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Statements Special Procedures
12 September 2017
Astana, 12 September 2017
Members of the press,
Ladies and gentlemen,
In my capacity as United Nations Special Rapporteur on the rights of persons with disabilities, I conclude today my first official visit to Kazakhstan, which took place from 4 to 12 September 2016. I am an independent expert who reports to the United Nations Human Rights Council and the General Assembly, and advises on progress, opportunities and challenges encountered in the implementation of the rights of people with disabilities worldwide.
I would like to thank the Government of Kazakhstan for its invitation and openness to engage in a constructive dialogue on how to advance the rights of persons with disabilities and discuss what are the existing opportunities and challenges.
During my nine-day mission, I visited the cities of Astana and Almaty. In the capital, I met with senior Government representatives across all sectors, including the Minister of Labour and Social Protection, the Minister of Education and Science, the Deputy Ministry of Health, the Deputy Minister of Finance, the Deputy Minister of Foreign Affairs, and several heads of department in the Ministry of Infrastructure and Development. I also met with the National Human Rights Institution, member organisations of the National Preventive Mechanism, the Supreme Court, and the Committee on Statistics. In Almaty, I held meetings with the mayor and the local public authorities.
I also visited two schools with inclusive practices, a rehabilitation and resource centre for inclusive education, a boarding school for children with intellectual disabilities, a day care centre and residential institution for children with severe disabilities, a residential institution for adults with disabilities and older persons, a psychiatric hospital, and the forensic psychiatric facility in Aktas. I am deeply grateful to the children and other persons in those institutions who accepted to discuss with me, and who provided invaluable insight into their personal experiences.
I would also like to thank all persons with disabilities and their representative organisations, as well as service providers, advocates and lawyers who devoted time and effort to meet with me. The information gathered helped me better understand the situation of the rights of persons with disabilities and integrate it in the broader context of the current developments in the country.
I also take this opportunity to thank the UN Resident Coordinator and the OHCHR staff in Astana for the crucial support they provided to make my visit a success.
My statement today constitutes my preliminary observations and recommendations, which I will elaborate in more detail in the report that I will present to the Human Rights Council at its 37th session in March 2018, in Geneva. These preliminary observations neither reflect all the issues presented to me, nor all the initiatives undertaken by the Government of Kazakhstan.
Legal and policy framework
Kazakhstan is a State party to eight core international human rights instruments including the Convention on the Rights of Persons with Disabilities (CRPD), which it ratified in February 2015. The Government has also extended an open standing invitation to all special procedures mandate holders.
This year, complying with its reporting obligations in a timely manner, the Government presented its first comprehensive submission to the Committee on the Rights of Persons with Disabilities. I also noted with satisfaction that the Government included information on the measures taken to give effect to the rights of person with disabilities in its reports presented to other UN treaty bodies.
The country has signed but not ratified the Optional Protocol to the CRPD, nor has it ratified the “Marrakesh Treaty” to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled . I would like to encourage Kazakhstan to ratify these instruments.
In relation to the national normative framework, the Constitution of the Republic of Kazakhstan provides that international treaties ratified by the country are directly applicable and take precedence over the country's laws. At the same time, the Constitution does not explicitly prohibit all discrimination on the basis of disability.
Kazakhstan initiated a series of legislative reforms to harmonize its national laws to the CRPD. These include amendments to the Law on Social Protection of Persons with Disabilities, the Law on the rights of the child, the Law on Education, the Labour Code, the Code on Constructions, and the Law on Transportation. I appreciate the country’s strive for legal harmonization and I strongly encourage the State to close all the remaining legislative gaps. For example, the amended Law on Social Protection of Persons with Disabilities defines disability as a "permanent medical condition” of the individual rather than as the barriers hindering their participation. Moreover, as I will explain further on, the Mental Health Law, the Civil Code, and the Criminal Code collide with the standards of the CRPD.
Along with these legislative reforms, the all-encompassing Strategy “Kazakhstan 2050" addressed the rights of persons with disabilities. A targeted National Strategy on the Social Inclusion of Persons with Disabilities and Action Plan for 2016 – 2018 is also in place.
Currently, Kazakhstan is starting to consider the implementation of the 2030 Agenda for Sustainable Development. To leave no one behind it is imperative that all government’s efforts are inclusive of and accessible to persons with disabilities, which will require disaggregation of all demographic data by disability and allocation of additional resources.
