Commissioner For Human Rights Research Articles

ON MANOEUVRING KAZAKHSTAN'S CRIMINAL LAW IN DEFINING TORTURE AND OTHER CRUEL, INHUMANE, AND DEGRADING TREATMENT AND PUNISHMENT

Background: The issue of violence remains highly relevant in Kazakhstan today. Despite legal protections against violence and defence for individual rights, to date, there has been no resolution to the issue of torture by or on behalf of the state. The foundations of Kazakhstan as a rule-of-law state are undermined by violence. The state's efforts to address the current situation appear to be ineffective, fostering an environment where future violations of the rights, liberties, and legitimate interests of individuals, as protected by the Republic of Kazakhstan's Constitution, are encouraged. There is a trend towards governmental illegal violence being tolerated. It is unacceptable for law enforcement and prison personnel to conduct torture as a standard practice. Systemic measures, including criminal law measures, have a specific position in the fight against torture. This study's objectives are to analyse how torture and other cruel, inhumane treatment are criminalised under Kazakhstani criminal law, pinpoint issues with how these laws are applied, offer recommendations for addressing them, and contribute to the ongoing conversation surrounding these issues. Methods: The method of normative-legal research was used in the analysis of Kazakhstani criminal legislation on the qualification of torture. The method of conceptual analysis was used in the study of a new conceptual apparatus in the disclosure of understanding of ill-treatment and torture. The comparative-legal method allowed the analysis of the history of the development of Kazakhstan’s criminal legislation on the criminalisation of torture and ill-treatment to be subject to critical analysis of the current norms of criminal law in comparison with international legal acts. The qualitative method was used to analyse the situation with torture according to official data of the Committee on Legal Statistics and Special Records of the General Prosecutor's Office of the Republic of Kazakhstan, appeals of Kazakhstani citizens to the Commissioner for Human Rights in the Republic of Kazakhstan with complaints of torture. Results and conclusions: Based on the analysis of the provisions of the current Kazakhstani criminal and international legislation and relevant scientific literature, the authors come to a scientifically justified conclusion on the need to actualise the attention of the state to focus more actively on addressing torture and cruel, inhumane treatment. The authors make proposals for further development of criminal-legal measures to counter torture and cruel, inhumane treatment. One such recommendation is to remove the narrow definition of an official in relation to torture within the health care, education and medical and social spheres. Furthermore, the authors argue for the adjustment of Article 146 of the Criminal Code to more clearly differentiate between ill-treatment and torture.

Equality and Non-Discrimination in Armed Conflict: Humanitarian and Human Rights Law in Practice

In this edition of the Review's “Beyond the Literature” series, we have invited George Dvaladze to introduce his recent book Equality and Non-Discrimination in Armed Conflict, before then posing a series of questions to Nelly Kamunde, Mona Rishmawi, Vanessa Murphy and Alexander Breitegger. Nelly Kamunde is a lawyer in Kenya and has been working as an independent researcher, lecturer, and trainer with various institutions in international humanitarian law (IHL). Mona Rishmawi is the former Chief of the Rule of Law, Equality and Non-Discrimination Branch of the Office of the UN High Commissioner for Human Rights. Vanessa Murphy is the International Committee of the Red Cross (ICRC) Legal Adviser responsible for conflict-related legal issues regarding gender, the protection of children and the protection of the environment. Alexander Breitegger is a Senior Legal Adviser at the ICRC's Thematic Legal Advice Unit; he focuses on IHL and persons with disabilities as part of his thematic files and provides support for the implementation of the ICRC Vision 2030 on Disability. The Review team is grateful to all four discussants, and to George, for taking part in this engaging conversation.

