A year ago, Zhovtis himself was speaking at conferences like this. (c) 2009 Kazakhstan International Bureau for Human Rights and the Rule of
Law
A big OSCE meeting is getting underway about torture in Kazakhstan. I was among those who advocated this as a leading topic for the period of the Kazakh chair, but others thought topics like "transparency" or "media" or "governance" or "tolerance" would "fly" better. Even so, it turns out that the government *can* handle the topic -- although in a fashion that runs a grave risk of becoming superficial and leading to the bureaucratization of a problem that in fact is a simpler matter. Dealing with torture doesn't so much require a committee as a change of heart and and a clear expression of will as a policy disseminated throughout the law-enforcement agencies that citizens have meaningful ways of checking.
I don't know how much NGOs were prepared for this meeting, but I see Penal Reform International is taking part. I'll tell you my thoughts on all this, however -- it's all kind of top-heavy, and the pedal hasn't hit the medal yet:
The event brings together some 80 participants, including officials of Kazakhstan's Presidential Administration, the Parliament and the Ministries of Justice, Internal Affairs, Education, Defence, Labour and Health. Representatives from the Committee of National Security, the Prosecutor General's Office, the Commission on Human Rights, the Supreme Court, the Constitutional Council, academia and human rights defenders are also taking part.
The subject isn't torture cases or reports per say, but the optional protocol to the UN Convention Against Torture, and "the draft law developed by the Justice Ministry on establishing public control in places of detention through a national preventive mechanism (NPM), as stipulated by the OPCAT," which Kazakhstan ratified in October 2008.
"Control" is one of those translator's false friends that is better translated as "oversight," since the public will not be actually controlling, i.e. managing through democratically elected representatives and an independent judiciary, these places of detention. Even so, it's all part of the slow but steady building up of institutions that can tackle the deep problem of torture in Kazakhstan, which follows the same patterns long ago laid down by the Soviet state-sponsored torture system of the GULAG.
It helps in these endeavours to keep your eye on the ball, and not to get too distracted by a) the fabulousness of the fact that Kazakhstan has signed the optional protocol in theory enabling citizens to file complaints or b) that it is willing to have an OSCE conference on this subject or c) that a draft law is being discussed.
Because, well, there's still the torture. It's helpful to read the Committee Against Torture's latest conclusions on Kazakhstan and the various alternative reports also submitted by NGOs. The CAT says:
Detention and places of deprivation of liberty
21. The Committee welcomes the successful reform of much of the Kazakh penitentiary system through the adoption of programmes conducted in close cooperation with international and national organizations as well as the enactment of new laws and regulations. It further notes that this reform resulted in a decrease of the rate of pre-trial detention, an increased use of alternative sanctions to imprisonment, more humane conditions of detention, and a marked improvement in the conditions of detention in post-conviction detention facilities. However, the Committee remains concerned at:
(a) The deterioration of prison conditions and stagnation in the implementation of penal reforms since 2006;
(b) Persistent reports of abuse in custody;
(c) Poor conditions of detention and persistent overcrowding in detention facilities;
(d) Excessive use of isolation with regards to pre-trial detainees and prisoners and lack of regulation of the frequency of such isolation;
(e) Instances of group self-mutilation by prisoners reportedly as a form of protest for ill-treatments;
(f) Lack of access to independent medical personnel in pre-trial detention centres and the reported failure to register signs of torture and ill-treatment or to accept detainee’s claims of torture and ill-treatment as the basis for an independent medical examination;
(g) Persistent high incidence of death in custody, in particular in pre-trial detention (e.g. the case of the former KNB General Zhomart Mazhrenov) some of which are alleged to have followed torture or ill-treatment (art.11).
