Part I performance of norms of the international covenant on economic, social and cultural rights by republic of kazakhstan 4




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The alternative report

OF The non-governmental organisations OF KAZAKHSTAN


ON performance OF THE

NORMS OF THE INTERNATIONAL Covenant

On ECONOMIC, SOCIAL AND

CULTURAL RIGHTS by REPUBLIC OF Kazakhstan


Astana city, 2009


Content


FOREWORD 3

PART I PERFORMANCE OF NORMS OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS BY REPUBLIC OF KAZAKHSTAN 4


ARTICLE 1. 4


ARTICLE 2. 5


ARTICLE 6. 8


ARTICLE 7. 9


ARTICLE 9. 13


ARTICLE 10. 15


ARTICLES 11. 17


ARTICLE 12. 20


ARTICLE 13 27

ARTICLE 15. 29


PART II

RECOMMENDATIONS 30


THE FOREWORD

This Alternative Report is devoted to compliance of the Republic of Kazakhstan (hereinafter - RK) of the International Covenant on the Economic, Social and Cultural Rights (ICESCR).

ICESCR it is accepted by the resolution 2200 A (XXI) of the General Assembly in December 16, 1966, entered into force in January 3, 1976.

ICESCR is ratified by the Law of the RK in November 21, 2005 87-III, entered into force for RK in April 24, 2006 (the letter of the Ministry of Foreign Affairs of RK, dated 27.06.06, 12-1-2/1445).


The Report of the Republic of Kazakhstan «Report on performance of the International Covenant on the Economic, Social and Cultural Rights by the Republic of Kazakhstan » (hereinafter - State Report) is prepared by the Ministry of Labor and Social Protection of population of the RK (hereinafter- MLSPP) with participation of the interested ministries, departments, the National centre on human rights, the Commission on Human Rights and the National commission on family affairs and the gender policy under the President of the RK and approved by Governmental Decree of RK No-1035, dated 02.02.2007.

The Alternative Report covers the period from the moment of ratification of the International Covenant on the Social, Economic and Cultural Rights (21.11.2005) to the moment of submission of the State Report of RK to the Secretary General of the United Nations (13.11.2007). This Report is prepared, as alternative to the State Report.


Report structure:

the Part I of the Report contains the information on performance by Kazakhstan of norms of the International Covenant on the Economic,Social and Cultural Rights

the Part II of the report contains recommendations of the non-governmental organizations of Kazakhstan.


Authors of the report:

Preparation and writing of the Alternative report was carried out by the working group established by Public Fund (PF) «Fund for development of parliamentarism in Kazakhstan».

The members of the working group were:


  • Ms Battalova Zauresh Kabylbekovna, President of the PF «Fund for development of parliamentarism in Kazakhstan»

  • Ms Ibraeva Anara Nurlybaevna, Director of Astana branch of International Bureau for Human Rights and compliance to legality of Kazakhstan (hereinafter-IBHR&CLK)

  • Ms Imakova Gazizat Usmanovna, the associate professor of the Department for political science of the Euroasian national university, named after L.N.Gumilev


The report is prepared with assistance of the following NGOs of Kazakhstan: PF «Fund for development of parliamentarism in Kazakhstan», Astana branch of International Bureau for Human Rights and compliance to legality of Kazakhstan (IBHR&CLK), PO «Institute of democracy and human rights», the National network of independent observers (NNIO), PF "Aman-Saulyk", Kostana branch IBHR&CLK and СЗ, NPO «Shanyrak», PO "Pokolenie" of Astana, PO «the Mangistau regional society on protection of the consumers rights», and the independent expert V.I.Makalkin.


Translation costs of this report to English were covered by the OHCHR Regional Office for Central Asia (based in Bishkek, Kyrgyzstan).


PART I. Performance by Republic Kazakhstan of the International Covenant on the Economic, Social and Cultural Rights


Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.


Following the results of on observe over elections for the Senate of the Parliament of the RK, the National Network of Independent Observers (NNIO) noted, that these elections do not fully correspond to the international standards of free and fair elections.


The mechanism of nomination and registration of candidates for the Senate of Parliament of the RK established by Constitutional Law (CL) of RK «On the elections in Republic of Kazakhstan» limits a real competition among candidates and creates clear advantages for the candidates nominated from the party having absolute majority in Maslihats - National democratic party of "Nur-Otan".


According to Article 72 of the above Law «On the elections in Republic of Kazakhstan», the candidate of the Senate should be supported not less than ten percent of voices from the general number of the electors representing all Maslihats of the Region, Maslihat of cities of republican value or capital city of the Republic, but not more than twenty five percent of electoral vote from one Maslihat. It means that the quantity of candidates for the Senate is theoretically limited by ten citizens. In practice the quantity of candidates averages from three to five candidates. Procedure of collection of signatures to support of the candidate enters non-proved restriction of the passive voting right, not supposing to registration as a candidate for citizens collecting less than ten percent of signatures supporting them. This procedure is discrimination inherently and is directed on restriction of a real competition among candidates.


