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Much of the research and analysis on which this monograph is based was produced by “OSCE 2010,” a coalition of leading Kazakhstani non-governmental organizations, including the Kazakhstan International Bureau for Human Rights and Rule of Law, the International Foundation for Freedom of Speech “Adil Soz,” Public Foundation “Charter for Human Rights”, the Almaty Helsinki Committee, the Legal Policy Research Centre, International Centre for Journalism “Media Net”, the Ecological Association “Green Salvation” and the Republican Net of Independent Observers”. Their research was conducted in the framework of a Freedom House project designed to monitor Kazakhstan’s fulfillment of its OSCE commitments in light of the country’s upcoming chairmanship of the Organization. That project is being implemented with the financial support of the Embassy of the United Kingdom to the Republic of Kazakhstan and Kyrgyzstan, the Department of Foreign Affairs and International Trade of Canada, the Government of the Netherlands and the Open Society Institute (OSI/ZUG). Views and judgments contained herein may be different from those of the funding organizations.

EXECUTIVE SUMMARY

At the Ministerial Council meeting of the Organization for Security and Cooperation in Europe in Madrid in November 2007, the OSCE participating States chose Kazakhstan to serve as the Organization’s chairman in 2010. In making their case for the chairmanship, Kazakhstani officials argued their country was well placed to heal the rift within the OSCE between countries located to the East and West of Vienna. Critics argued that granting the chairmanship to a country that falls far short of its OSCE human dimension commitments would strike a serious blow to the organization’s reputation as a leading regional human rights organization and to its work promoting human rights and democracy throughout the OSCE space. Critics also wondered aloud how Kazakhstan would react as OSCE Chairman to anti-democratic events in other participating States.

To address these concerns on the eve of the participating States’ final decision on the chairmanship, Kazakhstan’s Foreign Minister addressed the Ministerial Council, promising that as Chairman Kazakhstan would fully support the OSCE’s work in the human dimension. He also made specific commitments on behalf of his government to conduct significant reforms in 2008 of legislation in the areas of government regulation of the media, elections, political parties and local government, and to do so in consultation with Kazakhstani civil society and the international community. Just short of one year later, on November 11, 2008, the Kazakhstani government announced that in fulfillment of these promises it was forwarding draft legislation to parliament in each of these four areas. Parliament acted rapidly, and the legislation was passed by both houses without significant changes by early January 2009 and promulgated by President Nazarbaev in early February 2009.

The process of drafting this legislation lacked both real outside participation and even basic transparency. Although the government did permit NGOs to take part in early work on the media and election laws, they were not allowed to participate in the working groups that finalized the draft bills and most of their recommendations were ignored. Despite repeated calls from Kazakhstani NGOs, opposition parties and international organizations, the government also refused to allow any of the draft laws to be reviewed by international organizations with expertise in the relevant areas. As a result, the government’s legislation was badly flawed. In fact, a detailed analysis of this legislation calls into question the Kazakhstani authorities’ willingness to fulfill the commitments they made to their fellow OSCE participating States in Madrid.

Least bad of the new legislation are amendments to the law “On Mass Media.” Most positively, the law seeks to provide a more level playing field for journalists who are sued in cases involving defense of personal honor and dignity. But more important than what the new law will do is what it will not. The law will not decriminalize slander and insult or do away with special protections for government officials. Nor will it institute a statute of limitations in cases involving the defense of honor and dignity or reduce the level of fines or terms of imprisonment permitted in such cases.

Moreover, on January 5, the government introduced a new law in parliament on “Issues Related to Informational-Communications Networks,” that would treat all Internet sites as mass media and therefore liable to harsh legal punishments, give powers to the courts to suspend or ban the distribution in Kazakhstan of information on foreign web sites without the participation of the foreign party, and significantly broaden the grounds on which the distribution of information through the media can be suspended or stopped. The law was passed by both houses of parliament on June 24, in spite of protests by domestic NGOs and media and the criticism of the international community, including the OSCE. As of the date of publication of this monograph, the bill was awaiting President Nazarbayev’s decision to sign it or return it to parliament for amendment.

The new legislation amending the law “On Elections,” is actually a significant step backwards for Kazakhstan. Embarrassed by the results of the 2007 elections, which produced a one-party parliament, the government’s bill introduced a mechanism for automatic – albeit token – participation of a second party in the lower house of parliament, even if only one party actually clears the legal threshold for representation. Not only does the new mechanism fail to address the underlying causes of the lack of political party representation in parliament – the unusually high, seven percent threshold for representation and serious restrictions on freedom of speech and peaceful assembly – it actually ensures that the problem will continue. Under the new law, the participation of more than two parties will only be possible if three or more parties receive at least seven percent of the vote, which, under prevailing political conditions in Kazakhstan is highly unlikely, to say the least. Such directed pluralism will reflect only the form and facade, not the content of democracy.

The newly passed legislation amending the law “On Political Parties” contains one small positive change. From now on, the discovery of invalid member signatures cannot serve as grounds for delaying a party’s registration if sufficient valid signatures are provided. Provisions lowering the number of members needed for a party to be registered, however, are merely cosmetic as the new requirement of 40,000 members with at least 600 from each region is still exceedingly high in a country with a population of only 15 million. The other changes included in the law are negative. Most egregiously, although Minister Tazhin specifically pledged that his government would ease requirements for registering a political party, the new law introduced a provision requiring nascent parties to form an organizing committee that must then be registered by the authorities. In effect, this creates a more complicated, two-stage procedure for registering first the organizing committee and only then the political party itself.

Almost immediately after the law came into effect, the government used the law to bring charges against the head of the voluntary coordinating committee for the embryonic opposition party “Alga” for running an unregistered organization. “Alga” has remained unregistered for three years because in 2007 the Ministry of Justice suspended consideration of its application for registration due to alleged problems in the list of its supporters’ signatures. As a result of the ensuing trial, the leader of the “Alga” was fined 127,300 tenge ($850) for running an unregistered organization, even though the party remained unregistered because the Ministry of Justice had suspended its registration procedure.

Then, on May 27, the Specialized Inter-District Economic Court upheld the Prosecutor’s motion to revoke the registration of the National Public Association “Alga, DCK!,” which had been formed by “Alga” party activists and was legally registered on November 17, 2007 by the Registration Service of the Ministry of Justice. The pretext for this revocation was the fact that the name of this NGO “duplicates or contains to a significant degree the name of a public association, which was liquidated for violating the laws of Kazakhstan.” (This refers to the public association People’s Party “Democratic Choice of Kazakhstan,” which was disbanded by court order in 2005.) Subsequent attempts to register the disbanded Public Association “Alga, DCK!” under the names “Alga, D&K” or “D.V.K.” were not successful. The authorities ruled that all these new names were substantially duplicative of the former name of the People’s Party “Democratic Choice of Kazakhstan.”

Thus, as a direct consequence of the adoption of the government’s amendments to the law “On Political Parties,” by the start of the second half of 2009, Alga’s activists were completely denied their right to freedom of association. They can neither finalize registration of their party nor restore their status as a national public association.

The government’s amendments to legislation on local self-government are contradictory. They propose giving mayors and governors the function of the head of the executive branch of local self-government, even though the Constitution states that they are “the representatives of the President and central government.” These amendments will in no way change the existing centralized, top-down system of government administration, provide the basis for the development of real local self-government or make it possible for the citizens of Kazakhstan to exercise their rights to participate in local self-government.

* * *

With less than six months remaining before Kazakhstan assumes the OSCE chairmanship, there is still time for the Government of Kazakhstan to implement additional reforms in order to truly fulfill its commitments to the other OSCE participating states and bring Kazakhstani law in key areas into line with the country’s OSCE commitments. In order to accomplish this, it is essential that the government work in a more open and transparent manner, giving civil society experts at home and expert international organizations a real opportunity to inform the process. At the very least, before assuming the OSCE chairmanship on January 1, 2010 President Nazarbayev should send the law on “Issues Related to Informational-Communications Networks” back to parliament for a complete review and reconsideration of its provisions, and the government of Kazakhstan should take steps to:

· Decriminalize slander and libel; drop legal provisions protecting “the honor and dignity” of state officials and providing for the shutting down of a media outlet or the confiscation of media products and equipment even for merely procedural violations of the law; simplify procedures for registering mass media companies and create an independent agency to supervise this process. Finally, anti-monopoly measures should be established in the field of mass media.

· Decrease the threshold for representation in the lower house of parliament to 3% - 4%; allow parties to conduct public outreach outside electoral campaign periods; provide for all members of the lower house to be elected in competitive elections; allow for equal participation by opposition party representatives in electoral commissions; ensure that parties, NGOs, the media and the public have access to voter lists; and amend legislation on the media, political parties, public associations, and peaceful assembly in order to bring them into compliance with international standards and pave the way for free, fair and competitive elections.

· Lower the number of members required for registering a new political party to 3,000 – 5,000; significantly ease the registration procedure, including by dropping the new requirement that parties form and register an organizing committee; pass modern and fair legislation on the financing of political parties in line with international standards and best practices; legislate the terms for public and private financing of political parties and for monitoring their spending; and amend provisions for suspending or banning parties so that they adhere to such basic principles as proportionality, legal certainty and predictability.

· Split off local governments from the central government system and vest them with real authority and the financial means they need to assert themselves vis-a-vis the central government and serve local community interests.

Kazakhstan: The 2010 Chairman of the OSCE

At the 2007 meeting of the Ministerial Council of the Organization for Security and Cooperation in Europe, which took place in Madrid in November 2007, the organization’s 56 participating States chose Kazakhstan to serve as the Organization’s chairman in 2010. This capped a four year-long campaign by the government of Kazakhstan to secure the chairmanship and will make Kazakhstan the first former-Soviet state to serve as OSCE Chairman.

Many individual experts and non-governmental groups opposed Astana’s campaign for the chairmanship, arguing that Kazakhstan’s poor record on human rights and democratization made it unfit to serve as chairman of an organization that had as a major function the promotion of these very values. They also warned that Kazakhstan’s oft-expressed hostility to OSCE work in these areas, and in particular the organization’s efforts to monitor elections in participating States, boded ill for the OSCE’s ability to carry out such work under a Kazakhstani chairmanship. In effect, they argued, making Kazakhstan the OSCE chairman was akin to putting a fox in charge of the hen house. As Dr. Robert Herman, Freedom House’s Director of Programs, put it in testimony before the Commission on Security and Cooperation in Europe of the U.S. Congress in November 2007, “The OSCE played a historic role in the fall of the Iron Curtain and the peaceful end of the Cold War. Since then, it has continued to play a significant role, particularly in promoting human rights and democratic reform in Europe and Eurasia. Today, however, the OSCE finds itself under attack, including from the governments of some participating states that seek to prevent the organization from shining a spotlight on their failure to respect their citizens’ basic civil and political rights. If these governments succeed it will be a severe blow to the universal desire for freedom and damage efforts to create a Europe democratic, whole and free. To settle for a Chairman-in-Office – such as today’s Kazakhstan – that falls so far short of international norms in terms of respect for its own citizens’ basic rights and that flouts OSCE standards, would profoundly weaken the organization’s work in support of democratic governance across the region.”[1]

Participating States’ governments interested in maintaining good relations with Kazakhstan, an increasingly important exporter of oil and gas and a self-proclaim bastion of stability in a strategically important but unstable region, were necessarily more circumspect than some outside observers. Nevertheless, the inability to reach a consensus on the Kazakhstani bid at the 2006 Ministerial Council meeting resulted in a one year delay in the decision making process. With most participating states having already agreed to support Kazakhstan by late 2007, however, the governments of the U.S., the UK and the Czech Republic were among the last of the participating states to remain unconvinced. After Kazakhstani Secretary of State Kanat Saudabayev laid out the Kazakhstani case at a meeting with the OSCE Permanent Council in September 2007, the U.S. Charge d’Affaires responded in part that: “It is important for this organization as well as for Kazakhstan that it demonstrate fully this commitment by taking actions to advance democratic reforms, including passing election laws that comply with OSCE standards and implementing these in practice, direct election of local authorities, and an easing of registration requirements for political parties.”[2] Similarly, the Portuguese Ambassador, speaking on behalf of the EU, called on Kazakhstan to proceed with reform of its electoral laws, ease the requirements for registering political parties and take “tangible steps forward” in the fields of “protection and promotion of human rights, freedom of the media, complete abolition of the death penalty, strengthening of civil society and political parties and enhancement of the judicial and law enforcement system.”[3]

In Madrid, Kazakhstani Foreign Minister Marat Tazhin helped to convince the last holdouts by giving a speech in which he explicitly committed his government to implement significant reforms in the fields named by the U.S. and EU representatives in September and then to protect the OSCE’s role in promoting human rights and democratization during Kazakhstan’s chairmanship. This speech paved the way for the participating states’ decision to name Kazakhstan chairman, though in 2010, rather than in 2009 as Astana had requested. This extra year was intended to give Kazakhstan time to fulfill Minister Tazhin’s promises to the other participating states.

