DOI: 10.5553/CAYILIR/277314562022001001009

Central Asian Yearbook of International Law and International RelationsAccess_open

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Theoretical Background and Legislative Framework for Implementation of the International Covenant on Civil and Political Rights in Kazakhstan

Keywords dualism and monism, incorporation and direct applicability of international treaties, human rights, implementation, international covenant on civil and political rights, Kazakhstan
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Beibit Shangirbayeva, 'Theoretical Background and Legislative Framework for Implementation of the International Covenant on Civil and Political Rights in Kazakhstan', (2022) Central Asian Yearbook of International Law and International Relations 178-197

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    • 1 Introduction

      Kazakhstan, after the proclamation of its independence in 1991, has been getting more and more involved in the activities of the surrounding international community playing a vital role. The country ratified the International Covenant on Civil and Political Rights (1966) on 24 January 2006 and the Optional Protocol I to ICCPR (1966) on 30 June 2009.1x The International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, in accordance with Art. 49. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Accessed 14 February 2019 [hereinafter the ICCPR, the Covenant]. On 23 September 2020 Kazakhstan signed the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (1989).2x State parties to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, as of 13 February 2022. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&clang=_en. Accessed 13 February 2022.
      The researcher has taken the ICCPR as an example because the ratification of the Covenant by Kazakhstan has resulted in subsequent and serious amendments to the Constitution of the Republic, introducing new trends and judicial reforms in the legal practice of the country.3x The Constitution of the Republic of Kazakhstan adopted at the national referendum on 30 August 1995 (as of 10 March 2017). https://online.zakon.kz/Document/?doc_id=1005029#pos=5;-227. Accessed 28 February 2019. As another reason, a practice of application of the ICCPR and the jurisprudence of the Human Rights Committee prefer direct applicability of the Covenant’s provisions at the country level. Above all, according to the ICCPR, a state party should take all necessary measures to enable all individuals under its jurisdiction to enjoy their civil and political rights.
      For the purposes of this study, the issues of correlations of international law with national law, plus theoretical issues of incorporation and self-execution of international treaties, and the conventional requirements for the implementation of the ICCPR will all be outlined. Study of the legislative framework of Kazakhstan for implementation of the ICCPR is helpful in defining the position of Kazakhstan towards the placing of the ICCPR and incorporation of the Covenant into the national domestic legal system, and the practice of invocation of the ICCPR before the national courts and other related issues. Answers to these questions will show the applicability of the ICCPR provisions in general practice and in practice in Kazakhstan, as well as the openness and readiness of Kazakhstan to accept human rights and democratic values, coming as they do from an outside source. This, undoubtedly, creates necessary legal remedies and tools for the protection of civil and political rights at the domestic level and makes changes to the legal and political system of the country. On the other hand, a good understanding of theoretical issues helps to find answers clarifying many practical questions that have been raised by the Constitutional Council of Kazakhstan on the issues concerning the correlations of international law with national law since the foundation of the Republic as an independent country.

    • 2 Approaches to Correlations of National Law with International Law

      2.1 Literature Review

      The subject of correlations of international law with national law is well researched in legal science. Kazakh scholars started to pay attention to these issues after the collapse of the Soviet Union, when Kazakhstan began to initiate the signing and ratification of international treaties and to accede to them. Moreover, the Constitutional Council of Kazakhstan was often asked to give official comments on the provisions of the Constitution regarding the ratification of international treaties and the place of ratified treaties within the hierarchy of the national legislation. The practical questions raised by the Constitutional Council of the Republic provoked subsequent study of the issue at the theoretical level in Kazakhstan.
      Conscientious analysis of this and other related questions has been done by many Kazakh scientists, such as Alimzhan K.A.,4x Alimzhan 2003. Aydarbayev S.J.,5x Aydarbayev 2005. Baymakhanov M.T.,6x Baymakhanov 2003. Busurmanov J.D. (2000),7x Busurmanov 2000. Salimgerey A.A.,8x Salimgerey 2005. Saparghaliyev G.S.,9x Saparghaliyev 1997. Kulzhabayeva J.O.10x Kulzhabayeva 2000. and Udartsev S.F.,11x Udartsev 2000. as well as many others. The special research monograph of Abaydeldinov E.M.12x Abaydeldinov 2005. is devoted to the issues of correlations of international law and national law. The author has grasped the historical developments of such correlations and researched new tendencies in the formation of law in regional and international relations, looking at the practices of the Commonwealth of Independent States (CIS) countries, the European Union and the United Nations. Most of the aforementioned scientists were invited by the Constitutional Council of the Republic in the capacity of experts in the consideration of legal problems regarding the correlations of international legal norms and domestic law.
      Because Kazakhstan was a part of the Soviet Union, Russian academia significantly influences the ideas of Kazakh scientists. The fundamental works of Anufrieva L.P.,13x Anufrieva 2001; 2002. Chernichenko S.V.,14x Chernichenko 1999. Talalyaev A.N.,15x Talalyaev 1997. Lukashuk I.I.16x Lukashuk 1997; 2004. as well as of many other prominent scientists discussed diverse aspects of the problem, giving an impetus to the development of research in the region. The monographs of Lukashuk I.I.17x Lukashuk 2004. on the contemporary international law of treaties revealed different theoretical aspects of the conclusion and operation of contemporary international treaties. Anufrieva L.P.18x Anufrieva 2001. considers international law and national law as two independent yet closely interrelated systems. The work of Osminin B.I. is based mainly on the analytical report of the Committee of Legal Advisers on Public International Law of the Council of Europe.19x Osminin 2006.
      A considerable contribution to the development of scholarship on correlations between international law and national law was presented in the aforementioned analytical report of the Council of Europe, which covers the practice of more than forty countries.20x Council of Europe and British Institute of International and Comparative Law 2001. In several chapters Beth A. Simmons considered theories of commitment and compliance with regard to human rights obligations.21x Simmons 2009. The states’ treaty-making approach was identified in the monograph on modern treaty law and practice by Anthony Aust, where the author covered all classical questions related to international law-making and considered the practice of many countries, including European ones, US, Russia and others.22x Aust 2007. The effect of treaties in domestic law of European countries in a comparative perspective was discussed in the publication edited by Francis G. Jacobs and Shelley Roberts.23x Jacobs and Roberts 1987. Andre Nollkaemper’s article on the effects of treaties in domestic law discussed many important issues, including techniques that states usually employ to domesticate international treaties.24x Nollkaemper 2014. Modes of domestic incorporation of international law are also well researched by Pierre-Hugues Verdier and Mila Versteeg.25x Verdier and Versteeg 2016. Other scientific articles, edited by Benedetto Conforti and Francesco Francioni, are a kind of comparative review of different constitutional and judicial models regarding the enforcement of international human rights at the domestic level.26x Conforti and Francioni 1997. Pieter van Dijk, a former member of the European Court of Human Rights, clarified issues of incorporation of human rights treaties and the concept of self-executing treaty provisions.27x Dijk 2014. Christopher Harland, in his article on the status of the ICCPR in the domestic Law of State Parties, delved into the UN Human Rights Committee’s documents of sixty-eight countries to ascertain whether the ICCPR is a part or not of the national law.28x Harland 2000.

