Carte Blanche for Impunity: What's Wrong with The New Torture Law?

On March 9, the Senate considered and approved a draft law on amendments to the Codes of the Republic of Kazakhstan on human rights in the field of criminal justice. Among the innovations there is one controversial one – violence will not be recognized as torture if it is lawfully used by certain persons. Orda.kz requested comment from human rights activist Tatiana Chernobil to find out whether the new law will prevent abuse of authority.

Back in 1998, Kazakhstan joined the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. According to a remark in the convention itself:  "It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

In 2009, the Supreme Court of the Republic of Kazakhstan decided to add a similar note to Article 146 of the Criminal Code of the Republic of Kazakhstan "Torture", which reads "Not to recognize as torture physical and mental suffering caused as a result of lawful actions of officials."

However, according to human rights activist Tatiana Chernobil, the interpretation in the Kazakhstan's Criminal Code does not correspond to the original.

"The convention itself does not really recognize acts accompanying legal sanctions as torture. In the original, punitive punishments are considered sanctions. For example, taking a person into custody by a court decision or sentencing a person to imprisonment. Such measures inevitably entail physical and mental suffering, but this is not a priori torture. However, in our interpretation, "sanctions" mean almost any actions that are coordinated with the leadership."

The equivocal note peacefully exists and is used in the consideration of criminal cases to this day. Now, according to the new bill, an addition has been made to this note: "Not to recognize as torture physical and mental suffering caused as a result of legitimate actions of persons acting in an official capacity, or other persons." Tatiana Chernobil explained who these persons could be.

"By "persons acting in an official capacity, or other persons" here it's meant that any persons who are somehow connected to the state. In addition to law enforcement officers, these may be doctors who act by order or with the tacit consent of law enforcement agencies. These may be educators of specialized institutions where children, the elderly or people with disabilities may be in distress."

During the plenary session, only one deputy of the Senate Shakarim Buktugutov drew attention to the remark.

“The draft law introduces a new concept - “a person acting in an official capacity”, but does not specify who is classified as other persons. How legally justified is the application of the norm without determining who to apply it to? Will this lead to an unjustified expansion of the circle of persons whose actions will not be recognized as cruel, inhuman or degrading treatment and torture of physical or mental suffering?"

The senator asked.

Interior Minister Marat Akhmetzhanov assured that an individual approach will be applied to each such fact. That is, everything will depend on the circumstances of the case, the subject and the object.

"If there are signs of another crime, it will be punished according to the totality of crimes. That is, he will not escape punishment, and this norm does not narrow the operation of the law, because there are other elements of crime, for example, abuse of official authority, and this is also a serious crime that provides for up to 10 years of imprisonment,"

the Interior Minister explained.

However, according to Tatiana Chernobil, additions to the note will increase the risks of infringement of people's rights.

"The new note is fraught with violation of human rights, unequivocally. Such a vague and broad wording will allow for the exceeeding of the possibility of interpreting who these persons are and which of their actions will have carte blanche for impunity."

Speaking about the innovation, the Interior Minister gave an example of the possible need to send a suspect to a psychiatric clinic and put a straitjacket on him, as this could be "a genuinely forced measure."

However, the human rights activist believes that the example is far-fetched.

"The example of the Interior Minister itself is irrelevant, if only because straitjackets are the last century. In psychiatry and healthcare, this measure should not be applied in principle. It is humiliating and cruel. Moreover, according to the convention, not all measures should be legal, but only those related to the restriction of deprivation of liberty."

An Alarming Sign

In addition to the note's supplement, a new offence "for cruel or degrading treatment" is to be introduced into Article 146 of the Criminal Code of the Republic of Kazakhstan "Torture".

"In accordance with the investigative jurisdiction: Part 1, that is, a misdemeanour, will be investigated by the internal affairs bodies in the form of an inquiry by analogy with Article 110 of the Criminal Code of the Republic of Kazakhstan "Torture". Part 2 will be under the exclusive jurisdiction of the Prosecutor's Office, parts 3 and 4 – in cases of cruel, inhuman or degrading treatment not related to torture, will be investigated by the internal affairs bodies,"

Interior Minister Marat Akhmetzhanov said.

He, therefore, stressed that it will be possible to "clearly distinguish between the facts of torture and cruelty." According to Akhmetzhanov, this will help eliminate shortcomings in the legislation regarding the lack of responsibility for their commission.

However, according to Tatiana Chernobil, this is another big red flag.

"Prior to this year, torture could be investigated by the internal affairs bodies or the anti–corruption service, depending on the departmental affiliation of the suspect, to exclude interest and conflict of interests. Since January of this year, the investigation of torture has been transferred to special prosecutors. But it was a surprise to us that less serious components, that is, cruel treatment, degrading dignity, will now be considered by the DIA (Department of Internal Affairs - Ed.) themselves. This is an alarming sign,"

the human rights activist says.

The bill has already been approved in the Senate, and now it has been sent to the president for signature.

After and during the January events, human rights defenders across the country received appeals from people who were subjected to torture and ill-treatment. Beatings behind bars, burning with an iron, electric shockers, pouring boiling water, putting bags on their heads – this is only a small part of what people were subjected to.

The authorities have repeatedly spoken about their readiness to "thoroughly investigate" any information. But whether these cases will reach the court with the adoption of new amendments to the law is unclear.

Original Author: Silam Aqbota

DISCLAIMER: This is a translated piece. The text has been modified, the content is the same. Please refer to the original piece in Russian for accuracy.