Why It Matters

Whether Kazakhstan’s chairmanship of the OSCE is just another esoteric diplomatic tempest in a tea cup or an issue of real world importance turns on the answers to several questions: Does the OSCE matter anymore? Is the organization under serious threat? To what extent can the chairman affect the Organization’s work? And to what extent will the chairmanship spur reforms in Kazakhstan?

Founded in 1975 as the Conference on Security and Cooperation in Europe (CSCE), the OSCE’s mandate is to work to promote progress in the fields of security, economics and the human dimension (human rights, democratization, culture). Like other regional organizations, the OSCE has not had an easy time finding its niche in post-Cold War Europe. The organization has been least successful in the economic dimension, a fact that particularly rankles the poorer participating states from the former Soviet Union. In the political-military dimension, the OSCE has had its successes, most particularly in Bosnia, where as part of the Dayton Accord the organization was charged with overseeing regional military stabilization. OSCE police advisors have also played a positive role, particularly in the Balkans. On the other hand, the OSCE has not been successful in its efforts to resolve any of the so-called “frozen conflicts” in the former Soviet Union (Transnistria in Moldova, South Ossetia in Georgia, and the conflict between Armenia and Azerbaijan over Nagorno-Karabakh; the conflict over Abkhazia, Georgia falls under the purview of the UN). In Transnistria and South Ossetia the organization has been hampered, among other things, by the conflict between its principle that all decisions must be made by consensus and the fact Russia is both a mediator and for all intents and purposes a party to the conflicts. Thus, for example, at the 2003 OSCE Ministerial in Maastricht, Russia and Belarus were able to block consensus on a statement urging Russia to fulfill its commitment to withdraw troops from Moldova and Georgia. The dispute over the status of these troops has also led to the virtual collapse of efforts to bring into force the Adapted Treaty on Conventional Forces in Europe, which was signed with great fanfare at the OSCE Summit in Istanbul in 1999.

The area in which the OSCE has been most successful has been the human dimension. The organization’s Office for Democratic Institutions and Human Rights (ODIHR) is perhaps the most experienced election monitoring organization in the world. The OSCE was pivotal in exposing as fraudulent the initial results of the 2004 Ukrainian presidential election and in negotiating the agreement that paved the way for a new election that truly reflected the will of the people. The events in Ukraine, unfortunately, also seem to have marked a turning point in the attitude of Russia and some other increasingly authoritarian states in the former Soviet Union towards the organization. Russian unhappiness with the OSCE stretches back at least to the mid-1990s when Moscow failed in its efforts to head off NATO enlargement by proposing that the OSCE become the main regional security organization in Europe. Over the years, Russia opposed the establishment of large OSCE field missions in Bosnia-Herzegovina and Kosovo that served to constrain Serbian ambitions and criticized the closing of OSCE field missions in Estonia and Latvia, claiming those countries were not meeting OSCE standards for treatment of their national minorities. But the main reason for these governments’ attacks on the OSCE is their unease over the organization’s efforts to strengthen democratic governance and in particular its role in monitoring elections and promoting human rights in their countries.

In July 2004, the leaders of the member states of the Commonwealth of Independent States (CIS) – including Kazakhstan – issued a statement sharply critical of the OSCE. This statement claimed, in part, that the OSCE had “been unable to adapt itself to the demands of a changing world” and that it pursued “double standards,” devoting too much attention to human rights and democracy in the countries of the CIS and the Balkans, while ignoring problems elsewhere in the OSCE region. The statement pointedly attacked ODIHR, arguing that its election monitoring was “frequently politicized and does not take into account the specific features of individual countries.” The joint statement charged that OSCE field missions in the CIS were “ineffective” and that instead of fulfilling their mandate “to provide assistance to the government of the host state,” they concentrated “exclusively” on the human rights situation and criticized their hosts’ domestic political situation in an "unwarranted" manner.

In April 2005, the OSCE convened a meeting in Vienna to air the concerns of those participating states that were displeased with the Organization’s work. The chairman of the Central Election Commission of the Russian Federation, Aleksandr Veshnyakov, put these countries’ case bluntly when he told the press that: "Unfortunately, the institution of international monitoring [of elections] today is changing from an instrument assisting countries in implementing the principles of democracy into an instrument of legitimizing political decisions which concern the state of international relations with a given country. We see in this a departure from the goal of ensuring citizens' rights to participate in the electoral process. Instead, the emphasis is being placed on the political participation [by other countries] in the internal affairs [of the monitored state]."[4] In other words, the leaders of these countries are concerned that, as was the case in Ukraine, OSCE exposure of fraudulent elections could lead to the kind of “color revolutions” they fear.[5]

Because the OSCE is a consensus-based organization, there is a limit to the ability of any group of participating states to force changes that others strongly oppose. They can, however, attempt to erode that part of the organization’s work that they take exception to. Thus, Russia put such unreasonable restrictions on ODIHR that the organization decided it could not in good conscience send observers to either Russia’s 2007 parliamentary or 2008 presidential elections.

One of Kazakhstan’s main arguments in support of its bid for the chairmanship has been that it is capable of healing the growing rift within the Organization. As Secretary of State Saudabayev stated in his September 2007 address to the Permanent Council, “…as early as 2003 there were signs of a crisis beginning in our Organization, a division of countries into western ones and those ‘to the east of Vienna’. Our intention was to help overcome this division through our candidacy and chairmanship and find a new modus operandi for the Organization in these new circumstances. We all need to take into account the realities of the present day. We fear that the dividing lines already existing within our Organization are growing stronger, the geographical imbalance is becoming ever more firmly established and the prospects for the development and strengthening of the OSCE are being called into question.”[6] As Richard Weitz notes in his monograph “Kazakhstan and the New International Politics of Eurasia,” “Many of the OSCE’s most ardent supporters are counting on Kazakhstan’s diplomats to restore the institution’s prestige and influence in the former Soviet republics.[7] At the same time, the fear of creating an even larger split within the organization should Kazakhstan not be granted the chairmanship was definitely a factor during the OSCE’s extended consideration of Astana’s bid.

For their part, critics not only argue that a Kazakhstani Chairmanship risks degrading the OSCE’s work in the human dimension, they also note that recent history makes it decidedly unclear how Kazakhstan will react as OSCE Chairman to a significant anti-democratic development in another participating State. H. Knox Thames, former Counsel to the U.S. Congress’ Commission on Security and Cooperation in Europe, points out that “President Nazarbayev applauded Uzbekistan President Islam Karimov for his management of the protests in Andijan in May 2005.”[8] At the same time the Chairman-in-Office, Slovene Foreign Minister Rupel, was publicly calling for an independent investigation and the OSCE was preparing a report that would conclude that in Andijon "force was used repeatedly against unarmed civilians.”[9] In August 2008, the Chairman-in-Office of the day, Finnish Foreign Minister Alexander Stubb, engaged actively in efforts to end the fighting between Russia and Georgia and spoke out bluntly against Russia’s decision to recognize Abkhazia and South Ossetia. Meanwhile, under pressure from Moscow to support Russia’s actions in Georgia, the Kazakhstani government’s response to these same events was very cautious. This gives grounds to wonder how the Kazakhstani Chairman-in-Office will react if something similar happens on his watch.

How much any of this matters depends, in part, on how much influence Kazakhstan will actually have as Chairman. In an interview with EurasiaNet on July 14, 2008, the new head of ODIHR, Janez Lenarcic, who was Slovene Ambassador to the OSCE during his country’s chairmanship, said that his office did not look upon the upcoming Kazakhstani chairmanship with apprehension. Lenarcic stressed that the chairmanship was “not one of the OSCE’s decision-making bodies." He went on to note that, as chairman, Kazakhstan “will need the cooperation of all [OSCE] participating states.”[10]

Nevertheless, the chairmanship does provide Kazakhstan with ample opportunity to affect how the OSCE functions during 2010 and beyond, either through acts of commission (by pushing its own agenda) or omission (the OSCE tends to founder under a weak chairman and there are serious questions about Kazakhstan’s institutional readiness for the job). Among the chairman’s prerogatives, Thames identifies the following: representing the organization to other countries and international organizations; raising issues of concern to his country or like-minded participating states, without the need for a consensus decision; preparing draft agendas for the weekly Permanent Council meetings; appointing “personal representatives” to deal with specific issues (many of whom stay on beyond the end of Chairman’s one year term); designating individuals as head of Mission to OSCE field missions; and designating the “Special Coordinator” who leads OSCE election observation missions.[11]

Kazakhstan’s chairmanship will come at a crucial time for the OSCE as it struggles to remain relevant and effective and to bridge the gap among OSCE participating States on the question of the organization’s main priorities. While the chairman’s authority is constrained it nevertheless is sufficient to have a significant effect on the Organization’s work, including in the human dimension, and will be instrumental in shaping the OSCE’s response to any crises that arise in Eurasia in 2010.

Will the Chairmanship Spur Reforms?

But what if we flip the question around? Will the chairmanship have an impact on Kazakhstan? Some observers have argued that Kazakhstan’s pursuit of the chairmanship presents an opportunity to bring about important reforms in the country. As Weitz puts it, “There is also hope that, in preparing for the OSCE chairmanship, Kazakh officials will liberalize their own political practices to better conform to OSCE principles.”[12] Similarly, Thames notes that “Kazakhstani officials asserted at the 2006 Human Dimension Implementation Meeting that giving Kazakhstan the Chairmanship would help reformers in the government who support democratization overcome ‘conservative’ elements who oppose it.”[13] Thames himself, however, expresses distinct skepticism on this last point, noting that Kazakhstan made very little progress on key reforms during its campaign for the chairmanship.

The balance of this monograph will look at several major issues related to the question of whether and to what extent Kazakhstan’s pursuit of the chairmanship has to date served as a spur to improve the human rights situation and democratize Kazakhstan. We will review Kazakhstan’s commitments as an OSCE participating State, the extent to which Kazakhstani law and practice fall short of those commitments, the reform commitments Kazakhstan undertook in conjunction with its selection as OSCE Chairman, what Kazakhstan needs to do to fulfill those commitments; and what it is actually doing.

Kazakhstan and its OSCE Commitments

Along with nine other countries that had emerged as the Soviet Union collapsed, Kazakhstan was accepted into the CSCE at the second Ministerial Council meeting in Prague on January 30-31, 1992. (The three Baltic states joined earlier and Russia inherited the USSR’s seat in the organization.) Prior to accession, the Foreign Ministers of the ten countries sent identical letters to the Chairman-in-Office committing their countries to accept “in their entirety all commitments and responsibilities” contained in the organization’s key documents, starting with the Final Act of the Conference on Security and Cooperation in Europe, better known as the Helsinki Final Act. The first section of that document, the “Declaration on Principles Guiding Relations between Participating States,” commits participating states to “…promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignify of the human person and are essential for his free and full development.” At the third CSCE Follow-Up Meeting, which took place in Vienna off and on from 1986 through 1989, the participating states began to flesh out the details of this and their other Final Act commitments. In the field of human rights, the participating states agreed in Vienna that they would:

(13.1) develop their laws, regulations and policies in the field of civil, political, economic, social, cultural and other human rights and fundamental freedoms and put them into practice in order to guarantee the effective exercise of these rights and freedoms;

(13.5) respect the right of their citizens to contribute actively, individually or in association with others, to the promotion and protection of human rights and fundamental freedoms;

(13.9) ensure that effective remedies as well as full information about them are available to those who claim that their human rights and fundamental freedoms have been violated;

(16.1) take effective measures to prevent and eliminate discrimination against individuals or communities on the grounds of religion or belief;

(16.4) respect the right of these religious communities to:

- establish and maintain freely accessible places of worship or assembly,

- organize themselves according to their own hierarchical and institutional structure,

- select, appoint and replace their personnel in accordance with their respective requirements and standards as well as with any freely accepted arrangement between them and their State, solicit and receive voluntary financial and other contributions;

(23.2) ensure that all individuals in detention or incarceration will be treated with humanity and with respect for the inherent dignity of the human person;

(23.4) prohibit torture and other cruel, inhuman or degrading treatment or punishment and take effective legislative, administrative, judicial and other measures to prevent such practices.[14]

The next major step in elaborating participating states’ commitments took place in June 1990 at the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE. Whereas previous CSCE documents had drawn a link between human rights, security and prosperity, in Copenhagen, with the Cold War rapidly drawing to a close, the participating states for the first time drew a direct link between these areas and democracy. In the concluding Copenhagen Document, the participants recognized that:

“pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms, the development of human contacts and the resolution of other issues of a related humanitarian character. They therefore welcome the commitment expressed by all participating states to the ideals of democracy and political pluralism as well as their common determination to build democratic societies based on free elections and the rule of law.”[15]

The Copenhagen Document commits participating states to respect the will of the people, freely and fairly expressed through “genuine elections” as “the basis of the authority and legitimacy of all governments.” The Document goes on to commit its signers to ensure an effective division of powers, including the responsibility of the executive branch before the legislature and the independence of the judiciary; respect the right of citizens to freely form political parties; abjure from constructing legal or administrative obstacles in the way of unimpeded, non-discriminatory access to the media by all parties; and invite observers from other CSCE participating states to observer their national elections. In the field of civil rights, the participating states reiterated in Copenhagen their commitment to ensure that everyone living in their countries would have the rights to freedom of expression, peaceful assembly, association, thought, conscience and religion; to prohibit torture; and to respect the rights of members of national minorities.

