Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Abolition of Forced Labour Convention, 1957 (No. 105) - Kazakhstan (Ratification: 2001)

The Committee notes that the Criminal Code of 3 July 2014 entered into force on 1 January 2015. The Committee notes that persons convicted for penal offences with penalties of correctional work or community service are under the obligation to perform compulsory labour. According to section 42 of the Criminal Code 2014, correctional work involves hiring a convicted person to work at the existing main place of work. Section 43 of the Criminal Code refers to the penalty of community service, which consists of a convicted person completing unskilled socially useful work for free and is organized by the local executive authorities to take place in public places. Furthermore, according to section 48 of the same Code, the penalty of deprivation of liberty can involve compulsory labour.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously requested the Government to provide information on the application in practice of a certain number of provisions of the Criminal Code and of the Code of Administrative Offences under which sanctions involving compulsory labour may be imposed in circumstances that may fall under the scope of Article 1(a) of the Convention.

1. Criminal Code. The Committee notes the Government’s indication that the new Criminal Code which entered into force on 1 January 2015, amends certain provisions to which the Committee previously referred. Section 164 in the old version of the Criminal Code has been replaced by section 174 on the incitement of social, national, gender-based, racial, class or religious hatred and which provides for penalties of deprivation of liberty, with no alternative punishment measures in the form of correctional work or community work. Section 400 of the Criminal Code, which was section 334 in the old version, establishes penalties such as a fine, correctional work or community work, remand in custody in case of violation of the procedure for organizing and holding meetings, rallies, pickets, streets marches and demonstrations. Finally, section 404 of the Criminal Code replaces section 337 in the old version and establishes penalties such as a fine, correctional work, restriction of liberty, with forfeiture of the right to hold certain posts or to engage in certain activities in case of forming, leading and participation in the activities of illegal social and other associations. The Committee notes the Government’s information on the application in practice that in 2015, there were 47 offences under section 174 of the Criminal Code out of which three cases were submitted to court, and 44 cases were discontinued.

The Committee notes that in his Report of 16 June 2015, the Special Rapporteur on the rights to freedom of peaceful assembly and of association of the Human Rights Council observed that the right to peacefully assemble, hold meetings, rallies and demonstrations, street processions and pickets is guaranteed by the Constitution. However, examining a number of restrictions on the enjoyment of these rights in practice, the Special Rapporteur considered that the Government’s approach to regulating assemblies renders that right meaningless. He also referred to the penalties provided for under section 400 of the Criminal Code for participation in “illegal” assemblies and considered that they impose disproportionately severe sanctions and can include the deprivation of liberty (A/HRC/29/25/Add.2, paragraphs 52–56). Referring to its General Survey of 2007 on the eradication of forced labour, the Committee recalls that certain limits to freedom of peaceful assembly may be imposed by law for the purpose of securing recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. The Committee reminds the Government that restrictions on the freedom of peaceful assembly and their enforcement with penal sanctions involving compulsory labour shall be exceptional. Moreover, if those restrictions are too narrow, they may lead to the imposition of penalties involving forced or compulsory labour (paragraphs 153–155). In light of the above comments, the Committee requests the Government to ensure in practice that the provisions of sections 174, 400 and 404 of the Criminal Code are applied in a manner so as to ensure that no sanctions involving compulsory labour are imposed as a punishment for holding or expressing political or ideological views. Please provide information on the application in practice of these provisions of the Criminal Code indicating the number of prosecutions, the sanctions imposed and the grounds for prosecution.

2. Code of Administrative Offences. In its previous comment, the Committee noted that, under section 181-1 of the Code of Administrative Offences “violation of the procedure for the organization and conducting of public gatherings, meetings, street marches and demonstrations” is punishable with administrative arrest for a term of up to 15 days. According to section 322 of the Code of Administrative Offences, administrative arrest involves an obligation to perform labour under the supervision and control of local authorities. The Committee requested the Government to provide information on the application in practice of section 181-1 of the Code of Administrative Offences.