A Study of Constitutional Protections Against Custodial Violence – A Critical Analysis

The destruction of India's democracy occurs when a police officer tortures someone while they are in their custody. It is the greatest irony that the nation is currently fighting valiantly to eradicate a crime like "Custodial Violence" yet Mahatma Gandhi was the foremost leader who adhered to the ideal of non-violence in achieving India's freedom. The state has a responsibility to defend society from attack. One has no choice but to be tortured by those who uphold the law and the rule of law. Custodial death is not in accordance with the procedure established by law, at the same time, it is the deprivation of the right to life. Custodial death is the outcome of the brutal action or negligence of the police. It results in an unnatural death. Such a dangerous issue that is threatening the very basic right to life remained unexplored, and no major research has been undertaken to examine the problem from a state-level perspective. Thus, there is depth and intensive literature on the topic. The literature helps to give a comprehensive picture of efforts taken by the judiciary as well as the state government to combat the custodial violence. It deeply analyses the constitutional protections of an Accused and it is concluded by saying numerous suggestions for combating the custodial violence crimes. Therefore, the present study is mainly focused on critical analysis of the adequacy of existing laws relating to prevention of custodial violence. The study also incorporates practical aspects of custodial violence based on the statistics given by the State Human Rights Commission of Tamil Nadu.

Freedom of Association under the Treaties of the United Nations: A Right of Intrinsic or Instrumental Value?

Abstract Although enshrined within various international instruments of the United Nations, the right to freedom of association is principally developed under the rubric of Article 22 of the International Covenant on Civil and Political Rights. This article seeks to trace the contours of this right with regard to the jurisprudence and commentary of the institutions of the UN. Part ii examines the protections afforded, restrictions permitted, and positive obligations imposed by article 22. Part ii analyses the interaction between article 22 and other rights guaranteed by the iccpr. Part iii seeks to assess the rationale underpinning the protection of the right to freedom of association as protected by the UN treaties. The research finds that the Human Rights Committee has disproportionately framed Article 22 in terms of its political and systemic significance, and have neglected to develop a philosophical basis for the right deriving from its inherent value to the human person.

The Impact of Sexual Violence Victimization on Acculturative Stress and Hazardous Drinking Among North Korean Refugee Women in South Korea.

North Korean refugee women face significant risks of traumatic experiences, including sexual exploitation and violence, both in North Korea and during migration. However, there is limited research on the long-term effects of sexual violence among these women. Using data from 245 North Korean refugee women, collected by the National Human Rights Commission of Korea in 2017, we examined the impact of sexual violence victimization during pre-migration and intermediate stages on acculturative stress and hazardous drinking. Our findings revealed that women who experienced sexual violence during the intermediate stage were more likely to engage in hazardous drinking, though no significant effect was found on acculturative stress. This study provides valuable insights for policymakers aiming to reduce negative psychological outcomes in vulnerable populations.

Protection of the Fulfillment of Rights of Women Victims of Trafficking from a Human Rights Perspective

Human trafficking remains a significant global issue. The UNODC reports 40.3 million annual cases, with 71% involving women. The National Human Rights Commission monitors and addresses these cases. Research, according to Soerjono Soekanto, involves analyzing and constructing methodology. The research aims to enhance understanding of policy implementation in protecting victims' rights through a human rights perspective. In upholding human rights, governments must prioritize protecting victims' rights. Safeguarding individuals, especially women, from crimes like trafficking is essential for human rights protection, highlighting the crucial role of laws in preventing such offenses. The protection of human rights, especially for victims, is crucial for governments to uphold citizens' rights. Human trafficking is driven by economic, educational, and technological factors. Preventive and repressive measures are required to combat trafficking effectively, including law enforcement, intergovernmental cooperation, and addressing root causes. Restitution is a constitutional right for victims, but enforcement challenges remain. Agencies must ensure victims' rights are upheld.

