Kazak Death Penalty Reform Less Than It Seems

Although Kazakstan has now abolished capital punishment for most crimes, analysts say a wide range of offences are covered by the term “terrorism”, for which people can still be executed.



Formal abolition came in the shape of a set of legal amendments to the criminal code passed on March 25 by the Majilis or lower house of parliament.



Deputy Justice Minister Dulat Kustavletov said afterwards that capital punishment had been abolished for ten types of crime.



For crimes like aggravated murder, subversion, and attempting to kill the Kazak president or a judge or prosecutor, capital punishment has been replaced by life imprisonment.



The death penalty remains on the statute books for eight categories of crime such as military offences, war crimes like genocide and – controversially – terrorism.



Human rights activists say the retention of terrorism as a capital crime leaves scope for capital punishment to be applied for a range of offences, and they fear the interpretation could be used too generously.



Kazakstan has not ratified the Second Optional Protocol of the international Convention on Civil and Political Rights, which commits states to abolishing the death penalty. The protocol recognises only one possible exclusion – crimes committed by the military in wartime.



Although the legislative changes are largely in line with the protocol, it differs in one important area, retaining capital punishment for crimes of terrorism resulting in the death of two or more people.



Ninel Fokina, who heads the Almaty Helsinki Committee for Human Rights, warns that this discrepancy between the national criminal code and the Second Optional Protocol could create problems for Kazakstan.



“The United Nations Committee for Human Rights may refuse to accept Kazakstan’s ratification [of the protocol] in its present form”, she said.



Because “terrorism” can refer to a multitude of sins, legal experts interviewed by IWPR say it is not quite right to say the list of capital crimes has been cut from 18 to eight.



“The point is that the word ‘terrorism’ may include many different crimes,” said Fokina. “When we were trying to calculate the number, we discovered that the number of new crimes falling under this category exceeds the number for which capital punishment has been abolished.”



She concluded, “Everything has happened the same way it always does. We declare that we have made a significant step forward, but in reality it was several steps backwards; another setback.”



A retired police colonel, who spoke to IWPR on condition of anonymity, agreed that the inclusion of terrorism in the list of capital crimes was important.



“In our court system, even a minor traffic accident can be viewed as an act of terrorism if the authorities want it to be,” he said. “So the offender can be executed.”



Kazak officials naturally disagree with such arguments.



Anton Morozov, head of the department for social and political research at the Institute for Strategic Studies under the president of the Republic of Kazakstan, said the recent amendments formed an important phase on the road to complete abolition.



“A long time ago, Kazakstan declared that it aspired to completely abolish the death penalty. And we are on the way to doing that,” he said. “That is the position of our state, and we adhere firmly to it.”



Law enforcement officials refused to comment on the rights and wrongs of the issue, saying it was a matter for parliament.



“Since the interior ministry is an executive body, it will follow the letter of the law,” said ministry spokesman Bagdat Kojahmetov.



Kazakstan has observed a moratorium on carrying out executions since 2004, although in fact the last time it was used was in the late Nineties.



Death sentences have been passed, but not carried out, since the moratorium was imposed. At present, there are 30 convicts on death row; the changes to the criminal law are likely to mean their sentences will be reviewed and commuted.



The most recent case was that of Rustam Ibrahimov, a former policeman convicted of killing opposition politician Altynbek Sarsenbaev and his bodyguard and driver.



The way was opened for the recent changes to the criminal code in May 2007, when a similar set of amendments were made to the Kazak constitution. This happened before Kazakstan ratified the Second Optional Protocal, which might explain the retention of the terrorism clause.



The Kazakstan International Bureau for Human Rights and Rule of Law notes that no death sentence has ever been passed for terrorist crimes in Kazakstan.



At the same time, some human rights activists say assassinations of political figures like Sarsenbaev are precisely the kind of crime that could reasonably be classified as terrorism.



Analysts by IWPR said the alternative now applying to most of the former capital crimes – life imprisonment – is problematic given the state of the country’s prisons.



“A person cannot survive long in the conditions that Kazak prisoners have to endure,” said the retired police colonel. “Our prisons are full of sick people who were healthy before they were jailed.”



This view is backed up by Svetlana Kovlyagina, the head of the Committee for Monitoring Penal Reform and Human Rights.



She recalled how members of her group met death row prisoners in the Pavlodar region after the moratorium came into force in 2004, and heard that they did not want capital punishment to be abolished.



“They said it would be better to die rather than spend the rest of their days in prison cells under terrible conditions,” she said.