There is no mechanism of influence of citizens (voters) on the deputies of Maslihats (electors) and transfer of will of voters concerning the election of the deputy of the Senate. According to CL of the RK «On Elections in the Republic of Kazakhstan» candidates have the right to create the impressive election fund - more than seven millions of tenge. In a reality the citizens of Kazakhstan didn't feel any activity of candidates on carrying out of pre-election campaign proportional to this amount. It transforms the appropriate norms of the law on creation of election fund to conduct the election campaigning to the Senate as declarative and contradicting to the available practice of these elections. That also proves the lack of influence of voters on process of elections of deputies for the Senate of Parliament of the RK.


The current edition of the CL of RK «On elections in the Republic of Kazakhstan» does not automatically allow to all political parties registered in Kazakhstan to have the representatives in the election commissions as members of the election commissions (Article 10). CL of the RK «On elections in the Republic of Kazakhstan» does not contain norms for order of formation of the Central Electoral Committee at all. It is formed, according to Constitution of the RK, directly by the President and lower chamber, which is politically under his control - Mazhilis of the Parliament of RK (Article 56 of the Constitution of the RK).

According to Para.1 of Article 5 of Law of RK «On elections in Republic of Kazakhstan» deputies of the lower chamber - Mazhilis of Parliament of the RK are elected only by party lists. Thereby the general voting right of non-party citizens is restricted which is expressed in that the citizen who is not a member of any party, cannot be nominated as the candidate of Mazhilis and cannot express the will if does not wish to vote for any political party.


Problems of an electoral system of Republic Kazakhstan


representation of all political parties in the election commissions.

Restriction on access to mass-media.

Non eligible elections of deputies of Mazhilis of Parliament of the RK through Assembly of the people of Kazakhstan.

the Inefficiency of judicial protection of voting rights of citizens.

the Inefficiency of system of legal responsibility for violations of election process.

Legal uncertainty and unpredictability of regulations of the election legislation.

Inability of provision of transparency for election procedures when using the system of electronic voting "SEV" Sailau ».

Unjustified advantages of some candidates and political parties during the election period.

Non transparency of election process.

Restriction of the constitutional indirect voting rights of citizens.

Restriction of the rights on freedom of peace meetings.

Reliability of formation of lists of voters.

Legislative provision of transparency for the elections in the RK.


Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.


In Republic of Kazakhstan, a tendency of growing violations of the citizens' rights for sufficient dwelling is sharply observed. Thus, the following violations are marked:

- Citizens are moved from own dwelling, being offered the value not proportional to its market cost and compensation insufficient for buying of new dwelling;

- Despite of the Admonition of the general order No 7 (the Right to sufficient dwelling), the state withdraws the land plots and forces the proprietors to move from dwelling with a view of the state need;

- Not protected socially persons requiring the dwelling are put by the state into the long line of many thousands and thereupon the hope the receive the dwelling is not seemed real during lifetime of people;

- Citizens lose the dwelling due to impossibility of repayment of the loan as banks expose it on the auction;

- Granting of alternative dwelling for those who has been forced to evict is not provided;

- There is a whole "class" of the homeless and beggars appeared which are repeatedly delivered by law-enforcement bodies and placed in the receiver-distributor based on the sanction of the prosecutor for the period up to 30 days, thereby breaking the right of everyone to freedom and personal immunity (since 1st of September, 2008, according to article 16 of the Constitution of RK, the sanction for detain is given only by the court).


The basis for such violations is, first of all, not adoption of legislative measures by the state on implementation of the rights to sufficient dwelling. Thus, in the current legislation of Kazakhstan there is no:

- Guarantees from forced eviction of dwelling owners and land participants;

- Definition of the term «forced eviction», and the following rights are not fixed: «not to be exposed to forced eviction», «on protection against forced eviction», «an interdiction of forced evictions» (the order of eviction from dwelling is regulated by laws of the RK «On housing relations» and «On executory process and the status of judicial executors»);

- Efficient system and the mechanism of protection of the right to sufficient dwelling in such cases, the strict control over conditions at which the evictions are carried out, and also punishments for such actions; there is a big number of the state bodies (akimat, committee on land resources, department for architecture and city-planning and others), which leads to the lack of the general authentic statistics for the forced evictions.


Observing of violation of the rights of citizens on sufficient dwelling, the state does not undertake legislative measures.


The Constitution of the RK defines the equality of all before the law in Article 14 , and in Para. 2 Article 14 it is specified that: «Nobody can be exposed to any discrimination on the reasons of origin, social, official and property status, sex, race, nationality, language, relation to religion, conviction, residence or on any other circumstances». In Para. 3 of Article 4 of the Labor Code of the RK (adopted 15.05.2007, No251-III, came into effect 01.01.2008), one of the principles of labor legislation is defined as prohibition of discrimination. Besides, the Labor Code of RK includes Article7 which along with fixing the equal possibilities in implementation of the rights and freedom in sphere of labor and the right of appeal to the court or other instances, indirectly confirms the interdiction of discrimination in labor area: « 2. Nobody can be exposed to any discrimination at implementation of the labor rights depending on sex, age, physical defects, race, nationality, language, property, social and official position, residence, relation to religion, political convictions, accessory to estate or clan, to public associations ». Thus, there is no direct interdiction of discrimination.


