IX. LEGAL STANDARDS

International law
Kazakhstan is not a party to the International Covenant on Civil and Political Rights (ICCPR) nor to its Optional Protocols, but the former Soviet Union was. A 1994 U.N. Human Rights Committee report to the General Assembly reiterated the view that the inhabitants of Kazakhstan and other former Soviet states remain bound by the guarantees of the ICCPR and that the government was bound under its obligations as of the date of independence, including the obligation to submit reports on human rights conditions to the Human Rights Committee.²⁷⁴ As a member state of the Organization for Security and Cooperation in Europe (OSCE) and U.N., it has made a commitment to abide by OSCE standards, among them the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, signed in Copenhagen on June 29, 1990 (hereafter the OSCE Copenhagen Document), as well as the principles of the Universal Declaration of Human Rights (UDHR) proclaimed by the U.N. General Assembly in 1948.

Kazakhstan is also a party to the Single Convention on Narcotics Drugs of 1961 and its additional protocol of 1972, the Convention on Psychotropic Substances of 1971, and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. These conventions, among other things, oblige states to provide rehabilitation services for drug users and take measures to halt drug trafficking.

Due process guarantees
Article 9 of the ICCPR stipulates that "no one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law."²⁷⁵ This principle is echoed in section 1.5(5.15) of the OSCE Copenhagen Document, which also guarantees habeas corpus: "[A]ny person arrested or detained on a criminal charge will have the right, so that the lawfulness of his arrest or detention can be decided, to be brought promptly before a judge or other officer authorized by law to exercise this function."²⁷⁶ The UDHR enshrines the principle of protection from arbitrary arrest, detention or exile in its article 9.²⁷⁷

Articles 14 and 15 of the ICCPR ensure the right to a fair and impartial trial. Among the provisions in article 15 is protection from conviction for a crime not committed, that is, "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed."²⁷⁸ The OSCE Copenhagen Document ensures these rights under article 1.5, notably, "[I]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone will be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."²⁷⁹

Both the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibit torture and cruel, inhuman or degrading treatment or punishment, without exception or derogation.²⁸⁰ The OSCE Copenhagen Document requires participating states to "reaffirm their commitment to prohibit torture and other cruel, inhuman or degrading treatment or punishment, to take effective legislative, administrative, judicial and other measures to prevent and punish such practices, to protect individuals from any psychiatric or other medical practices that violate human rights and fundamental freedoms and to take effective measures to prevent and punish such practices."²⁸¹

Other nonbinding declarations adopted by the General Assembly of the U.N., such as the U.N. Code of Conduct for Law Enforcement Officials,²⁸² the U.N. Body of Principles for the Protection of All Persons Under any Form of Detention and Imprisonment²⁸³ and the U.N. Standard Minimum Rules for the Treatment of Prisoners (and Procedures for Effective Implementation of the Rules),²⁸⁴ have also become universal norms by which police behavior is evaluated. Kazakhstan committed itself to bringing detention conditions into conformity with the two former declarations in March 2002.²⁸⁵

Freedom of expression
The right to receive and impart information without interference is embodied in article 19 of the ICCPR, which states that all persons shall have the right "to seek, receive and impart information and ideas of all kinds, regards of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."²⁸⁶ Article 9.1 of the OSCE Copenhagen Document clearly sets out that the right to freedom of expression "will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."²⁸⁷

Health
Article 2 of the ICCPR protects all person from discrimination on the basis of "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" for the rights recognized in the Covenant.²⁸⁸ This article has been widely interpreted by the U.N. Commission on Human Rights and other U.N. bodies to include both sexual orientation and HIV status as factors on the basis of which discrimination is prohibited.²⁸⁹ The UDHR states that all persons have the right to "a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services."²⁹⁰ The right to the highest possible standard of health is more explicitly set out in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which stipulates that state parties recognize "the right of everyone to enjoyment of the highest attainable standard of physical and mental health."²⁹¹ Kazakhstan has not acceded to the ICESCR, another basic and widely ratified treaty to which the former Soviet Union was party.

