On the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Law of the Republic of Kazakhstan dated June 26, 2008 No. 48-IV

To ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed in New York City on September 25, 2007.

President of the Republic of Kazakhstan N. Nazarbayev

OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

The United Nations

The preamble

The States Parties to this Protocol, reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute serious violations of human rights.,

Convinced of the need for further measures to achieve the objectives of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) and to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment,

Recalling that articles 2 and 16 of the Convention oblige each State party to take effective measures to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction,

Recognizing that States have the primary responsibility for the implementation of these articles, that strengthening the protection of persons deprived of their liberty and the strict observance of their human rights is a common responsibility of all, and that international implementation bodies complement and strengthen national measures,

Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires the adoption of educational measures and a combination of various legislative, administrative, judicial and other measures,

Recalling also that the World Conference on Human Rights, held in Vienna in June 1993, strongly stated that efforts to eliminate torture should primarily focus on prevention and called for the adoption of an optional protocol to the Convention, which aims to establish a preventive system for regular visits to places of detention,

Convinced that the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment can be enhanced through non-judicial preventive measures based on regular visits to places of detention,

We have agreed on the following:

Part I General principles

Article 1

The purpose of this Protocol is to establish a system of regular visits by independent international and national authorities to places where persons are deprived of their liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Article 2

1. A Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) is established, which performs the functions set out in this Protocol.

2. The Subcommittee on Prevention carries out its work within the framework of the Charter of the United Nations and is guided by its purposes and principles, as well as the norms of the United Nations concerning the treatment of persons deprived of liberty.

3. The Subcommittee on Prevention is also guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.

4. The Subcommittee on Prevention and the States Parties shall cooperate in the implementation of this Protocol.

Article 3

Each State Party shall establish, designate or maintain at the national level one or more visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as national preventive mechanisms).

Article 4

1. Each State Party shall permit visits, in accordance with this Protocol, by the mechanisms referred to in articles 2 and 3, to any place under its jurisdiction and control where persons deprived of their liberty are or may be held, by order of or at the direction of a public authority, or with its knowledge or acquiescence (hereinafter referred to as places of detention). These visits are carried out in order to strengthen, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.

2. For the purposes of this Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private place of detention, which that person has no right to leave of his own free will, by order of any judicial, administrative or other authority.

Part II Subcommittee on Prevention

Article 5

1. The Subcommittee on Prevention consists of ten members. After the deposit of the fiftieth instrument of ratification or accession to this Protocol, the number of members of the Subcommittee shall increase to twenty-five.

2. The members of the Subcommittee on Prevention shall be selected from among persons of high moral character and proven experience in the field of the administration of justice, in particular criminal justice, in the penitentiary system or the police, or in various fields related to the treatment of persons deprived of liberty.

3. In establishing the Subcommittee on Prevention, due consideration shall be given to the need for equitable geographical distribution and representation of the various forms of culture and legal systems of the participating States.

4. When establishing the Subcommittee on Prevention, attention is also paid to balanced gender representation based on the principles of equality and non-discrimination.

5. The Subcommittee on Prevention may include no more than one citizen of the same State.

6. The members of the Subcommittee on Prevention perform their functions in their personal capacity, they must be independent and impartial and be able to work effectively as part of the Subcommittee.

Article 6

1. Each State Party may, in accordance with paragraph 2 of this article, nominate two candidates who possess the qualifications and meet the requirements set out in article 5, and in doing so it shall provide detailed information on the qualifications of the candidates.

2. (a) Candidates must have the nationality of a State Party to this Protocol;

(b) At least one of the two candidates nominated by a State Party must have the nationality of that State Party;

(c) No more than two candidates who are nationals of the same State Party may be nominated to the Subcommittee on Prevention.;

(d) Before a State Party nominates a national of another State Party, it shall seek and obtain the consent of that State Party.

3. At least five months before the start of the Meeting of the States Parties at which the elections will be held, the Secretary-General of the United Nations shall send a letter to the States Parties inviting them to submit their candidates within three months. The Secretary-General shall submit a list of all the candidates so nominated, in alphabetical order, indicating the States Parties that nominated them.

Article 7

1. The members of the Subcommittee on Prevention shall be elected as follows:

(a) The main focus is on meeting the requirements and criteria of Article 5 of this Protocol;

(b) The first election shall be held no later than six months after the entry into force of this Protocol.;

(d) The election of a member of the Subcommittee on Prevention shall take place at meetings of the States Parties convened by the Secretary-General of the United Nations every two years. At these meetings, at which two thirds of the number of States Parties constitute a quorum, the persons who have obtained the largest number of votes and an absolute majority of the votes of the representatives of the States Parties present and voting shall be considered elected to the Subcommittee.

