Public Control of Places of Deprivation of Liberty in Kazakhstan

In the period from 7 to 14 September 2008, I was fortunate enough to be part of a delegation of representatives of civil society and state structures of Ukraine, which travelled to the Republic of Kazakhstan in order to become acquainted with the practice of the implementation of public control in places of deprivation of liberty. The visit was sufficiently educational, since in my personal opinion, public control, at least in the city of Almaty, is sufficiently developed and a number of matters would be advisable to implement in our practice as well.
The first matter to which I would like to draw attention is the legislative consolidation of public control in legislative acts.
Public control was introduced in the Republic of Kazakhstan in 2004. In particular, the Criminal and Penal Code of the Republic of Kazakhstan was supplemented by two articles – 19-1 and 19-2, which made possible the creation of public observation commissions.
Notwithstanding this, representatives of non-governmental organisations assert that monitoring proper, as one of the instruments of public control, began to be applied in the Republic of Kazakhstan immediately after the attainment of state independence, from 1991.
In the period from 1991 to 1994, such monitoring was conducted only by individual civil organisations. Naturally, it was to a large degree spontaneous, there was no system in it, which was explained both by the limited possibilities of non-governmental organisations at that time and by considerable distrust of the 'interference' of a civil society cell in a closed system. And yet it should be noted that the activities of non-governmental organisations in monitoring penitentiary institutions throughout this entire period did not evoke rejection either from the leadership of the Ministry of Internal Affairs, under whose jurisdiction these institutions fell, nor still less from the leadership of the Ministry of Justice. On the contrary, these activities at that time always met with understanding and support from the respective structures. A turning point for public control was the holding in Kazakhstan in 1993 of the first international conference on the reform of the penitentiary system. The co-organisers of this major conference were PRI and the Almaty Helsinki Committee, as well as the Administration of the President, the Ministry of Internal Affairs, the General Procuracy, the Bar Association – the widest circle of interested organisations. At the conference, the Concept of Reform and Humanisation of Criminal Legislation was discussed and approved, in particular concepts of the Criminal and Criminal-Penal Codes, developed to a special order for this conference by the institute of state and law of the Academy of Sciences of the Republic of Kazakhstan with the participation of the administration of the president of the Republic of Kazakhstan. Leaders of the Ministry of Internal Affairs from former union republics, workers of penitentiary systems, leading scholars were invited to the conference. It was precisely then that a radical shift occurred in the understanding that public institutions, non-governmental organisations – these were not opponents, not controllers, not critics, but citizens interested in the improvement of our life.
In the period from 1994 to 1997 on the 'human rights field' there appeared a new organisation – the Bureau for Human Rights and the Observance of Legality with its numerous branches, which took upon itself the full burden of conducting monitoring of penitentiary institutions. At this stage, the technique of monitoring, professionalism, connections with state structures were being developed, a search was being conducted for instruments of influence at the level of decision-making, ways of attracting the attention of the international community, skills of participation in the legislative process were being acquired.
From 1998, with the arrival in Kazakhstan of the PRI Representative Office, the third stage began – the stage of deployed systematic cooperation. The principal characteristic of this stage – rapid growth of the network of human rights monitoring organisations and expansion of the spectrum of monitoring.
Today in Kazakhstan there exist approximately eleven non-governmental organisations engaged in monitoring of penitentiary institutions in seven regions.
On 29 December 2004, the Law of the Republic of Kazakhstan 'On the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Matters of Bodies of Justice' was signed, which provides for the organisation of public control to ensure compliance with the rights, freedoms and lawful interests of persons held in institutions and bodies executing criminal penalties. This document established that public control is exercised by public associations for the purpose of rendering assistance to persons held in correctional institutions and investigative detention facilities in the exercise of their rights and lawful interests as regards conditions of detention, medical and sanitary provision, organisation of labour, leisure and instruction, provided for by the legislation of the Republic of Kazakhstan. By Government Resolution of 16 September 2005 No. 924, the Rules for the Establishment of Regional (of a city of republican significance, capital) Public Observation Commissions, which exercise public control, were approved. Furthermore, in the execution of paragraph 11 of the Programme for the Development of the Penal-Executive System, the Committee for the Criminal-Executive System of the Ministry of Justice of the Republic of Kazakhstan developed and sent to all public observation commissions Recommendations on the Implementation of Control over the Observance of the Rights and Lawful Interests of Suspects, Accused Persons and Convicted Persons. Thus, in addition to legislatively established control by local executive bodies, judicial control, procuratorial supervision, departmental control over the activities of institutions of the criminal-executive system, the Law established public control (subparagraph g of paragraph 9 of the Conclusions and Recommendations of the Committee against Torture). For the implementation of public control in 14 regions of the republic, public observation commissions have been established. This measure, without doubt, increases the observance of the rights of persons in isolation at all stages of criminal proceedings, ensures transparency of the activities not only of the criminal-executive system, but also of bodies engaged in criminal prosecution, which in turn has a positive effect on the further humanisation of the criminal policy of the state. Public observation commissions have the right to render assistance to the activities of the administration of institutions of the criminal-executive system for the purpose of: 1) improvement of conditions of detention and medical and sanitary provision for suspects, accused persons and convicted persons;
2) participation in the organisation of labour, leisure, instruction of convicted persons;
3) rendering assistance to convicted persons in preparation for release, resolution of matters regarding housing and domestic arrangement, employment, medical service and social security, socio-psychological rehabilitation and adaptation. The administration of an institution of the criminal-executive system renders assistance to members of a public observation commission in the implementation by them of measures of public control in accordance with the legislation of the Republic of Kazakhstan. On the basis of public control, members of a public observation commission have the right to direct to the administration of an institution of the criminal-executive system or to the authorised body of the criminal-executive system proposals for the improvement of the activities of the aforesaid institutions.