      2.2 Monistic and Dualistic Approaches

      The discussion of the theoretical background for implementation of the ICCPR leads us to questions of the correlations of international law with national law. This will enable an understanding of the different positions of states towards placing the ratified international treaty within their domestic systems and will reveal those internal domestic conditions that make the international treaty enforceable and its provisions applicable within the country concerned.
      In issues of correlation of national and international legal systems, a sovereign country would preserve its own national interests, which could be inconsistent with the interests of external bodies. For instance, every country has its own traditions and customs, which could differ from the values of international human rights treaties, or has doctrines that derive from the immunity of the state and prevent an application of international law (justiciability and the political question doctrine, the last in time rule). Historical and cultural background, the distribution of power between three branches within the state, and the will and intention of state bodies and people to accept the rules that have other origins all play a significant role in the policy of the country towards correlation of international law with national law.
      When a sovereign country accepts the claims of an international human rights treaty, it voluntarily recognizes the will of world legislature. The commitment undertaken to follow international human rights standards “arises from a promise” by the national country, and the force of the ICCPR remains self-imposed.29x Hart 1961, p. 219. Such recognition causes the country to accept the international authority and can therefore limit its independence.
      However, the State “is in control of the domestic effect of the treaty”.30x Nollkaemper 2014, p. 125. The state approach to international law determines the applicability of the international instrument within domestic law and creates the conditions for implementation of a treaty’s provisions. This also influences the application and respect for the treaty obligations undertaken and ability of the international treaty to be invoked before the national courts, along with the status of the treaty and its place within domestic legislation.
      In the study and practice of the application of correlations of international law with national law the two principal approaches are monistic and dualistic. The same subject matter can be regulated by both international and domestic law, but which of the two has priority in effective operative circumstances is a matter of opinion.31x Brownlie 2003, p. 32.
      Monism implies that an international treaty, which has been concluded according to the provisions of national law and enters into force, becomes a part of domestic law without the need for further legislation. This approach affirms the supremacy of international law even within the jurisdiction of national law. Some countries have accepted the monistic approach and ratified international treaties, automatically making them a part of their national law. Switzerland’s method is “perhaps the most developed form of monism”.32x Aust 2007, p. 182. In the Netherlands the ICCPR became a part of domestic law automatically (the Dutch Supreme Court recognizing some provisions of the ICCPR as self-executing).
      Dualism (pluralism) considers international and national law to be two separate legal systems; the scope of the regulations of the two systems differs from each other. According to dualism, international law concerns regulation between sovereign countries; the relations within a state and among citizens and with the national government are a matter of domestic law. When a municipal court has an issue of conflict between international and municipal law, it applies municipal law. In the dualistic system domestic law provides for the application of international law through adoption and transformation. The rights and obligations created by international treaties “have no effects in domestic law unless legislation is in force to give effect to them”.33x Ibid., p. 187.
      There are various approaches in the practice of many countries, which lie between monism and dualism and have elements of both. To bridge the gap between the two legal systems many have constitutional provisions for the application of international law in internal affairs. For instance, Italy, as a country that follows dualist tradition, affirms in Article 10 of the Constitution of 1947 that “the Italian legal system conforms to the generally recognized principles of international law”.34x Constitution of the Italian Republic of 27 December 1947. http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf. Accessed 25 March 2018.

    • 3 Incorporation of International Treaties

      Usually, after ratification any international treaty demands incorporation, when the state creates the conditions in which the provisions of the ratified treaty are given force and become integrated into domestic law. There are three basic forms of constitutional approaches towards international law in world practice: automatic integration, formal incorporation and substantive incorporation.
      Many countries (Central and Eastern European countries, Netherlands, France, Switzerland and others) follow the principle that if the treaty is concluded and accepted in accordance with the constitution, it binds the national courts without an act of incorporation (automatic integration). In automatic integration treaties have an automatic effect on domestic law after their ratification and its official announcement in the national publications.
      In countries like Italy the international treaties must be incorporated into the national legal system through state action. Such a type of incorporation, which is called “formal incorporation” and which needs the adoption of the treaty by the legislature or the executive power, is also used in Austria, Belgium, Germany, Greece, Finland, USA and other states. The level of the international agreement and its content define the level of incorporating act (constitutional or legislative act, a presidential decree or an administrative act).
      In the case of formal incorporation the status of the international treaty is on the same level as that of a national legislative act, through which the international treaty was incorporated. There are two procedures of incorporation: the special (or reference) and the ordinary. In the special (or reference) procedure the treaty is implemented with reference to the international treaty, and this procedure is used if changes in domestic law are not required. The ordinary procedure implies the adoption of important legislative or administrative acts for the incorporation of an international treaty.
      In the Westminster (the United Kingdom, Canada, Australia, Ireland and Israel) and Nordic (Denmark, Sweden, Norway and Iceland) traditions, which follow substantive incorporation, the treaty has an effect if it is incorporated into domestic law through a substantive legislative act. Only the provisions of a substantive legislative act have an effect. In the Westminster tradition the content of the international agreement is incorporated by primary and/or secondary legislation.