2. If, during the election, two citizens of a participating State are eligible to serve on the Subcommittee on Prevention, the candidate with the highest number of votes becomes a member of the Subcommittee. If these citizens received the same number of votes, the following procedure is applied:

(a) If only one candidate has been nominated by the State Party of which he is a national, that national shall become a member of the Subcommittee on Prevention;

(b) If both candidates have been nominated by the State Party of which they are nationals, a separate secret ballot shall be held to determine which of these nationals will become a member of the Subcommittee on Prevention;

(c) If none of the candidates has been nominated by the State Party of which he is a national, a separate secret ballot shall be held to determine which of these candidates will become a member of the Subcommittee on Prevention.

Article 8

In the event of the death or resignation of one of the members of the Subcommittee on Prevention, or if for any other reason he is unable to perform the functions of a member of the Subcommittee, the State Party that nominated him shall appoint another eligible person who has the qualifications and meets the requirements set out in article 5, taking into account the need Ensure an appropriate balance between the various areas of competence, for a term of office until the next Meeting of the States Parties, subject to approval by a majority of the States Parties. Approval shall be deemed to have taken place unless, within six weeks of notification by the Secretary-General of the United Nations of the proposed appointment, half or more than half of the Participating States object to such appointment.

Article 9

The members of the Subcommittee on Prevention are elected for a four-year term. They may be re-elected once if they are nominated. The term of office of half of the members elected at the first election ends after a period of two years; immediately after the first election, the names of these members shall be determined by drawing lots, which shall be conducted by the Chairman of the meeting referred to in paragraph 1 (d) of Article 7.

Article 10

1. The Subcommittee on Prevention shall elect its officers for a two-year term. They can be re-elected.

2. The Subcommittee on Prevention shall establish its own rules of procedure. These rules of procedure provide, in particular, that:

a) The quorum consists of half of the number of members plus one;

(b) Decisions of the Subcommittee on Prevention shall be taken by a majority vote of the members present;

3. The Secretary-General of the United Nations shall convene the first meeting of the Subcommittee on Prevention. After its first meeting, the Subcommittee shall hold its subsequent meetings at the intervals specified in its rules of procedure. The Subcommittee and the Committee against Torture hold their sessions simultaneously at least once a year.

Part III Mandate of the Subcommittee on Prevention

Article 11

Subcommittee on Prevention:

(a) Visits the places referred to in article 4 and submits recommendations to the participating States on the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;

(b) With regard to national preventive mechanisms:

(i) Advises and assists States Parties, as appropriate, in establishing such mechanisms;

(ii) Maintains direct, confidential, if necessary, contacts with national preventive mechanisms and offers them training and technical assistance to strengthen their capacities;

(iii) Advises and assists them in assessing the needs and measures necessary to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;

(iv) Submits recommendations and observations to States parties with a view to strengthening the capacity and mandate of national preventive mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;

(c) Cooperate, in order to prevent torture in general, with relevant United Nations bodies and mechanisms, as well as with international, regional and national institutions or organizations working to strengthen the protection of all persons from torture and other cruel, inhuman or degrading treatment or punishment.

Article 12

In order for the Subcommittee on Prevention to carry out its mandate as set out in article 11, the Participating States undertake:

(a) Host the Subcommittee on Prevention on its territory and provide it with access to places of detention as defined in article 4 of this Protocol;

(b) Provide all relevant information that the Subcommittee on Prevention may request in order to assess the needs and measures to be taken to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment.;

(d) To study the recommendations of the Subcommittee on Prevention and engage in a dialogue with it on possible implementation measures.

Article 13

1. The Subcommittee on Prevention shall, at first by drawing lots, establish a programme of regular visits to States Parties in order to carry out its mandate as set out in article 11.

2. After consultations, the Subcommittee on Prevention shall notify the States Parties of its programme so that they can immediately take the necessary practical measures to carry out visits.

3. Visits are conducted by at least two members of the Subcommittee on Prevention. If necessary, these members may be accompanied by experts with proven work experience and knowledge in the fields covered by this Protocol, who shall be selected from a list of experts prepared on the basis of proposals made by States parties, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for the Prevention of International Crime. In preparing this list, the relevant Participating States shall propose no more than five national experts. The State Party concerned may reject the nomination of an expert proposed for the visit, after which the Subcommittee shall propose another expert.