The labor Code of RK is not adjusted according to the Constitution of RK and Article 2 of the International Covenant on the Economic, Social and Cultural Rights, as there is no discrimination interdiction on the following signs:

colour of skin;

language;

other conviction;

national or a social origin;

a property status;

a birth;

other circumstances.


Sush a lack of direct interdiction of discrimination, and also discrimination interdiction to the above signs defines possibility of violation of the right protected by Article 2 of the ICESCR that takes place in Republic of Kazakhstan.


So, during the period from 2 to 8.03.2009, on the deposit of Northern Truva (Aktyubinsk Region) there was a mass beating of the Chinese oil industry workers. Inhabitants of Celestial were rescued from furious crowd of Kazakhstan workers escaping on steppe, hiding in carriages of contracted organizations. The reason was: a death of the Kazakh who has come from China .

According to the information of regional department of work, that 26.02.2009 between 16 and 20 o'clock during repair of a hydro-funnel, the worker of Open Company «МНСК Sinopes Kazakhstan» Erzhan Mukhametzhan has fallen and has hit a head. In a grave condition, the 29-year-old young man was hospitalized into the hospital of Kenkijak village. The doctors diagnosed the fracture of humeral bone, a lacerated wound of the nape and other traumas from which the worker has died in four hours, not coming in consciousness.

It is known, that the dead was from China, has received residence permit in Kazakhstan, and registered in Karaganda. His father has arrived in Kandyagash to take away the body of the son.

The Press-service of the Regional DIA informed, that after death of Mukhametzhan, on 27.02.2009, there was a conflict on the deposit of Northern Truva between the Kazakhstan and Chinese workers, however the general director of the company has appeared in time at the place of events and the conflict was settled. No knifing and fight was there, - the chief of press-service Almat Imangaliev informed.

Meanwhile according to oil industry workers addressed in local newspapers, it is known, that the staff of the Bajganinsky, Temirsky and Mugalzharsky district divisions of internal affairs and public prosecutors of these three districts have arrived in the place of events. The office of Public Prosecutor is conducting the official investigation of the case.

Also the chairman of trade union of Open Company "KКBК" the Great wall » Bekbolat Umarov confirms, that 200 Kazakhstan workers have beaten 11 Chinese at that day. Others have run up on the steppes, some of them having passed kilometres on snow-covered open spaces, have managed to reach the carriages of ''the Great wall''. As a result, the workers of ККBК« the Great wall »had no sleep and protect the Chineses from the further beatings for three days .

And, it was not possible to find information on the beaten Chinese in the Aktyubinsk hospitals. Inhabitants of Celestial have doctors and medical institution in the Aktyubinsk, as experts explained.

The trade-union workers and oil industry workers see the reason for the conflict unhealthy conditions on the deposit of Northern Truva. They do not sign collective agreements with Kazakhstan workers there, they are paid low wages. The managers of the Chinese company «MNSK Sinopes Kazakhstan» refused to comment.


In November 2008, after the chief of NGDU «Oktyabrsneft» has replaced the old safety rule and has demanded from workers to have purely and smoothly shaved faces, the worker Talgat Kyrkymbaj having no punishment for 11 years of work, has been dismissed from "SnPs-Aktobemunajgaz". ForTalgat Kyrkymbaj who has believed in the power of Allah to shave a beard was equal to mortal sin. In the court of Aktobe, the worker has proved that as the Moslem he has the right to extract oil, not shaving off a beard.


According to Para. 6 of Article 100 of the Criminal and Executorial Code of Kazakhstan (further - CEC of RK), the condemned have the right to annual paid leave lasting eighteen working days for serving time in the educational colonies, fifteen working days - for serving time in other correctional facilities. However, Article 101 of the Labor Code of RK provides the requirement on granting of the paid annual work leave to workers for twenty four calendar days if more number of days is not provided by other legal rules, labor, collective contracts and rules of the employer.


The given situation shows legislatively fixed discrimination of condemned from free citizens on the basis of social status that contradicts to Article 7 of the Labor Code of RK. Thus the requirement of CEC RK is observed, but not the Article 101 of Labor Code of the RK. Taking into account Para. 3 of Article 6 of the Law of Republic of Kazakhstan «On the regulatory legal acts» (adopted 24.03.1998, No 213-I), «if there are contradictions in the regulatory legal act of the same level, the norms of the rule adopted later are acting», the norms of Labor Code of the RK should be applied (and accordingly, the leave for the condemned should be not less than twenty four days) as Labor Code of the RK has been adopted 01.01.2008, and CEC of the RK - 13.12.1997 No 208-I. Thus, there is a problem of ignoring of the Labor code in need of its application.

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