Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee previously noted that according to the Criminal Code of 3 July 2014, persons convicted for penal offences with penalties of correctional work or community service are under the obligation to perform labour (sections 42 and 43 of the Criminal Code). The Committee notes that the penalties of restriction of freedom and deprivation of liberty (provided for under sections 44 and 46 of the Criminal Code, respectively) also involve compulsory labour, under the conditions set out in the Executive Penal Code of 5 July 2014 (sections 63(2) and 104(2)(1)).

Article 1(a) of the Convention. 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. Criminal Code. In its previous comments, the Committee noted a number of provisions of the Criminal Code, under the terms of which certain activities might be punished by sentences involving an obligation to perform labour in circumstances which are covered by the Convention. The provisions in question are as follows:

• -section 174, which provides for penalties of restriction of freedom or deprivation of liberty for the incitement of social, national, gender-based, racial, class or religious discord;
• -section 400, which establishes penalties such as a fine, correctional work, community work or remand in custody in case of violation of the procedure for organizing and holding meetings, rallies, pickets, street marches and demonstrations;
• -section 404, which establishes penalties such as a fine, correctional work, restriction of freedom, deprivation 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 activities of illegal social and other associations.

The Committee noted the Government’s indication 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 requested the Government to ensure in practice that the provisions of sections 174, 400 and 404 of the Criminal Code were applied in a manner so as to ensure that no penalties involving compulsory labour were imposed as a punishment for holding or expressing political or ideological views.

The Government indicates in its report that, according to the Supreme Court of Kazakhstan, in the first half of 2019, 19 people were convicted under section 174 of the Criminal Code, including six who were sentenced to imprisonment and ten to restriction of freedom. The Government states that no cases were prosecuted under sections 400 and 404. The Committee notes the information in the compilation report prepared by the UN Office of the High Commissioner for Human Rights (OHCHR), for the Universal Periodic Review of November 2019, that the Special Rapporteur on terrorism observed that section 174 of the Criminal Code was the most commonly used against civil society activists, particularly against religious organizations (A/HRC/WG.6/34/KAZ/2, paragraph 25). The Committee also notes that, according to the 2017 Report “Defamation and Insult Laws in the OSCE Region: A Comparative Study” of the Organization for Security and Co-operation in Europe (OSCE), section 174 of the Criminal Code has been increasingly widely used against critical activists, including atheist writers (page 29). Moreover, section 174 of the Criminal Code has been applied in cases concerning criticism of policies pursued by the president of a foreign state (page 132).

Referring to its General Survey on the fundamental Conventions, 2012, paragraphs 302 and 303, the Committee points out that the range of activities which must be protected from punishment involving compulsory labour, under Article 1(a), comprises the freedom to express political or ideological views (which may be exercised orally or through the press and other communications media), as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and which may also be affected by measures of political coercion. It also emphasizes that the Convention does not prohibit the application of penalties involving compulsory labour to persons who use violence, incite violence or prepare acts of violence. The Committee therefore requests the Government to take the necessary measures to ensure that no penalties involving compulsory labour, including compulsory prison labour, correctional work or community service, are imposed in law and in practice, on persons who peacefully express views ideologically opposed to the established political, social or economic system, for example by clearly restricting the scope of sections 174, 400 and 404 of the Criminal Code to situations connected with the use of violence, or by suppressing sanctions involving compulsory labour. The Committee requests the Government to provide information on any progress made in this regard, as well as information on the application in practice of the sections referred to above, specifying the number of prosecutions made under each provision, the grounds for prosecution, and the type of penalties imposed.

The Committee is raising other matters in a request addressed directly to the Government.