Kazakhstan: International Standards on Children's Rights
In this section
Juvenile Justice in Kazakhstan
Background
Kazakhstan has the highest rate of juvenile incarceration in the region of Central Asia and the former Soviet Union: each year between 900 and 1,500 minors are deprived of their freedom, often for terms of two years or more.[1] This high figure is due in part to a criminal justice system—shared by most former Soviet countries—that holds children accountable under the same laws, agencies and courts as adults. Disturbingly, if police, prosecutors or judges make allowance for adolescent conduct by adopting less punitive options, this can reflect poorly in the statistics traditionally used to evaluate their performance.
A number of factors make this a good time for reform of the treatment of under-eighteens in Kazakhstan’s justice system (“juvenile justice”). First, several high-level officials in the criminal justice arena are concerned that the justice system is not well equipped to protect children’s rights. Second, since children’s welfare is not politically controversial, agencies such as the Ministry of Internal Affairs and the Office of the General Prosecutor are open to reform in this area. Third, the United Nations Committee on the Rights of the Child reported on Kazakhstan’s record in 2003 (view the report here). Juvenile justice is a key issue for introducing practices consistent with international standards into a criminal justice system that might otherwise be resistant to change.
In late 2001, the Justice Initiative (then COLPI) convened a seminar for government officials in Kazakhstan entitled Introducing International Standards on Children’s Rights: Juvenile Justice Pilots in Kazakhstan. The seminar led to an agreement to improve the justice system’s treatment of juveniles signed, in February 2002, by the Kazakh Ministries of Justice and Internal Affairs, the Supreme Court and the Prosecutor’s Office, as well as the Justice Initiative and the Soros Foundation-Kazakhstan. Following this agreement, a pilot project was co-designed by an expert committee of ranking government officials together with a working group of specialists who work hands-on with those criminal justice actors with the power to affect the rights of juveniles.
The project on juvenile justice in Kazakhstan has been designed to operate within the existing structures of the Kazakh justice system and seeks to assist police, investigators, prosecutors, judges and lawyers in applying standards of treatment consistent with the International Convention on the Rights of the Child (CRC). The application of a model approach to juvenile suspects and defendants in two pilot locations will provide a basis for replication elsewhere.
Objectives
The pilot models attempt to ensure that the treatment of juveniles in the Kazakh criminal justice system complies with international standards. In particular, they aim to provide every arrested juvenile with a lawyer from the point of arrest to ensure protection of their rights—to silence; (conditional) pretrial release; and a fair trial, including the right not to self-incriminate. The models involve a range of actors, including the police, the prosecution and the judiciary as well as private lawyers and social workers. The pilots focus on four factors: the accountability of law-enforcement and the courts; their observance of human rights; the use of pretrial detention; and access to legal aid. The Kazakh authorities anticipate that exposure to applied human rights standards in the criminal justice system will engender increased respect for justice among Kazakhstan’s next generation of adults.
Activities
The pilot project has been launched in two districts—Almaty and Karasaiiskii—to establish a model system of justice for juveniles accused of crimes.
Project recommendations were drawn up on the basis of original research, following negotiations with the working group. These will be amended and adapted to address specific issues highlighted during the project’s execution. Procedures were established for recording data on juvenile suspects and their treatment at every stage of the criminal justice process, from arrest through sentencing or acquittal. Police officers, prosecutors and judges were selected for specialized work with juveniles in the pilot regions, and the Justice Initiative and Soros Foundation–Kazakhstan selected lawyers and social workers on a competitive basis.
Following an intensive five-day training seminar for implementing personnel, the project was launched on March 17, 2003.
In the first six months, regular contact between the agencies and professions involved had already raised important questions about the justice system in Kazakhstan, demonstrating that there has been little shared understanding about the very meaning of “human rights” and “juvenile justice” among most criminal justice actors. Daily collaboration in the project pilot sites among law-enforcement, defense attorneys, judges and social workers is leading gradually to the identification of disincentives to rights compliance as well as to short- and long-term solutions.
