LGBT human rights: freedom or infringement in Kazakhstan?

Discussions on LGBT human rights in Kazakhstan, it seems, have been hushed or at least have not reached its full potential. From time to time, the local media erupts with news on brutal infringement of LGBT human rights with vivid examples of violence against representatives of the local LGBT community. Yet, no substantial actions have been taken towards opening a dialogue and providing constructive solutions in this regard. 

Article 19, the UK's human rights organization proposed introducing a concept of an anti-LGBT crime to the Kazakhstani Criminal Code. The human rights organization noted the absence of clear definition of crimes based on hate towards LGBT people in Kazakhstan’s judicial practice and law. The absence of such a definition, according to Article 19, in a way encourages negatives comments and actions towards LGBT people.

This was also noted back in 2009 by the research conducted by Soros-Kazakhstan Fund in Invisible and Unprotected: Lesbians, Gays, Bisexuals and Transgenders of Kazakhstan. According to Soros' research, since the time homosexual relationships as criminal offence (in the 1959 KazSSR Criminal Code) were taken out from the Kazakhstani legislation in 1995, a legal framework for LGBT hate crimes has not been included in the Criminal Code. Since 1998, the Criminal Code includes sexual battery that includes "homosexuality, lesbian and any forceful or coercive actions of sexual nature or taking advantage of victim’s helpless state" (Article 121), "sexual intercourse, homosexual, lesbian or other actions of sexual nature with individuals that have not reached the age of 16" (Article 122) and sexual coercion through treats to one's property or using material or any other dependence of the victim (Article 123). 

All in all, as Soros and Article 19 note, Kazakhstan's Criminal Code does not include provisions for discrimination of individuals of homosexual orientation. Hence, as Soros notes, there is absence of "any legal mechanisms of protection from discrimination in various spheres of life" leading to violation and abuse of the law enforcement practice in cases concerning LGBT people.     

Article 19 stated that the current legal practice in Kazakhstan went against the international norms adopted by the country. This includes, the Article 20 (2) International Covenant on Civil and Political Rights that forbids "any advocacy of national, racial or religious hatred". "Human Rights Committee closing remarks spoke for the inclusion of sexual orientation as an addition to the abovementioned characteristics of hate," the organization noted. "The Criminal Code must clearly fine crimes based on LGBT hate. Also, the courts must correctly classify such criminal activities and sentence according to these classifications," the Article 19 added.

 The lack of legal framework for such cases causes real problems. For example, in April 2015 in Ust-Kamenogorsk, two men killed their companion after he told them that he was gay. They were allegedly insulted by the fact that they had drunk from the glass shared with the homosexual person. The men attacked their drinking partner and beat him to death. Their actions were classified as "a crime committed with extreme atrocity by a group of people from molester motives" in the Criminal Code. One of them was sentenced to 16 years, while the other one got 15 years of imprisonment.

Article 19 does not agree with such a classification. "However, in regards to the Criminal Code of Kazakhstan, acts from molester motives are "characterized by undetermined criminal purposes". These crimes are committed without any apparent reason. Although the court considered molester motives as aggravating circumstances and punished the criminals severely, we cannot agree with this treatment. The actions of the convicts cannot be treated as hooligan. In this particular case, the crime was committed due to the hate towards LGBT people," the representatives of Article 19 stated.

It seems that the discourse of LGBT human rights in Kazakhstan is problematized by the absence of both legal framework and lack of desire to open a constructive dialogue between the law enforcement, human rights organizations and general population. Interestingly, the local human rights organization Eurasian Human Rights argues for the fact that there is no visible discrimination against LGBT people. Ermek Abdrasulov, the Vice President of the organization stated that the legislation of a given country corresponds to the sense of justice and legal culture of that country. He added that he had not witnessed any cases of discrimination against LGBT people. Abdrasulov emphasized that in fact there was a great deal of criticism for giving such freedom for LGBT community in Kazakhstan.

However, doesn't the presence of such criticism point towards a souring problem in the country? 

There is still a sense of a lacking tolerance for LGBT community in Kazakhstan. Unconsciously, it seems even human rights organizations in the country use the discourse of intolerance towards LGBT people. Hence, there is so much to be done towards a better human rights on legal and private levels.

By Gyuzel Kamalova