Comparative legal analysis of the Ombudsman institution of Kazakhstan and Turkey for compliance with international documents

The purpose of the article is to comparatively reveal the structure and activity of the ombudsman institute in Kazakhstan and Turkey and evaluate it in terms of international standards. In this context, the compliance of the ombudsman institutions of the two countries with the international documents, which regulate the status of national human rights institutions, was studied. The normative basis of their duties and powers, and international standards, will be examined, and if there are any shortcomings, they will be identified and recommendations will be made on what to do to improve them. In order to protect human rights and freedoms, the importance of the ombudsman institution in the society and its place in the state legal system was analyzed. Additionally, the status of the ombudsman institution, the order of creation and appointment to the position was studied. The requirements and duties of the ombudsmen of the two countries were shown. It was also determined that the norms of the internal legislation of the two states regarding the institution of ombudsman correspond to the principles of Paris and Vienna. In this context, proposals were made to improve internal legislation. To conduct scientific research work, the national laws were studied such as “On the Commissioner for Human Rights of the Republic of Kazakhstan” dated November 5, 2022 and the Law “On the Ombudsman Institute” of Turkey dated June 29, 2012. Result of the research work, some inconsistencies were obtained with international standards in the laws governing the activities of the ombudsman institution.

Climate change and forced migration

Abstract Climate change is increasingly recognized as a significant driver of migration patterns worldwide. As the global temperatures rise, extreme weather events become more frequent, leading to disruptions in livelihoods displacement, and migration. Every day, climate change becomes a more urgent economic, social and existential threat to countries and their people. Climate changes are becoming more and more evident every day, a factor that undoubtedly directly or indirectly affects the displacement of populations. This article provides answers to basic questions starting with how, and where climate change triggers migration and displacement, the second question is if we have a definition for the climate migration, or climate refugee, can they have protection from the Convention relating to the Status of Refugees and the last analysis is the inadequacy of the protection afforded by international law and European Union law and the Albania Legislation to individuals who leave their country of origin for reasons related to environmental issues. The methodology used to answer the questions of this paper includes desk review on existing literature, legal texts, reports from international organizations, legal framework regulating climate migration rights and the decision of the UN Human Rights Committee (HRC) regarding the “climate refugees”, the case of Teitiota v New Zealand.

Observance of the labour rights of persons who have been deprived of their personal liberty as a result of armed aggression

Based on the monitoring of the Ukrainian Parliament Commissioner for Human Rights, the article reveals the state of observance of labour rights of civilian hostages. The article identifies problematic issues that obstruct the realisation of these rights of persons who have been deprived of their personal liberty as a result of armed aggression. It is noted that the Geneva Convention relative to the Protection of Civilian Persons in Time of War prohibits the taking of hostages. Failure to comply with the principles of international humanitarian law by representatives of the Russian Federation leads to the inability to ensure the protection of civilian hostages in accordance with international norms due to the unresolved nature of this issue. The Russian Federation, despite international norms, keeps such persons in captivity, does not notify them of their detention, does not provide them with the appropriate status, as a result of which the detained person cannot appeal against his or her detention, has no opportunity to report it. According to international standards, victims of enforced disappearances have the right to compensation from the state, which provides them with the maximum possible rehabilitation. It is noted that the protection of the constitutional rights of civilian hostages is provided for by the Law of Ukraine “On Social and Legal Protection of Persons in respect of whom the deprivation of personal liberty as a result of armed aggression against Ukraine and members of their families has been established”. In addition, it is noted that civilian hostages have the right to keep their jobs, but the law does not provide for the payment of wages. The article establishes that it is impossible to properly exercise the labour rights of employees who have become civilian hostages guaranteed by the Constitution of Ukraine. The emphasis is placed on the legislative gaps that do not allow civilian hostages to exercise the guaranteed right to credit their insurance period. The article provides for the crediting of insurance periods to civilian hostages, which affects social guarantees and, subsequently, the level of pension provision. Due to the uncertainty of the payer of the unified social contribution, such credit is not given for persons in respect of whom the deprivation of personal liberty as a result of armed aggression against Ukraine has been established. Deprivation of personal liberty is the basis for postponement or extension of annual leave and is also included in the length of service that gives the right to annual basic leave. Civilian hostages are additionally entitled to a one-time voucher to maintain their competitiveness in the labour market through retraining, specialisation, advanced training, and education in professions and specialities for priority economic activities. It is found that the problem of civilian hostages is closely related to the problem of missing persons. It is proved that there is a need to expand the labour rights of civilian hostages by guaranteeing the payment of wages.