The Copenhagen commitments were reiterated at the highest level in November of 1990 at the second CSCE summit in Paris. In the summit’s concluding document, the Charter of Paris for a New Europe, the participants pledged to “build, consolidate and strengthen democracy as the only system of government…” Meeting in Moscow as the USSR stood on the verge of collapse, the CSCE participating states also put paid once and for all to the Soviet contention that human rights is a strictly domestic issue, declaring that “they categorically and irrevocably declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating states and do not belong exclusively to the internal affairs of the state concerned.”

In sum, as an OSCE participating state, Kazakhstan has committed to: guarantee core human rights, including freedom of the press and expression, freedom of assembly and freedom of conscience; prevent torture and assure reasonable conditions of incarceration; allow citizens to freely form political parties; hold genuine elections; and maintain an effective division of powers. In this section we will review Kazakhstan’s performance in each of these areas up to the Madrid OSCE Ministerial Council meeting in November 2007.

Freedom of the Press and Expression

The Constitution of the Republic of Kazakhstan (Articles 20 and 39) guarantees citizens freedom of speech, creative work, and receipt and distribution of information. It specifically identifies the legal grounds under which these freedoms can be limited and states that they may only be limited to the extent necessary to ensure: a) protection of the constitutional system, b) protection of public order, c) protection of human rights and freedoms, and d) protection of public health and morals. However, the entire structure of national laws regarding information contradicts these standards as does the concentration of ownership of media companies in the hands of oligarchic businessmen who enjoy close relations with the authorities. As Freedom House noted in Nations in Transit 2008:

Most of the media in Kazakhstan are privately owned but not independent. The leading financial groups entrenched in the ruling circles own an overwhelming proportion of the country's mass media and seek to render the small number of independent media outlets noncompetitive. These business interests attempt to lure away talent from independent media channels through offers of greater material and personal security, and they portray pro-opposition media as lacking in responsibility and professionalism. Although media outlets may compete intensely with one another, they do not engage in genuinely investigative work and do not criticize the president, his close family, or other top figures within the regime.[16]

The authorities also exercise censorship over the internet, routinely blocking access to sites that publish material critical of the government or its leaders.

Kazakhstani legislation regulating the operation of the media and of journalists is among the most rigid in the post-Soviet space. The level of state regulation of the media and the threat of severe penalties for even minor violations deprive Kazakhstan’s media of any opportunity to be independent. In November 2007, while Minister Tazhin was addressing the OSCE Ministerial Council in Madrid, the Kazakhstani Criminal Code contained six articles protecting the honor and dignity of citizens, each with different provisions depending on the position of the official insulted. The Code of Administrative Violations listed more than fifty separate administrative offenses in the media sphere, for many of which the range of possible punishments included termination of the organization’s registration, the suspension or termination of an organization’s right to produce mass-media materials and the confiscation of print runs. These penalties could even be imposed for purely technical violations such as the failure to provide the government with mandatory copies of publications in a timely manner or the failure to properly identify the publisher.

Over time, the laws “On National Security” and “On Mass Media” have been frequently amended, making the requirements for the media more rigorous each time. In 2005, for example, foreign citizens were barred from assuming the position of editor-in-chief, while in 2006 procedures for registering mass media companies were toughened and the list of grounds on which the government could refuse registration was expanded. At the time of the Madrid Ministerial, a new draft law “On Mass Media” developed by a coalition of national non-governmental organizations and based on the OSCE principles had been introduced to the lower chamber of the parliament. In January, 2008, however, the government had this draft withdrawn from the Parliament before deputies could review it.

A number of changes need to be made in order to bring Kazakhstani law in the fields of freedom of expression and the media into line with international standards, including Kazakhstan’s OSCE commitments. Legislation needs to be adopted to protect, in practice, the Constitutional right to freely receive and distribute information. Slander and insult should be de-criminalized without at the same time raising civil penalties. Legal provisions protecting “the honor and dignity” of state officials should be dropped, regardless of their rank or position. Restrictions in Kazakhstani legislation on freedom of speech related to the protection of a person’s image should be rigidly limited and correspond to standard international criteria. Penalties for procedural violations should be limited and should not include the confiscation of products and equipment or the suspension or termination of operations. Only the courts should have the power to suspend a mass media firm’s operations. Journalists and mass media companies should not be held liable in cases where they are unable to verify the reliability of the information they publish if they indicate that the information is unverified. Legislative restrictions on who may occupy the post of editor-in-chief should be eliminated. Content requirements should be dropped. The procedures for registering mass media companies should be simplified and the process should be supervised by an independent agency. Re-registration requirements should be eliminated in cases of changes in the editor-in-chief, office address, thematic focus or the frequency with which a publication is issued. Finally, anti-monopoly measures should be established in the mass media sphere.[17]

Freedom of Assembly

As is the case with freedom of expression, freedom of peaceful assembly is guaranteed by the Kazakhstani constitution but severely limited by legislation, particularly by a law promulgated on March 17, 1995 entitled “On the Procedures for Organizing and Holding Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations in the Republic of Kazakhstan.” The law of December 21, 1995 “On Internal Affairs Bodies in the Republic of Kazakhstan”, the law of June 26, 1998 “On National Security of the Republic of Kazakhstan” and several sub-legislative legal acts also restrict the freedom of peaceful assembly. [18] This legislation establishes a requirement that organizers receive government authorization for all types of assemblies, which makes spontaneous protest actions responding to breaking events virtually impossible. Moreover, the law does not include any provision for individuals to file an application for government permission to hold an assembly. While reviewing applications for permission to hold a public assembly, local authorities tend to take extreme measures – such as refusing a request outright – on purely technical grounds rather than following up with the organizers to fix minor flaws in their applications. Penalties for violating the legal procedures for organizing and holding peaceful assemblies are severe, beginning with fines and moving up to administrative arrest for up to 15 days all the way to imprisonment for up to one year.

Moreover, local authorities in practically all large communities in Kazakhstan have designated special locations for the conduct of peaceful assemblies that, as a rule, are located far from city centers. Because of this, even those public assemblies that do actually take place generally pass unnoticed by the public.

Courts and law enforcement bodies are also part of the problem. In judging organizers’ appeals of local authorities’ refusals to authorize assemblies, the courts generally do not challenge the adequacy of the government’s reasons for limiting freedom of assembly. They also frequently fail to apply the principle of proportionality when determining administrative penalties for violations of legislation regulated public assemblies. Police routinely detain demonstrators even if they do not present a real threat to public safety. In fact, a person may be arrested merely on suspicion of being a participant in an assembly. In almost half of the cases in which the police have dispersed assemblies they did not warn the participants, which fosters a feeling of uncertainty and unpredictability among citizens.

In 2009, the authorities have employed various methods to prevent demonstrations by political parties, movements and public associations, including: failing to offer alternative sites after denying permission for demonstrations; claiming that other events were due to take place at the same time and location (in Aktobe the authorities used this pretext to deny applications for six planned protests by members of an opposition party in a single month); and threatening to arrest participants in a demonstration even after the organizers received permission from local authorities to hold the event. A number of people were arrested while trying to hold unregistered protests.

Among the steps that need to be taken to bring Kazakhstani legislation related to the right of citizens to peaceful assembly up to international standards are: the passage of a legislative framework making it the primary obligation of local authorities and law enforcement bodies to assist citizens in exercising their constitutional right to assemble freely rather than working against it in order to prevent so-called illegal actions; the adoption of legal provisions for holding spontaneous assemblies; the authorization of peaceful assemblies in all public locations except those adjoining the premises of state agencies directly involved in national security and public order or public health facilities; the development of new rules of professional conduct for law enforcement officers involved in maintaining public order during peaceful assemblies, including rules on interaction with organizers and participants.[19]

Freedom of Conscience

In his speech at the Madrid OSCE Ministerial Council meeting, Kazakhstani Foreign Minister Tazhin said that “one of the most important achievements of the Republic of Kazakhstan in the humanitarian sphere has been the maintenance of cross-national and cross-confessional consent in the country” and that “special attention to the issue of improving dialogue among religions and ethnic groups is a pressing need at the current time.” In reality, however, over the last seven to eight years the government of Kazakhstan has demonstrated a growing level of intolerance towards so-called “non-traditional” religions. This period has also witnessed a trend towards increasingly tough restrictions on freedom of conscience and increasing control over religious communities.

Security agencies, particularly the National Security Committee (KNB), exercise an unacceptably large influence over state policy on religion. These agencies see religion as a potential threat to national security and, therefore, actively promote adoption of repressive laws, maintain “black lists” of “harmful and destructive sects” and conduct actions to “identify” and “suppress” them. In 2006, a Committee on Religious Affairs was created within the Ministry of Justice. The Committee has an extensive range of functions and powers exceeding those of the analogous agency that existed in Soviet times.

In 2002, parliament adopted a new repressive law “On Freedom of Religion and Religious Associations” that was criticized both within the country and by OSCE/ODIHR. Later that same year, however, the Constitutional Council ruled the law unconstitutional. In 2005 three laws were adopted with the aim of “battling extremism” and “strengthening national security.” These were the laws “On Counteracting Extremism,” “On Amendments and Supplements to Legislation of the Republic of Kazakhstan on Counteracting Extremism” and “On Amendments and Supplements to Legislation of the Republic of Kazakhstan on Issues of National Security.” Taken together, these laws drastically increased legislative restrictions on freedom of conscience and religion. Among the major problem areas are: the identification of religious associations as a threat to national security; the violation of the principle of non-discrimination and equal protection under the law in that religious organizations’ liability for violations is different from that of other legal entities; restrictions on performing religious activities without state registration; and restrictions on missionary and religious education activities, the purchase and use of religious literature and objects and on the establishment and maintenance of international contacts. Religious confessions and denominations that are “non-traditional” in Kazakhstan such as the Jehovah’s Witnesses, the Baptist Council of Churches, the Hare Krishna, Pentecostals, Adventists, non-Sunni Muslims, Scientologists, etc. have been the targets and victims of all these restrictions.

In January 2007, the government of the Republic of Kazakhstan submitted to the Parliament draft amendments to national legislation dealing with religion that would toughen it even further. The government withdrew these proposals in June 2007, shortly before the issue of Kazakhstan’s chairmanship of the OSCE was to be considered in Madrid, but reintroduced them in April 2008, barely four months after being chosen to chair the OSCE in 2010. On September 24, the lower house of parliament approved the legislation and the upper house quickly followed suit.

Reintroduction of this legislation was preceded by a repressive campaign against minority religious groups that included police raids against peaceful religious congregations, the deportation of foreign missionaries for “illegal” missionary activities, the imposition of administrative fines for carrying out religious activities without prior registration, the confiscation of religious organizations’ private property and even the initiation of criminal prosecutions on espionage and terrorism charges. During December 2007 and February 2008 three trials were held in Karaganda, Shymkent and Stepnogorsk (the first two of which were closed to the public) as a result of which 54 persons were sentenced to from five to 19 and one-half years imprisonment for religious extremism and preparing acts of terror. These trials were accompanied by an extensive campaign against religious minority groups in the state-controlled mass media.

