KAZAKHSTAN ENACTS LONG-AWAITED ANTI-TRAFFICKING AMENDMENTS

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SIPDIS

SIPDIS

DEPARTMENT FOR G/TIP(MHALL),SCA/CEN(JMUDGE),INL, DRL, AND PRM
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SUBJECT: KAZAKHSTAN ENACTS LONG-AWAITED ANTI-TRAFFICKING AMENDMENTS

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1. On March 2, President Nazarbayev signed into law a
comprehensive set of anti-Trafficking in Persons amendments
("TIP amendments") drafted by an inclusive interagency
anti-trafficking Working Group. The TIP amendments strengthen
anti-trafficking provisions within the criminal code, the code
of criminal procedure, the administrative code, and a
presidential decree. Drafted through a transparent interagency
process that included non-governmental stakeholders, the TIP
amendments were the key achievement under the 2003-2005 National
Plan of Action against Trafficking in Persons (2003-2005
"National Plan"),and will provide a solid legal basis for
additional progress under the 2006-2008 National Plan.



BACKGROUND

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2. The TIP Amendments enacted on March 2 represent the
culmination of a process that lasted more than two years.
Starting in 2004, the Ministry of Justice has led an interagency
working group focused on addressing problems related to
trafficking in persons, as prioritized by the National Plan of
Action for 2003-2005 and its successor. The working group
includes representatives of the Ministries of Internal Affairs
(MVD); Foreign Affairs (MFA); Labor and Social Welfare(MOL);
Education and Science(MOES); and Culture, Information and Sports
(MCIS). Also represented are the National Security Committee
(KNB),which supervises the Border Guards; the office of the
Procurator General (PGO); and the National Commission on Family
and Women. All of these ministries and agencies have
responsibilities for combating trafficking. The OSCE center in
Almaty and from the International Organization for Migration
(IOM) contributed expert advice on international laws and
standards. NGOs were represented by the Kazakhstan
International Bureau of Human Rights (KIBHR),a national legal
network, and from the Union of Crisis Centers, an IOM-affiliated
network of TIP NGOs. Post was invited to observe each meeting.
Though the drafting process was at times slow, it was thorough.
The resulting amendments will improve dramatically the legal
basis for prosecutions, and additional provisions will improve
protection for foreign victims and help prevent Kazakhstanis
from being trafficked abroad.



SPECIFIC PROVISIONS

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3. The amendments affect six articles in the Criminal Code:
article 113 (organ and tissue harvesting); article 125
(kidnapping); article 126 (illegal restriction of freedom,
constructive kidnapping); article 128 (trafficking in persons,
recruitment for exploitation); article 133 (trafficking of
under-aged persons); and article 175-1 (illegal harvest of
organs or tissue of a human corpse),which was expanded by new
article 275-1. Non-substantive amendments to the code of
criminal procedure integrated these changes into the criminal
code. Article 56, a new Administrative Code provision, provides
for protection of TIP victims from deportation. An amendment to
Article 394 excludes TIP victims from penalties for illegal
immigrants. Additional changes to the Administrative Code
integrate substantive amendments into existing implementation
provisions. A final amendment applies to the presidential
decree, "On the legal status of foreign citizen in the Republic
of Kazakhstan." The most significant changes are discussed below




4. Criminal Code definitions: New definitions added to
criminal code articles 125, 126, 128, and 133 clarify that
illegal "exploitation" includes not only sexual exploitation,
but also forced labor exploitation, and any actions consistent
with forcing human slavery or bondage. An amendment to Article
126 also adds language to include as victims of constructive
kidnapping (i.e. forcible confinement) those held due to
involuntary financial or other dependence. Although Articles
125 and 126 are not strictly trafficking provisions as defined
by the U.S. Trafficking Victims Protection Act (TVPA),they
provide law enforcement and procurators with additional criminal
charges that would apply to most trafficking scenarios.


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5. Criminal Code Articles 128 and 133: Article 128 was amended
to remove the heavily-criticized "deception" provision that
previously required that a victim be unaware of the type of work
he or she was going to do; in practice, many victims were aware
of the type of labor they would undertake, but not the
involuntary bondage nature of their relationship with the
trafficker. (Note: Because Article 133 applies to minors, the
deception provision was not a factor. End note.) Both articles
were amended to expand the actions that constitute trafficking
to include not only recruitment of victims, but also sale of,
purchase of, transportation of, and transfer of victims. Any
act facilitating trafficking by hiding or providing shelter for
victims, or undertaking any other commercial transaction that
contributes to exploitation, were also prohibited. Subsection 2
of both articles lists aggravating circumstances for sentencing:
conspiracy related to trafficking (other than by organized crime
syndicates); repeated offenses; the use or threat of deadly
force against a victim; the use of weapons against victims;
trafficking of a pregnant victim; trafficking of multiple
victims; deception of the victim or abuse of trust; abuse of
official position to traffic victims; abuse of the victim's
financial or other dependence on the trafficker to maintain the
victim's compliance. Absent aggravating circumstances, each
charge under article 128 is punishable by up to five years'
imprisonment. With aggravation, sentences under Article 128
range from five to seven years per count. Under Article 133,
where a victim is a minor, each charge is subject to five to
seven years' imprisonment, or seven to ten year's sentence with
aggravating circumstances.




6. Articles 128 and 133, continued: A third subsection of both
articles provides for more serious charges for international
trafficking. Each instance of trafficking victims into,
through, or out of Kazakhstan would face a seven to ten year
sentence under Article 128. International trafficking of minors
would be subject to a ten to twelve year sentence under Article

133. Finally, Subsection 4 specifies that any trafficking case
where a victim dies from negligence or faces other "grave
consequences" resulting from having been trafficked, or where a
trafficking case involves an organized crime syndicate, would be
subject to seven to fifteen years' imprisonment. The same
circumstances would bring a twelve to fifteen year sentence
under Article 133.




7. Administrative Code - Preventing trafficking: An amendment
to Article 399 prohibits the use of deceptive advertising to
recruit citizens of Kazakhstan to work abroad. The amendment
applies equally to false statements and to withholding of
material information.




8. Administrative Code and Presidential Decree- Protections for
foreign victims: Article 56, a new section drafted with
significant feedback from procurators and nongovernmental
stakeholders, provides for immediate suspension of deportation
proceedings where a potential deportee alleges that he or she
has been the victim of a serious crime, including trafficking
crimes. Deportation proceedings will not proceed until criminal
investigations and prosecutions are completed. Under a related
amendment to Article 396, trafficking victims are exempted from
definitions of illegal immigrants. Accordingly, the
presidential decree, "On the legal status of foreign citizens"
was amended to classify foreign victims of trafficking as
protected under the law and to accord them special temporary
residence rights.




9. COMMENT: Although the TIP amendments as enacted do not
include all the recommendations of the stakeholders, the key
provisions remain. The TIP Amendments are significant not only
because of the potential for improved government action to
combat trafficking, but also because it is an unusual example of
a successful, transparent interagency process. Government
restructuring in the run-up to the December 2005 presidential
elections resulted in changes in key personnel working on TIP in
the Ministries of Justice and Internal Affairs, as well as the

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Procurator General's Office. (Note: With unfortunate timing,
the leadership of IOM Almaty changed over as well- the office is
currently operating with an acting director. End note.) Now
that post-election changes have settled into place, passage of
the TIP amendments represents an opportunity to re-energize the
member agencies. Post is promoting these efforts at the highest
levels. END COMMENT
TRACY