The CAT then goes on to suggest remedies, of the sort that I hope get discussed at this meeting:
The State party should:
(a) Adopt a programme for further development of the penal correction system similar to the one for the period 2004-2006m in order to bring the system into full conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners;
(b) Continue to train specialists in the penitentiary system and ensure that all persons in contact with detainees are familiar with international standards in the field of human rights protection and the treatment of prisoners;
(c) Reduce overcrowding of places of detention, including through the building of new detention facilities and the application of alternative measures to imprisonment, as provided by the law;
(d) Limit the use of isolation as a measure of last resort, for as short a time as possible under strict supervision and with a possibility of judicial review;
(e) Identify reasons leading prisoners to committing such desperate acts as self-mutilation and provide appropriate remedies;
(f) Establish a health service independent from the Ministry of Internal Affairs and Ministry of Justice to conduct examinations of detainees upon arrest and release, routinely and at their request, and ensure that judges deal with evidence of torture and ill-treatment of detainees and order independent medical examinations or return cases for further investigation; and
(g) Ensure that all instances of death in custody are promptly, impartially and effectively investigated and that those found responsible for any deaths resulting from torture, ill-treatment or wilful negligence leading to any of these deaths are prosecuted.
There's quite a bit about these "oversight commissions" there, and here CAT comes to the point -- their access is not automatic or guaranteed:
22. While welcoming the creation in 2004 of the Central Public Monitoring Commission and in 2005 of regional independent public monitoring commissions with the power to inspect detention facilities, the Committee remains concerned that their access to IVSs is neither automatic nor guaranteed and that their access to medical institutions has yet to be considered. Furthermore, it has been reported that the commissions have not been granted the right to make unannounced visits to detention facilities, that they are not always given unimpeded and private access to detainees and prisoners, and that some inmates have been subjected to ill-treatment after having reported to the commissions’ members (arts. 2 and 11).
The State party should guarantee that the commissions have the unrestricted right to conduct unannounced visits to all places of detention in the country at their own initiative, including medical institutions, and it should ensure that detainees who report to commissions’ members are not subjected to any form of reprisal. The State party should also speedily establish or designate a national preventive mechanism for the prevention of torture and take all necessary measures to ensure its independence, in accordance with the provisions of the Optional Protocol of the Convention.
OSCE of course is not indifferent to these concerns, as we can see from the head of mission's comments:
Ambassador Alexandre Keltchewsky, the Head of the OSCE Centre in Astana, said: "Kazakhstan ratified the Optional Protocol to the UN Convention against Torture over a year ago, but the national prevention mechanism is still to be established. I hope that Kazakhstan will preserve a broad-based dialogue in defining the NPM and, ultimately, developing the system that fully meets the standards set by the OPCAT - functional independence, independence of personnel, the necessary financial and human resources and due regard to the so-called 'Paris Principles' relating to the status of national institutions for the promotion and protection of human rights".
A major conference of this sort is an "enterprise of great pitch and motion". But it has to be extracted and operationalized by the government of Kazakhstan in some sort of credible way or it "loses the name of action". It's hard to see how the dots will be connected, given that more than a year went by after the signing of the optional protocol before this conversation could be had.
Now's a good time to reflect on a conference of exactly a year ago in February 2009 where activists gathered to discuss a program sponsored by Freedom House to combat torture. There was cautious optimism then -- but one of the chief actors, human rights leader Yevgeny Zhovtis, is now in jail, without due process applied in his case.
You see, a year ago, we were all saying that progress was made because Kazakhstan recognized that torture was a subject that had to be addressed, and signed the optional protocol, but still, Zhovtis remarked,
"[Detainees] are so defenseless that pressure on them is considered natural. . . . The rights of the detainee and his treatment fall victim to the need to solve a crime," he told the news conference. "Allegations of torture are not properly investigated, with views prevalent among law-enforcement bodies that detainees have a vested interest in making such allegations in an attempt to conceal their guilt."
So it's not enough-- a year later -- merely to celebrate the marking of good intentions, the conceding of a topic, the signing of documents. Now human rights advocates will be looking for real action in the form of permission for inspection groups to make unannounced visits and good-faith efforts to address the other problems highlighted by CAT.
The extract of the most important issues that CAT creates, which I'll place here for easy grabbing (the UN site can be a bit complicated to navigate) makes it clear what Kazakhstan has to do -- remove the incentive system for law-enforcers who solve crimes, making them liable to resort to torture.
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