EVGENI ZHOVTIS

DIRECTOR, KAZAKHSTAN INTERNATIONAL BUREAU FOR HUMAN RIGHTS AND JUSTICE, THE UNITED STATES AND EUROPEAN UNION INTERNATIONAL PRIZE WINNER FOR COMMITMENT TO THE DEVELOPMENT OF DEMOCRACY AND CIVIL SOCIETY

TESTIMONY AT THE HEARINGS OF THE US CONGRESSIONAL COMMISSION ON SECURITY AND COOPERATION IN EUROPE
(THE HELSINKI COMMISSION)

May 6, 1999

Ladies and Gentlemen!

My task is difficult to accomplish within 5 to 7 minutes. I will give an overview of the current human rights situation in Kazakhstan, and the development and future of democracy in my country.

In this presentation, I will focus on how political rights and civil liberties are exercised, and on difficulties which accompany the development of an open democratic society and the rule of law.

Kazakhstan is a typical example of a post-Soviet post-totalitarian state -- part of the Soviet Union, which acquired independence in 1991.

As with most former Soviet Republics, the communist bureaucracy still has its grip on power in Kazakhstan. Having exchanged communist ideology for democratic phraseology, it has in fact preserved the typical Soviet style of administering government and society, and relies on essentially Soviet institutions.

It remains doubtful whether an open and effective market economy can be built in this environment. The political system and the style of interaction between the authorities and society remain unreformed, acquiring an even more authoritarian character.

After Kazakhstan gained independence in 1991, its government undertook several liberalizing measures, by both adopting and implementing new legislation. During 1991-1994, the new Kazakh Constitution and a number of laws were adopted. They created a limited environment for exercising basic political rights and civil liberties, including freedom of speech, freedom to exchange information, freedom of the press, association, and peaceful assembly, election legislation, freedom of movement, etc. Such political liberalization was primarily allowed because of the desire of the political leaders that the country be viewed as a developing democracy by the international community and global economic powers, so that it could attract more investments and international support during a period of difficult social and economic transition.

During that time, new opposition parties and movements, independent mass media, multiple public organizations, and a relatively competent Parliament appeared in Kazakhstan.

But it seems that by the end of 1994, Kazakh authorities learned the unspoken rules of international relations, according to which the economic and geopolitical interests of democratic industrial nations have more value than human rights and democracy in general. In order to explain occasional violations of human rights, they began referring to the period of transition, historical and ethnic peculiarities, the grave heritage of communist rule, and they found that the international community was willing to accept these inadequate explanations.

1995-1998 was a time of recoil from the political liberalization of the first years of independence. After adoption of the new Kazakh Constitution, power was largely concentrated in the hands of the President and his administration. The Parliament became an pro forma institution, having no real control over the executive branch. The judicial system remained unreformed and to a certain extent corrupt. As a result of the tender of TV and radio frequencies, independent radio and TV were practically eliminated. Several new laws limited the rights of citizens to elect and to be elected, on their freedom of association and peaceful assembly, etc.

These alarming tendencies, this backtracking from democratic development reached its peak during the 1998 –1999 presidential election campaign, which was severely criticized by democratic nations and international organizations.

Defining the status of basic human rights and freedoms, it should be noted that in general the theory and practice of legal regulation still follows the Soviet model. Laws concerning basic rights and freedoms are usually drafted by the President and its Cabinet, and then forwarded to the Parliament for adoption. The drafts are not published and not presented for the public discussion (Publication of the 1995 draft of the Kazakh Constitution and its adoption in a national referendum, as well as the recent publication of the Mass Media Regulation were exceptions to this rule). We have neither the tradition nor the current practice of political debates over proposed legislation that concern basic human rights and freedoms. Even the draft of the new election law, which had already been passed by the Lower House of the Parliament (The Majilis), has not been published, and its text was not accessible until quite recently. Such practice deprives citizens of any opportunity to have their say in passing laws, and denies political parties and movements and other public organizations any influence on public opinion with regard to government legislative projects.

Besides, although the Kazakh Constitution guarantees basic human rights and freedoms, the second level of legislation – laws, decrees, etc. – significantly limit these rights. Further and larger encroachments on these rights occur in lower levels of legal regulation, in interpretative acts and regulations as well as in the practical application of law.

I will briefly discuss the present status of individual human rights and freedoms.

Freedom of Movement.

Kazakh laws still require a so-called exit permits or exit visas. This means that even if a Kazakh citizen has a travel passport and no specific travel restrictions due to a criminal, he still cannot freely leave the country.

Extensive paperwork and an invitation from abroad is required to apply for an exit visa. The exit visa is valid for nine months or one year, and it is not free of charge. Though the permit is rarely denied, the sole existence of this procedure directly infringes on freedom of movement.

Though the Kazakh Constitution does not require Soviet-style "registration", a very similar requirement - "registration at the place of residence" - still exists. The Visa and Registration Office of the Ministry of Internal Affairs implements this registration.