Results to date are encouraging:
· The project has activated the right to counsel as a matter of policy for the first time in all juvenile cases in the Auezovsky district of Almaty. Moreover, law enforcement officers are not just formally contacting a limited pool of attorneys they believe compliant with their wishes. Rather, they consistently call in attorneys specially trained in juvenile rights from a duty roster compiled as part of the project. In the Auezovsky district, on three occasions lawyers were called directly to the scene of the crime, prior to the defendant’s transfer to the police station. In all, as of September 2003, the project lawyers had represented 61 juveniles in the two pilot districts. In only one case was a defendant held in custody from the moment of arrest. Lawyers have unanimously reported that those judges and police who attended the project training sessions are noticeably more humane and respectful and less inclined toward punitive measures than others.
· Parents or guardians are present during the earliest stages after a juvenile’s arrest, before police interrogation takes place, in 90% of cases in which the project lawyers have been involved, up from 50% in 2002, according to Ministry of Internal Affairs statistics. The project has ensured the presence in all cases of a defense team—consisting of a lawyer and social worker—whose efforts to track down parents or guardians have been generally successful.
· The project has redefined the moment of “arrest” for purposes of triggering the right to counsel and related rights. As a rule, police have observed the project’s definition of “arrest” as occurring from the moment at which the defendant is not at liberty to leave, rather than from the moment of a filing of an Arrest Certificate, which can take place many hours after the juvenile has been in de facto police custody. With only a few exceptions, interrogations have taken place only after private consultations between attorney and client.
· Police are re-examining the practice and usefulness of interrogation immediately after arrest. Police are, for the first time in their careers in most cases, questioning whether the time-worn practice of interrogating defendants at the first opportunity is in fact necessary. The realization is that the first interview with under-eighteen defendants might just as productively be deferred to a time when the individual is less shaken and more aware of the risks confronting him/her. This recognition would discourage the use of detention as a technique to persuade defendants to submit to questioning as a precursor to release. Moreover, police in the pilot areas are discovering that lawyers and social workers assigned to individual cases can facilitate meetings for them where necessary.
· Police, prosecutors, judges, defenders and top-level government officials and policy-makers are engaged in a running dialogue on juvenile and human rights. Typically the purview of legislators, ministry officials and cabinet members, this is the first time that professionals involved in the daily administration of justice have had ongoing and open access to policymakers on issues that touch them directly. Criminal justice actors at all levels find themselves working to make human rights a true force, rather than a rhetorical flourish, in the justice system.
· Project lawyers and social workers are increasingly committed to upholding their client’s rights. The fifteen lawyers involved in the project are coordinating their practice standards, submitting motions in writing, citing international standards in their motions and conferring on standardizing remedies to abuses in the system. The social worker assistants, who provide background information on defendants enabling an individualized assessment of each juvenile defendant, have become devoted child advocates, searching diligently for information to supplement the sketchy, generally negative, information immediately available to police.
Future steps include:
Public awareness campaign
A comprehensive public awareness campaign on the need to establish a functional juvenile justice system in Kazakhstan will build on the results of the project’s first year. It will focus on the benefits of a juvenile justice system to the public at large, the status of children in prisons and on the streets, and the ineffectiveness of current government approaches to dealing with juveniles.
Developing recommendations to amend the law
Ultimately, the project aims to provide hard data and practical experience on the basis of which the Working Group and Expert Committee can propose amendments to the Criminal and Criminal Procedure Codes and to regulations affecting the rights of juvenile defendants and offenders. Such changes will seek to maximize the observance of human rights in the daily workings of the criminal justice system as it applies to juvenile suspects and defendants.
Partners
Kazakh Bureau for Human Rights and Rule of Law
Kazakh Ministry of Internal Affairs
Kazakh Ministry of Justice
Office of the General Prosecutor, Kazakhstan
Soros Foundation-—Kazakhstan
State and Legal Affairs Division of the Administration of the President, Kazakhstan
Supreme Court of Kazakhstan
Women Lawyers of Kazakhstan.
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[1] Alternative Report of Non-Governmental Organizations of Kazakhstan with Commentaries to the Initial Report of the Government of Kazakhstan on Implementation of the Convention on the Rights of the Child, Ratified by Kazakhstan in 1994, dated June 24, 2002. Available
here. [back]