    • 4 Direct Applicability of International Treaties

      Despite the absence of the requirement for direct applicability in the Covenant itself, the Human Rights Committee gives preference to the direct application of the Covenant in the national law and its enforcement in national courts.35x UN Human Rights Committee: Concluding Observations: Kazakhstan, 21 July 2011, CCPR/C/KAZ/CO/1. http://ccprcentre.org/doc/2012/05/G1144888.pdf. Accessed 27 February 2019 [hereinafter UN Human Rights Committee: Concluding Observations: Kazakhstan, 2011]. The Committee considers that “the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant”.36x General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Compilation of general comments and general recommendations adopted by Human Rights Treaty Bodies, 12 May 2004, HRI/GEN/1/Rev.7, p. 192. https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=HRI%2FGEN%2F1%2FRev.7&Lang=en. Accessed 14 February 2019 [hereinafter General Comment No 31], p. 196, para. 15. It is considered that the constitutional provisions that make human rights treaties directly applicable have a positive impact on the human rights records of a country.37x Verdier and Versteeg 2016. In its Concluding Observations on Kazakhstan, the Committee recommended that the country “take all necessary measures to ensure … the applicability of the Covenant and other international human rights treaties ratified by the State party” and expressed concern that “the provisions of the Covenant are rarely invoked before national courts”.38x UN Human Rights Committee: Concluding Observations: Kazakhstan 2011, p. 2.
      In the domestic legal system an international treaty may be directly applicable if it is self-executing, meaning that it is capable of being judicially enforced without need for “further legislative and administrative action”39x Jacobs et al. 1987, pp. 146, 150. and does not “envisage implementing legislation”.40x Aust 2007, p. 159. The term self-executing treaty involves the applicability of the treaty inside national territory without any substantive act of incorporation. A self-executing treaty should have completeness and capability of being applied to the cases at the national level. Hence, the requirement of direct application of the ICCPR at the national level demands the Covenant’s ability to self-execute, and its formulation “in such way that it may be directly applied by the domestic courts”.41x Dijk 2014, p. 5.
      The Cour de Cassation of Belgium expressed an opinion that in order to be directly applicable the ICCPR provision should be “complete and precise”.42x Jacobs et al. 1987, p. 16. In another case, the content of Article 14 (3) (d) of the ICCPR concerning the right of the accused to defend himself in person was recognized by the Court of Cassation of Italy as incomplete and incapable of direct effect.43x Conforti and Francioni 1997, p. 25. Moreover, the substantive provisions of the ICCPR do not carry any sanctions, and states must adopt legislative or other measures that may be necessary to give effect to the rights recognized by the Covenant (Art. 2 (2)). The Conseil d’État of Belgium found the intention of the contracting states stated in Article 2 (2) of the ICCPR as an “insurmountable obstacle to the direct effect of the Covenant as such”.44x Ibid., p. 19.

    • 5 What Does Implementation of the ICCPR Imply?

      “The implementation of ICCPR” implies the realization of its human rights standards through transformation into domestic law. National countries implement the provisions of the ICCPR within their national legal system; the ways and means by which they carry out such implementation are an internal sovereignty and depend on the legal and political system of the individual state. “There is no customary international law norm on the question how a nation implements of its obligations.”45x Jacobs et al. 1987, p. 154. In this sense, the latest amendments to the Constitution of the Republic that national legislation determines the procedure and conditions of operation of an international treaty do not change the circumstances significantly.
      According to Article 2 of the Covenant, state parties have a general obligation to respect and to ensure for individuals in their territory, subject to their jurisdiction, the rights recognized in the Covenant. The analysis of the Covenant’s text enables us to come to the conclusion that it uses a wide interpretation of “implementation”. The words and phrases regarding implementation, which are commonly used in the Covenant, are measures, remedies, circumstances, legal rules, and administrative measures, legal and practical restrictions, administrative and judicial authorities in applying the law.
      Article 2 (2) of the ICCPR implies that the state party may choose the method of implementation and provides the framework for it. Each state party should establish the legal framework and enforcement mechanisms, including non-legal measures, for carrying out the Covenant rights.46x Carlson and Gisvold 2003, pp. 15-16. The full range of constitutional, legislative, administrative, judicial and other practical measures are considered by the Committee for the ICCPR implementation at the country level. The state party is committed to changing national standards and practice in accordance with the Covenant’s requirements. The Committee is interested in “the actual situation, including the availability of remedies where Covenant rights have been violated”, and the description of “judicial and administrative authorities with human rights jurisdiction”.47x Ibid., p. 7.

    • 6 National Provisions of Kazakhstan for Implementation of the ICCPR

      6.1 National Provisions Regarding the Ratification of the ICCPR

      After the break-up of the Soviet Union, Kazakhstan recognized Russia as the successor of the USSR’s international obligations and therefore ratified the ICCPR for itself as a new independent country on 24 January 2006.
      Kazakhstan took several steps to ratify the ICCPR. On 15 November 2003 No. 1227 the president of the country adopted the decree on signing of the ICCPR alongside the International Covenant on Economic, Social and Cultural Rights by the permanent representative of Kazakhstan to the United Nations.48x The Decree of the President of the Republic of Kazakhstan of 15 November 2003 No. 1227 “On signing by the Republic of Kazakhstan of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.” http://online.zakon.kz/m/Document/?doc_id=2045090. Accessed 15 February 2019. The treaty was signed on 2 December 2003 on the basis of documents authorized by the Ministry of Foreign Affairs of Kazakhstan.49x United Nations Treaty Collection. Status of International Covenant on Civil and Political Rights. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. Accessed 15 February 2019.
      The Law on International Treaties of Kazakhstan of 30 May 2005, which defines the conclusion of and amendments to international treaties and the cessation and application of international treaties, requires the approval by Parliament of certain international treaties.50x The Law of Kazakhstan “On international treaties of the Republic of Kazakhstan” adopted 30 May 2005 (in Russian), official publication in Kazakhstanskaya Pravda, 4 June 2005 No. 146-147. Overall, the Law on International treaties regulates the participation of Kazakhstan in treaty-making. If the subject of an international treaty concerns the rights and freedoms of individuals and citizens, if it demands the changing of functioning laws and approval of new laws, or establishes new rules not envisaged in the laws of Kazakhstan, the international treaty should receive the consent of Parliament to be bound by it.
      The Parliament of Kazakhstan gave its consent to the ICCPR through the legislative act No. 91 of 28 November 2005, which was officially published in the national newspaper Kazakhstanskaya pravda No. 333-334 of 3 December 2005. On the basis of this legislative act of Parliament, the president signed the instrument of ratification, which was deposited on 24 January 2006 with the Secretary General of the United Nations. In accordance with Article 49 (2) of the Covenant, the treaty entered into force in Kazakhstan on 24 April 2006.51x United Nations. Reference: C.N.80.2006.TREATIES-1 (Depositary notification). https://treaties.un.org/doc/Publication/CN/2006/CN.80.2006-Eng.pdf. Accessed on 27 February 2019.
      The publication of the international treaty in the official newspapers and magazines of the Republic is a precondition for its application in Kazakhstan and an element of formal constitutionality, legalizing the act on the national territory.52x Kurashvili 2006, p. 185. This condition is stipulated in Article 4 (4) of the Constitution and Article 24 of the Law on International Treaties of Kazakhstan. International treaties that have been entered into force after parliamentary consent shall be published in the Official Publications of Parliament.
      As such, the ICCPR was also published after parliamentary approval. The international treaties on the protection of rights, freedoms and duties of citizens – which are not published officially – cannot be applied in Kazakhstan.
      Here we can find some similarities with the Austrian regulation of treaty-making, where international treaties are integrated into the domestic field after their promulgation53x Council of Europe and British Institute of International and Comparative Law 2001, pp. 90, 113-116. or with French practice, which recognizes the parliamentary authorization and publication of international treaties, and where the incorporation of international treaty occurs without the need for a separate administrative act.54x Ibid., pp. 164-168.