The legislation passed by the parliament was of a distinctly discriminatory and repressive nature, targeting religious minorities, small religious groups and new religious groups of all denominations. Among the discriminatory provisions included in the legislation were: the requirement for a preliminary (religious specific) examination of religious organizations’ founding documents; territorial restrictions on religious organizations’ activities as well as territorial and time limitations on their existence; the exclusion of religious organizations from the jurisdiction of the law “On State Registration of Legal Entities of Kazakhstan” and the establishment of grounds for the rejection of religious organizations’ petitions for registration in a special law; the stripping of religious organizations’ right to form associations and their right to possess legally acquired property abroad.

Other provisions of the legislation that were not in compliance with international norms included prohibitions on: carrying out religious activities without prior registration; spreading “propaganda of religious extremism” and the “use of interdenominational differences for political purposes”; missionary activities by persons who do not represent religious organizations or who have not been registered; unregistered religious groups founding, renting or maintaining facilities for religious worship and meetings; and soliciting or receiving voluntary financial and other donations from private persons and organizations. The law would have imposed complicated registration procedures for missionaries and government censorship of literature, materials and objects to be used for religious purposes. The rights of members of unregistered religious groups to hold religious rites personally or together with others would have been restricted, as would religious associations’ freedom to organize in accordance with their own hierarchical and institutional structures. Religious organizations would also have been stripped of their previous right to establish public foundations and charity organizations such as orphanages, boarding schools and hospitals.

Violation of any of these prohibitions and restriction would have resulted in severe penalties up to the prohibition of a given religious organization’s activities. Nor did the legislation include provisions for more lenient penalties (such as warnings) against individual believers and religious groups for minor offenses, even though similar provisions are included in laws that apply to other physical persons and legal entities. The legislation would have introduced collective liability for offences committed by individuals, including the suspension or termination of a religious organization’s activities based on a violation of registration rules or rules of conduct by an individual missionary or by a minor attending Sunday school without the consent of both of the child’s parents.

The draft law grossly extended the scope of power of the Committee on Religious Affairs, which would have combined such functions as: controlling religious organizations’ foundation and operations, including their state registration; imposing and administering religious examinations; approving the terms for the publication of religious literature and materials; coordinating and approving foreign religious organizations’ activities in Kazakhstan as well as candidates for leadership positions in foreign religious organizations’ branches in the country; monitoring the legality of religious organizations’ activities and assessing the extent to which they abide by the law; preparing reports on administrative offences by members of religious groups and by religious organizations; proposing to law-enforcement authorities the prohibition of activities by individuals and legal entities as well as preparing applications to the courts for the forced disbandment of religious organizations that violate Kazakhstani law.

After passage by both houses of parliament, this bill was sent to President Nazarbayev for signature. On January 8, however, he decided instead to send the draft law to the Constitutional Council for a review of its constitutionality. A number of key provisions in the bill were clearly unconstitutional and the Council ruled it unconstitutional on February 11. Among the most egregious violations were:

· The requirement that all religious groups be registered by the state violates the constitutional guarantee of freedom of conscience.

· The requirement that members of religious groups only celebrate religious rights and services and conduct religious education among themselves and in premises owned by members of the group located within the territory in which the group is registered violates not only the constitutional guarantee of freedom of conscience but also the provision stating that rights may only be limited to the extent necessary to defend the constitutional order, protect social order, the rights and freedoms of the individual, or the health and morals of the population and the constitutional ban on discrimination.

· The requirement that religious literature being imported into the country be first examined by the government violates the constitutional provision guaranteeing individuals the right to freely receive and distribute information by any method not forbidden by law and the provision detailing the only permissible reasons for abridging constitutionally guaranteed rights.^{^[20]}

While the Constitutional Council’s decision was undoubtedly positive, the human rights community in Kazakhstan believes that the existing law on religion is also of doubtful constitutionality. Moreover, the government continues to repress a variety of religious groups. In January, a local court in Almaty sentenced a Unification Church missionary, Elizaveta Drenicheva, to two years in prison for spreading “propaganda of ideas on the inferiority of certain groups of people because of their ancestral and social background.” The charges stemmed from a series of presentations explaining her church’s religious doctrines. The court based its verdict in part on “expert” testimony commissioned by the National Security Service that claimed she had espoused a doctrine that humans are imperfect and should devote their lives to preparing for the second coming of the Messiah, which could "destroy one’s personality and social and moral values.” After an intensive advocacy campaign by Kazakhstani human rights groups, the city court of Almaty freed Ms. Drenicheva in March, but did not strike down her conviction.

Also this year, Three Baptist pastors were jailed for several days for conducting unregistered worship, while other members of the church were detained, fined, and had their property confiscated. The Baptists argued that the law On Religion and Religious Organizations contradicts the Constitution of Kazakhstan and human rights-related treaties ratified by Kazakhstan that call for religious organization to be allowed to work without registration. On February 16, the Inter-district Economic Court in Karaganda region ruled that the church of Scientology in Karaganda should be closed because its activities were commercial rather than religious. Church officials noted that this pretext could be used to close virtually any religious establishment, because they all receive donations and are paid for performing religious rituals and services.

These and other similar incidents make clear that the current situation requires more than the introduction of amendments and supplements to existing legislation. It demands a conceptual revision of Kazakhstan’s current legislation on freedom of religion and the authorities’ repressive approach to religious groups. As a start, the government should amend the constitution to abolish Article 22, Clause 2, which states that: “The exercise of the right to freedom of conscience shall not condition or limit universal and civil rights and obligations before the state.” A legal framework needs to be created that is based on the premise that it is the duty of the state to ensure every citizen’s constitutional right to freedom of conscience and on the principles of separation of church and state, freedom of religious affiliation, religious tolerance and the equality of all believers and religious organization. The Committee on Religious Affairs within the Ministry of Justice should also be abolished.[21]

Preventing Torture

Over the past several years Kazakhstan has instituted a number of reforms to address the problem of torture and other cruel, inhuman or degrading forms of punishment. Kazakhstan has recently signed the Optional Protocols to the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture (CAT), and also recently entered into articles 21 and 22 to the CAT, which will allow individual complaints related to torture to be filed with the CAT Committee.

Despite these positive legislative changes, law enforcement officials continue to engage in torture, beat and otherwise abuse detainees. Unskilled at investigative work, policemen employ torture and other forms of abuse to extract the confessions that serve as the main proof of guilt in most criminal cases. In 2007, more than 55 alleged cases of torture were reported in Kazakhstan and there is every reason to believe that unreported cases far outnumber documented ones. Torture is perpetrated against citizens from all walks of life and in many different types of institutions, not just detention facilities. For example, children suffer mental and physical abuse from police officers seeking to obtain information or confessions as well as from the staff of orphanages and correctional facilities who use abuse as a form of punishment. Women make up another particularly vulnerable group; some women have been threatened with or subjected to sexual abuse while in custody.

There are also serious deficiencies remaining in Kazakhstani legislation regarding torture. When Article 347-1 of the Criminal Code was introduced in 2002 it was the first time that a definition of torture was included in Kazakhstani legislation. This article defines torture as an act “…committed by an investigator or a person conducting an investigation, or any other public official…” By limited the reference to “acts” the law leaves instigation, consent or acquiescence outside the definition of torture. Moreover, by referring only to public officials rather than using the term “persons acting in an official capacity,” which is used in the UN Convention against Torture (CAT), Kazakhstani law limits the category of people who are subject to criminal responsibility for committing torture.

Kazakhstani law also fails to clearly regulate procedures for the arrest and apprehension of suspects. The rights of arrested persons are not read at the moment of arrest but only after the arrest report has been completed, which normally takes considerably longer than the statutory limit of three hours. Similarly, the twelve hour period during which an arrestee must be allowed to contact his or her family and the 24 hour period during which they must be allowed contact with a lawyer only begin after the arrest report has been completed. Not coincidentally, it is during this initial period before the completion of the arrest report when a suspect is being held incommunicado that the worst abuses generally take place.

Kazakhstani law requires that, except in urgent cases, interrogations take place during the day. Interrogations should not last uninterrupted for more than four hours, may continue only after a break of not less than one hour and should not exceed eight hours in a single day. Here too, however, practice falls significantly short of the law’s provisions. According to information available to the group of leading Kazakhstani NGOs that prepared an Alternative Report on Kazakhstan to the UN Committee against Torture (CAT), suspects are often interrogated for many hours at a time without even being permitted a drink of water. Sometimes those under interrogation are not allowed to sit down or use a bathroom.

According to the information available to the authors of the Alternative Report, torture is mostly employed to extract confessions. The most frequent methods of torture during interrogations include: beatings, suffocation with the use of plastic bags or gas masks with the air valves closed or through the use of toxic substances, threats or the commission of acts of sexual violence, keeping a person in an unnatural posture and the illegal use of handcuffs (for example, chaining a person to a hot radiator or keeping them in a suspended position).

The practice of using torture or other forms of coercion to extract confessions is abetted by the attitude of the judiciary. In general, when defendants state in court that their confessions were obtained as a result of torture, judges tend to see this as an attempt to avoid prosecution. According to the results of an NGO monitoring of court trials during 2005–2006 funded by the OSCE/ODIHR, in 79 registered cases in which defendants filed complaints of torture, 40 percent were completely ignored by the judges. In the remaining cases only a superficial examination of the claim was undertaken, usually amounting to no more than hearing the state official accused of torture deny the allegation.

Another area of concern is the existing law and practice in Kazakhstan regarding forced placement of persons in medical institutions for a forensic psychiatric examination. Article 241 of the Criminal Procedure Code sets out quite subjective grounds for such a decision, including: “doubts regarding mental competency of a suspect or accused.” Moreover, the law fails to regulate the maximum length of time a person can be held in a medical institution or to guarantee the rights of persons subjected to such confinement, including the rights to family visits and legal counsel, or the right to be informed of the methods of medical treatment to be used and to challenge them. Persons forcibly placed in medical institutions for psychiatric evaluation are particularly vulnerable because such institutions are absolutely closed to outside monitoring.

While Article 347-1 criminalizes torture, the penalties prescribed are wholly inadequate. The punishment for acts of torture that are not committed repeatedly, by a group or do not cause severe harm is stipulated as a fine or suspension from office or imprisonment for up to five years, which does not meet the standard of the CAT. Moreover, the authorities rarely employ Article 347-1, instead tending to charge officials with lesser crimes. According to data provided to a Kazakhstani NGO by the Prosecutor General’s Office, during the 45 month period from January 2004 through September 2007, only 16 investigations were conducted under Article 347-1, and of these only nine resulted in cases being forwarded to the courts. From January 2005 through September 2007, 15 individuals were sentenced for committing acts of torture, only eight of whom were imprisoned.

Over the last several years, some progress has been made in the area of protecting human rights in penitentiary institutions. One major positive development was the transfer of pre-trial detention centers from the Ministry of Interior to the Ministry of Justice in January 2004. Unfortunately, this transfer excluded the pre-trial detention centers of the National Security Committee. Moreover, significant problems remain in practice. When a group of Kazakhstani NGOs monitored places of detention in 2006, prisoners in a number of correctional institutions complained of public humiliation, insults, the use of obscene language, battery, being stripped naked on the drill square under the pretext of searches and the arbitrary use of violence, justified as “lawful use of restraining measures against physical resistance by prisoners.” On April 16, 2007, shortly after a report of mass self-mutilation by prisoners at penitentiary facility LA №155/8 in the village of Zarechnyj of Almaty oblast, lawyers of the Kazakhstan International Bureau for Human Rights and Rule of Law, who are also members of the Civil Monitoring Commission for Almaty region visited the facility. They observed physical signs of beatings on hands, legs, backs, in the area of the kidneys and the upper part of buttocks, and bruises from prolonged use of handcuffs on prisoners. They registered 35 complaints from prisoners of ill-treatment and violence. According to these complaints, the prisoners upon admission to the penitentiary facility were beaten with batons and other means of restraint, were forced to strip naked to wash the toilets and to stand on in front of prison guards, to squat for long periods of time, and to march five hours non-stop. In cases of refusals or protests, the prisoners were heavily beaten. The beatings were undertaken by the prison guards or other inmates. Despite calls by the human rights organizations to conduct an investigation into these allegations of torture and ill-treatment, a criminal case against the prison guards was soon closed.

