact minute when these restrictions have become real, regardless of the fact that the detainee has any procedural status or other formal procedures”. Under article 48.5 of the CPC, “when a person is being detained on suspicion of committing a criminal act, the term shall begin to run from the moment (hours to the minute precision) this measure has been actually applied.”
What follows detention, is delivery which, according to article 129.1 of the CPC, is “a measure of procedural enforcement applied for a term of not more than three hours, to ascertain whether the person in question is implicated in a criminal act.” Under article 131.2 of the CPC, “within the timeframe set out in part one of article 129 of the Code [that is, three hours], an investigative officer shall draw up a protocol of detention”.
Thus, the criminal procedure law of the Republic of Kazakhstan contains a more or less defined procedure that applies to detainees, which starts to run from the moment of actual detention, is followed by delivery, then an entry in the log of detainees; in doing so, a detention protocol must be drawn up within three hours, a prosecutor must be notified of the fact of detention within twelve hours and the detainee must be registered with all procedural guarantees.
From then on, all terms are counted from the moment of actual detention, in particular, under article 14.2 of the CPC, “without a court’s sanction a person may be detained for a period of not more than forty-eight hours, a minor for a period of not more than twenty-four hours, except when the Code expressly provides that a person may be detained without a court sanction for a period of not more than seventy-two hours.”
As the research study demonstrated, there is a serious gap, from the point of view of law enforcement practice, when it comes to registering the time of actual detention and reflecting it in a detention protocol.
Despite the fact that the form of a detention protocol includes both the time when it was drawn up (with precision to a minute) and an indication of time of the actual detention (with precision to a minute), from which point all other timeframes start to run, time of actual detention was registered with violations in 60 percent of cases, and the difference between the time of actual detention and the time recorded in the detention protocol was as much as eight days.
In addition, no police badge was presented at the moment of detention (in 43 percent of cases and in another 30 percent of cases this remained unknown); no reasons for the detention were communicated (in 71% percent of cases), no rights were explained (in 73 percent of cases), and physical force was used (in 63 percent of cases). In 90 percent of the cases, the act of detention was not video recorded.
To this end, it is recommended that detention protocols should include a provision that the law must be complied with in that a police officer must introduce themselves, present their badge, time of actual detention, communicate the reasons for detention, explain to detainees their rights—all based on a video recording from a body camera. If the body camera happens to be turned off and/or if the above listed requirements are not complied with, the detention protocol must include a special remark to that effect, which should be followed by a service inquiry and, should any violations be identified, depending on their seriousness, the officer in question should be held disciplinary, administratively or criminally responsible.
According to the research study results, in 41 percent of cases delivery was not done in police cars, in 33 percent of cases delivery was conducted with unjustified delays, and in 33 percent of cases detainees were kept at a different place until a protocol of detention could be drawn up—in other words, at other police stations or even places that were not properly suited for such purposes, and detainees were registered in a log only in 22 percent of cases (in another 54 percent of cases this remained unknown)—which means, essentially, that the entire procedure of delivery and registration of detainees is flawed and must be improved. Perhaps, it makes sense to add a line to the form of the detention protocol to enter other information pertaining to where and how the detainee in question was delivered to the police station, in addition to the precise time of detention and an entry in the registration log.
Despite the fact that article 14.3 of the CPC, article 131.1 of the CPC, article 5.2 and 5.3 of the Law On the Bodies of Internal Affairs provide guarantees that detainees will be informed, at the moment of actual detention, of the reasons for detention, of their right to remain silent, their right to have an advocate of their own choosing, and that their relatives and other relevant third parties of their own choosing will be informed of the detention, according to the research study the reasons for detention were communicated only in 21 percent of cases, and the rights of detainees were explained to them in 73 percent of cases.
Moreover, despite the guarantees contained in article 64.2 of the CPC, according to the results of the questionnaire no rights were explained while the detention protocol was being drawn up in 63 percent of cases, in 76 percent of cases the detainee was not able to call his/her advocate of their own choosing, and in 71 percent of cases detainees were not able to exercise their right to a “phone call.”
