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Dzhansarayeva Rima Yerenatovna, Al-Farabi Kazakh National University, Head of the Department of Criminal Law, Criminal Process and Criminalistics, Doctor of Legal Sciences, Professor E-mail: jansarayeva@mail.ru
The constitutional principles of punishment under the criminal legislation of the Republic of Kazakhstan
Abstract: The article considers the issues of regulation of separate problems of the punishment institution that require theoretical analysis according to the criterion of constitutionality.
Keywords: constitutionality, punishment principles, death penalty, correctional works.
A growing impact of constitutional imperatives on the different areas of legal reality allows talking about the process of constitutionalization of law. The problems related to the fulfilment of the requirements of constitution should be emphasized as foremost problems of modern criminal law. The matter of constitutional principles of criminal law and the need of its research is determined, firstly, by applicable criminal law; secondly, by its application practice; thirdly, by condition and consequences of realization of the criminal policy of the state. The supremacy and priority of constitutional norms and principles in terms of the norms of criminal legislation presuppose the obligation of a lawmaker to adhere to the requirements of the Constitution as primary source of criminal law. Legislative characteristic of correlation of the Constitution of
the Republic of Kazakhstan and criminal law is expressed in part 2, article 1 of the project of a new edition of the Criminal Code of the Republic of Kazakhstan and universally accepted principles and norms of international law. According to its value, this norm in the system of criminal law performs general regulation of impact of constitutional norms on the content of criminal law norms in compliance with the supreme legal power of the Constitution of the Republic of Kazakhstan.
Requirement of part 2, article 1 of the project of the new edition of the Criminal Code of the Republic of Kazakhstan means that national criminal legislation in its content relies upon the constitutional norms and does not contradict them. This provision serves as a specific legal presumption, which can be disposed as a result of the acknowledgement of the norm of the criminal law being non-constitutional under the decision of the Constitutional Council of the Republic of Kazakhstan.
Future changes of the criminal law cannot be undefined and should be within legal frames established by the Constitution of the Republic of Kazakhstan for the area of criminal and legal regulation. The indicated norm establishes that in case of contradiction between the norms of the Criminal Code of the Republic of Kazakhstan and the Constitution of the Republic of Kazakhstan the provisions of the Constitution should be applied and confirm that the norms of the Criminal Code of the Republic of Kazakhstan recognized as non-constitutional as well as infringing rights and freedoms of a man and a citizen established by the Constitution should lose effect and not be subject to application. The given order of the criminal law is of supreme judicial importance for the criminal law presupposed by both the place of the Constitution of the Republic of Kazakhstan in the legal system and program nature of this norm.
The analysis of the project of the new edition of the Criminal Code of the Republic of Kazakhstan with a view to the compliance with the Constitution of the Republic of Kazakhstan enables to note the presence of its undoubtful advantages. Therewith, one cannot but tell about the presence of regulation of several institutions of the General part of certain issues that require theoretical analysis with respect to the criterion of constitutionality.
Constitutional principles of punishment
Criminal and legal norms about punishment rely on the Constitution of the Republic of Kazakhstan and should comply with it, The Constitution of the Republic of Kazakhstan, universally accepted principles and norms of international law form a leading group of sources of punishment law.
The more significant and direct value in the sphere of criminal punishment for a lawmaker and subjects of the constitutional and legal relations is born by the following provisions of the Constitution of the Republic of Kazakhstan:
- limitation of the content of punishments as it (effect) cannot contradict the rights and freedoms confirmed in clause 2 of the Constitution of the Republic of Kazakhstan,
particularly, equality before law and court (article 14), right to life (article 15), right to personal freedom (article 16), responsibility of the state to protect the dignity of a personality prohibiting torments, violence, other violent or humiliating treatment or punishment (article 17) etc.;
- establishment of the right of a citizen for appropriate court procedure when punishment is imposed and determination of the responsibility of the state and bodies acting on its behalf for appropriate execution of punishment. Particularly, everyone has the right for court protection of their rights and freedoms according to article 13 on the Constitution of the Republic of Kazakhstan.