In 2001 the U.N. Committee against Torture reviewed the Kazakhstani government’s initial report on its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment and made 16 recommendations. Of the changes recommended, only five have so far been carried out, most importantly the passage of Article 347-1 with its legal definition of torture. Still, the majority of the Committee’s recommendations have not been implemented:

· there is still no effective mechanism to promptly, impartially and thoroughly investigate reports of torture and ill-treatment;

· the rules making evidence obtained through torture inadmissible in court are not adequately applied in practice;

· no steps have been taken to ensure the independence of the judiciary;

· the recommendations of the Committee have not been publicized.

In order to fulfill its international obligations to prevent torture, the Government of Kazakhstan should begin by bringing the definition of “torture” in Article 347-1 of the Criminal Code into compliance with the CAT. The government should introduce legislation providing people the right to a lawyer from the moment of apprehension and to require law enforcement officials to notify all persons of their rights as soon as they are detained. The government should amend the legislation to provide additional protections of the rights of those so remanded.

In order to protect the rights of juveniles, who are a particularly vulnerable group, the government should: set up a specialized juvenile justice system that meets the requirements of the UN Convention on The Rights of The Child.

It is important for the government to introduce adequate statutory punishment for those guilty of torture. Deaths resulting from torture should not be classifiable as the result of crimes committed through negligence. Kazakhstani legislation and practice need to be brought into full compliance with the UN Standard Minimum Rules for the Treatment of Prisoners. In particular, it is essential for legislation to be passed that will allow public oversight of police stations, places of police custody under the Ministry of Interior and other detention facilities, including closed medical institutions.

To protect the rights of prisoners and detainees, the government should create a specialized criminal justice body to promptly investigate all reports of torture and police brutality and integrate the Istanbul protocol principles of effective investigation of torture into legislation and regulatory acts governing the process of investigating such complaints. The burden of proof should be shifted from the defendant to the prosecution, who should have to persuade the judges that torture was not committed. Any doubts that torture might have been used should lead to the exclusion of the tainted evidence.

In criminal proceedings the defendant and his or her legal representative must have the full enjoyment of the right to freely call witnesses, present information and evidence, and have forensic examinations conducted upon his or her request.[22]

Political Parties

Over time, Kazakhstan’s laws on political parties have been amended to toughen the legal requirements and procedures for establishing, registering and running political parties. Meanwhile, the list of grounds on which a party might be banned, has grown longer while the procedure for banning political parties has been simplified. [23]

It is worth noting that, with the exception of several communist organizations, in the last 50 years only three political parties have been banned in politically pluralistic Eurasian countries. The first two were the Islamic Party Refah in Turkey and the Basque party Batasuna, both of which were accused of either calling for or employing violence or attempting a coup d’etat.

People’s party “Democratic Choice of Kazakhstan” was the third party to be banned, although it neither called for nor committed any acts of violence. It was banned by the inter-district economic court of Almaty City in 2005 for issuing a statement to the effect that it did not accept the results of the elections and expressing a willingness to call on its supporters to engage in acts of civil disobedience, none of which actually took place.

Meanwhile, opposition political parties face ever increasing problems in being registered. Kazakhstan’s law “On Political Parties” of 1996 stated that “a political party shall be established on the initiative of a group of Kazakh nationals comprising not less than ten people, summoning the founding congress (conference) of the party.” In order to be registered a party had to have at least three thousand members representing at least 50% of the country’s provinces. Under the new law “On Political Parties” adopted in 2002, however, the requirement for attendance at a party’s founding congress was upped from ten to one thousand founding members. Within two months after the founding congress, party leaders must submit to the Ministry of Justice a list of at least 50,000 party members, including at least 700 from each province as well as from Almaty and Astana. Not only are these provisions onerous, they are also open to arbitrary interpretation and implementation by the authorities. A list of members submitted by one party may be examined very carefully while other lists may be accepted without any validation at all. Moreover, Kazakhstani law does not set deadlines for the government to respond to applications for registration. As previously noted, this resulted in the opposition Alga party wait for a response to its application for registration for more than two years because the Ministry of Justice halted the registration process for an indefinite period in order to validate the party’s membership roles.

As a result of the existence of numerous and arbitrary legal restrictions, the difficulty opposition parties have in gaining access to the electronic media, legal restrictions on parties’ ability to work with voters outside of electoral campaign seasons and the high, seven percentage, threshold for representation in the lower house of parliament, the 2007 elections produced a one-party parliament, with the ruling Nur Otan party obtaining 88.5 percent of the vote. According to the official results, the Social Democratic Party finished second with a paltry 4.6 percent. And yet, a contemporaneous survey by the Center for Social and Political Research reported that 10.3 percent of respondents supported the Social Democratic Party and only 63.6 percent supported Nur Otan. This, and considerable deficiencies noted in the OSCE election monitors’ report, casts serious doubt on official results.[24]

To bring Kazakhstani legislation on political parties into line with the country’s OSCE commitments, registration requirements and procedures need to be amended. Most importantly, this requires bringing the required number of members down from 50,000 to 3,000 – 5,000, simplifying the procedure for summoning and holding a party’s founding congress, and establishing a set procedure for validating parties’ founding documents, including membership lists, using objective criteria and within a set period of time.

Another major problem is the lack of proper legislation on the financing of political parties. Legislation in line with international standards is needed to set the terms for public and private financing of political parties and for monitoring their spending. Moreover, a clear legal definition of concepts such as “campaigning” needs to be included in Kazakhstani legislation. Due to the lack of such definitions, at present any promotional or outreach activity by a party outside the context of an electoral campaign may be viewed as encouragement for voters to vote for that political party during an upcoming election, which is illegal.

Kazakhstani law sets broad grounds for suspending the activities of political parties, including “breach of Kazakhstan’s Constitution and laws”, “regular activities contradicting the charter of the political party”, or “public calls and speeches by leaders of a political party aiming at extremism.” This opens the possibility for the authorities to arbitrarily interpret the actions of opposition political parties and their leaders and abuse their power to suspend the activities of political parties. Parties may be banned for a wide range of offenses, including procedural ones.

These provisions need to be amended so that they adhere to such basic principles as proportionality, legal certainty and predictability.

Free and Fair Elections

International observers have repeatedly and severely criticized elections in Kazakhstan, including the presidential elections of 1999 and 2005, the parliamentary elections of 1999, 2004 and 2007, and the municipal elections of 2003 and 2007. ODIHR has repeatedly commented on various problematic aspects of Kazakhstani election legislation and provided comprehensive and specific recommendations for their improvement. [25] Unfortunately, at the time of the Madrid Ministerial Council meeting the Kazakhstani government had addressed virtually none of them.

Key problem areas in Kazakhstani election legislation include:

· A lack of transparency in drawing up voter lists and lack of access to the lists by parties and the public so that they may be checked for accuracy;

· The lack of opposition representation on electoral commissions;

· Provisions for the use of a system of electronic voting that does not meet requirements for transparency and accountability;

· A ban on election monitoring by foreign non-government organizations;

· A lack of transparency in counting the vote and compiling the results;

· Unclear legislative provisions that government agencies interpret subjectively;

· The appointment to the lower house of parliament of nine deputies (out of a total of 107) from the Assembly of Peoples of Kazakhstan, which contradicts the Copenhagen Document’s call for all the seats in at least in one house of parliament to be freely disputed by candidates during a general election;

· The prohibition on individuals with prior criminal records running for office regardless of the weight of their past offence;

· Unlike other states that use party list voting, candidates’ names are not listed in the order in which they will receive mandates. Instead, they are listed alphabetically and political parties only determine which of their candidates will actually take seats in the parliament after the elections. Thus, voters have no way of knowing when they vote for a party which of its candidates they are voting for.

· Finally, the law restricts candidates’ right to campaign actively during non-election periods.

In addition to these legislative deficiencies, two other very practical problems significantly detract from the fairness of Kazakhstani elections: the government’s use of so-called “administrative resources” and candidates’ unequal access to the media, particularly to nationwide radio and TV broadcasters. During the 2007 election campaign, the government brought its administrative muscle to bear in a number of ways in support of the ruling party. For example, the OSCE’s election monitors noted occasions when local authorities allowed the ruling party but not the major opposition parties to hold rallies in central locations.

During the 2007 elections, the government made provision for the first time for nationally televised debates in which all six parties fielding candidates could participate. However, the coverage of the debates was quite biased, as “the broadcasts credited Nur Otan with achieving the country's high degree of economic success and stability and portrayed the opposition as bent on causing social upheaval through misguided calls for reforms and change.”[26] The OSCE’s monitors noted that state-funded television gave considerably more coverage to the ruling party than to opposition parties, in addition to devoting one-third of its political coverage to positive reporting on the work of the president – who is simultaneously leader of the ruling party – and the government. Overall, the OSCE concluded that “apparent self-censorship by journalists, as well as a concentration of media ownership, contributed to a constrained media environment. State media gave preferential treatment to Nur Otan in news coverage.”[27]

A number of steps are necessary to bring Kazakhstan’s electoral legislation up to international standards. In the first place, the seven percent threshold for representation in the lower house of parliament needs to be substantially reduced. In addition, existing legislation needs to be amended to remove the possibility that the authorities can subjectively interpret provisions regarding such key issues as parties’ ability to conduct public outreach outside electoral campaign periods, the monitoring of elections and procedures for counting the vote. Legal provisions by which individuals from the Assembly of Peoples of Kazakhstan are appointed to a portion of the seats in the lower house of parliament should be eliminated. Clear criteria for the drawing of electoral district boundaries should be enshrined in law and the ban on Kazakhstani nationals running for office if they have any prior criminal convictions should be dropped. The current provision by which members of electoral commissions are chosen by the members of municipal councils – which are dominated by the ruling party – should be amended to ensure that all parties are fully represented on the commissions. Legal provision should also be made to ensure that interested members of all parties, NGOs, the media and the public have access to voter lists.

But changes in electoral legislation alone will not be enough to make bring Kazakhstani elections up to international standards. Since free and fair elections are only possible when broader civil and political rights are respected it will also be necessary to amend legislation on the media, political parties, public associations, and peaceful assembly in order to bring them into compliance with international standards and Kazakhstan’s commitments to the OSCE.

Separation of Powers

Although the Constitution provides for a division of power among the executive, legislative and judicial branches of government, this is one more instance in which the reality is significantly different. Extensive power is concentrated in the hands of President Nazarbayev who, under the terms of the constitutional amendments passed in 2007, is no longer bound by the previous two term limit (although it will apply to future presidents). As Freedom House reported in Nations in Transit, 2008, “…in practice, both the judiciary and the legislature remain loyal to the executive headed by the president. The judiciary seeks to protect the interests of the state and its functionaries rather than those of individuals, minorities, and the weaker strata of society.”[28] Political and economic power is concentrated among a small elite, including major financial groups closely associated with the president. “These groups exert indirect influence over legislative organs at both central and regional levels and also control the network of prominent privatized media channels. Their financial success and political influence depend on a demonstration of loyalty to the president.”[29]

The central government also completely dominates local government. Heads of local government executives at all levels are appointed by the president and government. Local councils are elected but serve primarily as rubber-stamps for the local executive. Currently, all local authority is concentrated on the oblast (provincial) level. Rayon (district) administrations hold considerably fewer powers; on the level of rural communes, local governments have almost no powers and no budgetary authority. Thus, from the perspective of local governance the power pyramid is upside down, which makes the system unstable.

Local governance is a central element in a democratic society. It should be assigned the place it deserves in both the Constitution and national legislation. Local governments should be split off from the central government system and vested with real authority and the financial and other means they need to assert themselves vis-a-vis the central government and serve local community interests. [30]

Kazakhstan’s OSCE Chairmanship Commitments

As previously noted, in order to convince the skeptics that Kazakhstan would be a worthy Chairman of the OSCE, Foreign Minister Marat Tazhin made a number of commitments on behalf of his government at the 2007 Ministerial Council meeting. In addition to promising that as Chairman Kazakhstan would respect the role of ODIHR and support the OSCE’s human dimension work, Minister Tazhin promised specific domestic reforms to address some of the problem areas described in the previous section. Regarding domestic reforms, Minister Tazhin committed Kazakhstan to the following:

In the context of [our] future Chairmanship we are going to incorporate various proposals into a consolidated bill to amend the Media law, which will reflect OSCE recommendations as well. This will be the core of the work conducted on media legislation in 2008. The Government of Kazakhstan will take into consideration the ODIHR recommendations…. In collaboration with the Office of the OSCE Representative on Freedom of the Media, the issue of reduction of criminal liability for defamation in the media is being addressed…. In 2008, concrete measures will be taken to liberalize the registration procedures for media outlets.