      6.2 The Incorporation of the ICCPR into the Legal System of Kazakhstan

      Analysis of the national law leads to the conclusion that the legal system of Kazakhstan distinguishes national and international law as two systems and follows the tradition that lies between monism and moderate dualism. After ratification, international treaties of Kazakhstan need promulgation in the official publications of the Republic; the national legislation does not demand the adoption of any substantive legislative act incorporating and legalizing the validity of the international treaty within national territory.
      As was discussed before, to be directly applicable the Covenant needs to adopt laws that sanction illegal acts, for instance, against arbitrary deprivation of life, torture, inequality, discrimination, slavery, etc. and the laws to protect certain rights and freedoms. In Kazakhstan any actions may be considered criminal only if they are included in the Penal Code of Kazakhstan. Hence, in accordance with Article 1 (1), the responsibility for actions recognized as criminal by international legal norms can be applied only if they are included in the Penal Code of Kazakhstan.55x The Penal Code of the Republic of Kazakhstan adopted on 3 July 2014 # 226-V. https://online.zakon.kz/document/?doc_id=31575252#pos=4951;-102. Accessed 12 February 2022.
      Let us consider the examples when the crimes recognized in international treaties of Kazakhstan are incorporated into the Penal Code of the Republic. Inasmuch as the ICCPR forbids torture, the prohibition of torture was highlighted in a separate Article 146 of the Penal Code of the Republic and recognized as a specific criminal offence; and Kazakhstan made inadmissible as evidence any statements obtained through the use of torture (Art. 112 (1 (1)) of the Code of Penal Procedure).56x The Code of Penal Procedure of the Republic of Kazakhstan adopted 4 July 2014 by the Law #231-V ЗРК. http://adilet.zan.kz/rus/docs/K1400000231. Accessed 12 February 2022. To cite another example, Article 162 of the Penal Code of Kazakhstan forbids the production, acquisition and distribution of chemical, biological and nuclear and other weapons of mass destruction prohibited by the international treaty of the Republic, and envisages imprisonment for five to ten years. According to Article 163 of the Penal Code, the use of banned means and methods of warfare, which include ill-treatment of prisoners or civilians, deportation of civilians, the destruction or looting of national property in the occupied territory, the use of the means and methods, weapons of mass destruction prohibited by international treaties of Kazakhstan, is considered as a crime and entails severe punishment (imprisonment, life imprisonment, death penalty).

      6.3 The Status of the Covenant in the Hierarchy of Kazakhstan’s Legal System

      Thus, the ICCPR is a part of the domestic legal system of Kazakhstan, and the state can choose where to place the international treaty within the hierarchy of national legal acts. This coincides with the conclusions of Harland, who did a survey of the UN Human Rights Committee’s documents.
      The status of the Covenant in the national legislation and its “detailed explanations” are required by the members of Human Rights Committee.57x Carlson and Gisvold 2003, p. 18. In the Concluding Observations on Kazakhstan on consideration of reports submitted by the country under Article 40 of the Covenant (July, 2011) the Committee expressed concern “at the lack of clarity on the status of the Covenant in the domestic legal order following the decisions of the Constitutional Court…” and concluded that Kazakhstan “should take all necessary measures to ensure legal clarity”.58x UN Human Rights Committee: Concluding Observations: Kazakhstan 2011, p. 2.
      Kazakhstan has limited experience in international law-making and in the application of international treaties, and its constitutional provisions on the rank and the effect of international treaties within the domestic legal sphere have been developing. Doubts and questions on procedures of signing, ratification of international treaties and their place in the hierarchy of the national law have been reflected in several opinions and Decisions of the Constitutional Council of the Republic, the only state body that has the official power to interpret the Constitution of Kazakhstan. Overall, even though the Decisions of the Constitutional Council have clarified the status of the international treaties within the national law, the place of international treaties, in general, within the national legal system is much debated and not crystal clear yet.
      The Constitution of Kazakhstan has the highest juridical force on the entire territory of the Republic (Art. 4(2)). The provisions of the Constitution of Kazakhstan ensure that international treaties that have been approved by Parliament “shall have priority over its laws” (Art. 4 (3)). The recent amendments made to the Constitution of the Republic on 10 March 2017 demonstrate the tendency of the policy to moderate dualism, since the possibility of direct application of international treaties that existed before was excluded. The previous text of Article 4 (3) of the Constitution provided that international treaties approved by Parliament are directly applicable to the territory of the Republic except in cases when the application of an international treaty shall require the promulgation of a law. The current text of Article 4 (3) of the Constitution after the amendments envisages that

      the international treaties ratified by the Republic have priority over its laws. The procedure and conditions of operation of international treaties on the territory of the Republic of Kazakhstan to which Kazakhstan is a party shall be determined by the legislation of the Republic.

      Anyway, in accordance with Article 27 of the Vienna Convention on the Law of Treaties of 1969, a state “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.59x The Vienna Convention on the Law of Treaties 1969, done at Vienna 1969, entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331 [hereinafter The Vienna Convention on the Law of Treaties, 1969].
      Official interpretations of Article 4 (3) of the Constitution were presented in the Decisions of the Constitutional Council of 11 October 2000 No. 18/260x Official interpretation of para. 3 Art. 4 of the Constitution of the Republic of Kazakhstan, adopted by the Resolution of the Constitutional Council of the Republic of Kazakhstan No. 18/2 of 11 October 2000 (in Russian). Decisions of the Constitutional Council of Kazakhstan. https://online.zakon.kz/Document/?doc_id=1020290. Accessed 12 February 2022. and No. 2 of 18 May 2006.61x The Resolution of the Constitutional Council of the Republic of Kazakhstan No. 2 On official interpretation of sub-para. 7 Art. 54 of the Constitution of the Republic of Kazakhstan (in Russian), adopted on 18 May 2006. https://www.gov.kz/memleket/entities/ksrk/documents/details/adilet/S060000002_?lang=ru. Accessed 12 February 2022. According to the Decision of 11 October 2000 No. 18/2, Kazakhstan recognizes the primacy of the concluded international treaty over the national legislation if the ratification of the international treaty was approved by the Parliament of the state by means of a legislative act. As stated in the Law of the Republic of Kazakhstan on the Legal acts of 6 April 2016 # 480-V, Article 1, subparagraph 16, “legislation” means the sum total of the normative legal acts, adopted in line with the prescribed procedures.62x The Law of the Republic of Kazakhstan on the Legal acts of 6 April 2016 #480-V ЗРК, adopted by the Parliament of the Republic of Kazakhstan (in Russian). http://adilet.zan.kz/rus/docs/Z1600000480. Accessed 30 January 2018 [hereinafter The Law of Kazakhstan on the Legal acts]. With regard to the place of the Covenant within the hierarchy of the national law of Kazakhstan, the Covenant has supremacy over national legislation and is placed above domestic law but below the Constitution of the State.

