KAZAKHSTAN INTERNATIONAL BUREAU FOR HUMAN RIGHTS AND RULE OF LAW PRELIMINARY REPORT ON CERTAIN ASPECTS OF INEQUALITY AND DISCRIMINATION IN THE REPUBLIC OF KAZAKHSTAN Almaty, March 2015 1 Table of Contents Introduction..................................................................................................................................... 3 1. Brief Analysis of the Kazakhstan Legislation in Terms of Ensuring Equality and Non-discrimination (as at January 2015) ………………………………..……………… 4-26 1.1. The Constitution of the Republic of Kazakhstan …………………………………………. 4 1.2. The study of the provisions of certain laws and regulations …………….......……………. 5-26 - Participation of Kazakhstan in international instruments preventing discrimination……………………………………………………………………………… 5-9 - National legislation ………………………………………………......................... 9-26 Liability …………………………………………………………………………….. 9-20 Procedural guarantees ……………………………………………………….......... 20 Prohibition of discrimination in labour legislation ………….............................….. 20-22 Public health ……………………………………………………………………….. 22 Social sphere (gender equality)…………………….................................................. 22-25 Other……………………………………………………………………...... 25-26 2. Certain Cases of Inequality and Discrimination Against Some Minorities and Groups ………………………................................................................................... 27-110 2.1. Religion (confession)……………………………………………………………………… 27-90 - The provisions of Kazakhstan legislation that are of a discriminatory nature …………………………………………………………………………................... 27-90 General provisions ………………………………………………………………… 27-30 The authorised body and other entities …………………………............................. 30-34 Religious expertise ……………………………………………………………… 34-36 Religious associations as a separate type of legal entities ……………………. 36-38 Registration ………………………………………………………………………… 38-42 Religious practice ………………………………………………………………….. 42-46 Distribution of religious literature, other religious informational materials and religious items, and holding of events ………………………………………… 46-48 Missionary activity ……………………………………………………..................... 49-52 Upbringing of children and education……………………………………………… 52-55 Liability …………………………………………………………………………….. 55-82 - The position of governmental authorities and officials, mass media……………… 80-82 - Interviews and result of monitoring …………………………………………………...... 82 General information................................................................................................................ 82-84 The activity of unregistered religious associations ………………………………… 84-85 Acts of worship outside of religious buildings …………………………………….... 85-86 Missionary outreach……..………………………………………………………….. 86-87 The dissemination of religious literature and materials ……………………………. 87-88 Discriminatory attitude …………………………………………………................... 88-89 High-profile cases …………………………………………………………………... 89-90 2.2. National (ethnic) minorities, language …………………………………………………….. 90-97 - Recommendations of the UN Committee on the Elimination of All Forms of Racial Discrimination based on the results of consideration of the sixth and seventh periodic reports of the Republic of Kazakhstan concerning the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination…………………..................................................................... 90-96 - Some facts from interviews, monitoring reports and publications in mass media… 96-97 2.3. The LGBT Community….………………………………………………………………… 97-110 - The position of governmental agencies, officials and public figures as to the LGBT issues ………………………………………. …………………………… 97-99 - Mass media ………………………………………………………………………... 99-102 - Questionnaires and surveys………………………………………………………... 102-110 2 Introduction The purpose of this preliminary report is to identify the main areas, forms and causes of inequality and discrimination in the Republic of Kazakhstan through the analysis of the legislation, administrative and judicial practice, monitoring the situation in the society, as well as the formulation of appropriate recommendations for the Kazakhstan authorities. The report is divided into two sections. Section 1 provides a brief analysis of the Kazakhstan legislation in respect of equality and non-discrimination. Section 2 addresses the situation in respect of various vulnerable groups: religious, ethnic and language through the lens of equality and non- discrimination, and brings attention to the group, the problem of inequality is largely due to the traditionalist attitudes of the Kazakhstan society - the LGBT community. The report was prepared using the results of the study of the legislation of the Republic of Kazakhstan with respect to freedom of conscience and religion (faith), and analysis of the legislation of the Republic of Kazakhstan in the area of ensuring the LGBT rights to non-discrimination. The legislation was analysed as at 1 January 2015. The report also summarises the law enforcement practice and makes reference to the recommendations of international treaty bodies. In preparing the report, the primary data collection and sample survey of the media were made, the results of monitoring compliance with the right to non-discrimination of religious and ethnic minorities and the LGBT community done by monitors of the Kazakhstan International Bureau for Human Rights and Rule of Law were used. It should be noted that, as in the entire former Soviet Union, the situation in the field of equality and non-discrimination in the Republic of Kazakhstan develops against the historical background, Soviet stereotypes and modern processes of construction of the national statehood. The conceptual systemic problems in the area of ensuring human rights and freedoms are typical of the legislation, institutional development and law enforcement. The political regime is authoritarianism of medium severity, but with a certain level of tolerance, elements of xenophobia and aggression manifest themselves in the society. Accordingly, apart from the systemic changes in legislation, institutional development and improvement of the law enforcement practice, serious educational efforts should be taken, especially in the elementary, secondary and higher educational institutions, in order to foster a sustainable tolerant attitude towards different minority groups: ethnic, religious, sexual, etc. 3 1. Brief Analysis of the Kazakhstan Legislation in Terms of Ensuring Equality and Non-discrimination (as at January 2015) 1.1. The Constitution of the Republic of Kazakhstan Pursuant to Article 14 of the Constitution of Kazakhstan1: “1. Everyone shall be equal before the law and court. 2. No one shall be subject to any discrimination for reasons of origin, social, property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances”. Section 2 of Article 24 of the Constitution of Kazakhstan states: “Everyone shall have the right to safe and hygienic working conditions, to just remuneration for labour without discrimination, as well as to social protection against unemployment”. Further, section 3 of Article 5 of the Constitution of Kazakhstan prohibits “the formation and functioning of public associations pursuing the goals or acts directed toward a violent change of the constitutional system, violation of the integrity of the Republic, undermining the security of the state, inciting social, racial, national, religious, and tribal enmity,…”. Section 3 of Article 20 of the Constitution of Kazakhstan also contains a provision to the effect that “no propaganda or incitement of the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, and clannish superiority as well as the cult of cruelty and violence, shall be allowed”. In the Commentary to the Report of the Republic of Kazakhstan on the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)2, submitted to the UN Committee on the Elimination of Racial Discrimination, the group of non- governmental organisations3, in particular, made a number of assessments and recommendations regarding the absence of anti-discrimination legislation, anti-discrimination institutions and procedures in the country. In particular, the Commentary states: "Despite the fact that the Constitution of the Republic of Kazakhstan prohibits discrimination on the grounds of origin, social, official or property status, sex, race, nationality, language, religious beliefs, convictions, place of residence or any other circumstances (Article 14, Article 24), and in the context of its prohibition the term "discrimination" is used in a number of international human rights treaties ratified by the Republic of Kazakhstan; and national legislation ... there is no legal definition of discrimination in the legislation of Kazakhstan”. 1 See the Constitution of the Republic of Kazakhstan, adopted at the Republican referendum on 30 August 1995) (as amended as at 02 February 2011). 2 See CERD/C/439/Add.2, 14/05/04. Reports submitted by state parties in accordance with Article 9 of the International Convention on the Elimination of all Forms of Racial Discrimination. The third periodic report of the state parties were to be submitted in 2003. Addition. Kazakhstan. The document contains