…with the assistance of ODIHR and the OSCE’s other institutions, we intend to take measures to reform the law “On Elections” by the end of 2008. Kazakhstan will take measures to liberalize registration requirements for political parties by the end of 2008.

In the context of the Kazakhstan’s future Chairmanship in the OSCE the state’s efforts in refining the system of local self-government will continue.[31]

Speaking before the annual meeting of the OSCE Parliamentary Assembly in Astana on July 1, 2008, Kazakhstani President Nursultan Nazarbayev repeated these promises of reform, although he added several caveats:

The potential of Kazakhstan’s Constitution – which is based on a modern democratic model – enables [us] to take some very serious steps to democratize the society. First of all, it [sic] is creation of a legal mechanism to form a parliament comprising at least two political parties. Secondly, it is creation of more favorable conditions for state registration of political parties. At the same time we have to keep in mind that creation of parties should be in line with the nation’s Constitution. Thirdly, it is enhancement of election procedures. Fourthly, we need to remove the excessive bureaucratic barriers in regulation of the country’s media. Nevertheless, the state should make sure that media do not violate human rights, do not threaten the country’s safety and do not undermine interfaith and interethnic tolerance.[32]

What steps has the Government of Kazakhstan taken to date to fulfill these commitments?

Evaluating the Overall Process

As promised by Minister Tazhin in Madrid a year earlier, on November 11, 2008 the Kazakhstani government approved a packet of draft legislation on the media, political parties, elections and local government. The government prepared these draft laws without any genuine consultations with civil society, although it did allow several NGOs to participate in preliminary technical meetings to discuss reforms of election and the media legislation. The government ignored numerous calls throughout 2008 from Kazakh NGOs and political parties, as well as from the international community, to subject the draft legislation to public and international expert scrutiny. On several occasions, civil society organizations publicly voiced their concern about the lack of transparency in drafting the new legislation. Unfortunately, after these public statements it seems that the government became even more unwilling to have an inclusive debate on the drafts. Nor was meaningful input from the public entertained during parliament’s very rapid consideration of the draft laws, which were passed by the lower house in December and by the upper house in January without any substantive changes. All four bills were signed into law by President Nazarbayev in early February.

A detailed analysis of the adopted legislation adopted at beginning of 2009 calls into question the Kazakhstani authorities’ desire to actually meet the high standards of the OSCE or follow their declared path of political modernization. The majority of the amendments are decorative or non-substantive and do not provide a serious stimulus to the development of democracy or the rule of law in Kazakhstan. A number of points in the new laws actually contradict international standards and worsen Kazakhstan’s already bad legislation in the fields of civil and political rights.

The government’s legislation on elections would “allow” a second party token representation in parliament if only one party crosses the excessively high seven percent threshold for representation in the parliament. This provision is clearly intended to avoid a repeat of the embarrassment that ensued in Astana when the president’s party won all the seats in the 2007 parliamentary elections. For reasons that will be described below, the Kazakhstani authorities’ actions to date to implement the political commitments its representative made in Madrid will not stimulate the development of true political pluralism in Kazakhstan. Moreover, in spite of the fact that that many of the problems related to the organization of elections and the political process in Kazakhstan cannot be resolved without changes in the Constitution or other laws, the amendments adopted in February are limited to amending the law “On Elections” and the law “On Political Parties.” As a result, a number of important issues were not addressed, including the composition of electoral commissions, which at present are controlled by the president’s party and the government, and the rules for counting votes, which do not guarantee the necessary level of objectivity and accuracy.

Reform of the legislation on political parties should have been directed towards simplifying registration procedures, one of the specific goals enumerated by Minister Tazhin in Madrid. Instead, the government proposed only a cosmetic reduction in the exceedingly large number of members required for formation of a political party from 50,000 to 40,000 (in a country with a total population of only 15 million). Other changes would actually complicate the process of registering a new party by levying a totally new requirement that party organizing committees also be registered. The new law does not mention a fixed period for processing a party’s application for registration. On the other hand, the introduction of provisions setting tight time limits for the work of an organizing committee can easily lead to the automatic termination of the process of registering a party registration within six months.

The least bad changes are those proposed in legislation on the media, where civil society had the greatest access to the drafting process. Nevertheless, most of these amendments are insignificant or technical in nature. The new law does away with specific provisions that have been shown to be impractical even from the point of view of a government bent on limiting the media, such as the requirements that periodicals be re-registered whenever the editor-in-chief is changed or that journalists receive a subject’s permission for using video or audio equipment in an interview. The legislation does not, however, take the far more important step of decriminalizing libel and slander, even though Minister Tazhin solemnly committed his government to work together with the OSCE to resolve this critical issue. The new legislation also fails to rescind legislative provisions that provide special protection for the dignity and honor of selected categories of officials. Finally, the government’s bill retains notorious provisions from the existing law allowing the government to completely shut down media outlets or confiscate their equipment for even minor violations, penalties that in practice are often imposed without judicial authorization.[33]

Reforming the Media Law

In late 2007, a group of deputies introduced to the lower house of parliament a draft law “On Mass Media” and draft amendments to corresponding legal acts. This legislation had been developed by a coalition of national non-governmental organizations and was based on OSCE principles. In January 2008, however, the government gave the draft law a negative assessment and had it withdrawn from the Parliament before the deputies could review it. Instead of initiating a systematic reform of all legislation related to freedom of expression and receipt and distribution of information, the government declared that, in association with civil society it would start work on amendments to the current media law. This work was supervised by the Ministry of Culture and Information, which set up a working group including representatives of six NGOs, among them, to the government’s credit, the four groups that had authored the rejected draft.

The working group met three times and the NGO participants presented a unified package of proposed amendments. At the third session, on September 17, the government presented the working group with nine official draft amendments to the law “On Mass Media,” three of which were merely linguistic alterations. During this session of the working group, the NGO representatives proposed a number of changes to the government draft. Ministry of Culture and Information representatives indicated that it would be possible to include in the draft law two of the less important provisions suggested by the NGOs. These provisions would allow for the setting of a one year statute of limitations on claims related to private non-property rights and lengthening the period after registration during which a print media company had to produce its first product from three months to twelve.

Ministry representatives rejected out of hand the more significant proposals suggested by the working group’s civil society representatives. These included:

· Introducing anti-monopoly measures in the mass media sphere.

· Reducing court fines in moral damages cases.

· Introducing a notification procedure for registration of mass media companies in place of the current authorization procedure.

· Freeing mass media firms and journalists from civil liability in cases when they operated honestly and in the public interest or could not objectively verify the reliability of published information.

· Reducing the Ministry of Culture and Information’s supervisory and administrative authority over the media.

· De-criminalizing slander and insult.

· Eliminating as a penalty the confiscation of print runs or the blocking of particular TV or radio broadcasts.

· Limiting the right to suspend or terminate the release of mass media products to cases involving the abuse of freedom of speech.[34]

With civil society’s proposals mostly excluded, the government’s draft law on media included only the following substantive changes:

· Defining the legal and social status of the media as a necessary social institution under the protection of the state.

· Dropping the requirement that electronic media be registered by the Ministry of Culture and Information.

· Dropping the requirement added in 2006 that media firms be re-registered in case of a change of its editor-in-chief or legal address.

· Allowing a journalist to appeal an official’s refusal to provide information directly to the courts without first going through the official’s supervisor.

· Dropping language that had put the sole burden in court on the journalist to prove the accuracy of the information he or she had reported.

· Dropping the one year waiting period during which a media firm closed by a decision of the courts could not apply for a new registration.

· Dropping the requirement that journalists receive a subject’s permission before using audio or video equipment to record an interview.

Even these few substantive changes, however, amount to less than meets the eye. The definition of the media as an important social institution does not, for example, bring with it a guarantee against seizure or confiscation of publications or equipment without the sanction of the courts, as was proposed by the NGO members of the working group. The dropping of the requirement for electronic media to register with the Ministry of Culture and Information will have no practical effect, as the provisions of the law “On Licensing” still include a complicated and very labor intensive process for licensing electronic media. Most of the existing requirements for the registration and re-registration of media companies will remain in force, including the requirement for re-registration in cases of a change in ownership, the legal-organizational character or name of the firm, the language of publication or broadcasting, the territory in which the firm’s product is distributed, the main themes of the firm’s product, or the frequency with which the firm’s product appears.

The provision of the law seeking to create a more level playing field for journalists who are sued in cases involving personal honor and dignity are certainly noteworthy. And yet, they are insufficient without corresponding changes in Article 951 of the Civil Code, in accordance with which the media is responsible for the information it puts out regardless of whether or not they know the information is false. Similarly, the provision to absolve journalists of the need to receive a subject’s permission for recording an interview will not have the desired effect without changes in Article 145 of the Civil Code (The Right to One’s Own Image), under the provisions of which a journalist would still need the interview subject’s permission before the information gathered by audio or video equipment could be published or broadcast.

Taken together, the recently introduced changes would at best bring about a minimal improvement in the legal regulation of the mass media.[35] But, as it transpired, the new law “On Mass Media” was not to be the government’s only legislative initiative in this field. On January 5, 2009 the government sent to the lower house of parliament another draft law entitled “On the Introduction of Changes and Supplements to Several Legislative Acts of the Republic of Kazakhstan on Issues Related to Informational-Communications Networks.” If passed, this bill would provide the government with the legal means to seriously restrict the distribution of information through traditional media and through the Internet, including both domestic and foreign sites.

The draft proposes to change the term “web site” in all Kazakhstani legislation to “Internet resource,” which would cover all materials available on the Internet. Because Kazakhstani law considers web sites to be mass media, this language change will have the effect of subjecting all material on the Internet to the same range of criminal, civil and administrative punishments as currently apply to traditional media under the Law “On Mass Media,” which, as previously noted, is one of the harshest media laws in the entire post-Soviet space.

After serious criticism of the draft bill both from within Kazakhstan and from the international community, the lower house of parliament dropped one egregious provision of the draft law. Whereas existing law gives the authority to suspend or terminate the distribution of any mass media, either domestic or foreign, to the ownership of the media and the courts, the draft law would have extended this right to the Prosecutor General. The provision removed from the bill stated that: “In cases where the violation of the law is clear and if it is not stopped quickly could cause substantial harm to the legally protected interests of society and the state, the Prosecutor General will have the right to suspend its distribution on the territory of the Republic of Kazakhstan while appealing to the courts within three-days of this decision for a ruling declaring the distribution of this information a violation of legislative acts.” The introduction of the highly subjective term “clear violation” without any definition of what constitutes such a violation would have made it quite easy for the authorities to apply the law subjectively for political reasons.

Unfortunately, in passing the draft law the lower house of parliament left intact several equally repressive provisions. For example, the draft proposes to create a special judicial proceeding to limit information presented on foreign Internet resources, without bothering to define what a foreign Internet resource is. The draft does not, for example, indicate if the deciding factor will be the use of the domain name “.kz,” the physical location of the server or of an Internet resource’s office on Kazakhstani territory. This process would begin with a petition by the prosecutor and would take place in the absence of the foreign party. It would appear that no one would even need to inform the foreign Internet resource of the charges, let alone listen to their explanation or provide information about the court proceedings or the rights of appeal.

The law would also significantly expand the already long list of grounds on which the distribution of media can be suspended or stopped, adding: “the use of media to violate the conditions for carrying out electoral agitation; activities by foreigners, persons without citizenship, foreign legal entities or international organizations that would either complicate and (or) support efforts to publicize or elect candidates, political parties, party lists, or to create a particular electoral result; the conduct of agitation during the period when it is forbidden; efforts to force people to participate in or not participate in peaceful assemblies, protests, pickets and demonstrations.” The draft would also provide for a ban on the distribution of media products “designed to incite inter-ethnic and inter-confessional hatred.” The exceedingly general nature of these grounds would in practice allow for baseless repression of Internet media. Any report on a strike, an inter-ethnic conflict or an election campaign could serve as grounds for the suspension or closing of a site.