For the implementation of public control, public observation commissions are established.
Public control and assistance of public observation commissions to the activities of the administration of correctional institutions and investigative detention facilities are exercised on the basis of the principles of voluntariness, equality, self-government and legality. At the same time, in the implementation of public control, interference in the activities of correctional institutions and investigative detention facilities, as well as in operational and investigative, criminal procedural activities and proceedings in cases of administrative violations is not permitted. The activities of public observation commissions are conducted on a voluntary, unpaid basis, as a rule, at the expense of 'donor' funds and grants.
The Law provides that a public observation commission, as well as members of a public observation commission, have the right to:
1) in a composition of not fewer than two members of a public observation commission, without hindrance, visit correctional institutions and investigative detention facilities in the order established by the authorised body of the criminal-executive system;
2) converse with convicted persons at their consent, as well as receive appeals and complaints on matters of violation of their rights and lawful interests;
3) address statements to the administration of a correctional institution and investigative detention facility and/or to bodies of the procuracy on matters related to the ensuring of rights and lawful interests of persons held in correctional institutions and investigative detention facilities.
In the period of introduction of a regime of special conditions in correctional institutions and investigative detention facilities, the authority of a public observation commission to visit the aforesaid institutions is suspended.
In the exercise of their authority, members of a public observation commission are obliged to observe the provisions of normative legal acts ensuring the activities of correctional institutions and investigative detention facilities, and also to comply with the lawful requirements of the administration of the aforesaid institutions. The conduct of measures of public control should not create obstacles to the implementation of procedural actions. The practice of public control in the Republic of Kazakhstan has developed a number of provisions, on the fulfilment of which depends the success of the implementation of activities to ensure public control.
Thus, representatives of local non-governmental organisations have come to the conclusion that in order to conduct monitoring of places of detention, it is necessary to possess certain skills, for example, in the legal field and the field of health protection. Consequently, the monitoring group should include, at least, one person with legal training and one person with medical training, preferably a doctor. In the event that during the formation of the group, there are no persons with such professions, non-governmental organisations initiate the conduct with them of general instruction by specialists. Preference in participation in the composition of observation commissions is given to persons with skills in social psychology, conflict resolution and environmental modelling. Non-governmental organisations endeavour to maintain a stable composition of the monitoring group for a certain period of time, since with frequent changes of monitors it is difficult to maintain constructive dialogue with persons held in detention and the authorities. The number of personnel in the monitoring group depends on a number of factors, such as: – the objective of the visit; – the volume of available information about the place of detention and the presence of problematic matters;
– the type of place of detention and the number of persons held in it; – the existence of limitations established by the authorities carrying out the detention. On the basis of existing practice, the visiting group may consist of 2–8 persons. Persons included in the visiting group must undergo basic training on the following matters: – matters and problems related to detention;
– the objectives of the conducting of the visit; – the laws and other normative legal acts which it is necessary to know for the successful conduct of monitoring of conditions of detention in places of detention, as well as other necessary knowledge;
– the selection of tactics of conduct in relations with the authorities, personnel and persons held in detention. It is necessary to draw attention to the fact that, in contrast to the functions assigned to observation commissions in Ukraine, public observation commissions in the Republic of Kazakhstan do NOT engage in matters of rendering assistance either to convicted persons, or to those released, or to employees. This is made clear immediately to the respective persons or those who have turned to members of the commission. Thus, all activities of public observation commissions in the Republic of Kazakhstan are directed exclusively at the implementation of control over the observance of the rights and lawful interests of convicted persons. This control is exercised through constant monitoring of places of deprivation of liberty (colonies and investigative detention facilities).
