15 july 2020

Central Asia news

Sexual harassment case - Kazakhstan is reluctant to observe international obligations

30.11.2017 08:14 msk


Human Rights Kazakhstan

Kazakhstan ignores one of the main world trends - intolerance of sexual harassment in the workplace. As if in contrast to the events taking place in the West, where the careers of passionate celebrities collapse one by one, Kazakhstani victims of harassment remain practically unprotected. No one can turn the tide even if the individual has been recognised as a victim of harassment at the international level.

Just the other day, Anna Belousova, who works as a school cloakroom attendant, celebrates her 36th birthday and with it - exactly six years of unceasing struggle for her rights. Belousova is now a celebrity in Kazakhstan, although the glory and attention of the press have not brought her any benefits for all these years. On the eve of her birthday, Anna received another "gift" from the court - the refusal to satisfy her claim to the state to pay compensation for harassment in the amount of 7,463,641 tenge (more than 22 thousand US dollars).

Anna became famous throughout the country in 2015, when the UN Committee on the Elimination of Discrimination against Women (CEDAW) took her side in the case of Belousova v. Kazakhstan. This was the precedent for the whole Central Asia.

The Committee, by its decision, called on Kazakhstan to compensate the victim for moral damage and material losses, as well as to amend the national legislation to provide adequate protection to victims of sexual harassment. The state was given six months to implement the CEDAW recommendations.

Two and a half years have passed. Anna still knocks on every door of the state bodies and Kazakhstani courts trying to get what she has a full right of.

Non-fulfilment of international obligations

Kazakhstan ratified the International Convention on Elimination of All Forms of Discrimination against Women in 1998. As Anastasia Miller, the human rights activist dealing with Belousova case, explained it means that the state has committed to implement the decisions and recommendations of CEDAW. However, it turns out that the mechanism for the implementation of such decisions has not yet been developed in the country.

"Realising that representatives of the state will not move a finger, Belousova was forced to initiate a lawsuit," says Snezhanna Kim, the lawyer who accompanies the case of Belousova in all instances. "At first she tried to call to account the Rudnensky District Department of Education, then - the Ministry of Finance of the RK [Republic of Kazakhstan], but every time the courts found excuses to refuse to satisfy the claim."

According to Kim, at first, the court considered that the execution of the decision of the UN Committee could be within the competence of the local authorities. But when a lawsuit had been filed against the central state bodies, it turned out that the court does not consider the recommendations of the UN Committee as a document mandatory for execution in the Republic of Kazakhstan.

"Every time I receive another refusal, I ask myself: why do our judges participate endlessly in all these high-profile training and seminars on international law?" Snezhanna Kim is indignant. "After all, these very judges then refer to the conclusions of the organisation, the decisions of which the state must recognise to fulfil the international obligations, as an "opinion". Both the norms of international law and domestic legislation in the decisions on the Belousova case have been interpreted as everything but to at least somehow justify the denial of the lawsuit.

By the way, one of the numerous reviews of the Belousova's complaint caused a blatant scandal, which ended with the dismissal of the judge.

In June 2017, the judge of the Saryarkinsky district court of Astana, Kunbolat Aripov, decided to involve the UN experts as a third party in the process. This judicial step, to which the legal community of Kazakhstan reacted with a wave of ridicule in social networks, led to the removal of the judge from the consideration of the case, and then to his dismissal at his own will. However, this did not lead to a successful outcome for the claim.

Corpus delicti

Today, it is very difficult for Anna Belousova to talk both on the topic of the courts, and about what happened in the village of Pertsevka, Kostanay province of Kazakhstan, where she worked. She begins to cry during the hearings whenever she is asked to tell what happened.

"In 2011, a new director came to school, who put an eye on me," says Anna. "He began to pester [with me] and directly demanded intimacy with me. Being refused, he always punished me with dirty work which was not part of my job duties. Forcing me to be a cleaner, and once I was sent in the 30-degree frost outside to wash the school fence [...], The director constantly insulted me. He behaved like a bai ['rich' nomad before Soviet era - note by Fergana News], and I was a peasant for him, whose complaints no one would believe. I begged him to leave me because I'm married, I have two children.

Then he said that I should pay him, and demanded ten thousand tenge, while my salary was only 15 thousand [about $ 45 a month - note by Fergana News] [...] I tried to complain, but nobody believed me in Rudnensky Gorono [City Department of Education]. They laughed and said: 'You'd think, it's a disaster! Spread your legs and work yourself further.' Yes, I'm an uneducated person, spent all my life in the countryside, but I will not allow trampling on me."

