Commentary on the decision of the Constitutional Council on the application of the death penalty

Commentary to the Regulatory Resolution of the Constitutional Council of the Republic of Kazakhstan dated December 15, 2020 No. 4

      At the request of the President of the Republic of Kazakhstan, the Constitutional Council gave an official interpretation to the provisions of the Constitution of the Republic regulating the use of the death penalty.

      The appeal of the Head of State was conditioned by the upcoming ratification by Kazakhstan of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty (hereinafter referred to as the Optional Protocol).

      The appeal deals with the relationship between the provisions of the Constitution of the Republic and the norms of the Optional Protocol governing the application of an exceptional measure of punishment.

      The Constitutional Council decided that there was no need to amend the Basic Law in order to ratify the Optional Protocol.

      At the same time, the Council noted that according to the Constitution and universally recognized international instruments, the right to life is a fundamental value of a democratic society and the State is obliged to guarantee the exercise of this right for all people.

      As an equal member of the international community, Kazakhstan has taken into account the trend towards the abolition of the death penalty in its criminal legislation from the very beginning, and over the years a stable legal regime for the non-use of capital punishment has been formed in the country.

      The next stage in the consistent implementation of this course was marked by the signing of the said Optional Protocol by the Republic of Kazakhstan on September 23, 2020.

      Taking into account that the Constitution of Kazakhstan allows for the establishment of the death penalty for terrorist crimes involving the death of people, as well as for particularly serious crimes committed during the war, the Council indicated that the ratification of the international treaty on the abolition of the death penalty falls within the competence of the Parliament of the Republic.

      At the same time, the Basic Law leaves the issue of establishing or rejecting the death penalty for these crimes in the criminal law and narrowing their range to the discretion of the Parliament.

      The legislator can abolish the death penalty not only by making appropriate amendments to national legislation, but also by ratifying an international treaty providing for the abolition or limitation of the number of crimes for which this type of punishment can be imposed.

      In its decision, the Council stressed that the Constitution does not prevent the ratification of the Optional Protocol.

      After its ratification, the Criminal Code of the Republic of Kazakhstan should be brought into line with its requirements.    

      The full text of the resolution of the Constitutional Council is published in the press and on the Council's website.      

     The Constitutional Council

 

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