Implementation and monitoring of the CRPD
I would like to acknowledge the political will expressed by most authorities of Kazakhstan to implement the obligations arising from the CRPD. This political determination is complemented by a sustained increase in the available financial resources allocated to policies and programmes benefiting persons with disabilities.
The National Council on the Social Protection of Persons with Disabilities, established in compliance with Article 33(1) of the CRPD, coordinates the implementation of the reforms. The Council is comprised of delegated representatives of all ministries and the related local public administration departments, as well as 16 representative organisations of persons with disabilities.
Kazakhstan is yet to designate or set up an independent mechanism to monitor progress in achieving the objectives of the CRPD, as required by article 33(2). When designating or establishing such a mechanism, it is crucial to ensure that it functions in full compliance with the Paris Principles and that representative organisations of persons with disabilities are involved and participate fully in the monitoring process. The State shall also consider providing funding for representative organizations of person with disabilities to ensure that they can actively engage in monitoring activities.
Kazakhstan relies heavily on the collection of administrative data in the design and implementation of policies and programmes relating to persons with disabilities. However, there is limited demographic data disaggregated by disability.
In this regard, I was pleased to learn that the National Statistics Committee is planning to conduct a National Disability Survey in 2020, and that the 2020 National Population Census will include the short set of questions of the Washington Group on Disability Statistics. Similarly, I was informed that the 2019 Multiple Indicator Cluster Survey (MICS) will include the UNICEF-Washington Group module on child functioning, which will allow to have national data on children with disabilities. I strongly encourage the Government to continue these efforts and allocate the budget to incorporate the Washington Group questions in all the household surveys conducted by the National Statistics Committee and other sectors to give guidance to policy makers for policy planning, implementation and evaluation.
Stigma and discrimination
During my visit, I have observed that the medical model of disability remains prevalent and influences the way in which persons with disabilities are perceived by society. There is a strong emphasis on “curing”, “rehabilitating” or “correcting” persons with disabilities, which permeates the State investment in services and benefits, as well as the language to refer to them and the services they receive. For example, the name of the Law on social medical and pedagogical correction of children with disabilities of 11 July 2002 and its provisions perpetuate a deeply ingrained perception that disability needs to be “corrected”.
I was also informed that disability still carries social stigma which needs to be addressed. I received information about parents who are ashamed to disclose that their children have a disability and health professionals that encourage parents of new-born children with disabilities to place them in institutions. I have also heard accounts of parents of children without disabilities opposing inclusive education because they are reluctant to accept that children with disabilities should sit together with their children in mainstream schools. Moreover, children and adults with severe cerebral palsy, psychosocial or intellectual disabilities and persons with disabilities living with HIV/AIDS are, by far, in the worst situation of all. They are generally perceived as unable to make any contribution to their communities or participate in activities on an equal basis with others, and face aggravated forms of discrimination.
While the Constitution of Kazakhstan does not list disability as a protected ground against discrimination, Article 5 of the Law on Social Protection of Persons with Disabilities has a stand-alone provision which explicitly prohibits discrimination on basis of disability. However, the underlying procedural mechanism to bring complaints for adjudication before the national courts is lacking. I encourage Kazakhstan to ensure strong legislative protection against discrimination on the basis of disability and set out explicitly the obligation to provide reasonable accommodation with regard to all rights.
Just as important, is strengthening the mandate of the Office of the Ombudsperson to become an “A status” NHRI, and provide it with adequate funding, to promote, protect and monitor the rights of persons with disabilities, including the identification of different forms of discrimination and promotion of equality.
I would like also to encourage the government to put in place major awareness-raising campaigns to combat stereotypes and prejudices relating to persons with disabilities. Media can play a crucial role in changing the mind-sets of society in relation to the rights of persons with disabilities, promoting inclusive attitudes and practices towards this particular group. TV broadcasters need to stop portraying persons with disabilities as pitiable and disempowered.
Accessibility to the physical environment, transport, information and communication
I commend the efforts undertaken by Kazakhstan to make their physical environment and infrastructures accessible for persons with disabilities. I was informed that a major assessment of 28,000 public buildings has been conducted with the participation of civil society, and that new regulations have been introduced to ensure that all new buildings, public and private, are accessible for persons with disabilities. I would like to encourage the Government to continue this commendable work and to establish time-bound benchmarks to achieve full accessibility of the physical environment.
In relation to transport, I was also pleased to learn that transport regulations were updated to include accessibility features, including regulations on aviation services. I was also informed that the bus fleet is being progressively upgraded to be made accessible for persons with disabilities. It is expected that by 2020 all buses will be accessible. It is of concern, however, that the transportation system does not have accessibility features for blind and deaf persons, and that many drivers refuse to pick up wheelchair users. I would like also to commend the creation of the “Invataxi” service, and encourage the expansion of its services, particularly in rural and remote areas.
