New frontiers of democratization
On possible recommendations to the legislation in the field of combating discrimination in the Republic of Kazakhstan
Suleimen Usen,
director of the public fund "National Endowment for Prosperity"
director of the public fund "National Endowment for Prosperity"
Sergeyeva Mariya,
expert of the public fund "National Endowment for Prosperity"
expert of the public fund "National Endowment for Prosperity"
Kazakhstan's commitment to democratic reforms and human rights is evident through the implementation of significant legislative and judicial changes. We have been witnessing this process in recent years. These efforts not only strengthen the country's governance structure, but also serve as a model for political modernization in the region.
Kazakhstan has become a regional leader in the implementation of large-scale democratic and political reforms, as well as initiatives in the field of human rights protection. These reforms are part of the country's comprehensive transformation.
Through a constitutional referendum and elections, we have transformed the institutions of our government. We have made undeniable progress towards democratization and towards a more inclusive political system and economy.
Initiatives to strengthen the protection of human rights are being carried out on a broad front. We implement legislative initiatives to ensure democratic participation of citizens, implement constitutional and judicial reforms, improve laws in the field of media and civil society, strengthen gender equality, protect the rights of the child, combat domestic violence, human rights in criminal justice, prevent torture and ill-treatment, freedom of association, rights of persons with disabilities, the right to work and labor protection.
Perhaps right now we are going through the most significant process of transformation since independence. An important and fundamental fact is that this process is headed by the Head of State, who works in close contact with civil society through a few specially created dialogue platforms.
At the same time, we would like to draw attention to another area in the field of human rights protection. In the scientific field, there is such a thing as an interdisciplinary approach. It is in this category that we would like to place the initiatives proposed below.
Question of the drafting of the Non-Discrimination Act. It is important that this issue is not only understood, but also raised by President Kassym-Jomart Tokayev. Thus, in the Decree of the President of the Republic of Kazakhstan dated December 8, 2023 No 409 "On the Action Plan in the Field of Human Rights", the Government was instructed to create a Working Group on Anti-Discrimination Legislation, which should develop and submit its proposals for improving legislation.
Most of the developed and developing countries of the modern world are pursuing a policy aimed at eliminating discrimination in all areas of public life, improving national anti-discrimination legislation, which is generally based on the standards enshrined in international legal acts. Violation of the equality of citizens causes significant harm not only to the individual, but also to interpersonal relations, relations between the individual and society, the state, destabilizes the situation in society, giving rise to class, ethnic, interreligious and other conflicts. In this regard, the government is faced with the task of not only proclaiming, but also ensuring protection at the level of respect for human rights, as well as creating the most effective legal mechanism for their implementation and protection.
The legislative potential in this area is seriously devalued due to numerous shortcomings inherent in the current law enforcement practice: vague wording, contradictions between the elements of violations/crimes against the person, and other gaps that make it possible to commit socially dangerous acts against constitutional human rights and freedoms with impunity. This situation again dictates the need to rethink the mechanism for the legal prevention of violations of constitutional human and civil rights and freedoms from the standpoint of its compliance with the generally recognized principles and norms of international law, the Constitution of the Republic of Kazakhstan, as well as in comparison with the positive experience of protecting these rights and freedoms abroad.
One of the effective mechanisms for countering gross violations of constitutional rights and freedoms are legislative elements, which, however, do not achieve the desired result due to the underestimation of the public danger of crimes and violations against constitutional human rights and freedoms both on the part of the legislator, who provides for lenient sanctions in the relevant norms, and on the part of law enforcement officers, who do not have a principled position on the rigorous identification and suppression of each fact associated with an unlawful violation of human rights and freedoms.
International guarantees of protection against discrimination and anti-discrimination concepts of a general and specific nature relating to discrimination and its specific types (direct and indirect discrimination, harassment, sexual harassment, discrimination by association, incitement to discrimination, etc.), as well as special measures considered as permissible forms of unequal treatment (positive discrimination, reasonable accommodations for persons with disabilities, professional In the case of the development of international law (i.e., the development of anti-discrimination legislation and practice, etc.) are enshrined in statutory international law and/or are more elaborated and articulated in international case law, the interpretation of which contributes to the development of anti-discrimination legislation and practice at the national level.
