CAT/OP/KAZ/1 34. The Subcommittee is concerned about cases of torture and ill-treatment and welcomes the announcement by the Government of a zero-tolerance policy vis-à-vis torture. To achieve this, the areas described below need to be addressed. 35. The current institutional landscape, which is characterized by a concentration of power in two institutions, the Ministry of Internal Affairs and the Prosecutor’s Office, both of which ultimately focus on resolving crimes and depend on each other to do so, does not allow for effective control. In addition, neither the judiciary nor defence lawyers constitute an actual counterbalance. As a result, the safeguards, while provided for by law and in many cases formally complied with, are ineffective in practice. 36. While the creation of a new probation system is a step in the right direction, the current penitentiary system is not in compliance with rule 5 (1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which stipulates that prison regimes should seek to minimize differences between life inside and outside prisons. The Subcommittee is of the view that the overemphasis of punishment and the cumulative effect of restrictions, rigid discipline and military parading are unlikely to help reach the objectives of the penitentiary system, and may amount to degrading treatment. The Subcommittee recommends that the penitentiary system shift its focus from excessive disciplinary punishment towards rehabilitation and reintegration. V. Framework for combating torture and its application 37. The Subcommittee notes the prohibition of torture and ill-treatment in the Constitution (art. 17) and acknowledges the comprehensive normative framework in the area of criminal justice. However, the definition of torture in the Criminal Code is not in full compliance with that outlined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as the former excludes physical and mental suffering caused as a result of legitimate acts on the part of officials, which are different from the lawful sanctions referred to in the Convention. Also, only acts of torture committed by any person acting in an official capacity or upon incitement by that person or with his or her knowledge or agreement are covered. Kazakh legislation also allows for fines and other non-custodial punishments for torture. 38. The Subcommittee notes the authorities’ indications that a review of the definition of torture in the Criminal Code is under way. In that context, the Subcommittee reiterates the recommendation of the Committee against Torture to bring that definition into conformity with the one contained in the Convention and ensure that perpetrators convicted of having committed torture or ill-treatment are punished with appropriate penalties that are commensurate to the gravity of the crime (see CAT/C/KAZ/CO/3, paras. 9 and 24). 39. During the initial stages of deprivation of liberty, when the protection of the presumption of innocence is key, suspects come into contact with two institutions: the Ministry of Internal Affairs and the Prosecutor’s Office. The first is responsible for investigating crimes and prosecuting criminals, while also managing almost all detention facilities, with the exception of a limited number of pretrial detention facilities that are managed by the National Security Committee (KNB). Ministry investigators hold farreaching powers in terms of restricting prisoners’ contact with their family and even access to private lawyers. 40. Despite some changes to the functions of prosecutors as a result of the 2015 legal reforms, prosecutors continue to play a double role likely to undermine their impartiality. They participate in the prosecution, while at the same time they are mandated to oversee the legality of the detention and of actions by Ministry of Internal Affairs officials. 41. The judiciary, which should act as an independent oversight mechanism over the above institutions, has been somewhat strengthened and investigating judges are tasked with monitoring whether human rights and freedoms and the legal interests of people are 7