CIC Meeting - Briefing to MEPs by Human Rights Ombudsman 10/2/04 - English text

Introduction

One year has passed since the Resolution of the European Parliament concerning Kazakhstan was adopted. In my country, the concerns of the European Parliament regarding human rights, democratisation and the observance of law is welcomed, as well as the engagement of such an influential European institution supporting Kazakhstan.

More than one year ago, the institution of Ombudsman was founded in Kazakhstan, which I have the privilege to head. During this first year, while monitoring the human rights situation as well as the mass media, NGO’s and other organisatons, I have tried to seek was to answer a basic question: how can human rights be impoved in Kazakhstan. In doing so, I have tried to be objective; that means I keep a distance from officials and politics, and concentrate not only on public opinion, and the work of organisations and individuals, but also observe the commitment of the Kazakh administration in ensuring compliance of national legislation with international human rights standards and obligations. Of course, it is also important to combine this with the opinions of international organisations that work in the country and abroad.

In my short speech today I would like to present the main issues that matter most to you, dear Members of the European Parliament.

Democratisation and Rule of Law

Democratisation and the development of a culture of human rights in Kazakhstan is a process of small steps, and from one achievement to a larger one. This development is strongly intertwined with the historic, cultural and other peculiarities of our country. But it is more than obvious that Kazakhstan is developing towards a true democracy under the rule of law.

In the Republic of Kazakhstan, steps have been put in place to include the institutions of a civil society inside the process of official politics. At the moemnt, for example, there is an active dialogue between the administration and the NGO’s avout their role in a civil society, about the improvement of the electoral law and the expansion of political parties. Reforms of the criminal law, the judicial system and the penal system have already have been made, and the first steps towards abolishing the death penalty have been taken.

In my view, the most important reform of the institutional system and the law is the Constitution, which proclaims that the life of man, his rights and his liberty are the highest good.

One result of these constitutional rights is a successful and functioning two-chamber parliamentary system in which part of the delegates are elected through party-lists. Another is the setting-up of an independent judicial system, and an independent ban on censorship. Meanwhile, Kazakhstan has already ratified important international agreements in the field of human rights, others already have been signed and are currently waiting for ratification.

About Politics

In September 2002, a decree by the President of Kazakhstan adopted further reforms of the state-legal system.

The Head of State signed a decreee providing a moratorium on the death penalty and its replacement with life-long imprisonment. This decrete is a first step towards abolishing the death penalty in Kazakhstan.
Although these positive transformations have been accepted - in 2003 the amount of prison sentences was nearly 18 % less the year before – the constitutional rights of the people of the country are still insufficiently protected.

There are delays during the investigations of criminal cases and the legal inquest that follows. There are human rights violations of Kazakh citizens while they are in custody.

The Institution of the Ombudsman

An important step in the development of democracy and human rights in Kazakhstan has been the creation, in September 2002, of the institution of a national Ombudsman.

This is an independent official body which monitors in agreement with the law of the Republic of Kazakhstan the human rights of its citizens, and investigates any complaints against officials where there may have been a violation of human rights. The Ombudsman is also involved in preparing national legislation with regard to international standards of human rights, and supports the education of human rights within Kazakh civil society.

Under the legislation, the Ombudsman is appointed by the President after consultations with the responsible parliamentary committees. Were the Ombudsman to be appointed by a special law, the Constitution would need to be changed. Since constitutional reform would take too long, Kazakhstan accepted his appointment by decree.

With regard to the power of the Ombudsman, I can tell you that I have a lot of power in his hands. Most of the petitions that have reached my office so far deal with complaints concerning the judicial system and some parts of the administration. In the future, the responsibilities of the Ombudsman should be passed into the courts and their administration.

Mass Media

Generally speaking, the law concerning mass media in Kazakhstan is basically liberal. In Kazakhstan, a market for the mass media has existed since privatisation. But there are violations against the right of freedom of information. Opposition media report persecution, pressure and unwarranted closure of media.

On the other hand, many verdicts against individual journalists, including the closure of some offices and TV stations were not unwarranted and based on genuine offences by editors against the law – for example, embezzlement, tax evasion, renting time-slots to third parties, and violating copyrights when broadcasting productions from a third country. When these violations of the law cease, the closed-down media will be free to continue their work.

In the mass media, questions concerning the involvement of public figures in persecutions against journalists have frequently arisen. Under investigation, the facts could not be proved. An actual example is the attack on the journalist Zhuldyz Toleuvoj, from the radio-broadcasting Svoboda-Azaltyk, in Astana, by a group of thugs. The attackers could not be connected with the journalistic profession.