International experience in combating discrimination shows that most agreements relating to discrimination and its prohibition/prevention/protection against it, as well as most anti-discrimination provisions in agreements on the protection of human rights, prohibit discrimination on various grounds, including race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, property, disability, birth or other status.
International guarantees of protection against discrimination and anti-discrimination concepts of a general and specific nature relating to discrimination and its specific types (direct and indirect discrimination, harassment, sexual harassment, discrimination by association, incitement to discrimination, etc.), as well as special measures considered as permissible forms of unequal treatment (positive discrimination, reasonable accommodations for persons with disabilities, professional In the case of the development of international law (i.e., the development of anti-discrimination legislation and practice, etc.) are enshrined in statutory international law and/or are more elaborated and articulated in international case law, the interpretation of which contributes to the development of anti-discrimination legislation and practice at the national level.
Over the past few decades, anti-discrimination legislation in different countries of the world has been improved under the influence of international law. The list of States parties whose basic laws consider non-discrimination includes, among others, Azerbaijan, Belarus, Latvia, the Russian Federation, Switzerland and Turkmenistan. I would especially like to note the work of our colleagues from Tajikistan, who developed and adopted in 2022 a full-fledged Law on Equality and Elimination of All Forms of Discrimination with the establishment of a special authorized body represented by the Office of the Commissioner for Human Rights in the country.
Specific anti-discrimination and/or equality laws exist in most OSCE participating States: Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Macedonia, Turkey, Ukraine, Great Britain, USA, etc.
Decision-making functions are the responsibility of many equality bodies. However, the scope of decision-making power is not the same everywhere. For example, in some States, equality bodies do not have the power to make legally binding decisions, while in others their decisions are legally binding. The competence to make legally binding decisions may also have a different scope.
In the United States, for example, according to the US Age Discrimination Act of 1967, before applying to the court, the applicant must apply to a specially created and permanent Commission on Equal Employment Opportunity. Similarly, in the United Kingdom, the Employment Equality (Age) Regulations 2006 establish employment tribunals for this purpose.
In Ireland, in the same area of employment, it is the Equality Authority, established under the Irish Employment Equality Act 1998 and consisting of 12 members appointed by the Minister for Justice, with at least five men and at least five women members. The President is appointed on a full-time or part-time basis and has held office for more than four years under conditions to be determined by the Minister in consultation with the Minister of Finance. The Equality Authority has the power to conduct investigations.
Denmark has the Equal Treatment Board, which is a quasi-judicial, independent body that hears complaints of discrimination in employment as well as in other areas. The Council operates under a number of anti-discrimination laws, including the Equal Treatment on Ethnic Origin, the Prohibition of Discrimination in the Labour Market Act, the Gender Equality (Consolidated) Act, the Equal Pay for Men and Women Consolidated Act, the Combined Equal Treatment of Men and Women Act in Respect of Access to Employment and Maternity Leave, The Equal Treatment of Men and Women in Occupational Pension Schemes Act, the Parental Leave Act; Act on the right to leave and allowance in connection with the birth of a child. The decisions of the Council are legally binding. If the decisions are not implemented, the secretariat of the Council is obliged to apply to the court at the request of the applicant and in his interests.
In Austria, anti-discrimination legislation consists of the Equal Treatment Act relating to the private sector on employment and protection against discrimination on the grounds of gender, ethnic origin, religion or belief, sexual orientation and age; the Federal Equal Treatment Act concerning employment in the public sector; The Employment of Persons with Disabilities Act, the Federal Disability Equality Act, and local legislation. At the level of institutional protection against discrimination, the Act on the Equal Treatment Commission and the National Council for Equality is in force. At the same time, local anti-discrimination institutions have been established at the Länder level on the basis of local legislation. For example, an independent Anti-Discrimination Office has been established in Vienna. Similar offices have been established in other Austrian states, in Styria, Carinthia, Lower and Upper Austria and Bürgenland.