      6.4 Issues of Collisions of National Law with the International Treaties

      According to the Decision of the Constitutional Council of Kazakhstan of 13 December 2001 No. 16-17/3, the international treaties of the country should be in conformity with the Constitution of the Republic. The Constitutional Council further confirmed its position. As was stated in the Resolution No. 2 of 18 May 2006, the international treaty should not be performed if its provisions are recognized as contrary to the Constitution. The Decision of the Constitutional Council of 11 October 2000 No. 18/2 asserts that only the provisions of those international treaties the ratification of which has been authorized by Parliament have a priority in the case of their collision with the provisions of national legislation.
      With regard to the ICCPR, this means that in cases of collision between national legislation and the provisions of the ICCPR, the provisions of the ICCPR take precedence. However, formally, in the case of collisions between the provisions of the ICCPR and the Constitution of Kazakhstan, the provisions of the Constitution have supremacy.
      The ratification of the Covenant by Kazakhstan was completed before the necessary amendments to the Constitution had been made. Nevertheless and despite the possibility of collisions between the Constitution and the ICCPR, Kazakhstan seeks ways to follow its international obligations. After the ratification of the ICCPR, the Constitution was subsequently amended on 21 May 2007. Article 16 of the Constitution was brought into conformity with the provisions of Article 9 of the ICCPR. The last amendments to the Constitution of 10 March 2017 strengthened the position of the Ombudsman for Human Rights; now the Senate of the Parliament elects and dismisses the Ombudsman upon proposal of his candidacy by the president (Art. 55 (1-1) of the Constitution).63x The Law of the Republic of Kazakhstan On amendments and addendums to the Constitution of the Republic of Kazakhstan of 10 March 2017 № 51-VI ЗРК. http://online.zakon.kz/Document/?doc_id=32937557. Accessed 30 January 2018.
      Formally, the Constitutional Council has a right to consider the international treaties of the Republic with respect to their compliance with the Constitution before they are ratified (Art. 72 (1 (3)) of the Constitution). Such authority can be exercised on the initiative of particular state bodies. In practice, this power has never been exercised.

      6.5 Invocation of the ICCPR Before the National Courts of Kazakhstan

      Court decisions can be regarded as evidence of the invocation of the ICCPR and can demonstrate the effect of the Covenant in real cases.
      In the replies to the list of issues (CCPR/C/KAZ/Q/1) to be taken up in connection with the consideration of the initial periodic report of Kazakhstan (CCPR/C/KAZ/1), the members of Kazakhstan’s delegation have assurances that all international treaties approved by Parliament take precedence over domestic law and are directly applicable except where international treaties require the adoption of a law.64x Replies to the list of issues (CCPR/C/KAZ/Q/1) to be taken up in connection with the consideration of the initial periodic report of the Republic of Kazakhstan (CCPR/C/KAZ/1). Human Rights Committee, 4 November 2010. CCPR/C/KAZ/Q/1/Add.1. http://ccprcentre.org/country/kazakhstan. Accessed 27 February 2019. After the amendments of March 2017 the second part of the provision no longer exists in the wording of Article 4 (3) of the Constitution of Kazakhstan. The provision on direct application of those international treaties that are ratified by the Republic of Kazakhstan, except the cases when international treaty requires the adoption of a law, remains in Article 6 (2) of the Law on Legal Acts of the Republic of Kazakhstan.
      The Decision of the Constitutional Council No. 6 of 5 November 2009 discussed the understanding of the direct applicability of an international treaty.65x Official interpretation of the provisions of Art. 4 of the Constitution of the Republic of Kazakhstan regarding the procedure of application of the decisions of international organizations and its bodies, adopted by the Decision of the Constitutional Council of the Republic of Kazakhstan No. 6 of 5 November 2009 (in Russian). https://adilet.zan.kz/rus/docs/S090000006. Accessed 26 February 2019. As regards the ICCPR, it should be directly implemented and the state must fulfil all necessary organizational activities to perform ICCPR requirements. The tone of the explanation given by the Constitutional Council and the letter of the Decision’s provisions allow us to interpret that the Covenant can be invoked before the domestic courts of Kazakhstan. In the presumption of a violation of the ICCPR provisions a plaintiff can appeal before a court.
      The peculiarities of the application of international treaties are explained in the Normative Resolution of the Supreme Court, which has an obligatory force on the entire territory of the Republic. The Normative Resolution of the Supreme Court of Kazakhstan No. 1 of 10 July 2008 “On the application of international treaties to which Kazakhstan is a Party” contains the important issues on the application of the ICCPR and other international treaties by judges in court decisions.66x The Normative Resolution of the Supreme Court of Kazakhstan No. 1 of 10 July 2008 On application of international treaties’ norms of the Republic of Kazakhstan (in Russian). http://www.zakon.kz/117905-normativnoe-postanovlenie-verkhovnogo.html. Accessed 26 February 2019, [hereinafter The Normative Resolution of the Supreme Court of Kazakhstan No. 1]. According to the Normative Resolution of the Supreme Court, the international treaties and other obligations of the Republic of Kazakhstan, which are consistent with the Constitution of the Republic, are parts of the functioning law of the state. The courts “must apply the norms of international law within their competence”, and courts should follow the provisions of the ICCPR for the realization of Kazakhstan’s obligations as a state party to the Covenant.67x Ibid., para. 11. The incorrect application of the international treaties of Kazakhstan and non-application of them would also be reasons to abolish the court’s judgments.68x The Supreme Court of Kazakhstan actively uses the ICCPR and refers to it in its other resolutions. See the Normative Resolution of the Supreme Court of the Republic of Kazakhstan # 1 of 15 January 2016 On access to justice and the competence of the Supreme Court of the Republic of Kazakhstan in revision of judicial acts. https://adilet.zan.kz/rus/docs/P160000001S. Accessed 28 February 2019.
      In the practice of the Supreme Court of Kazakhstan, the provisions of Article 13 of the ICCPR were invoked in the case of Chinese citizen Ghini Lausia versus Kazakhstan emigration authorities of 16 January 2011. The decisions of the local courts were revised and cancelled. In another case concerning Canadian citizen John Russell Kikot and a citizen of the USA Jaros Theodor (2011), the decisions of local courts were cancelled by the Supreme Court as a violation of ICCPR provisions.69x The case of Mr. John Kikot is described in the letter from the European Association of Jehovah’s Christian witnesses “Contribution to the report of the UN High commissioner for human rights” of 27 August 2009. http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/KZ/EAJCW_UPR_KAZ_S07_2010_TheEuropAssofJehovahsChristianWitnessesDoc1.pdf. Accessed 26 February 2019. With regard to the practice of the regional courts, the Cassation Judicial Board of the Kostanay Regional Court in its resolution of 17 April 2013 on the civil suit of Ragimov refers to the provisions of the ICCPR.70x The Resolution of the Cassation Judicial Board of the Kostanay Regional Court of 17 April 2013 on civil suit of Ragimov. https://bureau.kz/monitoring_2/sudebnaya_praktika/article_5808/. Accessed 29 February 2019.