Therefore, it must be ensured that information on the reasons for detention, the detainee’s right to remain silent, detainee’s right to have an advocate of their own choosing, as well as informing the detainee’s relatives or other third parties of their own choosing be communicated verbally at the moment of actual detention and confirmed by the data from the body camera. An entry to this effect must be made in the detention protocol where the same information must be entered in writing. If the body camera happens to be turned off and/or if the above listed requirements are not complied with, the detention protocol must include a special note to that effect, which should be followed by a service inquiry and, should any violations be identified, depending on their seriousness, the officer in question should be held disciplinary, administratively or criminally responsible.
Access to legal and medical aid
As noted above, face-to-face meetings-in-confidence with an advocate were not provided within the first 24 hours in 62 percent of cases, because advocates were simply unable to gain any access to their clients. With respect to those who were detained during the first days of unrest in January 2022, advocates were not able to gain access to their clients for several days, citing a state of emergency. This was a direct violation of constitutional guarantees set out in article 13 of the Constitution of the Republic of Kazakhstan, which states that “everyone shall have the right to receive professional legal aid. In cases stipulated by the law legal aid shall be provided free of charge.” According to article 39.3 of the Constitution, “…in no case shall the rights and freedoms stipulated by articles … 13-15 … of the Constitution be restricted.”
In 73 percent of cases, initially legal aid was provided by an appointed advocate, because detainees were unable to get hold of the advocates of their own or their relatives’ choosing. In several cases, detainees used the help of appointed advocates, because there were serious complaints about the quality of legal aid provided by appointed advocates, including that provided to minors. A number of appointed advocates failed to inform the relatives of detainees, often failed to challenge rulings of preventative measures, did not take steps to initiate investigations into allegations of torture, etc.
In a whole number of cases, when filling out questionnaires, advocates indicated that they were not aware of whether the police officers presented their badges at the moment of detention (30 percent of cases); or if the detainees were explained the reasons for their detention (7 percent of cases); or if their rights were explained to them (5 percent of cases); or if they were delivered to a police station in a prompt and timely manner (32 percent of cases); or if the detainee was registered in a log upon delivery to the police station (54 percent of cases); or if a detention protocol was drawn up in a prompt and timely manner (13 percent of cases); or if the time of detention as indicated in the detention protocol corresponded to the time of actual detention (12 percent of cases); or if the detainee’s rights were explained to them when the detention protocol was being drawn up (13 percent of cases); or if the detainees were afforded to have a one-on-one meeting-in-confidence with their advocate prior to the initial interrogation (30 percent of cases).
The way we see it, the results of the study speak of the fact that often advocates do not consider such procedural violations as something important, or worthy of attention, because in Kazakhstan’s criminal process, substantive rules, rather than the rules of the procedural law, prevail. In other words, it is more important to pay attention to the circumstances of the criminal event rather than to material evidence, and certain violations of a procedure by the pre-trial investigative bodies are not that important from the point of view of an effective defence.
To this end, it is recommended that the Ministry of Internal Affairs, General Prosecutor’s Office and Human Rights Ombudsman jointly with the Republic College of Advocates have a discussion around this research study with a view to ensuring internationally-compliant standards of access of advocates to their clients, provision of professional legal aid, and develop proposals on relevant amendments to be made into the existing legislative framework, internal documents regulating the activity of advocates, and law enforcement practices.
According to international standards, guarantees of protection against arbitral detentions, torture and cruel treatment include provision of access of a detainee to his/her advocate immediately after being detained and prior to any interrogation by the authorities, without exceptions, it is necessary that the legislation of the Republic of Kazakhstan on emergencies, in accordance with the Constitution, include a provision stating that a state of emergency will not deprive detainees of their right to professional legal aid.
As noted above, despite the requirements stipulated in article 131.2 of the CPC and article 223 of the CPC, in 60 percent of cases no medical check-ups after detention and delivery were conducted, and in another 22 percent of cases this remained unknown, even though in 55 percent of cases, according to detainees’ accounts, they were beaten up during delivery, and in 65 percent of cases they talked about those and other violations to their advocate, even if much later.