In Germany, special anti-discrimination legislation was adopted in 2006 to implement the European Directives on the principle of equal treatment, including the General Equal Treatment Act and the Equal Treatment of Military Personnel Act. In the same year, the Federal Anti-Discrimination Agency, an independent body providing assistance and protection to victims of discrimination, was established.
The 2012 Law of Moldova on Equality defines the entities empowered to prevent and combat discrimination and ensure equality, which are: the Council for Preventing and Eliminating Discrimination and Ensuring Equality; public authorities; courts.
European judicial practice has more experience in resolving precedents in the field of discrimination based on sex. The introduction of a norm prohibiting racial or ethnic discrimination into the text of the Treaty establishing the European Community was considered until 1999, while the basic guarantee of equal pay for an equal share of work between men and women was included in the fundamental document - the Treaty of Rome of 1957 (now it is Article 141).
This situation differs from the situation in the United States, where, for historical reasons, the judicial practice of protecting the rights of citizens intensified in the 30s of the last century due to the lawsuits of African Americans. For example, the challenge posed by racial discrimination in the case of Brown v. Department of Education proved the effectiveness of litigation as a means of achieving social change. Although the movement for the protection of women's rights arose in the United States before the courts began to apply the law prohibiting discrimination based on sex, based on the experience of cases of racial discrimination. The European Court of Justice recognized that "respect for the fundamental rights of the individual is one of the fundamental principles of Community law. There is no doubt that the elimination of discrimination on the basis of sex is part of these fundamental rights."
As for domestic practice, it is worth noting that the prohibition of discrimination is reflected in the following legal acts: the Constitution of the Republic of Kazakhstan (Article 14, Article 39); The Code of Civil Procedure, the Code of Criminal Procedure, the Code of Administrative Offences, the Labour Code, the Code on Public Health and the Health Care System, and a number of norms prohibiting discrimination are contained in some other legal acts.
Thus, analyzing the current legislation, namely the Constitution of the Republic of Kazakhstan, it should be noted that in practice there is only Article 14 on the equality of all citizens before the law and the court and Article 39, which allows for some restrictions on rights and freedoms in exceptional cases. However, there is no specific and complete definition of discrimination for which liability is provided in the Constitution or in other laws.
For a better understanding of this conflict, a voluminous definition of discrimination is assumed, with an enumeration of all its types, which indicates the need to include it in national legislation, without which all the prohibitions on discrimination and measures of responsibility for it lose all meaning.
International norms generally take precedence over national legal acts/laws, which is usually governed by the Constitution and confirmed by case law, which may emphasize the applicability of international standards. Thus, national legislation should be harmonized in itself and should be consistent with treaties addressing and protection against discrimination/inequality.
The above-mentioned international obligations of the Republic of Kazakhstan and the recommendations of international bodies in the field of combating discrimination represent a few ratified international human rights treaties containing provisions on protection against discrimination. These important documents include:
Human and civil rights and freedoms, declared at the international level and recognized on a global scale, are called upon to determine the meaning and content of the national legislation of many states, including Kazakhstan. It is assumed that they should be a principle of political, economic, social reforms, an axiom of modernization of modern legislation. However, despite the ubiquitous, sometimes even excessive declaration of the concept of human and civil rights and freedoms as the basis of the relationship between the state and the individual, the level of practical implementation of this concept, the real protection of these rights and freedoms needs significant improvement.
In this regard, the definition, amendment, and introduction of a clear understanding of human rights and freedoms at the legislative level definitely requires additional efforts. Future changes should include not only the development of full-fledged definitions of discrimination, but also the introduction of new specific bodies that will subsequently regulate the appeals of all persons who consider themselves victims of discrimination. the establishment of an independent Anti-Discrimination Office in the Republic of Kazakhstan.