Passage of this law in its current form would mark a significant step backwards for freedom of speech in Kazakhstan at a time when the Kazakhstani government is claiming that it is taking steps to fulfill its Madrid commitments, including in the area of media freedom.[36]

Moreover, in 2009 the government has continued to use existing legal provisions to repress both the traditional and Internet media. So far this year, at least four journalists have been the victims of physical attacks they believe may have been motivated by their journalistic activities. Fourteen criminal and 70 civil actions have been initiated against journalists and media outlets, mostly on charges of defamation or violating legal protections of honor, dignity and business reputation, and the government has closed down the magazine Director.kz and suspended the newspaper Alma-Ata Info for allegedly publishing state secrets. The paper’s owner is currently in custody awaiting trial on criminal charges. Another opposition-leaning newspaper is on the verge of having to declare bankruptcy after being fined some $200,000 in a defamation case in which the alleged defamation took the form of reporting remarks by a politician at a press conference.

Internet sites have fared equally badly. At least five major websites have suffered repeated, concentrated Distributed Denial of Service attacks, the perpetrators of which remain undetermined. Access to other sites has been blocked. Although the authorities deny involvement, some journalists are confident that the attacks reflect the ongoing efforts of the political elite to stifle freedom of expression and prevent opposition media from covering events. As journalist Maksat Tynyzhbai has noted, “It is obvious that [state Internet Service Provider] Kazaktelecom blocks ‘undesirable’ internet resources. These websites can be accessed by readers in other parts of the world. They are only inaccessible to those who use internet services provided by Kazaktelecom or companies affiliated with it.”[37]

Reforming the Political Parties Law

Contrary to the cases of the legislation pertaining to the media and elections, the government did not, after Madrid, set up an NGO-governmental working group to consider amendments to the Law on Political Parties. In October 2008, the government announced that a draft Law on Political Parties existed, but did not present the draft to the public for discussion.[38]

In effect, the adopted law “On Amending the Law on Political Parties” contains only five changes in the existing legislation on political parties: (1) lowering the number of members required for registration; (2) clarifying procedures for verifying the list of party members; (3) introducing supplementary requirements for registering new parties’ organizing committees; (4) placing a ban on citizens and organizations that receive grants from international organizations and foreign NGOs supporting political parties; and (5) requiring that in the case of a split within a political party each resulting new party meet the exceedingly high minimum membership level.

The changes lowering the number of members required for a party to be registered are cosmetic in nature. Instead of the previous requirement that a party have 50,000 members, with a minimum of 700 in each region and the two special cities, the thresholds will now be 40,000 and 600 respectively. In neither case does the law set forth objective criteria on the basis of which these numbers were determined.

The amendment clarifying procedures for verifying the signatures of party members is indeed positive. According to this amendment, it will simply be necessary for a party to provide valid signatures for the minimum number of member required by the law. Invalid signatures will be excluded from the count, whereas in the past the registration process could be held up indefinitely to investigate even a single invalid signature, regardless of how many valid signatures were provided (as in the example of the “Alga” party described above). This new procedure brings Kazakhstan’s legislation into line with international practice as referenced in OSCE documents.

Unfortunately, the proposed supplemental regulations regarding the activity of organizing committees for the founding of political parties represents a significant step away from the government’s professed goal of liberalizing requirements for registering a political party. According to the previous edition of the law, citizens who wished to create a political party might form a coordinating/organizing committee to help undertake the work of founding a party. According to the new law, however, the creation of such an organizing committee became mandatory. Moreover, the organizing committee must undergo preliminary state registration that will differ little from the actual registration of a political party. In effect, the law creates a two-stage procedure for the registration first of the organizing committee and then of the political party. Moreover, the registration of the organizing committee is only valid for six months. If within that period the organizers cannot hold a founding congress and present the authorities a list of 40,000 members the organizing committee will be liquidated and the founders will have to start again from scratch. As previously noted, shortly after the new law went into effect, the government used it to bring charges against Vladimir Kozlov, head of the organizing committee of the nascent opposition party “Alga.”

The ban on citizens and organizations receiving grants from abroad supporting political parties is not based on any objective or understandable criteria. It would be understandable if the ban referred to the use of funds received as grants, as the Constitution forbids the foreign funding of political parties. But if this is a general ban on citizens and organizations that receive grants supporting political parties then it raises a number of questions. Does this mean that someone who receives a grant from abroad may not join a political party since he would not be able to pay membership dues? The draft law speaks of grants received from international and non-governmental organizations, although grants are also provided by governments and inter-governmental organizations and not only to citizens and groups but to the government of Kazakhstan itself. How then would the question of state funding for political parties be resolved? All of this points to the poorly thought through nature of and clearly political motivation behind this provision.

Another problematic amendment is the new requirement that fractions of a political party that experiences a split meet the numerical requirement of 40,000 members with at least 600 in each region. This puts the existence of any party prone to political infighting under threat as it is hard to imagine that the fractions of a party that splits apart will be able to meet these criteria.

On the whole, it would be difficult to call the proposed changes included in the new law a liberalization of Kazakhstani legislation on political parties. Rather, they appear to represent a few minimal improvements along with several steps that toughen already restrictive legal norms. The law does not guarantee citizens’ rights to freely conduct political activity and create political parties.[39]

Reforming the Law on Elections

After the Madrid Ministerial, the Central Election Commission established a working group to consider how to reform existing legislation related to political parties. The working group included Members of Parliament, government officials, representatives from three non-government organizations (the Kazakhstan International Bureau for Human Rights and Rule of Law, Charter for Human Rights and the National Network of Independent Monitors), and representatives of the opposition political party Azat.

The working group met several times, but its meetings were limited to general discussion of election legislation reform and did not yield any concrete results. The working group participants from the NGO sector and Azat put forward a joint proposal to discuss the key issues related to Kazakhstani electoral law, specifically:

The transparency of voter lists;

· The representative nature of electoral commissions;

Discarding electronic voting until the system meets requirements for transparency and accountability;

· Ensuring full-fledged monitoring of the election process; and

Ensuring the transparency and timeliness of the vote count and compilation of the results.

The Central Election Commission summarized these recommendations in a table, which was sent to the members of the working group. However, the working group did not meet again after that and was replaced by a governmental working group under the Ministry of Justice, which proceed to draft the legislation without any outside participation or input.[40]

The most important new aspect contained in the law is the legislative embodiment of President Nazarbayev’s proposal in his speech to the OSCE Parliamentary Assembly to ensure that there will always be at least two parties in parliament. This amendment reflects Astana’s embarrassment after the 2007 parliamentary elections resulted in Kazakhstan becoming the only country in the OSCE region in which a single party – the president’s – held all the seats in parliament. Most experts, including those from the OSCE, held that the major reason for the lack of political pluralism in the Kazakhstani legislature was the institution of a seven percent threshold for representation, which is unusually high for an OSCE participating state. Together with serious restrictions on freedom of speech and peaceful assembly and a long list of other democratic rights and freedoms, this makes it almost impossible for an opposition party to win representation.

Unfortunately, however, the Kazakhstani authorities did not accept the proposal of ODIHR’s experts to resolve this problem by lowering the threshold for representation in the parliament, which is the most traditional means of stimulating political pluralism. In the vast majority of OSCE participating states, the threshold is not above 2% - 4%. Instead of this obvious and simple solution to the problem of assuring political pluralism in parliament, the government introduced a provision that “guaranteed representation of no fewer than two political parties” even if only one party exceeds the legal, seven percent threshold. In other words, if only one party exceeds the threshold, the party which receives the second highest number of votes will still receive a token number of seats in parliament even though it did not receive seven percent of the votes cast.

The introduction of this mechanism of automatic participation by a second party does nothing to address the causes of the problem, most especially the exceedingly high threshold for party representation in parliament. The Kazakhstani authorities continue to insist that such a high barrier is essential to create a stable political system. This argument is undercut by the fact that for several years now the exceedingly tough legal requirements for forming new political parties have ensured that no new players have appeared in the political arena. Thus, the maintenance of a high barrier for entry into parliament does not really make any sense from the point of view of the “stability” of the political system.

In fact, the new procedure for guaranteeing that there will be no fewer than two parties in parliament will actually guarantee that there will be no more than two. The participation of more than two parties in the lower house will only be possible if three parties each receive more than seven percent of the vote. Given the decidedly discriminatory conditions in which opposition are forced to operate, it is highly unlikely that two will be able to exceed the seven percent barrier. In such circumstances, instituting a mechanism allowing a second party into the parliament will limit that party’s role to simply being present and allowing the government to claim that Kazakhstan has a multi-party parliament. The second party will not have the opportunity to form coalitions with other parties to try to challenge the party of power since the seven percent barrier will almost certainly exclude all other parties. Such directed pluralism will reflect only the form, not the content of democracy. Without lowering the seven percent threshold for representation in parliament, any other method of guaranteeing the participation of a second political party is insufficient and will not lead to the development of political pluralism in Kazakhstan.

In this respect, it is worth noting that the new version of the law “On Political Parties” contains some new provisions on the state funding of political parties. It provides for the distribution of government funds only to those parties that are represented in the lower house of parliament. The amount of funding will be decided by parliament in each year’s budget, even though at present 100% of parliamentarians represent the ruling party. The procedure for distributing the funding allocated by parliament will be set by the Central Election Committee, which is dominated by pro Nur Otan forces.

Such a model of financing political parties combined with the maintenance of the seven percent barrier would discriminate against new parties and existing parties that do not hold seats in parliament even though, in accordance with Kazakhstani legislation, they may reflect the political views of significant portions of the population since under the newly introduced amendments to the law “On Political Parties” a new party may only be registered if it has at least 40,000 members.

Although in Madrid, Minister Tazhin promised Kazakhstan would reform its law on elections with ODIHR’s assistance, of the 29 recommendations contained in the December 18, 2007 Report of the OSCE/ODIHR Mission on the Results of the Parliamentary Elections, only recommendation number 28, which drops the requirement that foreign election observers have previous experience, is being fully implemented.

According to recommendation 20, state media should “give all parties equal attention in their coverage of political issues during the period of the election campaign” and should do so “in a neutral manner.” Instead, the legislation adopted in February states that: “media are required to provide equal coverage in terms of print space or broadcast time to information about events to promote all candidates and party lists and their registration by election commissions.” This new construction is a good example of the government’s emasculation of ODIHR’s recommendations. First, the demand refers to all media, including private media, and not just state media as ODIHR recommended. Second, the requirement is artificially limited to the media’s obligation to inform in equal measure of the promotion of candidates and party lists.

A number of other innovations in the new law are also cause for serious concern.

First, changes in Point 4 of Article 101 that “by-elections of deputies to the Maslikhat [local councils] will be held simultaneously on the last Sunday of March and (or) the last Sunday of October. In agreement with the Central Election Commission, the appropriate election commissions may designate a different date for by-elections of deputies to the Maslikhat.” As a result, election commissions will have significant discretionary authority to decide the date of by-elections, which is unacceptable as it introduces a lack of certainty into the election procedure. The law does not include any concrete criteria to regulate such deviations from the general rule that by-elections of deputies to the Maslikhat should be held simultaneously.

Second, the law also states in Point 4 of Article 28 that “local executive authorities and self-government bodies will by agreement provide the candidates with a site for meeting the voters.” The law provides that conditions for providing such a site should be equal for all candidates. At the same time the election commissions together with the local executive and self-government bodies will determine a schedule for candidate meetings with the voters at these sites and will publish it in the media. After the adoption of this amendment, the process of organizing meetings with voters will be fully controlled by the election commissions and the local executive authorities. Such a procedure means that candidates will be demeaningly dependent on the will of the local authorities regarding the terms of their election work with the voters.

Third, the newly adopted amendments drop the requirement that voters be informed a fixed period of time in advance of any changes in the hours when voting will begin and end. Thus, under the law, territorial and district election commissions will on the day of the elections be able, unilaterally and without any explanation of their reasons, to change the time of voting “if it will be necessary.”

Fourth, authorities of the Interior Ministry will not only be required to provide assistance demanded by the election commissions on Election Day but also during the entire period of the electoral campaign (Article 48, Point 2, Sub-Point 3). Thus, the law legitimizes the participation of law enforcement in the election process, which is not acceptable. The issue of ensuring security during the campaign period and on Election Day should be clearly separate from the election process.

Other changes and supplements included in the law are of a technical and editorial character. The law does not resolve the question of ensuring the real independence of election commissions (for example, through the equal representation of all political parties), does not propose measures to improve public trust in the system of electronic voting, and does not close various loopholes that allow election procedures to be manipulated on Election Day.