The problem of political and other refugees is especially disquieting. Despite the existing (but practically non-working) Kazakh law on granting political asylum and the law on migration, which establishes refugee status, the Kazakh authorities sometimes extradite asylum seekers. In 1995, three representatives of the Uzbek opposition were handed over to Uzbek authorities (as a result, representatives of the Uzbek opposition no longer seek asylum on the territory of Kazakhstan and Russia, but try to escape to Sweden, Turkey etc.) This year three representatives of the Uigur diaspora from the Xinjiang Uigur Autonomous Region in China were extradited to China, where they may face the death penalty. Presently several other ethnic Uigurs, who migrated from China to Kazakhstan, find themselves in a similarly dangerous situation.

Freedom of Speech and Press.

Although free expression of one’s opinions is not being formally persecuted in legal theory or in practice, the tendencies are nevertheless worrisome. Only this February, Madel Ismailov, Chairman of the Workers' Movement, was released from prison after having served a one-year term. The sentence had been given for the crime of "insulting the honor and dignity of the President" (according to the Criminal Code of Kazakhstan, this as a criminal offense). His whole crime was just one offensive word aimed at the President. For one word – one year of prison!

In 1998 and 1999, new laws on national security and classified materials were adopted. As a result, the probability that a citizen may face criminal charges for expressing his or her opinion has dramatically risen. For example, information about the health and private life of the President and his family has become classified. National security is now understood as protection of national interests. This means protecting the "cumulative political, economic, social and other needs of the Republic of Kazakhstan, which are essential for the state’s capacity to insure constitutional human rights of its citizens, the values of Kazakh society, and fundamental social institutions." The wording is vague, and the monopoly of interpretation belongs to the executive branch of the government. It is therefore evident, that it will up to the state security authorities to determine whether national interests are threatened and therefore whether they should take legal action against a citizen for spreading critical information or expressing a dissident opinion. This will become an effective mechanism of limiting the freedom of speech. The draft of the Mass Media Law, prepared by the Ministry of Culture, Information and National Concord and published in April 1999 is a further corroboration that such mechanisms are being developed. According to this draft, the Ministry serves as a media regulatory authority, which can suspend without trial any publication or broadcaster for activities that "subvert national security." According to the same draft, all mass media, as well as information agencies must be registered with the above-mentioned Ministry. This way, all media is subjected to strict control. The Parliament will consider this draft law later this month.

Freedom of Conscience.

Although freedom of conscience is mainly observed, early this year, the same Ministry came up with a draft law on religious associations. This draft law is similar to the analogous law adopted by the State Duma of Russia, and it provides the same limitations for new religious denominations. (The need for a certification by local authorities that a certain religious community has been present on a certain territory for not less than ten years, etc.). Though this draft law has not been brought before the Parliament, the threat that freedom of conscience may be restricted still persists. At present, the public prosecutor’s office is inspecting documentation and religious practice of several denominations, including Jehovah’s Witnesses.

Freedom of Association.

Under present law, non-governmental public organizations must register with the department of justice. To be engaged in creation and activities of a non-registered public association is a criminal offence. In turn, the Ministry of Justice and its local offices refuse or delay registration of those political parties, movements and public organizations, which may be suspected of opposing the existing regime. At the same time, pro-government political parties and public organizations are being registered without any delay and receive all kinds of assistance. For example, we have been informed that several educational institutions in Almaty (which are financed by the state) received an oral instruction to recruit 30-50 persons into the government-sponsored political party Otan and to render it assistance in propaganda.

Under present Kazakh Constitution and the Civil Code of Kazakhstan, trade unions cannot receive assistance from abroad under the threat of criminal persecution. As a result, assistance that had been previously rendered by the AFL-CIO and international trade union organizations was forced to stop, in violation of international regulations related to the freedom of association and worker solidarity.

Freedom of Peaceful Assemblies, including those which criticize the government.

In Kazakhstan, freedom of peaceful assemblies (meetings, demonstrations, or marches) is severely restricted. Present legislation regulates all forms of this kind of civil action, including pickets and hunger strikes. Any of these actions requires permission of the authorities, which is difficult to obtain, especially in the provinces. The state offices for internal affairs have departments for relations with public organizations. In essence, they perform the role of political police, as they have direct assignment to be present at these actions, including closed membership meetings in the offices of public organizations. The authorities explain that this is needed to "prevent wrong-doing". Participants in non-authorized meetings, pickets or hunger strikes are liable to civil proceedings, resulting in fines or three to fifteen days in jail.

In my presentation, I did not touch upon the illegal methods of investigation, that is, torture as a means to acquire evidence, to which persons on remand are frequently subjected. I did not talk about the conditions in prisons. These serious problems require a separate analysis.

In conclusion, I would like to note that the present situation with basic human rights and liberties is characteristic not only for Kazakhstan, but for other CIS countries as well. The main causes seem to be the unreformed political system and the government’s lack of political will to not only declare their intent to progress towards open society and a state governed by law, but to really do so.

It is impossible to build a working economy and an affluent state without democratizing public life, without openly discussing the challenges that Kazakhstan faces on the road to independence and democracy, and without abandoning the "command-administrative" method of regulating society. To achieve these goals, one needs a responsible and accountable government, a competent, freely and fairly elected Parliament and an independent and impartial court of law. The international community should be interested in an independent and democratic Kazakhstan. We have to hope that it will help our country in this respect, and that the United States will play its role here as well.

Thank you for your attention.