Kazakstan Needs Laws to Underpin Torture Ban

While Kazakstan has adopted numerous recommendations to prevent torture occurring in detention, it still needs to reform its laws if it is to stamp out the practice, according to the outgoing United Nations Special Rapporteur on Torture, Manfred Nowak.

Nowak, a leading human rights lawyer from Austria, spoke to IWPR shortly before stepping down at the end of his term on October 31. He is being replaced by Juan Méndez, from Argentina.

He visited Kazakstan at the invitation of the authorities there from September 29 to October 1 to take part in a round table discussing how recommendations from his mission last year have been implemented.

In a report following his May 2009 mission to Kazakstan, submitted to the UN Human Rights Council this March, the Special Rapporteur said the use of torture and other forms of mistreatment went beyond isolated cases.

He recommended that national criminal legislation be amended to bring the definition of torture into line with that used in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and also to create an effective preventive mechanism; investigate allegations of mistreatment promptly and impartially, and transfer temporary detention facilities from the interior to the justice ministry.

IWPR: In your six years as UN Special Rapporteur on Torture, you have visited 17 countries, in 16 of which you found evidence of the use of torture and other cruel and degrading forms of treatment. Most of these countries are parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to its Optional Protocol [allowing external scrutiny of places of detention]. In your view, what is preventing these countries from fulfilling the international obligations they have undertaken?

Manfred Nowak: It is all down to the political will of these countries. I am profoundly convinced that if a state is willing to eradicate torture, it will be able to do so. That isn’t in fact as costly as it might seem at first sight.

The first thing is that states need to be constantly pursuing preventive measures to counter the use of torture. Secondly, it’s important for every specific case, every report of the use of torture or cruel treatment – even the suspicion that this is happening – to be properly investigated, and for those responsible to be brought to account.

Believe me, if every officer in law enforcement agencies and other state institutions were aware that he faced imprisonment if he used torture, the situation would change radically in the near future. But in practice, the authorities in most countries in the world give their law-enforcement agencies tacit approval for it [torture] to happen. In rough terms, this is how it looks – the authorities say, “Yes, torture is bad, but sometimes it’s allowed, and if it comes to it, we’ll protect you.”

IWPR: In talking about the practice of torture and the reasons why it exists, experts cite three factors – the lack of criminal liability for torture, the absence of investigations into allegations and complaints, and the lack of procedures for prosecuting perpetrators. Are all these factors equally prevalent in every country?

Nowak: Of course not. For a start, torture isn’t recognised as a separate criminal offence everywhere. In some cases, the definition of torture is too narrow, or misses important elements contained in the [UN] Convention. In Kazakstan, for example, criminal responsibility for torture is restricted to state officials, not for actions committed by other persons, for incitement, or for the open or tacit approval of state[-employed] individuals.

But even if the practice of torture is a criminal office in a given country, that doesn’t mean that allegations of its use will be investigated to the extent required, because most countries have a problem with the lack of independent bodies mandated to conduct independent investigations into reports that torture has been used by servants of the state.

Even when national institutions initiate checks with regard to allegations by citizens that torture has been used, and even if they are inclined to believe it did take place, it is very rare for the evidence collected to be placed before a court. The factors at play here include corruption in a range of institutions including the justice system, and also the phenomenon of corporate solidarity among police, judges and other employees of the system.

For this reason, I have spoken repeatedly of the need for an independent system for investigating allegations of torture, one that will engage solely in these issues with no outside pressure.

IWPR: Kazakstan, a country you have visited twice – in May last year on a country visit and in October this year as a participant in a round-table that discussed implementation of your recommendations – does not have such a system.

What are your impressions from what you observed and heard in Kazakstan?

Nowak: I must say that the reactions to my enquiries and initiatives relating to this country have come as a pleasant surprise to me. The very fact that a year after my country visit, I was invited to a conference to discuss how my recommendations are being implemented is indicative of the position the state is taking.

A number of my recommendations have indeed been acted upon, but at the same time, a large section of my recommendations concerning legislative reforms still awaits implementation.

For example, a number of draft laws still require more work, in my view; notably the one concerning the National Preventive Mechanism, which provides a legal basis for civil society to have opportunities to inspect places of incarceration [under the UN convention’s optional protocol].

I think that the model the authorities are proposing for this mechanism – called “ombudsman plus” – where NGOs would bid on an annual or triannual basis to take part as the “plus”, makes NGOs directly dependent on the state. That undermines independence, the most important principle of the National Preventive Mechanism.

At the same time, I am gratified by the readiness of state agencies to engage in discussion and dialogue. It’s too early to say whether major reforms will be carried out, and if they are, to what extent. But there’s already an agreement with the government of Kazakstan that even if I’m not working as Special Rapporteur on Torture, I will be invited to special meetings on the subject. So next time I come to Kazakstan, you must ask me the same question again. I believe I will be able to give you an answer at that point.

Yulia Kuznetsova is a freelance journalist in Kazakstan.

This article was produced jointly under two IWPR projects: Building Central Asian Human Rights Protection & Education Through the Media, funded by the European Commission; and the Human Rights Reporting, Confidence Building and Conflict Information Programme, funded by the Foreign Ministry of Norway.
The contents of this article are the sole responsibility of IWPR and can in no way be taken to reflect the views of either the European Union or the Foreign Ministry of Norway.