4. If the Subcommittee on Prevention deems it necessary, it may propose a short follow-up visit after the regular visit.

Article 14

1. In order to enable the Subcommittee on Prevention to carry out its mandate, the States Parties to this Protocol undertake to provide it with:

(a) Unrestricted access to any information on the number of persons deprived of their liberty in places of detention defined in article 4, as well as on the number of such places and their location;

(b) Unrestricted access to any information regarding the treatment of these persons, as well as the conditions of their detention;

(c) In accordance with paragraph 2 below, unrestricted access to all places of detention, their facilities and facilities;

(d) The opportunity to have private conversations with persons deprived of their liberty without witnesses, in person or, if necessary, through an interpreter, as well as with any other person who, in the opinion of the Subcommittee on Prevention, may provide relevant information;

f) the right to freely choose the places he wants to visit and the people he wants to talk to.

2. Objections to a visit to a particular place of detention can only be based on urgent and compelling considerations concerning national defense, national security, natural disasters or serious unrest at the place of the intended visit, which temporarily prevent such a visit. The existence of a declared state of emergency as such may not be cited by a State party as a reason for objecting to a visit.

Article 15

No authority or appropriate person may appoint, apply, authorize or allow any sanction against any person or organization for communicating any information to the Subcommittee on Prevention or its members, whether true or false, and no such person or organization may be otherwise harmed.

Article 16

1. The Subcommittee on Prevention shall forward its recommendations and observations confidentially to the State party and, if necessary, to the national preventive mechanism.

2. The Subcommittee on Prevention shall publish its report, together with any comments from the State Party concerned, if requested to do so by the State Party. If a State party makes part of the report public, the Subcommittee may publish the report in whole or in part. However, personal data cannot be published without the express consent of the relevant person.

3. The Subcommittee on Prevention submits an open annual report on its activities to the Committee against Torture.

4. If a State party refuses to cooperate with the Subcommittee on Prevention in accordance with articles 12 and 14 or refuses to take measures to improve the situation in the light of the recommendations of the Subcommittee on Prevention, the Committee against Torture may, at the request of the Subcommittee, after the State party has had an opportunity to present its views, decide by a majority vote of its members make a public statement on the matter or publish the Subcommittee's report.

Part IV National preventive mechanisms

Article 17

No later than one year after the entry into force of this Protocol or its ratification or accession, each State Party shall maintain, designate or establish one or more independent national preventive mechanisms for the prevention of torture at the national level. Mechanisms established by decentralized bodies may, for the purposes of this Protocol, be designated as national preventive mechanisms if they meet the requirements of its provisions.

Article 18

1. The Participating States shall guarantee the functional independence of national preventive mechanisms, as well as the independence of their personnel.

2. The Participating States shall take the necessary measures to ensure that the experts of the national preventive mechanism have the necessary potential and professional knowledge. They ensure gender balance and adequate representation of existing ethnic and minority groups in the country.

3. The Participating States undertake to provide the necessary resources for the functioning of national preventive mechanisms.

4. When establishing national preventive mechanisms, Participating States shall take into account the Principles relating to the status of national institutions for the protection and promotion of human rights.

Article 19

National preventive mechanisms are given at least the following powers::

(a) To regularly review the treatment of persons deprived of their liberty in places of detention defined in article 4, with a view to strengthening, if necessary, their protection from torture and other cruel, inhuman or degrading treatment or punishment;

(b) To make recommendations to relevant authorities with a view to improving the treatment of persons deprived of liberty and their conditions of detention and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into account relevant United Nations standards;

c) submit suggestions and comments regarding the current legislation or draft laws.

Article 20

In order to enable national preventive mechanisms to carry out their mandate, the States Parties to this Protocol undertake to provide them with:

(a) Access to any information on the number of persons deprived of their liberty in places of detention defined in article 4, as well as on the number of such places and their location;

(b) Access to any information regarding the treatment of these persons, as well as the conditions of their detention;

(d) The opportunity to have private conversations with persons deprived of their liberty without witnesses, in person, or, if necessary, through an interpreter, as well as with any other person who, in the opinion of the national preventive mechanism, may provide relevant information;

f) the right to freely choose the places they wish to visit and the persons they wish to talk to;

(f) The right to establish contacts with, send information to, and meet with the Subcommittee on Prevention.

Article 21

1. No body or official may appoint, apply, authorize or allow any sanction against any person or organization for communicating any information, whether true or false, to the national preventive mechanism, and no such person or organization may be discriminated against in any other way.

2. Confidential information collected by the national preventive mechanism is not subject to disclosure. Personal data is published only with the express consent of the relevant person.

Article 22

The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.

Article 23

The States Parties to this Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

Part V of the Statement

Article 24

1. After ratification, States Parties may make a declaration regarding the postponement of their obligations under either Part III or Part IV of this Protocol.