Unlike the right to medical aid (medical check-up) immediately after detention, when this right, as a minimum, in 60 percent of cases was not provided, when being placed under arrest in an investigative unit, detainees were inspected by medical staff in 72 percent of cases, and in another 10 percent of cases it remained unknown. In doing so, in 43 percent of cases bodily injuries were registered, and in another 36 percent of cases it remained unknown.
In view of the fact that the medical service is being transferred from the authority of Ministry of Internal Affairs’ Committee for Penitentiaries over to the Ministry of Healthcare, it is necessary to develop clear and effective protocols of medical check-ups of those who have been detained and delivered to police stations, placed into temporary holding units (IVS) and investigative isolation units (SIZO), failing which would entail disciplinary, administrative or criminal responsibility, especially in cases when detainees were subjected to beatings during delivery, torture and cruel treatment.
Relatives were timely informed on the locations where the detainees were kept after being delivered to investigative units, in 55 percent of cases; however, in 30 percent of cases, detainees were kept incommunicado, and in another 13 percent of cases, this remained unknown.
It is recommended that effective investigations be conducted into all cases where detainees were kept incommunicado, with perpetrators being held to disciplinary, administrative or criminal responsibility.
Based on the findings of the research study, investigative activities were conducted with an advocate in presence in 76 percent of cases; in doing so, defence motions were not granted in fully in 22 percent of cases, and only partially, in 41 percent of cases. In 65 percent of cases, advocates challenged the investigative activities being conducted in respect of their clients, and violations that were allowed in the process. However, those motions were granted only in 10 percent of cases, and in another 30 percent of cases, only certain complaints were granted. In 60 percent of cases, no complaints were granted.
What follows, is that despite the criminal procedure legislation of the Republic of Kazakhstan stipulates requirements of conducting criminal trials (article 23.1 of the CPC) “based on the principle of competitiveness and equality between prosecution and defence” and that, according to article 25.5 of the CPC “an investigation should look into circumstances that both incriminate and acquit the suspect, accused, defendant, as well as those that extenuate or aggravate responsibility and punishment. The body conducting the criminal process should check all declarations of innocence or a lesser-degree of guilt, as well as the presence of circumstances that acquit the suspect, accused, defendant, or extenuate their responsibility, as well as allegations of use of unauthorized investigative methods when collecting and recording evidence,” those requirements were essentially ignored.
To this end, it is necessary to significantly increase the effectiveness of prosecutorial oversight and judicial control by the investigative judge over the observance of relevant provisions of the criminal procedure legislation.
Use of torture and cruel treatment
Based on the responses in the research study, detainees were subjected to torture in 71 percent of cases. In 83 percent of cases, advocates filed complaints against torture. In 83 percent of cases, follow-up inquiries were carried out, and in 77 percent of cases, it was possible to identify possible perpetrators; however, only in 18 percent of cases any results were achieved in the form of qualifying victims of torture as such and holding perpetrators accountable.
What follows, is that the existing legislative, institutional and practical guarantees of the right to freedom from torture and other cruel, inhuman and degrading treatment and punishment are not sufficiently effective and are followed only to a certain (little) extent.
To this end, it is recommended that expeditious and effective steps be taken to prevent and fight torture, including:
– the notions of “torture,” “a person in an official capacity” and other definitions pertaining to fight against torture should be brought in line with international standards, including the UN Convention against torture;
– the matter of bringing the penitentiary system and prisons/holding units out of the scope of authority of the Ministry of Internal Affairs, while ensuring the new structure is properly independent and, consequently, fully responsible for its work, should be considered;
– the mechanism of investigation of torture should be reformed without delay, by removing from it the currently-existing provision of alternative jurisdiction for cases of torture, and should incorporate the provisions of the Istanbul Protocol in its work, which should apply to both investigations and medical check-ups;
– other legislative, institutional and practical measure to prevent and fight torture should be implemented.
Full version of the Report with Attachements is available HERE