1. Is Kazakhstan the right choice for the OSCE chair in 2010?
Kazakhstan was a highly controversial choice because of its poor record of adherence to OSCE human rights principles. For that reason, Kazakhstan was unsuccessful in its chairmanship bids in 2005 and 2006. In 2007, in response to concerns by participating states about this record, Kazakhstan's then-Foreign Minister Marat Tazhin pledged that the government would take several reform steps prior to assuming the chairmanship. These included amending Kazakhstan's media law, reforming its elections law, and liberalizing registration requirements for political parties by the end of 2008. Kazakhstan also agreed to incorporate recommendations by the OSCE's Office for Democratic Institutions and Human Rights (ODIHR) in election legislation. Finally, Tazhin promised that Kazakhstan's chairmanship would preserve the ODIHR and its existing mandate and refrain from supporting any future efforts to weaken this institution.
The human rights situation in the country is still troubling one month before Kazakhstan takes over the chairmanship from Greece. The government adopted several modest reforms in early February 2009 in line with Tazhin's pledges, but it did not implement more meaningful reforms and subsequently dealt a series of blows to human rights.
When Kazakhstan assumes the chairmanship on January 1, the OSCE and the public will look to it to embody and project OSCE values. So far, the government has created a difficult environment for human rights that is out of line with OSCE standards and inconsistent with leadership of an organization grounded in human rights principles.
2. Is the human rights situation getting worse or better in Kazakhstan?
In the past several years the Kazakh government has taken a number of important and positive steps, but these have not amounted to meaningful reform to address the country's human rights problems. It ratified the International Covenant on Civil and Political Rights (ICCPR) in 2006 and the Optional Protocol to the Convention against Torture in 2008, issued a declaration recognizing the competence of the United Nations Committee Against Torture to consider individual complaints, and invited the Special Rapporteur on torture to visit in May 2009. It ratified the Optional Protocol to the ICCPR, which allows individuals to file complaints to the UN Human Rights Committee. It also introduced some limited reforms to the criminal justice system, such as transferring the power to issue arrest warrants from the procuracy to judges. In July 2009, Kazakhstan issued standing invitations to UN special procedures.
But in practice, the government has shown no signs of fundamental change. Human rights groups, including Human Rights Watch, have documented a continued deterioration of human rights conditions in the country. The Kazakh government has rejected efforts by human rights groups and the political opposition to press for expanded human rights and freedoms guaranteed by international agreements and Kazakhstan's own constitution. For example, the government did not react to a draft law on freedom of assembly submitted to the president's Commission on Human Rights by several Kazakh human rights groups in September 2007. It has also ignored criticism or ideas submitted by civil society groups in various working groups discussing legal reforms. It has further tightened control over independent media and the internet, interfered with the political opposition (among other things, by refusing to register a major opposition party), and brought politically motivated lawsuits against its critics. The government has not carried out meaningful reforms guaranteeing rights in key areas such as freedom of expression, freedom of assembly, freedom of religion, and access to legal counsel.
3. Since Kazakhstan is a relatively young state, is it fair to expect it to develop democracy and human rights standards so quickly?
In its public statements, the Kazakh government often emphasizes that it has had only 18 years to develop and implement human rights standards. Yet the government also stresses the dramatic strides it has made in the same period to develop the economy. When Kazakhstan made its bid for the OSCE chairmanship several years ago, it did so as a mature member of the international community. In seeking the position, it assumed full responsibility to serve as a leader in the economic and environmental, as well as in the human and in the politico-military dimension of the OSCE. Some of the human right changes that are needed require only political will, not years of institution building. Moreover, the proposition that the government has not had enough time to develop human rights is especially unconvincing when the government takes deliberately regressive measures on human rights.
4. Does the human rights situation in Kazakhstan compare favorably with conditions in other Central Asian countries?
In discussions with Human Rights Watch, policy makers and Kazakhstan's government officials often draw comparisons among Central Asian governments' human rights practices. The atmosphere of quiet and subtle repression in Kazakhstan doesn't trigger as many headlines as more dramatic government crackdowns on human rights in some of the other countries in the region. But one could just as fairly ask why the government would want to use countries that have poor human rights records as a metric of comparison rather than countries that have good human rights records to which it might aspire.
Kazakhstan's human rights record is not in competition with the records of other states in the region as it assumes the office of OSCE chair, but with its own, voluntarily-assumed international obligations. Enforcing universal human rights principles is a core pillar of the OSCE, and the chair-in-office of the organization has a particular obligation to respect them.