In 2003, there was not a single court case or examination concerning a violation of the constitutional ban on censorship.

In Kazakh law, you won’t find the concept of defamation, although it is intended that the publication of untruths in order to violate human dignity should be prosecuted. Between 2002 and 2003, 58 such instances were registered.

In 2003, a new law governing the mass media was prepared and is now in process of debate in the Senate. The need for its adoption is based on a general loss of trust in the mass media and the need to boulster its position.

In the draft law, rules are included that make interference by administrative bodies, organisations and individuals in the mass media and its representatives illegal, including actions that prevent legal publishing by mass media.

The law also means that officials will be called to account when denying information to journalists; furthermore, members of the press would only be denied their accreditation by a decision of a court. Many steps towards protecting the rights of journalists have, therefore, already been made.
The Elections

At the end of 2003, local elections were held.

Violations of the electoral law have been investigated and judged, in which local election committees illegally denied the registration of candidates, and where persons were announced to join the local election committee in order to support candidates illegally – e.g. close relatives, etc.

Still, there is a problem of the complexity of the election process. In this regard, the reform of the legislation is the most important thing. At the present time, a draft law on elections is being discussed in the Parliament, in which comments and suggestions by the leading international organisations are being taked into account following the elections in 1999. In addition, proposals have been added to the draft from the round-table conference on the elections held between all Kazakh poitical parties and civil organisations, and from the deliberations of the Council for Democratisation and Development of Civil Society in Katakhstan.

This drafters of the law have presented their suggestions concerning the creation of an electorial commission which would have to take into account the proposals of the political parties concerning the nomination of candidates. The status and authority of the election observers will, meanwhile, be expanded; they now will be able to observe the whole electorial process. The current draft does not allow nominations without alternative, ensures a fair access to the mass media for all candidates.

The forthcoming parliamentary election will be held under the new law and will allow Kazakhstan to translate the right to vote into action and bring real choice into the election process.

Political Parties

The structure of political parties in Kazakhstan is still work in progress. A stimulating effect was the election in 1999, in which part of the parliamentary delegates were elected through party lists. The law on political parties adopted in 2002 can be described as a new step towards creating a party-political structure. The law concentrates on mainstream parties that enjoy the support of civil society.

The law does not allow the foundation of a party that fights against the Constitution or the destruction of territory or which advocates racial, religious or social discrimination.

There have been public debates in the last year concerning the requirement to register 50,000 members in all regions of the country in order to achieve the status of a political party. This is, in my view, a reasonable requirement for us, since only those political movements that enjoy genuine public support throughout the country will be able to develop into political parties. Although this requirement may affect the interests of Opposition political groups, I do not believe the administration’s intention is to exclude them from public life.

NGO’s

In Kazakhstan, an active civil sector in the form of NGO’s has been developed: today, more than 4,000 are already registered. The Government has started a programme to support NGO’s, and a draft law is being considered in Parliament at the moment.

The activity of NGO’s is actually defined in several laws. In 2003, the Ombudsman together with NGO’s criticized a draft law on NGO’s that came from the Government because it was not stable enough.

In oru view, the legislation and the programme of the Government do not support NGO’s enough. We would like to see a law that is a systematic protector of human rights and the vulnerable sectors of society.

Reform of the Judicial System

In the last few years, measures have been adopted in Kazakhstan that have strengthened the judicial system and its independence. In 2003, the number of cases brought before the civil courts increased by 19 % - proof that civil society is developing trust in the courts.

At the same time, the Ombudsman’s office received a huge amount of complaints regarding violations to legal procedure: unwarranted rejections, delaying of court decisions, etc.

Human rights within the legal system of Kazakhstan underlines the necessity for reform of the judiciary: responsibilities need to be increased as well as the quality of justice. This has to be done by the legislation.

Reform of the Penal Law

The Government has been working on reform for nearly two years now. In 2002, successful outcomes included the handing over of powers to manage the penal system to the Ministry of Justice, and this year the handing over of greater powers to the examining magistrates. Nonetheless, letters from imprisoned individuals show that human rights violations are still a problem in Kazakhstan’s jails.

Unfortunately, some prisoners believed that the liberalisation of the penal law was a form of permissiveness. This forced the authorities to harden the rules of imprisonment. Even so, there are still violations of dignity in our jails. As a result, many convicted persons demonstrate in the form of hunger strikes and genital mutilation. Really frightening is the lack of useful activity by prisoners; this leads to the loss of knowledge and skills and the process of reintegration into society becomes much more difficult.

The professionalism of the authorities in their management of the jails has to be increased. Reforms of the penal law have to be adopted as soon as possible.