On February 15, 2022, representatives of the Institute of Parliamentarism took part in public hearings organized by the Ministry of Internal Affairs of the Republic of Kazakhstan to discuss the draft Law of the Republic of Kazakhstan "On Amendments and Additions to the Criminal, Criminal Procedure and Criminal Executive Codes of the Republic of Kazakhstan on human rights in the field of criminal justice, execution of punishment and prevention, torture and ill-treatment" (hereinafter – the draft law on torture), developed by an Interdepartmental Working Group under the Government of the Republic of Kazakhstan.
During the discussion, the head of the Department of Criminal and Criminal Procedure Legislation, legislation on criminal enforcement proceedings, legislation on legal assistance of the Institute of Parliamentarism, B. Beisov, noted that Kazakhstan pays special attention to improving the level of protection of the rights of citizens involved in criminal proceedings.
Thus, the current Criminal and Criminal Procedure Codes already contain norms that contribute to reducing the repressiveness of the criminal process and preventing the use of torture. It is the duty of the prosecutor to check its legality within 24 hours from the start of the pre-trial investigation; and recognition of a person as a detainee from the moment of actual restriction of freedom, including freedom of movement, regardless of whether the detainee is given any procedural status; and a daily mandatory check by the prosecutor of the legality of detention, including persons placed in IVS, special detention centers, with a check of the detention of citizens in office offices (in buildings and premises of pre-trial investigation bodies in which prosecutors are not on duty).
Moreover, as part of the improvement of law enforcement and modernization of the criminal process, the current legislation provides for:
- the right of the prosecutor to investigate criminal cases of torture;
- the immediate start of a pre-trial investigation after each fact of an appeal about torture (victims began to apply more for protection of their rights);
- reduction of detention periods from 72 hours to 48, and in the case of minors up to 24 hours;
- establishment of a ban on detention for economic crimes;
- transfer of issues of authorization of investigative actions to the court;
- expanding the rights of a lawyer, including the rights to collect factual data;
- prohibition on exemption from criminal liability in connection with active repentance (Article 65 of the Criminal Code), on release in connection with reconciliation (Article 68 of the Criminal Code) and on the application of amnesty (Article 78 of the Criminal Code).
In addition, regardless of the outcome of the criminal proceedings, the possibility of compensation for harm to victims of torture is provided.
Thus, in accordance with article 6 of the Law of the Republic of Kazakhstan "On the Compensation Fund for Victims", compensation is awarded in cases of criminal offenses provided for in Article 146 "Torture" of the Criminal Code of the Republic of Kazakhstan. Compensation for victims of torture is provided in the amount of 30 to 50 monthly calculation indices and is paid from the moment a person is recognized as a victim.
These norms make it possible to reduce the facts of the use of torture. However, in practice they continue to take place. The main reason, according to representatives of the Institute of Parliamentarism, is not gaps in legislation, but the lack of effective prosecutorial supervision. Within the framework of the current model of criminal proceedings, the prosecutor has actually become a punitive body that does not perform its constitutional functions for the supreme supervision of legality (Article 83 of the Constitution). During the pre-trial investigation, the prosecutor must perform only supervisory functions, preventing violations of citizens' rights (this should be the criterion for evaluating the prosecutor's activities), and from the moment the accused is brought to court, begin criminal prosecution on behalf of the state (state prosecution), thus fully implementing the constitutional functions of the prosecutor's office.
As part of the implementation of the Concept of the Legal Policy of the Republic of Kazakhstan until 2030 (Decree of the President of the Republic of Kazakhstan dated October 15, 2021), the Institute of Parliamentarism proposes appropriate amendments aimed at developing the principle of competition and equality of the parties, by maximizing citizens' access to justice, as well as eliminating accusatory bias, expanding and strengthening the powers of the defense in collecting factual data relevant to the criminal case.