5. Is media freedom respected in Kazakhstan?
The government adopted some modest media reforms but then took a number of steps backward that undermined media freedoms. In February 2009, President Nursultan Nazarbaev signed a set of amendments into law that simplify the registration process for the electronic media by dropping the requirement that they register (which had duplicated some of the requirements for the licensing process) and eliminating the requirement that all media outlets reregister in the event of a change in editor-in-chief or legal address. The amendments also made it possible for media outlets to appeal in court against denials of governmental information and allowed media workers to use audio recorders and cameras to collect information without permission of an interviewee.
But the amendments do not address broader problems with media freedoms, such as the domination by government loyalists of broadcast media outlets, threats and harassment against independent journalists for criticizing the president or government policies and practices, prohibitive penalties for civil defamation, and the criminal penalties for libel. On July 10, Nazarbaev signed another package of amendments to laws dealing with the media and the internet, under which all forms of internet content - including Web sites worldwide, blogs, and chatrooms - could potentially be considered "internet resources" and therefore subject to existing restrictive laws on expression. The law also expands the grounds for banning certain media content relating to elections, strikes, and public assemblies, using broad wording that could give rise to arbitrary interpretation.
Taken together, these developments maintain a chilling environment in which media outlets and journalists are faced with the constant threat of lawsuits and crippling defamation penalties.
Among examples this year where that threat was realized, Ramazan Yesergepov, editor of the newspaper Alma-Ata Info, was sentenced to three years in prison on August 8, for disclosing state secrets, after the newspaper published an article making corruption allegations against local authorities based on classified documents. In June, the independent Almaty weekly Taszhargan had to cease publishing after an appellate court upheld a prior decision awarding Romin Madinov, a member of parliament, 3 million tenge (about US$20,000) in "moral damages" for an article alleging that Madinov's business interests benefited from his legislative work. In September, an Almaty court ordered the weekly Respublika to pay 60 million tenge (about $400,000) in "moral damages" to the BTA Bank, which had sued the newspaper after a March article discussing the bank's possible bankruptcy allegedly cost the bank the equivalent of $45 million in deposits. The appeal is still pending, but the newspaper is not able to pay the fine and will cease publishing if the decision is upheld.
The government could have easily shown its commitment to freedom of expression by not adopting the July amendments, which were sharply criticized by the OSCE. It also could have established a cap on civil defamation penalties and ensured that investigative journalists like Yesergepov are not unjustly subject to criminal prosecution.
6. The government often portrays itself as a model of religious and ethnic tolerance. How does this square with its record on religious freedom?
Kazakhstan is home to about 40 religious confessions and nearly 4,000 registered religious communities. The majority of the population is Muslim or Russian Orthodox. The authorities only allow registered and thus state-sanctioned religions. Unregistered religious groups are by definition illegal. Those caught meeting for prayers without registration or conducting unregistered missionary activities face harassment. The authorities also label smaller religious groups, such as Jehovah's Witnesses or Hare Krishna devotees as "sects," which creates an atmosphere of suspicion about them.
In a positive development, on February 11, Kazakhstan's Constitutional Council ruled that a proposed religion law violated the constitution. One of the key elements of the ruling was its finding that certain provisions "do not ensure equality between religious communities" and that many of the provisions were vague and thus might create problems for implementation.
Local human rights groups and smaller religious communities welcomed the Constitutional Council's decision, but there is some concern that the government may attempt to restrict religious freedom as soon as international attention on the issue has subsided. Their fear is not baseless: on at least one occasion the government has enacted a law containing provisions to which the Constitutional Council had previously raised objections.
7. Doesn't Kazakhstan hold free and fair elections on a regular basis?
One of the most serious concerns about the appropriateness of Kazakhstan's OSCE chairmanship relates to its failure since independence in 1991 to hold a national election that meets OSCE standards for free and fair elections. Constitutional amendments adopted in 2007, in combination with current election legislation, will also make it even more unlikely that future elections will meet international standards. The amendments now make it possible for President Nazarbaev, who has led Kazakhstan since before independence from the Soviet Union, to run for an unlimited number of terms.
In Kazakhstan's last parliamentary elections in August 2007, no opposition parties cleared the 7 percent threshold to win seats, resulting in a parliament in which only the ruling party, Nur Otan, was represented. The president brushed off criticism, stating that the single-party parliament was a "wonderful opportunity to adopt all the laws needed to speed up our country's economic and political modernization."
