Kazakhstan: capital punishment is not completely abolished
The death penalty has not been completely abolished in Kazakhstan, but with some reservations. This became possible due to the fact that the Constitution of the Republic of Kazakhstan contains provisions that allow the use of the death penalty. However, these reservations will not prevent Kazakhstan from ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty.
Let us remind you that the official accession of Kazakhstan to the Protocol took place on September 23 after the speech of the President of the Republic, Kasym-Zhomart Tokayev, at the general political debate of the 75th anniversary session of the UN General Assembly, where the President of Kazakhstan stated that the right to life is fundamental in the country.
On September 24, the Permanent Representative of Kazakhstan to the UN, Kairat Umarov, signed the Second Optional Protocol to the International Covenant on Civil and Political Rights.
However, when it came to the ratification of the Second Optional Protocol by the Parliament of Kazakhstan, it turned out that the Constitution of the Republic of Kazakhstan contains an article that raises certain doubts that Kazakhstan can completely abandon the death penalty.
This refers to paragraph 2 of Article 15 of the Constitution: “No one has the right to arbitrarily deprive a person of life. The death penalty is established by law as an exceptional punishment for terrorist crimes involving the death of people, as well as for especially grave crimes committed in wartime, with the right to the sentenced person to apply for pardon.”
In this regard, the President of Kazakhstan Kasym-Zhomart Tokayev appealed to the Constitutional Council with a request to interpret this provision of the Constitution and answer two questions: 1) “Do the constitutional provisions of paragraph 2 of Article 15 of the Constitution of the Republic of Kazakhstan establish the death penalty in the criminal law for all criminal acts? 2) Is it possible from the point of view of constitutional requirements for the range of crimes for which an exceptional penalty can be applied, the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty, with a reservation allowed by it?”
The Constitutional Council, having considered the President’s appeal, came to the following conclusions: according to the Constitution and universally recognized international acts, the right to life is the main value of a democratic society and the state is obliged to guarantee the exercise of this right for all people.
“Taking into account that the Constitution of Kazakhstan allows the establishment of the death penalty for terrorist crimes involving the death of people, as well as for especially grave crimes committed during wartime, the Council indicated that the ratification of the international treaty on the abolition of the death penalty is within the competence of the Parliament of the republic. At the same time, the Basic Law leaves the question of the establishment or refusal of the death penalty in the criminal law for these crimes, narrowing their circle to the discretion of the Parliament. The legislator can abolish the death penalty not only by introducing appropriate amendments to national legislation, but also by ratifying the international treaty that provides for the abolition or limitation of the number of crimes for which this type of punishment can be imposed,” the Constitutional Council’s decision indicates.
At the same time, the decision emphasizes that the Constitution doesn’t prevent the ratification of the Optional Protocol, and after its ratification, the Criminal Code of the Republic of Kazakhstan must be brought into line with its requirements.
Article 1 of this international act states that no person under the jurisdiction of a member state to this Protocol shall be subject to the death penalty. Each member state shall take all necessary measures to abolish the death penalty within its jurisdiction. Paragraph 1 of Article 2 of the Second Optional Protocol stipulates that no reservations may be made to this Protocol, with the exception of a reservation made at the time of ratification or accession, which provides for the use of the death penalty in wartime following a confession of guilt for the most serious crimes of a military character committed in wartime. By the Resolution of the Government of the Republic of Kazakhstan No. 756 dated November 12, 2020, the draft Law of the Republic of Kazakhstan “On the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty” was submitted to the Parliament, according to which the ratification of this international act is expected with the following stipulation: “The Republic of Kazakhstan, in accordance with Article 2 of the Second Optional Protocol, reserves the right to use the death penalty after being found guilty of committing particularly grave crimes of a military nature in wartime,” was stated in the decision of the Constitutional Council.