The government’s law also fails to amend a number of provisions of existing law that violate Kazakhstan’s OSCE commitments. Among other things, the law fails to remove:

· Unjustified limitations on the right to seek government posts, which contradict Paragraphs 7.3 and 7.5 of the OSCE’s Copenhagen Document of 1990, including the need for proof of ten years’ residence and the requirement that all candidates be members of a party, which rules out citizens running as independent candidates.

· Provisions giving parties’ the right to choose only after the elections which of their candidates will take seats in parliament, which violates Paragraph 7.9 of the Copenhagen Document.

· Provision as a result of which some seats in both houses of parliament are filled other than through the free competition of candidates in nationwide elections as called for in Paragraph 7.2 of the Copenhagen Document.

In sum, the reform of 2008 does not significantly change Kazakhstan’s legislation on elections. The reform that has been carried out by the government will not create conditions for the existence of a true multi-party system in Kazakhstan.[41]

Local Government Reform

After Madrid, the Kazakhstani government’s approach toward local self-governance changed several times. At a Senate conference in December 2007, the Minister of Justice submitted a draft law that combined provisions of the law “On Local State Government” and the draft law “On Local Self-Governance” that had been withdrawn from the Parliament in March 2006. The draft suggested preserving the existing system of centrally–appointed local state administration while also establishing locally-elected representative, executive and administrative bodies. Such duplication would have been both inefficient and unnecessarily expensive.

In May 2008, the government decided not to adopt separate laws but only to amend and supplement existing legislation through a draft law “On Amendments and Supplements to Legislation of the Republic of Kazakhstan on Local State Government and Self-Governance.” Then, however, the government changed its mind again. In July and August a Ministry of Justice working group prepared a draft law “On Local State Government and Self-Governance in the Republic of Kazakhstan,” according to which all local issues would remain under the jurisdiction of state authorities. Only at the lowest rural level would local self-governance bodies be elected by the community. The authority of these bodies would be limited to general issues and executive functions would still be carried out by appointed mayors who would continue to belong to the state government system.

On August 15, 2008 the Prime Minister stated that “local self-governance is impossible without the creation of local budgets.” And yet, the government’s draft law did not include any provision for elected local self-government bodies to have their own budgets. Instead, it suggested that they be funded out of revenues from the rendering of paid services, voluntary donations and revenues generated by the use of municipal property. Given the poverty of rural Kazakhstanis, however, it is unlikely that elected local government bodies would be able to earn much money by rendering paid services or expect much in the way of voluntary donations from local residents. Moreover, at this level local government has little in the way of community property that could be used to generate income.[42]

The government’s amendments to legislation on local self-government, which were adopted on February 9, 2009, are contradictory. They gave Akims (mayors/governors), who according to the Constitution are “the representatives of the President and government” (part 2 of Article 87 of the Constitution) the function of the head of the executive branch of local government (Point 2 of Article 2-1) and the Maslikhat the function of the legislative branch of local government (Point 2 of Article 2-1 of the law). At present, the Maslikhat are state representative organs at the local level (Article 85 of the Constitution).

The law also provided for the possibility of creating other self-government bodies, including at the local community level in accordance with procedures set by Maslihats (new chapter 3-1). However, it seems that these local community structures will not have any of the serious powers or funds necessary for them to meet international standards. In all likelihood they will be fully subjugated to the Maslihats.

These amendments will not provide the basis for the development of local self-government. On the contrary, they will totally devalue local authorities’ role in reflecting popular will by placing them within the existing centralized, top-down system of government administration. With such a system in place it will not be possible for citizens of Kazakhstan to truly exercise their rights to participate in local self-government either directly or through the Maslikhat or other organs of local self-government.[43]

Recommendations

With nine months remaining before Kazakhstan assumes the OSCE chairmanship, there is still time for the Government of Kazakhstan to implement additional reforms in order to truly fulfill its commitments to the other OSCE participating states and bring Kazakhstani law in key areas into line with the country’s OSCE commitments. In order to accomplish this, it is essential that the government work in a more open and transparent manner, giving civil society experts at home and expert international organizations a real opportunity to inform the process. At the very least, before assuming the OSCE chairmanship on January 1, 2010, we urge President Nazarbayev to send the law on “Issues Related to Informational-Communications Networks” back to parliament for a complete review and reconsideration of its provisions, and the government of Kazakhstan to take steps to:

· decriminalize slander and libel; drop legal provisions protecting “the honor and dignity” of state officials and providing for the confiscation of media products and equipment even for merely procedural violations of the law; significantly simplify procedures for registering mass media companies and create an independent agency to supervise this process. Finally, anti-monopoly measures should be established in the field of mass media.

· Decrease the threshold for representation in the lower house of parliament to 3% - 4%; allow parties to conduct public outreach outside electoral campaign period; provide for all members of the lower house to be elected in competitive elections; allow for equal participation by opposition party representatives in electoral commissions; ensure that parties, NGOs, the media and the public have access to voter lists; and amend legislation on the media, political parties, public associations, and peaceful assembly in order to bring them into compliance with international standards and pave the way for free, fair and competitive elections.

· Lower the number of members required for registering a new political party to 3,000 – 5,000; significantly ease the registration procedure, including by dropping the new requirement that parties form and register an organizing committee; pass comprehensive and fair legislation on the financing of political parties; legislate the terms for public and private financing of political parties and for monitoring their spending; and amend provisions for suspending or banning parties so that they adhere to such basic principles as proportionality, legal certainty and predictability.

NOTES

[1] Dr. Robert Herman, “Kazakhstan’s Bid to Chair the OSCE: A Fundamental Right or a Foolhardy Ambition? Testimony Before the Commission on Security and Cooperation in Europe,” October 16, 2007.

[2] Kyle Scott, “Response to the Address by H.E. Kanat B. Saudabayev, Secretary of State of Kazakhstan,” , September 20, 2007.

[3] “Statement of the European Union in Response to the Secretary of State of Kazakhstan H.E. Kanat B. Saudabayev,” , September 20, 2007.

[4] Roland Eggleston, “OSCE's Election Monitoring Criticized By Russia.” RFE/RL, April 21, 2005.

[5] This section is drawn from Dr. Herman’s testimony.

[6] Kanat Saudabayev, “Statement at the 680^th Plenary Meeting of the OSCE Permanent Council,” , September 20, 2007.

[7] Richard Weitz, Kazakhstan and the New International Politics of Eurasia, Central Asia-Caucasus Institute & Silk Road Studies Program, Johns Hopkins University-SAIS, 2008, pg. 185.

[8] H. Knox Thames, “The OSCE Chairman-in-Office and the Republic of Kazakhstan,” Helsinki Monitor, July 2007, vol. 18 no. 2, pg. 116.

[9] “Factbox: Andijon Time Line,” RFE/RL, http://www.globalsecurity.org/military/library/news/2005/09/mil-050920-rferl04.htm, 2005.

[10] Jean-Christophe Peuch, “Russia and Kazakhstan Strive to put OSCE Democratization Arm in a Sling,” EurasiaNet, , July 14, 2007.

[11] Thames, pg. 107-111.

[12] Weitz, pg. 185.

[13] Thames, pg. 116.

[14] “Concluding Document of the Vienna meeting 1986 of Representatives of the Participating States of the Conference on Security and Cooperation in Europe, Held on the Basis of the Provisions of the Final Act Relating to the Follow-Up to the Conference,” pp. 6-8 & 10.

[15] “Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE,” pg. 2.

[16] Bhavna Dave, “Kazakhstan,” in Nations in Transit 2008, Freedom House, 2008, pg. 279.

[17] Coalition “OSCE 2010,” “Progress Review: Kazakhstan’s OSCE Commitments on Democracy and Rule of Law in Light of Kazakhstan’s Upcoming OSCE Chairmanship,” , September 2008, pp. 11-14.

[18] These acts include the order of the Ministry of Internal Affairs of December 31, 1993 “On the Operation of Internal Affairs bodies with Regard to Public Associations,” the order of the Ministry of Internal Affairs of December 6, 2000 “On Affirmation of the Rules of Operation of Internal Affairs Units with regard to the Maintenance of Public Order and Security during Activities conducted by Public Associations on the Street and in other Public Locations,” and the order the Ministry of Internal Affairs of July 5, 2002 “On Affirmation of the Rules of Patrol Guard Service Units of the Internal Affairs Bodies of the Republic of Kazakhstan with Regard to Maintenance of Public Order and Security.”

[19] OSCE 2010 (September), pp. 19-21.

[20] Legal Policy Research Centre, “Conclusions on the Constitutionality of Provisions of the Law of the Republic of Kazakhstan ‘On the Introduction of Changes and Supplements to Several Legislative Acts of the Republic of Kazakhstan on Questions of Freedom of Religious Practice and Religious Organizations,’” ,

January 2008, pp. 1-4.

[21] OSCE 2010 (September), pp. 22-26.

[22] Kazakhstan International Bureau for Human Rights Bureau and the Rule of Law, Charter for Human Rights, Committee on Monitoring Penal Reform and Human Rights, Feminist League, Penal Reform International, Medianet, “Alternative Report of Nongovernmental Organizations of Kazakhstan on the Implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” www.crin.org/docs/resources/treaties/crc.33/Kazakhstan_ngo_report.doc,

[23] See “Review of Laws, Governing Political Parties to Be Established and Run in Kazakhstan in Terms of Their Compliance with International Standards, Including the Commitments to the OSCE,” Almaty, September of 2008 (in Russian).

[24] Dave, pg. 275.

[25] See “Conclusions and Recommendations by the Requirement Assessment Mission, Kazakhstan” (21/08/1999); “Final Report on Parliamentary Elections in Kazakhstan of 10^th and 24^th October 1999” (20/01/2000); “Review of Laws, Governing Procedures for Settling Disputes, Arising from the Election Procedures Applicable in Kazakhstan” (29/02/2000), “Review of Laws on Elections on the Eve of the Parliamentary Elections in Kazakhstan” (18/01/2001); “Review of Laws on Elections Concerning Disputes Over the Election Procedures, Objections to Be Raised in Relation to Elections and Sanctions to Be Imposed in Kazakhstan” (26/04/2001); “Review of Laws, Governing the Coverage of Elections in the Kazakh Media” (15/09/2001); “Review of the Presidential Decree on Pilot Election of Heads of Municipal Self-Governing Authorities” (15/09/2001); “Review of the Law On Political Parties, Passed in Kazakhstan” (23/07/2002), “Benchmarking Laws and Regulations, Restricting the Release of Results of Voter Polls” (02/2003); and “Preliminary Opinion on Supplements to Be Made to the Draft Kazakh Law on Elections” (19/09/2003).

[26] Dave, pg. 280.

[27] “OSCE/ODIHR Election Observation Mission Report,” OSCE, , 2008, pg. 2.

[28] Dave, pg. 283.

[29] Dave, pg. 273.

[30] OSCE 2010 (September), pp. 15-18.

[31] “Address of H.E. Dr. Marat Tazhin, Minister of Foreign Affairs of the Republic of Kazakhstan, at the OSCE Ministerial Meeting (Madrid, November 29, 2007),” , (emphasis as in the original).

[32] “Extracts from the speech delivered by President of the Republic of Kazakhstan

Nursultan Nazarbayev at the opening of the 17th annual session of the OSCE

Parliamentary Assembly,” OSCE Parliamentary Assembly SEC.DEL/108/08, July 1, 2008.

[33] OSCE 2010, “Status Update: Democratic Development and Rule of Law in Light of the Upcoming Kazakhstani Chairmanship of the OSCE,” , December 2008, pp. 4-11

[34] OSCE 2010 (September), pp. 12-13.

[35] OSCE 2010 (December), pp. 12-15.

[36] International Foundation for Freedom of Speech Adil Soz, “Analysis of the Draft Law of the Republic of Kazakhstan ‘On the Introduction of Changes and Supplements to Several Legislative Acts of the Republic of Kazakhstan on Issues Related to Informational-Communications Networks’ and Kazakhstan’s OSCE Obligations in the Field of Media Legislation,” February 2009.

[37] Maksat Tynyzhbai, “DDoS-attacks and blockings of Kazakhstani sites,”

[38] OSCE 2010 (September), pg. 8.

[39] OSCE 2010, “Status Update: Evaluation of Draft Laws on Elections and Political Parties in Light of Kazakhstan’s Madrid Commitments,”

January 2009, pp. 15-17.

[40] OSCE 2010 (September), pp. 4-5.

[41] OSCE 2010 (January), pp. 4-12.

[42] OSCE 2010 (September), pg. 16.

[43] OSCE 2010 (December), pg. 9.

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