Current Status of the Conciliation System of the National Human Rights Commission and the Way to Revitalize it

Current Status of the Conciliation System of the National Human Rights Commission and the Way to Revitalize it

청소년의 부주의한 인터넷 이용 행태에 관한 연구

This study focuses on the lack of awareness and the careless behavior of adolescents when using the internet, despite the high possibility of being involved in crimes, such as the exposure of personal information. The study utilized secondary data from research conducted by the National Human Rights Commission of Korea and the Korean Council of Children's Organizations as part of the Child Rights Monitoring Project. It examined factors influencing careless behavior by categorizing them into adolescents' personal characteristics, behavioral characteristics related to internet use, and cognitive characteristics regarding cyberbullying. The analysis found that while the level of carelessness among adolescents on the internet was relatively low, repeated careless behavior could lead to desensitization, potentially resulting in greater negligence. Adolescents, in particular, can easily access a wide variety of content on the internet, and this repeated carelessness can diminish their perception of risk, eventually escalating to more serious risky behaviors. Therefore, a comprehensive approach that considers the characteristics and culture of adolescence, as well as the complexity and diversity of internet use, is continuously required. Related research is expected to be a crucial starting point for promoting healthy internet use among adolescents and, furthermore, for establishing a positive and safe internet culture.

Защита от высылки в практике Комитета по правам человека ООН

This article provides an analysis of the practice of the UN treaty body - the UN Human Rights Committee in cases related to expulsion. The treaty body effectively monitor compliance by States with the principle of "non-refoulement". The article analyzes the legal grounds, opportunities, mechanisms and effectiveness of human rights protection by filing complaints to this Committee. Various violated human rights are considered, for the restoration of which it is possible to apply to the UN treaty body in cases concerning expulsion.

Conceptualisation and operationalisation of minorities in international law: Past experiences and new avenues

AbstractDespite decades of scholarly effort, there is still no universally accepted definition of the concept of minorities or the criteria for minority membership. Beyond its theoretical importance, the lack of a definition also has practical significance, as it may easily lead to the abuse of minority rights. In this paper, we offer a brief historical overview of the various definitional attempts in international law, including those enshrined in legal documents as well as in the practice of adjudicatory bodies. Starting from the era of the League of Nations and the case-law of the Permanent Court of International Justice, we continue by looking at major developments within the United Nations (with special attention to the practice of the Human Rights Committee) as well as the Council of Europe (and the approach of the Advisory Committee of the Framework Convention for National Minorities). Our aim is to explore the trajectory from old to recent conceptual endeavours, where the major dividing line is drawn between the relatively narrow notion of minorities (covering only autochthonous or traditional groups) as opposed to a more inclusive view (including also immigrants and, potentially, visitors under the minority protection mechanisms).

On improving the procedure for interaction of the High Commissioner for Human Rights in the Russian Federation and public authorities

An analysis of the experience of ombudsmen in foreign countries will identify the most effective methods and approaches in protecting the rights and freedoms of citizens, as well as the problems and difficulties faced by these institutions. It is important to note that the functions and powers of an ombudsman may vary significantly from country to country. The work provides an analysis of Russian legislation regulating the constitutional and legal status of The High Commissioner for Human Rights in the Russian Federation, and taking into account the experience of normative regulation of the constitutional and legal status of the Ombudsman abroad, the authors put forward proposals for improving the procedure for interaction between The High Commissioner for Human Rights in the Russian Federation and public authorities. The study and analysis of foreign experience will make it possible to develop recommendations for improving the work of The High Commissioner for Human Rights in the Russian Federation and take into account international standards in the field of protection of human rights and freedoms.The work provides an analysis of Russian legislation regulating the constitutional and legal status of The High Commissioner for Human Rights in the Russian Federation, and taking into account the experience of normative regulation of the constitutional and legal status of the Ombudsman abroad, the authors put forward proposals for improving the procedure for interaction between The High Commissioner for Human Rights in the Russian Federation and public authorities.We will consider these issues using general scientific methods, such as analysis, synthesis, deduction, induction, analogy, comparison, abstraction. In addition, the scientific article used specific historical, systemic-structural, functional, comparative legal, formal legal research methods, predetermined by the characteristics of the object and subject of scientific research, its purpose and objectives.Until now, not enough attention has been paid to analyzing the possibility of giving a mandatory character to the institution of The High Commissioner for Human Rights in the Russian Federation. This means that its decisions and recommendations must be binding on other government bodies. This, in turn, can significantly increase the efficiency of this institution and improve the situation with the protection of human rights in the Russian Federation.

