Wednesday, 03 September 2014
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Home Our Work Reports Questions of the death penalty in the criminal policy of the Republic of Kazakhstan

Questions of the death penalty in the criminal policy of the Republic of Kazakhstan

Mr. Nurmukhanov B.M.
Advisor to the Chairman of the Constitutional Council of the Republic of Kazakhstan


Good afternoon, dear ladies and gentlemen!

Let me on behalf of the Constitutional Council of the Republic of Kazakhstan welcome all participants of the present forum and express our gratitude to its organizers for invitation and excellent organizational work.

Since 90s Kazakhstan follows the process of step by step abolition of the death penalty. State program of legal reforms in the Republic Kazakhstan, adopted by decree of the President of Kazakhstan in February 12, 1994, directed criminal policy on reduction of the crimes envisaging death penalty. Criminal Code that existed at that time contained 34 articles with death penalty sanction, particularly for misappropriation, rape, bribe taking, violation in the currency operation sphere, banditsm, counterfeiting, etc. While adopting new Criminal Code in 1997 the number of article containing the death penalty was reduced to 17. Capital punishment was foreseen only for especially serious felonies attempting on human life, as well as committed during war time or in military circumstances, treason against the State, crimes against world and security of people and especially serious military crimes. Life sentence was introduced as alternative to the death penalty. The procedural guarantees to the convicted people have been strengthened. Maximum sentence for deliberate murder was increased from 15 to 20 years of imprisonment, and in aggregation of crimes and sentences – accordingly up to 25 and 30 years of imprisonment. It was decided that the death penalty cannot be applied to women, and people under 18 years old committed the crimes, as well as to men who at the time of court decision reached sixty five years old.

Concept of legal policy of Kazakhstan adopted by the Decree № 949 of the President of Kazakhstan in September 20, 2002, retained the focus on gradual reduction of the application of the death penalty. This program document suggested possible moratorium on the death penalty. Further decree № 1251 of the President of Kazakhstan, dated December 17 introduced unlimited moratorium on execution of the death penalty until future decision on complete abolition. At the same time in January 1, 2004 new provision of the Criminal Code on life sentence comes into force as alternative to the death penalty.  

Within the frames of the moratorium the head of the state ordered relevant state bodies to carry out constant monitoring of the criminal situation in the country. According to statistical information in the country there is the tendency of gradual decrease of the criminality. If in 2001 there were registered 152168 crimes than in 2007 – 128064, in 2008 – 127478, and in 2010 – 131896 (criminality rate - 81). In general criminal situation remains stable.            

Despite the announced moratorium on the death penalty the number of aggravated murders is gradually decreasing. Thus in 2001 there were 801 aggravated murders, in 2002 – 841, in 2003 – 657, but from the moment of announcement of the moratorium the statistics as follows: in 2004 – 645, in 2005 – 549, in 2006 – 505, in 2007 – 437 and in 2008 - 448. This shows that existence or absence of the death penalty do not seriously affect the dynamics of criminality.

During the period of the moratorium 6 people were convicted to the death penalty: in 2004 – 1, 2005 – 2 and 2006 – 3. Beginning from 2007 the capital punishment was not applied. Due to the fact of introduction of the relevant provision of the Criminal Code the life sentence is applied: in 2005 - 10 people were convicted to life sentence, 2006 - 5, 2007 – 9, 2008 – 13, 2009 – 3 and in 2010 – 4 people.   

Next stage in the implementation of the planned program is connected to the recently conducted constitutional reform. According to the amendments done in the article 15 of the Constitution, the death penalty is determined as exceptional punishment for terrorist crimes, associated with loss of life and especially serious felonies, committed during war time, with guaranteed right of the convicted person to request for clemency (pardon). That means actual abolition of the death penalty in Kazakhstan, as before this type of punishment was applied only for aggravated murders, which does not exist according to the new constitutional provisions. 

Establishment of the death penalty for the felonies committed during war time doesn’t; contradict with provisions on abolition of the death penalty of the Second Optional Protocol to ICCPR and the Protocol №6 to the Convention on Human Rights and Basic freedoms.

With regards to the remaining death penalty for the terrorist crimes, associated with loss of life, Kazakhstan considered that international community would acknowledge terrorism as the serious threat to international law and order and the interests of people. In sub paragraph е) of the point 2 of the Resolution № 1373 (2001), adopted by UN Security Council on 4385 meeting in September 28, 2001, there was highlighted that the methods and terrorist practices contradict the goals and principles of UN. Thus the states shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts. 

The Law of Kazakhstan, dated July 10, 2009 “On amendments and additions to some legal acts of the Republic of Kazakhstan on the issues of the death penalty” introduced amendments to the Criminal Code and Criminal Procedure Code of Kazakhstan, in order to bring them in compliance with the para 3 of the article 15 of the Constitution of Kazakhstan. 

Criminal Code contains list of the terrorist crimes. In many articles for example in the article on aggravated murder the death penalty was excluded and replaced with life sentence.

Cases of this category, in case of existing petition of the convicted person, are considered by the specialized court on criminal cases with participation of jury. Exceptional punishment measure – the death penalty may be applied only by unanimous decision of the judge and the jury.

Position of step by step abolition of the death penalty is proved by the fact that in April 2007 Kazakhstan joined European Union declaration on abolition of the death penalty, which was presented at the UN General Assembly on December 19, 2006 and appeals to the states with existing death penalty, to abolish completely the death penalty and announce moratorium on execution of the death penalty until complete abolition.

Besides that in the end of 2007, the President of Kazakhstan made a decree amnestying all people convicted to the death penalty (31 persons) for whom the death penalty was replaced with life sentence. Due to that fact we can definitely say that de-facto Kazakhstan is the zone free of death penalty.    

In August 24, 2009 the President of the Republic of Kazakhstan adopted new Concept of legal policy in the Republic of Kazakhstan until 2020, which is focused on continuation of the policy on gradual reduction of the death penalty application.   

I think that today we would have fruitful discussions on this issue and the other issues.   

I wish everybody fruitful work. Thank you for attention.
 

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