Responding to this criticism in 2008, the government sent a raft of amendments to election-related legislation to parliament that, among other things, allows for parliamentary seats to be distributed to the party garnering the next largest number of votes in the event that only one party gets past the 7 percent threshold. But the amendments left unchanged some of the core problems that gave rise to this problem. For example, the 7 percent rule still exists (prior to 2002, it was 5 percent). Also, the amendments lowered the minimum number of supporters' signatures for a party to be registered from 50,000 to 40,000, a rather cosmetic reform. Prior to 2002, 3,000 signatures were required. The high number has meant that no new political parties were registered in recent years. President Nazarbaev signed the amendments into law in February 2009.
8. What happened to Evgeniy Zhovtis?
On September 3, Evgeniy Zhovtis, founding director of the Kazakhstan International Bureau for Human Rights and the Rule of Law, was found guilty of manslaughter following a motor vehicle accident in which a young man was killed. The investigation and trial leading to his conviction were marred by serious procedural flaws that denied him the right to present a defense and gave rise to concern that this human tragedy may have been politically exploited.
On July 27, the day after the accident, the authorities opened a criminal case, a normal procedure after a car accident with a casualty. The investigation initially designated Zhovtis as a witness, but changed that status to suspect the next day. Zhovtis and his lawyer were not informed about until two weeks later, a serious violation of Kazakh law. At the trial, the judge either rejected or postponed all defense petitions without ruling on them. These actions denied Zhovtis the opportunity to challenge the evidence against him, violating his right to defend himself. Zhovtis was sentenced to four years in a colony-settlement, a penal establishment allowing more freedoms than an ordinary prison.
On October 20, the Almaty Province Court upheld the verdict. Zhovtis was not allowed to attend the hearing, and again his defense team was not allowed to present certain evidence or question the expertise brought by the prosecution.
Following the appeal hearing Zhovtis was transferred to a colony-settlement in Ust-Kamenogorsk that had been established in September. On November 18, the settlement administration denied Zhovtis access to his lawyer and several visitors, claiming there was a health quarantine in the colony. The day before, Zhovtis and his fellow inmate, Tohniyaz Kuchukov, had published an open letter criticizing detention conditions and violations of their and other prisoners' rights. These rights included the right to settle outside the colony, have unlimited visitors, and sign individual working contracts. These are rights guaranteed in Kazakhstan's rules regulating colony-settlements. The violations indicate pressure by the prison authorities to force Zhovtis and Kuchukov into unfavorable work arrangements.
9. What other steps could the government have taken to demonstrate a commitment to fundamental freedoms?
Freedom of assembly is a good example. Public assemblies are tightly controlled in Kazakhstan, and the government could have made an effort to liberalize legislation on freedom of assembly, but to date there is no indication that this is on the agenda. Any public meeting of political nature that is not organized directly or indirectly by the government, or that does not support government policies, is likely to be denied a permit or broken up by police. Kazakhstan's law on public assemblies requires demonstrations as small as a one-person picket to be registered with the relevant municipality mayor's office at least 10 days in advance, and requires detailed information about the demonstration, its goals, participants, and the like.
The authorities are using this problematic law to prevent "undesirable" protests and public gatherings. For example, in April, activists with the youth human rights organization Ar.Rukh.Khak were detained when they planned to participate in a "flash mob" against the draft internet law. On September 11, Viktor Kovtunovsky, an independent journalist, was fined the equivalent of $210 for standing alone on Almaty's central square with a banner that said, "Today Zhovtis, tomorrow you." Six days later, Andrei Sviridov, another journalist, was fined for staging a similar picket.
10. What should the international community be doing about the rollback in human rights?
OSCE participating states should ensure that the government of Kazakhstan upholds its OSCE commitments and does not further undermine the credibility of the organization.
International actors, including the European Union, the United States government, and the OSCE's representative on freedom of the media, expressed their concern regarding the adoption of the internet law, the sentencing of the journalist Ramazan Yesergepov, and the fair trial violations in Evgeniy Zhovtis's case. They also underlined the need for further progress in the lead-up to Kazakhstan's OSCE chairmanship.
The OSCE Ministerial Council in Athens on December 1 and 2 provides another crucial opportunity to directly address Kazakhstan's stalled reforms and press for concrete improvements in freedom of expression, assembly, and religion. Furthermore, it is important that the OSCE participating states stay engaged with Kazakhstan during its chairmanship and use every possibility to outline steps the Kazakh government needs to take in order to implement meaningful reforms worthy of an OSCE chair.
