Kazakhstan Penal Code reform runs counter to abolitionist trend


By Anne Souléliac (Paris Bar), on 22 July 2014

The Constitution of the Republic of Kazakhstan allows the application of the death penalty for two categories of crimes: terror attacks entailing loss of life and serious felonies committed during wartime.
Capital punishment was so far applicable for 18 crimes listed in the Penal Code of Kazakhstan. But the Code’s reform has introduced another three new articles imposing the death penalty, while two were abrogated. As a result, there are now 19 crimes punishable by death in Kazakhstan.
The parliament of Kazakhstan (photo above) passed the new Penal Code on 11 June 2014.

20 years moving away from the death penalty

The 1959 Penal Code of the Kazakh Soviet Socialist Republic (in force until 1998) contained 25 capital crimes, including crimes against the state, homicide and other felonies (mostly applicable in wartime). Article 22 of the Code defined death penalty as an extraordinary punishment and envisioned its abolition in future.
Between 1994 and 1997, Kazakhstan halved its number of capital offences. This evolution fell in line with international trends and the judicial reform approved by the president in 1994, which humanised criminal law and created the conditions for phasing out the death penalty.
The revised Penal Code then prohibited capital punishment for women and minors (persons under 18 at the time of the crime), as well as persons over 65 at the time of sentencing. In addition, the death sentence could not be given without the mutual consent of three judges trying the case, or less than a year after the sentence was passed. Moreover, the number of alternative punishments in cases of capital crimes increased.
The last application of death penalty in Kazakhstan was on 12 May 2003, when 12 persons were executed.
President Nursultan Nazarbayev officially introduced a moratorium on execution by decree in December 2003. On 1 January 2004, life imprisonment was introduced as an alternative to capital punishment.
This decision reflected the government’s political ambition to ratify international treaties on human rights, as well as the UN Protocol on the abolition of the death penalty.
Since 2002, the government has pursued the policy of phasing out the application of death penalty. In 2007, Kazakhstan amended its Constitution, restricting the application of capital punishment to the most serious crimes.
Abolition of the death penalty was the next logical step in this policy in Kazakhstan, just as it happened in two other Central Asian states, Kyrgyzstan and Uzbekistan.
In the international arena, Kazakhstan clearly outlined its abolitionist aspirations by supporting the UN General Assembly’s resolution on a moratorium on the use of the death penalty in December 2012.
This renders the current situation rather unclear.

Three new capital offences

On 11 June, the Majilis, the lower house of Kazakhstan’s parliament, approved the Senate’s draft Penal Code.
Chapter 4 of the Penal Code, Crimes against Peace and Security, now includes three new articles authorising the death penalty: Article 164 – application of prohibited means and methods of conducting a war, Article 165 – violation of laws and customs in war time, and Article 253 – international terrorism.
Article 164 states that the use weapons of mass destruction shall be punishable by death. Article 165 permits the application of capital punishment for the murder of persons who have laid down arms, unarmed, injured, sick persons or defeated troops, medical and paramedical personnel, clerics, prisoners of war, civilians on occupied territories or in a war zone, as well as persons under international protection in wartime.
Article 253 allows the application of the death penalty for an attempt at homicide perpetrated with the aim of disrupting public safety, intimidating the population, coercing the public authorities of the Republic of Kazakhstan, another government, or an international organisation into making decisions, or perpetrated with the view to starting a war or aggravating international relations.
Moreover, this article punishes by death an attempt on a politician or another public person’s life, perpetrated with a view to terminating their political activity, as well as for the taking of hostages and the seizure of buildings, vehicles, vessels, or other means of mass transportation.

Abuse of authority and power removed from capital crimes

At the same time, the death penalty was abolished in two articles applicable to public officials in wartime: Article 380 (Article 448 in the new Criminal Code) on abuse of authority and Article 380-1 (Article 449 in the new Criminal Code) on excess of power.
Kazakhstan professes intent to align its national law with its international liabilities, namely those arising from the Geneva Conventions and their additional protocols.
How should such seeming alignment be interpreted?
On the one hand, the list of crimes punishable by death was extended with three articles, which is contrary to Kazakhstan’s decade-old efforts to restrict the application of death penalty. On the other hand, death penalty was made illegal for crimes which could be perpetrated by public officials, which can be seen as a desire for them to evade capital punishment.
This reform is particularly worrying at the time when the human rights situation in Kazakhstan has been constantly deteriorating for more than two years.

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