Kazakhstan has become a regional leader in the implementation of large-scale democratic and political reforms, as well as initiatives in the field of human rights protection. These reforms are part of the country's comprehensive transformation.
Through a constitutional referendum and elections, we have transformed the institutions of our government. We have made undeniable progress towards democratization and towards a more inclusive political system and economy.
Initiatives to strengthen the protection of human rights are being carried out on a broad front. We implement legislative initiatives to ensure democratic participation of citizens, implement constitutional and judicial reforms, improve laws in the field of media and civil society, strengthen gender equality, protect the rights of the child, combat domestic violence, human rights in criminal justice, prevent torture and ill-treatment, freedom of association, rights of persons with disabilities, the right to work and labor protection.
Perhaps right now we are going through the most significant process of transformation since independence. An important and fundamental fact is that this process is headed by the Head of State, who works in close contact with civil society through a few specially created dialogue platforms.
At the same time, we would like to draw attention to another area in the field of human rights protection. In the scientific field, there is such a thing as an interdisciplinary approach. It is in this category that we would like to place the initiatives proposed below.
Question of the drafting of the Non-Discrimination Act. It is important that this issue is not only understood, but also raised by President Kassym-Jomart Tokayev. Thus, in the Decree of the President of the Republic of Kazakhstan dated December 8, 2023 No 409 "On the Action Plan in the Field of Human Rights", the Government was instructed to create a Working Group on Anti-Discrimination Legislation, which should develop and submit its proposals for improving legislation.
Most of the developed and developing countries of the modern world are pursuing a policy aimed at eliminating discrimination in all areas of public life, improving national anti-discrimination legislation, which is generally based on the standards enshrined in international legal acts. Violation of the equality of citizens causes significant harm not only to the individual, but also to interpersonal relations, relations between the individual and society, the state, destabilizes the situation in society, giving rise to class, ethnic, interreligious and other conflicts. In this regard, the government is faced with the task of not only proclaiming, but also ensuring protection at the level of respect for human rights, as well as creating the most effective legal mechanism for their implementation and protection.
The legislative potential in this area is seriously devalued due to numerous shortcomings inherent in the current law enforcement practice: vague wording, contradictions between the elements of violations/crimes against the person, and other gaps that make it possible to commit socially dangerous acts against constitutional human rights and freedoms with impunity. This situation again dictates the need to rethink the mechanism for the legal prevention of violations of constitutional human and civil rights and freedoms from the standpoint of its compliance with the generally recognized principles and norms of international law, the Constitution of the Republic of Kazakhstan, as well as in comparison with the positive experience of protecting these rights and freedoms abroad.
One of the effective mechanisms for countering gross violations of constitutional rights and freedoms are legislative elements, which, however, do not achieve the desired result due to the underestimation of the public danger of crimes and violations against constitutional human rights and freedoms both on the part of the legislator, who provides for lenient sanctions in the relevant norms, and on the part of law enforcement officers, who do not have a principled position on the rigorous identification and suppression of each fact associated with an unlawful violation of human rights and freedoms.
International guarantees of protection against discrimination and anti-discrimination concepts of a general and specific nature relating to discrimination and its specific types (direct and indirect discrimination, harassment, sexual harassment, discrimination by association, incitement to discrimination, etc.), as well as special measures considered as permissible forms of unequal treatment (positive discrimination, reasonable accommodations for persons with disabilities, professional In the case of the development of international law (i.e., the development of anti-discrimination legislation and practice, etc.) are enshrined in statutory international law and/or are more elaborated and articulated in international case law, the interpretation of which contributes to the development of anti-discrimination legislation and practice at the national level.
International experience in combating discrimination shows that most agreements relating to discrimination and its prohibition/prevention/protection against it, as well as most anti-discrimination provisions in agreements on the protection of human rights, prohibit discrimination on various grounds, including race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, property, disability, birth or other status.