Anna's complaints to the police and the prosecutor's office remained unresolved. The working commission sent to the school from the Gorono to verify the allegations led to nothing, especially since the inspectors confined themselves to a survey of the director who denied everything. They did not even invite Anna to the conversation. In the end, the woman was fired.

When Belousova's story became the subject for the press, the director sued the woman for libel. Belousova lost this claim, despite the fact that during the trial witnesses confirmed the facts of harassment and persecution. Anna's attempt to present audio records of the foul conversations of the school director with her to the court was unsuccessful too. The court refused to accept them as an admissible evidence. As a result, Belousova was charged one tenge in favour of her opponent; she was obliged to bring to the director public apologies.

The decision of the UN Committee

Having failed to find justice in her homeland, Anna Belousova, with the help of the lawyers of the Kazakhstan International Bureau for Human Rights and Rule of Law, reached the Geneva Committee of the United Nations on the Elimination of Discrimination against Women, which finally stated:

"[...] the State party’s institutions and courts failed to give due consideration to the author’s complaint of gender-based violence, which took the form of sexual harassment in the workplace, and to the evidence in support of that complaint, and that they thus failed in their duty to apply gender sensitivity to the examination of the complaint [...]"

"[...] In the present case, the authorities did not explore any reasons why the author’s employment contract was not renewed after service of more than 10 years. Furthermore, the Rudnyy City Court referred to the fact that the author did not complain about the alleged sexual harassment while she was still employed, but only after her dismissal, as a circumstance rendering her allegation less credible. In the circumstances, which all reveal a lack of sensitivity to the author’s vulnerable position as a sole female wage earner [...]"

"[...] the Committee reiterates that the State party violated its obligations [...]" (on the implementation of the Convention - note by Fergana News).

Anna Belousova in 2015 with the decision of the UN Committee

This decision was regarded in Kazakhstan as a sensation. But a number of unsuccessful attempts to achieve the fulfilment of the CEDAW decision caused the severe stress to Anna.

Belousova was strongly depressed by the publicity of the details. She became the victim of gossips in her native village. Powerful sufferings led her to an almost total blindness.

Svetlana Chernikova, the psychologist who examined Belousova, said:

"Chronic stress factors, Anna has sustained for several years, caused irreversible changes: Belousova was given the first group of disability due to loss of vision for life. She has severe asthenia, chronic fatigue syndrome; there are symptoms of depression. The value orientations of Anna have been destroyed: faith in justice, human decency, honesty. There is a fear of the world, a lack of confidence in people, a departure from social contacts. These forced changes can also be irreversible.

Belousova is forced to stay in her village, where everything reminds her of psychotraumatic events. She needs to leave it and start living where no one knows her and will not remind her of anything."

Human rights activist Anastasia Miller, Anna Belousova and lawyer Snezhanna Kim. Summer of 2017

In Kazakhstan, it has been increasingly reported that women who have become victims of domestic violence or sexual harassment in the workplace are afraid and ashamed to talk about their problems. To report abuse means dooming yourself to shame.

Such circumstances human rights defenders consider as one of the signs of shortcomings in the Article 123 of the Criminal Code of the Republic of Kazakhstan "On Forcing to Sexual Intercourse". And if the legislators assure that the rules of the criminal legislation are still sufficient to hold accountable for harassment, then practising lawyers say: in fact, Kazakhstani women have been deprived of effective means of protection in the legal field.

"Every sexual harassment is a separate case," explains Snezhanna Kim. "It should be considered in the light of specific circumstances. The existing Article 123 of the CC RK [the Criminal Code of the Republic of Kazakhstan] does not take into account the objective qualifying signs of this crime. Therefore, I am sure that a separate article on sexual harassment should be in our criminal code. By the way, the UN CEDAW decision on Belousova's case also calls Kazakhstan to it."

Today Belousova's lawyers and human rights activists, accompanying this high-profile case, are preparing a complaint to the Supreme Court of Kazakhstan. A new round of struggle for the rights of Anna Belousova will begin shortly.

The defenders of Anna, who dared to resist the tradition of a frivolous attitude to harassment in society, firmly believe that the state has no legitimate reasons to refuse Anna Belousova's demands.

In the opinion of professionals, the reference to the absence in the legal system of the prescribed mechanism for fulfilling the requirements of the UN Committee is ridiculous and insignificant. Whatever one may say, Kazakhstan has recognised the Convention on the Elimination of All Forms of Discrimination against Women and the international document has an advantage over the national legislation.

Fergana News Agency