‘Between the Devil and Deep-Blue Sea’: Comparing the Extraterritorial Application of the ECHR and the ICCPR in the Protection of Migrants at Sea

The concept of jurisdiction is often said to encapsulate the very essence of human rights “qua normative relationship between rights holders and institutions as dutybearers” (Besson, 2012; 860). Twenty-first century human rights jurisprudence has highlighted one of the most contentious issues in relation to jurisdiction: the limits that human rights place on State behaviour outside national territory. In the context of migration, the extraterritorial application of human rights is a particularly critical concern. Loss of life on the high seas, refoulement at sea, and the striking systematic ineptitude of search and rescue operations by European countries have placed the debate on extraterritoriality at the heart of the human rights discourse on migrants and refugees. This Paper will compare and contrast extraterritoriality at the European Court of Human Rights and the Human Rights Committee (HRCttee), in order to put their jurisprudence into perspective and assess the current state of the law. A functional account of jurisdiction will be supported, whereby the State should protect human rights wherever in the world it operates, and whenever it can reasonably do so. Through a comparative analysis, I will argue that the principles of universality and effectiveness render extraterritorial applicability a necessary doctrine in human rights law. By juxtaposing the ECtHR with the HRCttee, I will illustrate the wide acceptance of extraterritoriality in the migration context, highlight the needs for improvement in future jurisprudence, and justify the functional approach to human rights protection that this Paper advocates.

Institute of the Ukrainian Parliament Commissioner for Human Rights: human rights vector of activity during the armed conflict

The article is devoted to understanding the role of the institution of the Ukrainian Parliament Commissioner for Human Rights in the context of armed conflict, which is accompanied by a gross leveling of the category of «human rights» and devaluation of its existential essence, and as a result, this determines the strengthening of the institutional capacity of the Ombudsman of Ukraine in the context of the national human rights protection mechanism. The object of this scientific research is the functioning of the Ombudsman of Ukraine in the constitutional and legal dimension of human rights protection, and thus the subject of the study is limited to the peculiarities of the implementation of the human rights functions of the Ukrainian Parliament Commissioner for Human Rights through the prism of the armed conflict. The methodological basis of the study is a system of general scientific and special methods of scientific cognition, the most common of which are dialectical, formal legal (dogmatic), legal comparative method, legal hermeneutics method, as well as modeling, analysis and synthesis methods which were used to formulate certain definitions, proposed scientific approaches, and to develop certain positions based on the review of regulatory and legal material. Based on the results of this study, the author proposes to deviate from the statutory time limits for applying to the Ombudsman by persons who are in the temporarily occupied part of the territory in order to provide appropriate legal protection and guarantee consideration of applications from this category of applicants, and determines the moment when the time limits begin to be calculated, the feasibility of such an approach, and models different time limits. Interpreting the provisions of the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights», the author proposes and deepens the understanding of «exceptional circumstances» for extending the time limits for filing an appeal during the armed conflict for no more than two years. The author draws attention to the state of practical implementation of the principle of institutional independence of the Ombudsman under martial law, notes the imperfect regulation of the direct principle in legislation and comes to a consolidated conclusion that it is necessary to regulate certain provisions of legal acts to ensure full establishment of the principle of impartiality and independence of the legal institution, and suggests options for eliminating conflicts of law.