International guarantees of protection against discrimination and anti-discrimination concepts of a general and specific nature relating to discrimination and its specific types (direct and indirect discrimination, harassment, sexual harassment, discrimination by association, incitement to discrimination, etc.), as well as special measures considered as permissible forms of unequal treatment (positive discrimination, reasonable accommodations for persons with disabilities, professional In the case of the development of international law (i.e., the development of anti-discrimination legislation and practice, etc.) are enshrined in statutory international law and/or are more elaborated and articulated in international case law, the interpretation of which contributes to the development of anti-discrimination legislation and practice at the national level.
Over the past few decades, anti-discrimination legislation in different countries of the world has been improved under the influence of international law. The list of States parties whose basic laws consider non-discrimination includes, among others, Azerbaijan, Belarus, Latvia, the Russian Federation, Switzerland and Turkmenistan. I would especially like to note the work of our colleagues from Tajikistan, who developed and adopted in 2022 a full-fledged Law on Equality and Elimination of All Forms of Discrimination with the establishment of a special authorized body represented by the Office of the Commissioner for Human Rights in the country.
Specific anti-discrimination and/or equality laws exist in most OSCE participating States: Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Macedonia, Turkey, Ukraine, Great Britain, USA, etc.
Decision-making functions are the responsibility of many equality bodies. However, the scope of decision-making power is not the same everywhere. For example, in some States, equality bodies do not have the power to make legally binding decisions, while in others their decisions are legally binding. The competence to make legally binding decisions may also have a different scope.
In the United States, for example, according to the US Age Discrimination Act of 1967, before applying to the court, the applicant must apply to a specially created and permanent Commission on Equal Employment Opportunity. Similarly, in the United Kingdom, the Employment Equality (Age) Regulations 2006 establish employment tribunals for this purpose.
In Ireland, in the same area of employment, it is the Equality Authority, established under the Irish Employment Equality Act 1998 and consisting of 12 members appointed by the Minister for Justice, with at least five men and at least five women members. The President is appointed on a full-time or part-time basis and has held office for more than four years under conditions to be determined by the Minister in consultation with the Minister of Finance. The Equality Authority has the power to conduct investigations.
Denmark has the Equal Treatment Board, which is a quasi-judicial, independent body that hears complaints of discrimination in employment as well as in other areas. The Council operates under a number of anti-discrimination laws, including the Equal Treatment on Ethnic Origin, the Prohibition of Discrimination in the Labour Market Act, the Gender Equality (Consolidated) Act, the Equal Pay for Men and Women Consolidated Act, the Combined Equal Treatment of Men and Women Act in Respect of Access to Employment and Maternity Leave, The Equal Treatment of Men and Women in Occupational Pension Schemes Act, the Parental Leave Act; Act on the right to leave and allowance in connection with the birth of a child. The decisions of the Council are legally binding. If the decisions are not implemented, the secretariat of the Council is obliged to apply to the court at the request of the applicant and in his interests.
In Austria, anti-discrimination legislation consists of the Equal Treatment Act relating to the private sector on employment and protection against discrimination on the grounds of gender, ethnic origin, religion or belief, sexual orientation and age; the Federal Equal Treatment Act concerning employment in the public sector; The Employment of Persons with Disabilities Act, the Federal Disability Equality Act, and local legislation. At the level of institutional protection against discrimination, the Act on the Equal Treatment Commission and the National Council for Equality is in force. At the same time, local anti-discrimination institutions have been established at the Länder level on the basis of local legislation. For example, an independent Anti-Discrimination Office has been established in Vienna. Similar offices have been established in other Austrian states, in Styria, Carinthia, Lower and Upper Austria and Bürgenland.
In Germany, special anti-discrimination legislation was adopted in 2006 to implement the European Directives on the principle of equal treatment, including the General Equal Treatment Act and the Equal Treatment of Military Personnel Act. In the same year, the Federal Anti-Discrimination Agency, an independent body providing assistance and protection to victims of discrimination, was established.
The 2012 Law of Moldova on Equality defines the entities empowered to prevent and combat discrimination and ensure equality, which are: the Council for Preventing and Eliminating Discrimination and Ensuring Equality; public authorities; courts.