In its report, the Government indicates that in order to respect the procedure to hold a peaceful action, prior permission must be obtained from the local authorities. Thus, a permission is needed for gatherings in public places but there are no restrictions or conditions on gatherings on private premises. The Government also indicates that, in 2015, 109 actions were held, in which 4,719 people participated and 75 of those actions were unauthorized. The current legislation does not contain any conditions or restrictions on covering public gatherings in the mass media or on observing them and, in practice, no journalist or observer has filed a complaint on the restriction of their rights during a public gathering in recent years. The Government stresses that despite the fact that a significant number of events were held in violation of the law, the organizers and participants of protests are generally subjected to awareness-raising measures and that administrative penalties are applied only in exceptional cases. Administrative penalties under section 488 of the Code of Administration Offences, which establishes liability for the violation of the Kazakh law on the procedure for organizing and holding peaceful meetings, rallies, marches, pickets and demonstration, were imposed on only 19 of the total number of people who participated in unauthorized action.

The Committee takes note that in the abovementioned report, the Special Rapporteur on the rights to freedom of peaceful assembly and of association expressed his concern that, participants in unauthorized assemblies seem to have been increasingly subjected to intimidation, fines, imprisonment and administrative sanctions (paragraph 12). Noting that according to section 488 subsections 1 and 3 of the Code of Administration Offences, a sanction of administrative arrest, which involves compulsory labour may be imposed for the violation of the procedure for organizing and holding peaceful meetings and rallies, and that the Government confirms that this provision has been used by the courts, the Committee requests the Government to ensure that persons who peacefully assemble are not subject to penalties involving compulsory labour. The Committee also requests the Government to indicate the sanctions imposed on participants in the unauthorized actions held in Kazakhstan.

Law on Social Associations. The Committee previously noted that, according to section 22 of the Law on Social Associations of 31 May 1996, individuals (including officials in state agencies and members of the governing body of a social association) may be held liable for violation of the provisions of this Law. The Committee requests the Government once again to clarify the scope of such liability, indicating the applicable sanctions.

Article 1(c). Sanctions for violations of labour discipline. The Committee previously noted that, under section 371 of the Criminal Code 2015, a failure to execute or improper execution by an official of his/her duties as the result of unscrupulous or negligent attitude towards service, if this entails significant violation of the rights and legitimate interests of citizens or organizations, or interests of the society or the State, is punishable by correctional labour, or by compulsory participation in public works, or by detention under arrest. The Committee asked the Government to provide information on its application in practice of this provision. Noting that the Government’s report contains no information on this issue, the Committee again requests the Government to supply information on the application of section 371 of the Code in order to ascertain that this provision is not used as a means of labour discipline within the meaning of the Convention. Please, provide details of court decisions handed down, the number and nature of sentences applied and the grounds for prosecution.

Article 1(d). Penalties for participating in strikes. The Committee notes that section 176 of the Labour Code of the Republic of Kazakhstan of 2015 defines a strike as illegal “in the period of martial law, emergency or special measures introduced under the law of Kazakhstan on national emergencies; at military units of the armed forces of Kazakhstan, or other military establishments and entities authorized to deal with the national defence, national security, emergency recovery, rescue operations, fire suppression, disaster prevention or response; at special public and law enforcement bodies, at hazardous industrial facilities, at ambulance and first aid stations” and that “persons provoking further strike action recognized as illegal by the court shall be liable under the law of Kazakhstan”. The Committee also notes that section 177 of the Labour Code 2015 states that “where a strike has been recognized illegal by the court, the employer may bring disciplinary action against the workers involved in organizing or holding of the strike”. The Committee requests the Government to provide information on the scope of the liability provided for under of section 176 of the Labour Code, as well as on any sanction that may have been imposed under this provision on persons peacefully participating in a strike defined as illegal.