2. This postponement is valid for a maximum of three years. After the submission of relevant materials by the State party and after consultations with the Subcommittee on Prevention, the Committee against Torture may extend this period for another two years.

Part VI Financial regulations

Article 25

1. The costs incurred by the Subcommittee on Prevention in the implementation of this Protocol shall be borne by the United Nations.

2. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee on Prevention in accordance with this Protocol.

Article 26

1. In accordance with the appropriate procedure of the General Assembly, a Special Fund is being established, managed in accordance with the financial regulations and rules of the United Nations, to assist in financing the implementation of recommendations made by the Subcommittee on Prevention to the State party following the visit, as well as educational programmes of national preventive mechanisms.

2. This Special Fund may be funded by voluntary contributions from Governments, intergovernmental and non-governmental organizations, and other private or public entities.

Part VII Final provisions

Article 27

1. This Protocol is open for signature by any signatory State to the Convention.

2. This Protocol is subject to ratification by any State that has ratified or acceded to the Convention. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. This Protocol is open for accession by any State that has ratified or acceded to the Convention.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States that have signed or acceded to this Protocol of the deposit of each instrument of ratification or accession.

Article 28

1. This Protocol shall enter into force on the 30th day after the deposit of the 20th instrument of ratification or accession with the Secretary-General of the United Nations.

2. For each State that ratifies or accedes to this Protocol after the deposit of the twentieth instrument of ratification or accession with the Secretary-General of the United Nations, this Protocol shall enter into force on the 30th day following the deposit of its own instrument of ratification or accession.

Article 29

The provisions of this Protocol shall apply to all parts of the federal States without any restrictions or exceptions.

Article 30

Any reservations to this Protocol are not allowed.

Article 31

The provisions of this Protocol do not affect the obligations of States Parties under any regional conventions based on a system of visits to places of detention. The Subcommittee on Prevention and the bodies established under such regional conventions are invited to consult and cooperate with each other in order to avoid duplication and ensure the effective achievement of the objectives of this Protocol.

Article 32

The provisions of this Protocol do not affect the obligations of States Parties under the four Geneva Conventions of August 12, 1949 and the Additional Protocols thereto of June 8, 1977, as well as the rights of any State to allow the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

Article 33

1. Any State Party may denounce this Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to this Protocol and the Convention. The denunciation shall take effect one year after the date of receipt by the Secretary-General of such notification.

2. Such denunciation shall not release a State Party from its obligations under this Protocol in connection with any action or situation that may have occurred prior to the effective date of the denunciation or measures that the Subcommittee on Prevention has decided or may decide to take with respect to the State Party concerned, and the denunciation in no way prejudice the ongoing review any matter that has already been considered by the Subcommittee prior to the effective date of the denunciation.

3. After the date of entry into force of the denunciation declared by a State Party, the Subcommittee on Prevention may not begin consideration of any new issue concerning that State.

Article 34

1. Any State Party to this Protocol may propose an amendment and transmit it to the Secretary-General of the United Nations. The Secretary-General shall then transmit the proposed amendment to the States Parties to this Protocol with a request to inform him whether they agree to the convening of a conference of the States Parties for the purpose of considering and voting on the proposal. If, within four months from the date of sending such a letter, at least one third of the States Parties support such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a two-thirds majority of the States Parties present and voting at that Conference shall be communicated by the Secretary-General to all States Parties for adoption.

2. An amendment approved in accordance with paragraph 1 of this article shall enter into force after its adoption by a two-thirds majority of the States Parties to this Protocol in accordance with their constitutional procedures.

3. After the amendments enter into force, they shall become binding on those States Parties that have accepted them, while the provisions of this Protocol and any previous amendments that they have adopted shall remain binding on other States Parties.

Article 35

Members of the Subcommittee on Prevention and members of national preventive mechanisms are granted the privileges and immunities necessary for the independent exercise of their functions. The members of the Subcommittee are granted the privileges and immunities listed in section 22 of the Convention on the Privileges and Immunities of the United Nations of February 13, 1946, subject to the provisions of section 23 of the same Convention.

Article 36

When visiting a State Party, members of the Subcommittee on Prevention shall, without prejudice to the provisions and purposes of this Protocol and the privileges and immunities they may enjoy.:

a) comply with the laws and regulations of the visiting State;

(b) Refrain from any actions or activities incompatible with the impartial and international nature of their duties.

Article 37

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of this Protocol to all States.

I hereby certify that this text is a certified copy of the certified copy of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, committed in New York on December 18, 2002.

Head of the International Law Department of the Ministry of Foreign Affairs of the Republic of Kazakhstan B. Mashikov

President

Republic of Kazakhstan

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