European judicial practice has more experience in resolving precedents in the field of discrimination based on sex. The introduction of a norm prohibiting racial or ethnic discrimination into the text of the Treaty establishing the European Community was considered until 1999, while the basic guarantee of equal pay for an equal share of work between men and women was included in the fundamental document - the Treaty of Rome of 1957 (now it is Article 141).
This situation differs from the situation in the United States, where, for historical reasons, the judicial practice of protecting the rights of citizens intensified in the 30s of the last century due to the lawsuits of African Americans. For example, the challenge posed by racial discrimination in the case of Brown v. Department of Education proved the effectiveness of litigation as a means of achieving social change. Although the movement for the protection of women's rights arose in the United States before the courts began to apply the law prohibiting discrimination based on sex, based on the experience of cases of racial discrimination. The European Court of Justice recognized that "respect for the fundamental rights of the individual is one of the fundamental principles of Community law. There is no doubt that the elimination of discrimination on the basis of sex is part of these fundamental rights."
As for domestic practice, it is worth noting that the prohibition of discrimination is reflected in the following legal acts: the Constitution of the Republic of Kazakhstan (Article 14, Article 39); The Code of Civil Procedure, the Code of Criminal Procedure, the Code of Administrative Offences, the Labour Code, the Code on Public Health and the Health Care System, and a number of norms prohibiting discrimination are contained in some other legal acts.
Thus, analyzing the current legislation, namely the Constitution of the Republic of Kazakhstan, it should be noted that in practice there is only Article 14 on the equality of all citizens before the law and the court and Article 39, which allows for some restrictions on rights and freedoms in exceptional cases. However, there is no specific and complete definition of discrimination for which liability is provided in the Constitution or in other laws.
For a better understanding of this conflict, a voluminous definition of discrimination is assumed, with an enumeration of all its types, which indicates the need to include it in national legislation, without which all the prohibitions on discrimination and measures of responsibility for it lose all meaning.
International norms generally take precedence over national legal acts/laws, which is usually governed by the Constitution and confirmed by case law, which may emphasize the applicability of international standards. Thus, national legislation should be harmonized in itself and should be consistent with treaties addressing and protection against discrimination/inequality.
The above-mentioned international obligations of the Republic of Kazakhstan and the recommendations of international bodies in the field of combating discrimination represent a few ratified international human rights treaties containing provisions on protection against discrimination. These important documents include:
- Convention on the Prevention and Punishment of the Crime of Genocide (1948);
- ILO Convention concerning Discrimination in Respect of Employment and Occupation (Convention No. 111) (1958);
- UNESCO Convention on Discrimination in Education;
- the International Convention on the Elimination of All Forms of Racial Discrimination (1965);
- the International Covenant on Civil and Political Rights (1966);
- International Covenant on Economic, Social and Cultural Rights (1966)
- the Convention on the Elimination of All Forms of Discrimination against Women (1979);
- ILO Convention concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (Convention 156) (1981)
- Convention on the Rights of the Child (1989);
- Convention on the Rights of Persons with Disabilities (2006).
Human and civil rights and freedoms, declared at the international level and recognized on a global scale, are called upon to determine the meaning and content of the national legislation of many states, including Kazakhstan. It is assumed that they should be a principle of political, economic, social reforms, an axiom of modernization of modern legislation. However, despite the ubiquitous, sometimes even excessive declaration of the concept of human and civil rights and freedoms as the basis of the relationship between the state and the individual, the level of practical implementation of this concept, the real protection of these rights and freedoms needs significant improvement.
In this regard, the definition, amendment, and introduction of a clear understanding of human rights and freedoms at the legislative level definitely requires additional efforts. Future changes should include not only the development of full-fledged definitions of discrimination, but also the introduction of new specific bodies that will subsequently regulate the appeals of all persons who consider themselves victims of discrimination. the establishment of an independent Anti-Discrimination Office in the Republic of Kazakhstan.