The Single Convention on Narcotics Drugs of 1961 and its additional protocol of 1972 and the Convention on Psychotropic Substances of 1971, to which Kazakhstan is a party, oblige states in articles 38 and 20, respectively, to establish rehabilitation and social reintegration services for drug users.²⁹² The U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 obliges Kazakhstan in article 14 to "adopt appropriate measures aimed at eliminating or reducing illicit demand for narcotic drugs and psychotropic substances, with a view to reducing human suffering and eliminating financial incentives for illicit traffic."²⁹³

Although they do not have the force of international law, the United Nations Guidelines on HIV/AIDS and Human Rights are frequently used as a guide to policy and law related to HIV/AIDS. Measures to be taken with respect to prisoners are set out in paragraph 29:

Prison authorities should take all necessary measures, including adequate staffing, effective surveillance and appropriate disciplinary measures, to protect prisoners from rape, sexual violence and coercion. Prison authorities should also provide prisoners (and prison staff, as appropriate), with access to HIV-related prevention information, education, voluntary testing and counseling, means of prevention (condoms, bleach and clean injection equipment), treatment and care and voluntary participation in HIV-related clinical trials, as well as ensure confidentiality, and should prohibit mandatory testing, segregation and denial of access to prison facilities, privileges and release programmes for HIV-positive prisoners. Compassionate early release of prisoners living with AIDS should be considered.²⁹⁴

The U.N. Guidelines recommend the protection of the right to confidentiality through the enactment of general confidentiality and privacy laws, and state that "HIV-related information on individuals should be included within definitions of personal/medical data subject to protection and should prohibit the unauthorized use and/or publication of HIV-related information on individuals."²⁹⁵ Further, public health, criminal and anti-discrimination legislation "should prohibit mandatory HIV-testing of targeted groups, including vulnerable groups."²⁹⁶

On HIV-related human rights abuses, the U.N. Guidelines suggest that states should establish HIV/AIDS focal points in relevant government branches, including national AIDS programmes, police and correctional departments, the judiciary, government health and social service providers and the military, for monitoring HIV-related human rights abuses and facilitating access to these branches for disadvantaged and vulnerable groups.²⁹⁷

Further, criminal law should be reviewed in order that it not be "an impediment to measures taken by States to reduce the risk of HIV transmission among injecting drug users and to provide HIV-related care and treatment for injecting drug users."²⁹⁸

National law
Kazakhstan's constitution sets out guarantees against discrimination in article 14, which reads, "No one shall be subject to any discrimination for reasons of origin, social status, property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other status."²⁹⁹ The constitution enshrines the right to due process in article 16, which states that "Arrest and detention shall be allowed only in cases stipulated by law and only with the sanction of a court or prosecutor of law. The detained person shall be provided with the right to appeal. Without the sanction of a procurator, a person may be detained for a period no more than seventy-two hours."³⁰⁰ Further, all persons are entitled to legal defense: "Every person detained, arrested and accused of committing a crime shall have the right to the assistance of a defense lawyer (defender) from the moment of detention, arrest or accusation."³⁰¹

Article 17 protects citizens from torture, asserting that "[n]o one must be subject to torture, violence or other treatment and punishment that is cruel or humiliating to human dignity."³⁰² Rights to freedom of expression are enshrined in article 20, which guarantees that citizens shall "have the right to freely receive and disseminate information by any means not prohibited by law."³⁰³ The Criminal Procedure Code of Kazakhstan also provides safeguards against physical mistreatment. Article 15 states that:

In the case of well-founded grounds demonstrating that a victim, witness, family members or other close relatives participating in a criminal case suffer a threat to their life, are subjected to violence, suffer damage to personal property, or other illegal actions, parties conducting the criminal case are required within their sphere of competence to take measures required by the law to protect the life, health, honor and dignity of those individuals.³⁰⁴

²⁷⁴ Article 49 of the Human Rights Committee Annual Report to the U.N. General Assembly, U.N. Doc. A/49/40 vol. 1 (1994) [online], http://www1.umn.edu/humanrts/hrcommittee/hrc-annual94.htm. (retrieved January 14, 2002).