      6.6 The Interpretation of International Treaties for Judges of Kazakhstan

      The aforementioned Normative Resolution of the Supreme Court also contains rules on interpretation of international treaties. Hence, if the cases are related to crimes prohibited by the international treaty, judges are obliged to study the content of the international treaty, its ratification and entry into force together with other documents and details (para. 7). Misinterpretation of the provisions of the international treaty could lead to their misapplication (para. 10). As embodied in the Normative Resolution, the interpretation of the international treaties of Kazakhstan should be based on the treaty’s object and purpose in accordance with the rules of Articles 31-33 of the Vienna Convention on the Law of Treaties (para. 10). Courts should examine the preamble, appendices and any other agreements attached to the treaty.
      Moreover, the Resolution of the Supreme Court contains a detailed interpretation of the provision of the ICCPR on torture with reference to international practice (para 13). Other provisions of Articles 9, 10, 14 of the Covenant were explained as well. The act under consideration establishes the competence of the Supreme Court to interpret the provisions of the international treaties. As stated in the national law of Kazakhstan, the Resolutions of the Supreme Court have obligatory force, and the judges must follow them.
      Guidelines for the interpretation of international treaties exist in other national legal systems. For instance, in the case of 18 November 1981 the Dutch Supreme Court gave an interpretation to the phrase “without unreasonable restrictions” of Article 25 of the ICCPR “in the sense that it is not an unreasonable restriction to take voting rights away from people, who have been sentenced to imprisonment of more than one year”.71x Jacobs and Roberts 1987, p. 117. The interpretation of international agreements by domestic courts is “far more common”.72x Ibid., p. 164.
      The Constitutional Council of the Republic also gives guidelines on the interpretation of international treaties. For example, in the aforementioned Resolution No. 2 of 18 May 2006 the Constitutional Council, with the help of experts in international law, explained the meaning of ratification and other tools that were used by the state to express consent to an international treaty.
      If the judges are faced with questions on legal technique in the cases of application and interpretation of the international treaties’ provisions, they should use the acts and decisions of the international organizations to which Kazakhstan is a state party. They should contact the Ministry of Foreign Affairs, Ministry of Justice and General Prosecutor of the Republic regarding the duration, participating states, reservations and judicial practice of other state parties on the application of international treaties and other details concerning the treaty.
      Thus, judges themselves, in Kazakhstan, interpret the provisions of the international treaties in accordance with the rules of the Vienna Convention on the Law of Treaties, and they should follow the explanations of the Supreme Court and the Constitutional Council of the Republic.
      Regrettably, the General Comments adopted by the Human Rights Committee on interpretation of the Covenant have never been mentioned in the national acts under consideration. But judges should be aware of them, because the General Comments provide deep and updated understanding of the ICCPR provisions on the ground of the Committee’s jurisprudence.

      6.7 Who Is Responsible in Kazakhstan for Guaranteeing That the International Treaties Are Respected?

      As mentioned previously, according to the Decisions of the Constitutional Council, Kazakhstan must fulfil all necessary organizational activities to meet the requirements of the international treaty, i.e. ICCPR provisions. The Republic of Kazakhstan has been a state party to the Vienna Convention on the Law of Treaties (1969) since 31 March 1993. Article 26 of the Vienna Convention contains the internationally recognized principle pacta sunt servanda, i.e. legally binding international treaties must be performed in good faith. The adherence of Kazakhstan to this principle was also declared in the official interpretations of the Constitution by the Constitutional Council of the Republic.
      Article 20 of the Law on International Treaties of Kazakhstan confirmed the will of the state to perform international treaties duly and in good faith and determined those state bodies responsible for the implementation of international treaties. The measures for implementation are to be performed by the president of the country, the government and the central state bodies. The central state bodies within their competencies observe the execution of an international treaty by other parties. The Ministry of Foreign Affairs of Kazakhstan carries out the general observance and control over the implementation of international treaties (Art. 20 (6) of the Law on International Treaties of Kazakhstan) and coordination of the activities of state bodies of Kazakhstan on realization of international treaties of Kazakhstan (para. 16 (27) of the Regulations on the Ministry of Foreign Affairs of 28 October 2004).73x The Regulations on the Ministry of Foreign Affairs of the Republic of Kazakhstan adopted by the Resolution of the Government of the Republic of Kazakhstan on 28 October 2004 # 1118 (in Russian). https://adilet.zan.kz/rus/docs/P040001118_. Accessed 12 February 2022. The ministry prepares the proposals on the fulfilment of international treaties and submits them for consideration to the President or the Government of the Republic (para. 16 (4) of the Regulations on the Ministry of Foreign Affairs).
      There are advisory bodies to the Government of Kazakhstan, such as the Interdepartmental Commission on issues of international treaties of the Republic of Kazakhstan, which provides recommendations for the improvement of the domestic mechanisms of fulfilment, control and monitoring over the execution of international treaties.74x The Regulations on the Interdepartmental Commission on issues of international treaties of the Republic of Kazakhstan approved by the Resolution of the Government of the Republic of Kazakhstan of 30 April 2013, No. 436 (in Russian). http://adilet.zan.kz/rus/docs/P1300000436. Accessed 27 February 2019. This Commission replaced the previous Interdepartmental Commission on international humanitarian law and international human rights agreements, which had an advisory status to the Government of Kazakhstan as well and had existed from December 2003 to August 2017.75x The Resolution of the Government of the Republic of Kazakhstan of 9 December 2003, No. 1251 On creation of the Interdepartmental Commission on international humanitarian law and international human rights agreements (in Russian). https://adilet.zan.kz/rus/docs/P070000861_ (ceased in force) Accessed 27 February 2019.

