Obstacles remain in the way of implementing the UN Optional Protocol to the Torture Convention (OPCAT) in Kazakhstan

The latest in a series of meetings supported by PRI’s Central Asia office, and designed to facilitate fulfilment by Kazakhstan of its obligations under the OPCAT, took place in the Ministry of Justice on 28 July 2010.

Discussion in the NPM Working Group, composed of officials and civil society bodies, continued on the most appropriate way of legislating for a National Preventive Mechanism (NPM) and creating an NPM that would meet OPCAT requirements and satisfy the concerns and interests of all parties.

Although there appears to be consensus that the preferred model is what has come to be known as ‘Ombudsman Plus’ (a combination of the National Human Rights Institution and civil society experts), the meeting showed that there are still varying views on how this can most effectively be facilitated in law and practice, and resourced. The positions can roughly be summarized as follows:

1.    Amend existing legislation and fund civil society activities through a direct state-civil society contract (broadly speaking, the view held by officials);
2.    Create a new law on NPM, simultaneously reinforce the law on the Ombudsman, increasing resources for this office and that of the National Human Rights Centre and distributing funds for civil society experts’ involvement through the latter body (broadly, the view of civil society).

The meeting was attended by Deputy Minister of Justice D.R. Kustavletov, who had recently taken on responsibility for the draft law on the NPM. It was necessary, therefore, to restate arguments previously advanced in favour of a separate draft law. His preliminary position was in favour of making amendments to current legislation. The Ministry of Foreign Affairs’ representative, who had seemed to lean towards favouring a separate law on NPM, was unable to attend.

The National Human Rights Centre (NHRC) made it clear that it is wary of taking on a new function (processing applications from and distributing state funds to civil society participants in the NPM) without additional staff. The Republican Budget Commission has already approved 200M Tenge in relation to OPCAT/NPM, but the NHRC appeared to be waiting for a response to its application for a modest increase in its own budget and staffing before initiating further steps.

Despite this, the question of approving simultaneously, or in logical sequence, legislation on the NPM and legislation on the Ombudsman seems to remain unresolved. A recent internal evaluation conducted by PRI of the work on torture prevention and OPCAT implementation in Kazakhstan had identified this as a key issue, and it is not clear to PRI why there seems to be official reluctance to champion or support the civil society proposal first to adopt a law that gives the NHRC and the Ombudsman’s office the resources they will require to fulfil the functions implied by the law on NPM. Failure to agree on this seems to be the most obvious barrier to Kazakhstan in advancing swiftly towards establishment of an NPM, and the Ministry of Justice has several times expressed its eagerness for Kazakhstan not to delay its OPCAT implementation.

Directly linked with this, and bearing in mind that the NHRC has made it clear that it is unlikely to be able to administer NPM funding for civil society experts without enhanced resources, is the other sticking point of how to finance the NPM, and in particular the part intended to be implemented by civil society. The NGOs are against being forced into a direct sub-contractual relationship that could or will have the appearance of lack of independence. One version of the draft legislation on the NPM seems to offer a potential compromise position. Other financing possibilities available are: 1. Financing according to the Free Legal Aid system model 2. A normal civil law relationship between the NCHR and NGOs along the lines of ‘client –contractor’ 3. Direct financing from the budget (which would nevertheless require setting up a new state administering body). At the meeting it was agreed that all the different options would be sent to the Ministry of Justice in writing to inform further discussion.

Also discussed was how to conduct torture prevention work in a pilot phase. Suggestions included: 1. A Ministry of Justice experiment on the ‘state social tender’ system on the basis of a separate project on the NPM 2. Using the pilot projects to train state officials, preparing them for the future functioning of the NPM 3. Conducting thematic pilot projects (monitoring of children’s institutions, psychiatric institutions, etc.) 4. Conducting pilot projects in line with different models: Ombudsman Plus, Independent state entity.

PRI will continue to work with all players in order to find a solution that moves discussion of the NPM forward towards implementation of activities that can begin to address the necessity to prevent torture in Kazakhstan.

PRI’s work on OPCAT is funded by the Open Society and UK Foreign and Commonwealth Office.