²⁷⁵ International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, article 9(1).

²⁷⁶ The Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, signed in Copenhagen on June 29, 1990, article 1.5(5.15). Habeas corpus is also guaranteed under article 9(3-4) of the ICCPR.

²⁷⁷ Universal Declaration of Human Rights, adopted and proclaimed by United Nations General Assembly resolution 217 A (III) on 10 December 1948.

²⁷⁸ ICCPR, article 15(1).

²⁷⁹ Article 1.5(5.16). Further provisions of article 1.5 guarantee that "[A]ny person prosecuted will have the right to defend himself in person or through prompt legal assistance of his own choosing or, if he does not have sufficient means to pay for legal assistance, to be given it free when the interests of justice so require," and "no one will be charged with, tried for or convicted of any criminal offence unless the offence is provided for by a law which defines the elements of the offence with clarity and precision." Article 1.5(5.17-5.18).

²⁸⁰ ICCPR, article 7, and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 1.

²⁸¹ The OSCE Copenhagen Document, article 16(16.1).

²⁸² General Assembly of the United Nations, Resolution 34/169, December 17, 1979.

²⁸³ General Assembly of the United Nations, Resolution 43/173, December 9, 1988.

²⁸⁴ Economic and Social Council of the United Nations, Resolution 663 C(XXIV) of July 31, 1957 and 2076(LXII), May 13, 1977.

²⁸⁵ Statement by H.E. Mr. Kassymzhomart Takayev, Secretary of State-Minister of Foreign Affairs of the Republic of Kazakhstan at the 58^th Session of the UN Commission on Human Rights (March 19, 2002, Geneva), [online], http://www.mfa.kz/english/st_190302.htm (retrieved January 18, 2003).

²⁸⁶ ICCPR, article 19(2).

²⁸⁷ The OSCE Copenhagen Document, article 9(1).

²⁸⁸ ICCPR, article 2(1).

²⁸⁹ See Commission on Human Rights, "The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)" (Resolution 1995/44, adopted without a vote, March 3, 1995).

²⁹⁰ UDHR, article 25(1).

²⁹¹ International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, article 12.

²⁹² Single Convention on Narcotics Drugs of 1961, as last amended by Protocol of March 25 1972 at Geneva Trb. 1980,184, and the Convention on Psychotropic Substances of 1971, G.A. Assembly res. 366 (IV) of 3 December 1949.

²⁹³ U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, G.A. res. 39/141 of 14 December 1984, article 14.

²⁹⁴ Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights International Guidelines" (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998, par. 29(e).

²⁹⁵ Ibid., article 30(c).

²⁹⁶ Ibid., article 30(j).

²⁹⁷ Ibid., article 44(b).

²⁹⁸ Ibid., article 29(d).

²⁹⁹ Konstitutsia Respubliki Kazakhstan [The Constitution of the Republic of Kazakhstan], August 30, 1995, article 14(2), [online], http://www.pavlodar.com/zakon/index.html?dok=00004&uro=08014 (retrieved January 23, 2003).

³⁰⁰ Ibid., article 16(2).

³⁰¹ Ibid., article 16(3).

³⁰² Ibid., article 17(2).

³⁰³ Ibid., article 20(2).

³⁰⁴ Ugolovno-protsessual'ny kodeks respubliki Kazakhstan [Criminal Procedure Code of the Republic of Kazakhstan], December 13, 1997, No. 206-1, article 15(3), [online], http://pavlodar.com/zakon/index.html?dok=00147&uro=08015 (retrieved January 23, 2002).