    • 7 Concluding Remarks

      In conclusion, Kazakhstan recognizes the international treaty as a part of its functioning law. The ratification of international treaties has mainly been allocated to the competence of the president and in some cases should be preceded by the mainly procedural approval of Parliament. In building the relationship between international and national law, the Constitutional Council of the Republic plays a significant role, identifying the place of the international treaty in the hierarchy of national law and the tasks of state bodies in its application and interpreting the constitutional provisions on international law. In reality, neither Parliament’s consent nor constitutional review of treaties creates constraints in recognizing the force of an international treaty in Kazakhstan.
      Legal texts of Kazakhstan provide the framework for the application of the ICCPR provisions at different levels. Kazakhstan integrates the ICCPR into its domestic law, and the Constitution of the Republic provides the constitutional framework for it. The state practice of Kazakhstan on the rank of the international treaty and its application has been developing. The Constitutional Council and the Supreme Court of Kazakhstan play an important role in the interpretation of the application of international treaties for the state bodies of Kazakhstan. International treaties authorized by Parliament have a superior rank to domestic law and will prevail over existing and later legislation, but with the last amendments to the Constitution of Kazakhstan from March 2017, the possibility of the direct application of such international treaties has been eliminated. This does not concern the ICCPR commitments because the instrument was ratified before the amendments. In the case of conflict with the constitutional provisions the application of the international treaty is somewhat problematic.
      The ratification of the ICCPR and its incorporation affected national law, and Kazakhstan made necessary amendments to the laws (the Penal Code, the Code of Penal Procedure) and even to the Constitution of the Republic (on 21 May 2007 to Art. 16 of the Constitution regarding the provisions of Art. 9 of the ICCPR).
      As a recommendation, in the application of the Covenant’s provisions, the judges of Kazakhstan should familiarize themselves with the case law of the Human Rights Committee and should use the General Comments adopted by this body in order to see the world human rights practice and the latest developments. This will be beneficial to understanding Kazakhstan’s treaty obligation and the consequences of their violations. As mentioned by Human Rights Committee in the Concluding observations of 2016 on the second periodic report of Kazakhstan, the country

      should widely disseminate the Covenant, its first Optional Protocol, its second periodic report, the written replies to the Committee’s list of issues and the present concluding observations with a view to raising awareness of the rights enshrined.76x UN Human Rights Committee: Concluding Observations: Kazakhstan, 9 August 2016, CCPR/C/KAZ/CO/2. http://ccprcentre.org/files/documents/G1617493_(3).pdf. Accessed 27 February 2019, para. 55.

      Kazakhstan projects itself as an active member of the international community and shows openness to the world, implying that it takes the human rights obligations seriously. Overall, most of the rights and freedoms expressed in the Constitution of Kazakhstan reflect the universally recognized standards on the protection of civil and political rights, and the Constitution of Kazakhstan was drafted with the Universal Declaration of Human Rights and the ICCPR in mind.

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    Noten

    • 1 The International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, in accordance with Art. 49. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Accessed 14 February 2019 [hereinafter the ICCPR, the Covenant].

    • 2 State parties to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, as of 13 February 2022. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&clang=_en. Accessed 13 February 2022.

    • 3 The Constitution of the Republic of Kazakhstan adopted at the national referendum on 30 August 1995 (as of 10 March 2017). https://online.zakon.kz/Document/?doc_id=1005029#pos=5;-227. Accessed 28 February 2019.

    • 4 Alimzhan 2003.

    • 5 Aydarbayev 2005.

    • 6 Baymakhanov 2003.

    • 7 Busurmanov 2000.

    • 8 Salimgerey 2005.

    • 9 Saparghaliyev 1997.

    • 10 Kulzhabayeva 2000.

    • 11 Udartsev 2000.

    • 12 Abaydeldinov 2005.

    • 13 Anufrieva 2001; 2002.

    • 14 Chernichenko 1999.

    • 15 Talalyaev 1997.

    • 16 Lukashuk 1997; 2004.

    • 17 Lukashuk 2004.

    • 18 Anufrieva 2001.

    • 19 Osminin 2006.

    • 20 Council of Europe and British Institute of International and Comparative Law 2001.

    • 21 Simmons 2009.

    • 22 Aust 2007.

    • 23 Jacobs and Roberts 1987.

    • 24 Nollkaemper 2014.

    • 25 Verdier and Versteeg 2016.

    • 26 Conforti and Francioni 1997.

    • 27 Dijk 2014.

    • 28 Harland 2000.

    • 29 Hart 1961, p. 219.

    • 30 Nollkaemper 2014, p. 125.

    • 31 Brownlie 2003, p. 32.

    • 32 Aust 2007, p. 182.

    • 33 Ibid., p. 187.

    • 34 Constitution of the Italian Republic of 27 December 1947. http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf. Accessed 25 March 2018.

    • 35 UN Human Rights Committee: Concluding Observations: Kazakhstan, 21 July 2011, CCPR/C/KAZ/CO/1. http://ccprcentre.org/doc/2012/05/G1144888.pdf. Accessed 27 February 2019 [hereinafter UN Human Rights Committee: Concluding Observations: Kazakhstan, 2011].

    • 36 General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Compilation of general comments and general recommendations adopted by Human Rights Treaty Bodies, 12 May 2004, HRI/GEN/1/Rev.7, p. 192. https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=HRI%2FGEN%2F1%2FRev.7&Lang=en. Accessed 14 February 2019 [hereinafter General Comment No 31], p. 196, para. 15.

    • 37 Verdier and Versteeg 2016.

    • 38 UN Human Rights Committee: Concluding Observations: Kazakhstan 2011, p. 2.

    • 39 Jacobs et al. 1987, pp. 146, 150.

    • 40 Aust 2007, p. 159.

    • 41 Dijk 2014, p. 5.

    • 42 Jacobs et al. 1987, p. 16.

    • 43 Conforti and Francioni 1997, p. 25.

    • 44 Ibid., p. 19.

    • 45 Jacobs et al. 1987, p. 154.

    • 46 Carlson and Gisvold 2003, pp. 15-16.

    • 47 Ibid., p. 7.