With regard to access to information and communication, I acknowledge the right of deaf persons to 60 hours of sign language interpretation per year, the introduction of sign language interpretation in the TV news, and a new relay service for accessing public services. Nonetheless, access to sign language learning and interpretation remain a major limitation for deaf people. The education system favours auditory-oral approaches and lip reading instead of education in sign language for deaf children, and sign language interpretation is yet to be recognized as an official language and taught in universities.
In the case of blind persons, while the e-government online platform is accessible for the visually impaired, the number of publications in Braille is still very limited, and voting procedures do not include accessibility requirements for blind persons.
Social Protection and Health
Kazakhstan is leaving behind a system in which persons with disabilities were labelled as “un-educable”, “un-employable” and in need of “special protection”. The Ministry of Labour and Social Protection has deployed a major reform of the social protection system implementing a set of contributory and non-contributory benefits targeting persons with disabilities. Persons with disabilities also receive cash transfers and in-kind contributions from the local budgets aimed at reliving poverty within households of members with disabilities.
The disability certificate is the gateway for receiving all benefits and services in Kazakhstan. According to the most recent estimates, there were 651,924 persons with disabilities certified in the country, which accounts for 3 per cent of the population. While I note that incremental progress on delivering such certificates in a shorter period is being made, I am concerned that the existing three-level classification system limits the access to specific groups of persons with disabilities (e.g., deaf persons) to important benefits and services such as housing and personal assistance. Moreover, I was informed that autistic children and children with intellectual and psychosocial disabilities are put into locked psychiatric wards for up to 40 days in order to obtain a disability certificate, a practice that must be immediately stopped.
In relation to the right to health, I noted that since the entry into force of the Law on Mandatory Medical Insurance in January 2017, persons with disabilities and parents who have in their care a child with disabilities have access to free health care. The health care package for persons with disabilities covers primary and specialized medical interventions, treatment and rehabilitation. Nonetheless, I was informed of the limited availability of healthcare facilities and specialists in rural and remote areas. Assistive devices are also provided free of charge by local authorities, although such devices are not tailored to the specific needs of persons with disabilities, but purchased from a fix list of items which limits the possibilities of choice and control of the beneficiaries.
Independent living in the community
Living independently in the community is one of the major challenges for persons with disabilities in Kazakhstan. Around 15,000 children and adults with disabilities in Kazakhstan are currently segregated in institutions, with no interaction in the community. I have received worrisome allegations of violence, abuse and degrading treatment against persons placed in those institutions, specially girls and women with disabilities.
Unfortunately, there is no official deinstitutionalisation strategy in place. Moreover, I was disheartened to hear the plans to create a new large residential institution in Almaty, which will house up to 300 persons, and to build smaller ones with a capacity of 25 to 30 beds. I recommend the Government to reconsider this plan in which is incompliant with article 19 of the CRPD and will result in further segregation of persons with disabilities. I urge the government to put a moratorium to new admissions, to develop a concrete action plan to close all existing institutions and to develop community-based services for persons with disabilities as a matter of urgency. Institutionalization must never be considered as a social protection benefit.
Against this background, the national efforts to provide social housing to persons with disabilities need to be expanded. According to the Government, 2,021 persons with disabilities received access to social housing through its subsidized housing program between 2012 and 2016. However, there are long waiting lists, with more than 26,000 people with disabilities waiting for subsidized housing. Budget allocated to institutions could be transferred to support these social housing initiatives.
The recent introduction of a personal assistance scheme constitutes a positive step towards promoting the independent living of persons with disabilities in their communities. However, I urge the Government to amend the existing discriminatory criteria that denies access to those services to persons with psychosocial and intellectual disabilities, as well as persons with disabilities living with HIV/AIDS, and labels them as “socially dangerous”.
I was told that private service providers and representative organisations of persons with disabilities are contracted to provide support and assistance. While the provision of social services though an outsourcing scheme might prove efficient to improve support and enhance coverage in remote areas, the Government needs to ensure adequate regulatory and monitoring frameworks to ensure that services are consistent with the existent regulations and human rights standards.