It is also interesting that the legislation of Kazakhstan, like the legislation of Ukraine, does not provide public observation commissions with the right to visit freely places of deprivation of liberty. However, according to practice built up over many years of interaction, representatives of non-governmental organisations are able to visit practically all places of an institution executing sentences, that is, there are no closed premises for them. But this is not characteristic of all regions of Kazakhstan and wholly and completely depends on the personal qualities of the chairman and members of a public observation commission, as well as their relations with the leadership of the colonies and management of the system.
Essentially, monitoring of places of deprivation of liberty conducted in the Republic of Kazakhstan consists of four stages: 1. Documentation of Conditions of Detention Monitors, in the course of a visit to a colony, assess conditions of detention as broadly as possible, that is, law enforcement practice: – find out the point of view of the authorities, employees and various professional workers engaged with persons held in detention; – find out the point of view of persons held in detention; – obtain information from other available sources (from lawyers, families of persons held in detention, professional associations, non-governmental organisations); – collect information on the basis of what monitors directly observed in places of detention. 2. Analysis of Conformity of Conditions of Detention and Treatment of Convicted Persons and Arrested Persons to National and International Standards At the second stage, monitors analyse how far conditions of detention conform to national and international standards. In doing so, monitors do not limit themselves merely to establishing conformity or non-conformity of conditions of detention to the respective standards (that is, what exists in reality with what it should be), but attempt to explain, at least in part, the reasons for deviations from standards.
As a rule, these deviations are connected with a combination of factors: – national legislation does not conform to international standards; – standards are not applied or are only partly applied because they are insufficiently developed in content to represent a proper basis for the effective work of employees of institutions responsible for persons held in detention; – the level of training of personnel is insufficient with regard to certain aspects of treatment of persons held in detention, and as a result their professional conduct differs from that required by standards; – the available human and material resources do not permit the application of standards in full. 3. Formulation of Recommendations The analysis conducted at the previous stage is used for the formulation of more substantive and practical recommendations than simply establishing non-conformity of the actual situation and standards. At this stage, also: – the most important aspects of these problems are identified; – the time factor is included in the recommendations (for example, what may be done in the short-term, medium-term and long-term perspective);
– original solutions to individual concrete problems are proposed; – suggestions are submitted for the development of standards and legislation. 4. Implementation of Recommendations As in other countries, the ultimate objective of monitoring of places of deprivation of liberty in the republic is the desire to persuade the authorities to improve the treatment of persons held in custody and their conditions of detention. The visiting of places of detention and the compilation of reports represent a means for achieving this objective. Furthermore, members of public observation commissions monitor the implementation of recommendations made by them. In particular, to date, none of the appeals of public observation commissions remains without a response, and the responses are provided within the shortest possible time.
When improvements have been made – public observation commissions invariably publicise this in the press, at various events, in their letters and so forth.
In the rare cases, which mainly occurred in the past, when no measures were taken, monitors seek other ways of influencing the administration through the procuracy and judicial bodies.
On the basis of a visit-monitoring, a written or oral report is usually drawn up. The form of the report depends on the observations made by the monitoring group and the seriousness of the problems or violations discovered. First and foremost, the report is intended for and drawn up for the leadership of places of detention and for state bodies which gave permission for the conduct of monitoring. Nevertheless, the reports are also made public and transmitted to other persons: parliamentarians, other national and international non-governmental organisations, and so on.
Depending on the strategy chosen by the non-governmental organisation, reports or extracts from them may also be transmitted to the media. It should be noted that such reports become a useful source of information for international bodies, in particular for the UN Committee against Torture, when an assessment of a state report is being made, as well as for the Special Rapporteur on matters of torture and so forth.
In summing up all of the aforesaid, I wish once again to note several matters which, in my view, are the most positive and can be applied in our national practice:
1. The assignment to observation commissions exclusively of the function of monitoring of the observance of rights and freedoms of persons deprived of liberty; 2. The legislative consolidation of the functions and authority of observation commissions in the Criminal-Executive Code, though in an abbreviated form;
3. The creation of only regional observation commissions, which makes it possible to find the necessary number of their members and even to conduct a certain competition for the filling of these positions; 4. The evaluation of the activities of observation commissions by the authorities, which perceive them as actual helpers of their activities, as a necessary mechanism for ensuring the rights and freedoms of convicted persons and persons taken into custody.