    • 48 The Decree of the President of the Republic of Kazakhstan of 15 November 2003 No. 1227 “On signing by the Republic of Kazakhstan of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.” http://online.zakon.kz/m/Document/?doc_id=2045090. Accessed 15 February 2019.

    • 49 United Nations Treaty Collection. Status of International Covenant on Civil and Political Rights. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. Accessed 15 February 2019.

    • 50 The Law of Kazakhstan “On international treaties of the Republic of Kazakhstan” adopted 30 May 2005 (in Russian), official publication in Kazakhstanskaya Pravda, 4 June 2005 No. 146-147.

    • 51 United Nations. Reference: C.N.80.2006.TREATIES-1 (Depositary notification). https://treaties.un.org/doc/Publication/CN/2006/CN.80.2006-Eng.pdf. Accessed on 27 February 2019.

    • 52 Kurashvili 2006, p. 185.

    • 53 Council of Europe and British Institute of International and Comparative Law 2001, pp. 90, 113-116.

    • 54 Ibid., pp. 164-168.

    • 55 The Penal Code of the Republic of Kazakhstan adopted on 3 July 2014 # 226-V. https://online.zakon.kz/document/?doc_id=31575252#pos=4951;-102. Accessed 12 February 2022.

    • 56 The Code of Penal Procedure of the Republic of Kazakhstan adopted 4 July 2014 by the Law #231-V ЗРК. http://adilet.zan.kz/rus/docs/K1400000231. Accessed 12 February 2022.

    • 57 Carlson and Gisvold 2003, p. 18.

    • 58 UN Human Rights Committee: Concluding Observations: Kazakhstan 2011, p. 2.

    • 59 The Vienna Convention on the Law of Treaties 1969, done at Vienna 1969, entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331 [hereinafter The Vienna Convention on the Law of Treaties, 1969].

    • 60 Official interpretation of para. 3 Art. 4 of the Constitution of the Republic of Kazakhstan, adopted by the Resolution of the Constitutional Council of the Republic of Kazakhstan No. 18/2 of 11 October 2000 (in Russian). Decisions of the Constitutional Council of Kazakhstan. https://online.zakon.kz/Document/?doc_id=1020290. Accessed 12 February 2022.

    • 61 The Resolution of the Constitutional Council of the Republic of Kazakhstan No. 2 On official interpretation of sub-para. 7 Art. 54 of the Constitution of the Republic of Kazakhstan (in Russian), adopted on 18 May 2006. https://www.gov.kz/memleket/entities/ksrk/documents/details/adilet/S060000002_?lang=ru. Accessed 12 February 2022.

    • 62 The Law of the Republic of Kazakhstan on the Legal acts of 6 April 2016 #480-V ЗРК, adopted by the Parliament of the Republic of Kazakhstan (in Russian). http://adilet.zan.kz/rus/docs/Z1600000480. Accessed 30 January 2018 [hereinafter The Law of Kazakhstan on the Legal acts].

    • 63 The Law of the Republic of Kazakhstan On amendments and addendums to the Constitution of the Republic of Kazakhstan of 10 March 2017 № 51-VI ЗРК. http://online.zakon.kz/Document/?doc_id=32937557. Accessed 30 January 2018.

    • 64 Replies to the list of issues (CCPR/C/KAZ/Q/1) to be taken up in connection with the consideration of the initial periodic report of the Republic of Kazakhstan (CCPR/C/KAZ/1). Human Rights Committee, 4 November 2010. CCPR/C/KAZ/Q/1/Add.1. http://ccprcentre.org/country/kazakhstan. Accessed 27 February 2019.

    • 65 Official interpretation of the provisions of Art. 4 of the Constitution of the Republic of Kazakhstan regarding the procedure of application of the decisions of international organizations and its bodies, adopted by the Decision of the Constitutional Council of the Republic of Kazakhstan No. 6 of 5 November 2009 (in Russian). https://adilet.zan.kz/rus/docs/S090000006. Accessed 26 February 2019.

    • 66 The Normative Resolution of the Supreme Court of Kazakhstan No. 1 of 10 July 2008 On application of international treaties’ norms of the Republic of Kazakhstan (in Russian). http://www.zakon.kz/117905-normativnoe-postanovlenie-verkhovnogo.html. Accessed 26 February 2019, [hereinafter The Normative Resolution of the Supreme Court of Kazakhstan No. 1].

    • 67 Ibid., para. 11.

    • 68 The Supreme Court of Kazakhstan actively uses the ICCPR and refers to it in its other resolutions. See the Normative Resolution of the Supreme Court of the Republic of Kazakhstan # 1 of 15 January 2016 On access to justice and the competence of the Supreme Court of the Republic of Kazakhstan in revision of judicial acts. https://adilet.zan.kz/rus/docs/P160000001S. Accessed 28 February 2019.

    • 69 The case of Mr. John Kikot is described in the letter from the European Association of Jehovah’s Christian witnesses “Contribution to the report of the UN High commissioner for human rights” of 27 August 2009. http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/KZ/EAJCW_UPR_KAZ_S07_2010_TheEuropAssofJehovahsChristianWitnessesDoc1.pdf. Accessed 26 February 2019.

    • 70 The Resolution of the Cassation Judicial Board of the Kostanay Regional Court of 17 April 2013 on civil suit of Ragimov. https://bureau.kz/monitoring_2/sudebnaya_praktika/article_5808/. Accessed 29 February 2019.

    • 71 Jacobs and Roberts 1987, p. 117.

    • 72 Ibid., p. 164.

    • 73 The Regulations on the Ministry of Foreign Affairs of the Republic of Kazakhstan adopted by the Resolution of the Government of the Republic of Kazakhstan on 28 October 2004 # 1118 (in Russian). https://adilet.zan.kz/rus/docs/P040001118_. Accessed 12 February 2022.

    • 74 The Regulations on the Interdepartmental Commission on issues of international treaties of the Republic of Kazakhstan approved by the Resolution of the Government of the Republic of Kazakhstan of 30 April 2013, No. 436 (in Russian). http://adilet.zan.kz/rus/docs/P1300000436. Accessed 27 February 2019.

    • 75 The Resolution of the Government of the Republic of Kazakhstan of 9 December 2003, No. 1251 On creation of the Interdepartmental Commission on international humanitarian law and international human rights agreements (in Russian). https://adilet.zan.kz/rus/docs/P070000861_ (ceased in force) Accessed 27 February 2019.

    • 76 UN Human Rights Committee: Concluding Observations: Kazakhstan, 9 August 2016, CCPR/C/KAZ/CO/2. http://ccprcentre.org/files/documents/G1617493_(3).pdf. Accessed 27 February 2019, para. 55.