In Kazakhstan, men and women with psychosocial or intellectual disabilities continue to be deprived of their legal capacity through judicial procedures. According to article 26 of the Civil Code, persons with psychosocial and intellectual disabilities can be deprived of their legal capacity upon the decision of a judge. The same article provides that appointed guardians shall decide and act on behalf of the person placed under their authority. Moreover, when placed in a residential institution, guardianship is automatically taken over by the administration of the facility. Once deprived of their legal capacity, there is little to no chance of regaining it.
Legal incapacitation bears the most severe consequences on an individual’s life, including restrictions in the exercise of civil and political rights, forced treatment and forced institutionalization, and denial of sexual, reproductive and family rights. Reforming the legislative framework to eliminate the outdated guardianship system and developing systems of support for the exercise of legal capacity need to become a priority in the governmental agenda.
I want to stress that the full recognition of legal capacity is core to the implementation of the Convention on the Rights of Persons with Disabilities.
Deprivation of liberty and forced treatment
As noted earlier, the national legislative framework is not yet entirely consistent with the country’s international human rights obligations. In this regard the Mental Health Law of 1997 is in open contradiction to the CRPD.
I am particularly concerned about the practice of forced detention and non- consensual administration of psychiatric treatment on grounds of mental or intellectual disabilities. In the Astana’s Psychiatric Hospital, I have met persons who were involuntarily admitted and kept under forced medication for long periods of time or without their free and informed consent. Similarly, in the Aktas forensic psychiatric facility, there are 781 persons, who were found criminally irresponsible for mental health reasons, placed under forced psychiatric treatment by the decision of the court.
Furthermore, women with disabilities are exposed to forced interventions in the context of their sexual and reproductive health and rights. According to the Decree of the Ministry of Health Nr.625, on surgical sterilization, a guardian can decide to sterilize a woman with disabilities without their free and informed consent. Indeed, having a “mental health condition” is an indication for suggesting such procedure. I was also informed that many women with disabilities are pressured by health professionals and relatives to end their pregnancies.
I urge the State to take immediate actions to abolish the legal provisions that allow for the detention of persons with disabilities and their subjection to non-consensual interventions, and to ensure that all health care interventions are provided on the basis of free and informed consent. Involuntary sterilization of girls and women with disabilities must be prohibited. I also encourage the Government to develop community-based alternatives that are respectful of the rights and dignity of persons with disabilities.
Access to justice
I was informed of recent efforts to make the judicial system accessible for and inclusive of persons with disabilities. As a result, the accessibility of the court buildings and premises is being progressively improved, and procedural accommodation is recognized in the Procedural Code. Legislation also stipulates the exemption of court fees and the provision of free legal aid to persons with disabilities.
Nevertheless, persons who has have been declared “legally incapacitated” cannot file a complaint, and I have received complaints about the quality of the free legal aid provided.
I encourage the Judicial System to increase its efforts for improving the access to justice of persons with disabilities, including the implementation of training programmes for those working in the field of administration of justice, and the development of guidelines for procedural and age-appropriate accommodations to persons with disabilities.
Access to inclusive education
Kazakhstan is prioritizing investments in the development of education as a key aspect for developing a strong human capital. However, children with disabilities are left behind in those efforts.
According to the data presented to me by the Ministry of Education, out of 96,555 children with “special education needs”, only 32,125 of them are receiving education in mainstream schools, whereas 14,275 study in 97 segregated schools and 10,928 in segregated classes within mainstream schools. The remaining children receive home-schooling, are placed in social care institutions, or do not receive any education. I would like to stress that segregated institutions invariably provide poor outcomes in terms of quality of education and bear irreversible effects in terms of later perspectives for social inclusion. During the visit, I observed that children that are not benefiting from support services are home-schooled. I would like to emphasise that home schooling should be an exceptional and temporary measure for children whose health does not allow them to attend school, rather than a practice to further segregate children with disabilities.
The National Program on Education 2016-2019 envisages that by the end of its implementation 70 per cent of schools will become inclusive. However, if the reform continues to advance at the current pace, it is highly unlikely that this objective will be achieved. By way of example, in the city of Almaty there are only eight inclusive schools which provide education to 66 pupils with disabilities.
Against this background, I reiterate the recommendations of the Committee on the Rights of the Child which urged the State to embrace a human rights-based approach in the provision of education to children with disabilities, so that all children can have access to quality inclusive education. I specifically recommended that all teachers and specialists are adequately trained to support children with disabilities through the education process.
I would like to see more engagement and leadership from the Minister of Education in relation to education of children with disabilities. I also urge the Ministry of Education to establish a department on inclusive education within its internal structure, which can foster and strengthen the existing initiatives.