Kazakhstan: Strengthening Rights Protection in Constitutional Reform

(Berlin, May 19, 2022) – Kazakhstan is expected to strengthen parts of its constitutional reforms centered on plans to establish a human rights commissioner and a constitutional court to strengthen human rights protection , Human Rights Watch said today. Kazakhstan has scheduled a nationwide referendum on amendments to the constitution for June 5, 2022.

Human Rights Watch is concerned that the timetable for the referendum does not allow for public consultation and debate on the proposals, nor for consideration of changes aimed at strengthening key elements of human rights. The referendum is also being held against a backdrop of concerns over serious human rights violations committed during the January events in which more than 200 people died and the recent detentions of political activists.

“Kazakhstan should show it is committed to improving human rights by strengthening some of the constitutional proposals,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “The government should also allow time to open up constitutional reforms to public consultation and debate and to consider amendments before final proposals are put to a referendum.”

On March 16, President Kassym-Jomart Tokaev delivered a speech, “New Kazakhstan: The Path of Renewal and Modernization,” which signaled the constitutional changes.

A government task force released 56 proposed changes to the constitution on April 25. With the national referendum scheduled for June 5, Human Rights Watch is not aware of any arrangements for broad public consultation on the proposed changes to allow for the consideration of the views of many stakeholders in both rural and rural areas. ‘in an urban environment. The government should undertake wide consultation and consider further changes before the proposals are put to a referendum. If this is not possible before June 5, she should postpone the vote until this consultation has taken place.

Among the proposed constitutional changes that could improve the protection of human rights in Kazakhstan are amendments aimed at strengthening the status of the Commissioner for Human Rights and establishing a Constitutional Court.

The proposed article 83-1 of the constitution enshrines the status and mandate of the high commissioner for human rights, in line with the December 2021 recommendations of the Venice Commission, an expert legal body of the Council of Europe. The Venice Commission issued an opinion on the “Draft Law on the Commissioner for Human Rights of the Republic of Kazakhstan”, in response to a request from the government. The law was passed in December 2021.

However, the procedure for the election and dismissal of the Commissioner is not provided for in Article 83-1 and the Venice Commission has recommended that it be clarified. Section 83-1 provides for the Commissioner’s immunity for official acts while in office. However, the Venice Principles, the “Principles on the protection and promotion of the institution of the Ombudsman” adopted by the Venice Commission, provide that “functional immunity also applies after the Ombudsman, deputies or member of decision-making staff have left the institution. .” The current immunity provision should be extended to include MPs and other decision-making staff in office and should specify that functional immunity continues beyond their terms of office.

The creation of a Constitutional Court with constitutional review powers can serve as an important check on the executive and enrich human rights protection in Kazakhstan, Human Rights Watch said. The independence of the Court, the criteria for appointment and access to the Court are key elements of an effective Constitutional Court.

However, the proposed system for appointing judges raises concerns about their potential independence, as under the proposal the president will appoint four judges and the parliament six judges. The UN Special Rapporteur on the independence of judges and lawyers, in his 2009 report to the UN Human Rights Council, recommended that, to safeguard the independence of the judiciary, judicial appointments should be carried out by an independent body with a plural and balanced composition and is protected from politicization. Article 71 of the draft constitution should be revised to reflect these standards, Human Rights Watch said.

Despite authorities vowing to create a more open political system, 11 political activists were arrested on May 7 simply for exercising their right to peaceful assembly in central Almaty to demand the release of a prominent the opposition, Zhanbolat Mamay. Four of the activists received a warning, three were fined, while four were sentenced to prison terms ranging from 15 to 20 days. They were found guilty of violating “the legislation of the Republic of Kazakhstan on the procedure for organizing and holding peaceful gatherings” (Article 488 of the Code of Administrative Violations).

Human Rights Watch has repeatedly stressed that Kazakhstan’s law on public assemblies falls far short of international standards and should be revised.

Nor has the Government of Kazakhstan held accountable those responsible for serious human rights violations during the violence and unrest in January, when 200 people were killed and hundreds were allegedly tortured in a series of demonstrations. The government should immediately launch an independent investigation, including international and national experts.

“A ‘New Kazakhstan’ is impossible without respect for the freedoms of expression and peaceful assembly, and without accountability for serious human rights violations,” Williamson said. “Any constitutional change must follow public participation and debate and include measures to strengthen the institutions that can help ensure that everyone’s rights are guaranteed.”

For more information please contact:
In Berlin, Hugh Williamson (English, German): +49-172-282-0535 (mobile); or [email protected] Twitter: @HughAWilliamson

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