Structural Interdictics for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)*

Structural Interdictics for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)*

Marriage and Strategic Confrontation: A Critical Analysis of Indian Society

United Nations Entity for Gender Equality and the Empowerment of Women in General Recommendation no. 21 (the 13th session, 1994) on the declaration of equality between women and men for human rights has discouraged polygamous marriage practices ( https://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#top ). Further, the United Nations Human Rights Committee’s assertion in 2000 on the General Assembly of the UN contends about the direct connection of marriage with human dignity and acknowledges only state-approved monogamous marriage can tantamount to social development, by fostering equality, justice and cosmic harmony. On the contrary, polygamous marriage treats humans unequally and subordinates women, following such type of marriages breach the International Covenant on Civil and Political Rights, recommending the blanket ban of the practice of polygamy. It is significant that treating woman as less than man not only subjugates them but hinders the development of the whole society. To secure social harmony, the state can legislate a rule for all its citizens irrespective of their religion. Notwithstanding, independent Indian Constitutional Laws facilitate monogamy practice on the one hand, and on the other hand allow polygamy as an atypical form of marriage in another personal law. Therefore, in this article, first, I examine the notion of marriage in Indian tradition and then compare Indian marriage standards with the Western approach of monogamy, as a society’s right, as a right to moral independence and as an ethical analogue. Following that, I argue whether contemporary Indian society’s legislation on marriage fits into Western standards or triggers a strategic confrontation.

Listening to Survivors in Sexual Harassment Law Reform

In Australia, the #MeToo movement triggered a comprehensive inquiry into workplace sexual harassment lead by the Australian Human Rights Commission. This article explores the dynamic relationship between voice and listening in the Commission's National Inquiry into Sexual Harassment in Australian Workplaces and the resulting Respect@Work Report (2020). Drawing on a range of methodologies including thematic coding, citation analysis and discourse analysis, I explore what it means to victim-survivors to have a voice in the National Inquiry, narratives of law and justice that emerge in victim-survivor submissions and how the Commission responds in its role as institutional listener. These methodologies enable analysis of the politics and practices of listening within a law reform process, revealing hierarchies of attention that influence who is heard and how they are heard by the Commission. The Commission's listening practices, and its capacity to listen to victim-survivors with openness, attentiveness, receptivity and responsiveness, are shown to limit its engagement in transformative change to address workplace sexual harassment.

Universal institutional mechanism for ensuring the right to development

The article describes the institutional mechanism for ensuring the right to development at the international universal level. The functions and mandate of the Office of the United Nations High Commissioner for Human Rights, the Working Group on the Right to Development, the High-level Task Force on the Implementation of the Right to Development, the Special Rapporteur on the Right to Development, the Expert Mechanism on the Right to Development, etc. are described. It is noted that the right to development is the only human right specifically mentioned in resolution 48/141 of the UN General Assembly, by which it established the position of High Commissioner and the Office of the High Commissioner for Human Rights. It is highlighted the functions of the Office of the High Commissioner for Human Rights in ensuring the right to development. It is described the mandate of the Working Group on the Right to Development, which includes: monitoring and analysis of progress made in the promotion and implementation of the right to development at the national and international levels, making recommendations and further analysis of obstacles to its full implementation; review of reports and any other information submitted by States, UN agencies, other relevant international organisations and non-governmental organisations on the relationship between their activities and the right to development, etc. It is noted that the High-level Task Force on the Implementation of the Right to Development was established within the framework of the Working Group on the Right to Development to assist it in fulfilling its mandate. It is stated that the Special Rapporteur on the Right to Development contributes to the realisation of the right to development by developing practical guidance to implement the right and to integrate it within development policies and programmes at local, national, regional and international levels. The functions and mandate of the Special Rapporteur are highlighted. It is described the activities of the Expert Mechanism on the Right to Development, which provides the Human Rights Council with thematic expertise on the right to development in searching for, identifying and sharing best practices with Member States and promotes the implementation of the right to development worldwide.