This fundamental provision is characterized in article 77 of the Constitution of the Republic of Kazakhstan. Responsibility of the state chiefly comes out of article 1 of the Constitution of the Republic of Kazakhstan according to which a person, their rights and freedoms are pronounced the supreme value as well as article 12 of the Constitution of the Republic of Kazakhstan, which guarantees rights and freedoms of a person. On this basis the state and its bodies are not entitled to refer to material and resource bases of infringing the rights of people serving a term of imprisonment.
The instructions of the Constitution of the Republic of Kazakhstan in respect of criminal punishment are addressed to a lawmaker and other subjects of constitutional and legal relations as well as subjects of criminal and legal relations (subjects of appointment and execution of punishment, people who are supposed to serve and suffer punishment). In some cases, these instructions directly establish the responsibilities of a lawmaker to pass laws and sub-law acts about punishment within the guidelines of the Constitution of the Republic of Kazakhstan making amendments to them in case of non-compliance with the Constitution of the Republic of Kazakhstan. Thus, for instance, the range of grounds for application of death penalty was regulated (restricted) in accordance with the Constitution of the Republic of Kazakhstan. Naturally, there is an issue of complete abortion of death penalty application.
The issue of complete abortion of death penalty
The issue of death penalty isn’t only a problem of criminal and legal relevance of constitutional norms. It’s a problem of internal misbalance of the norms of constitution.
The Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state, the supreme values of which are a person, their life, rights and freedoms.
Part 1, article 15 of the Constitution of the Republic of Kazakhstan says: «Everyone has a right to life», i. e. accepted constitutional right of everyone to life determines the direction of the criminal legislation toward further abortion of death penalty. Part 2, article 15 of the Constitution of the Republic of Kazakhstan says: «No one has a right to take anyone’s life», and further confirms that «Death penalty is appointed by the law as exclusive punishment measure for terrorist crimes related to the death of people as well as especially grave crimes committed during war period with the
right to appeal for mercy». It is appropriate to remember the words of the Council of Europe’s Commissioner for Human Rights Thomas Hammarberg: «A state kills a man to prove that one cannot kill».
One cannot but note that the state shaped its course toward «gradual narrowing of the sphere of death penalty application». On December 19, 2003 the President of the Republic of Kazakhstan announced unlimited moratorium on the execution of death penalty until the issue of its complete abortion is solved.
Life imprisonment was introduced in March, 2004 as an alternative to death penalty.
In November, 2005 the Republic of Kazakhstan ratified the International Covenant on Civil and Political Rights (ICCRP) and the issue related to ratification of the Second Optional protocol to the ICCRP aimed at abortion of death penalty became an item of the agenda.
Within the selected approach to gradual solution of the problem of death penalty abortion the Republic of Kazakhstan joined the Declaration of the European Union about the abortion of death penalty made at the 61st session of the UN General Assembly on December 19, 2006.
In May, 2007 as a result of amendments made to article 15 of the Constitution of the Republic of Kazakhstan, the sphere of possible application of death penalty was significantly narrowed to terrorist crimes related to the death of people and especially grave crimes committed during war period.
Kazakhstan also supported the resolution of the 62nd session of the UN General Assembly «Moratorium on the ultimate measure of punishment with further consideration of possible abortion of death penalty» approved on December 18, 2007.
In July, 2009 the Law «About amendments and additions to some legislative acts on the issue of death penalty» was signed, according to which the ultimate measure of punishment is applied in case of terrorist crimes resulting in the death of people as well as especially grave crimes committed during war period.
It is observed in the Concept if legal policy of the Republic of Kazakhstan during the period from 2010 to 2020 that «the sphere of death penalty application is narrowed to exclusively terrorist crimes resulting in the death of people or especially grave crimes during war period, which mean actual abortion of death penalty in Kazakhstan» and that «criminal policy of the state should be aimed at the continuation of the course of gradual narrowing of the sphere of death penalty application».
In this respect, it is difficult to agree with the position of a lawmaker who involved death penalty in 16 components of crimes in the project of the new edition of the Criminal Code of the Republic of Kazakhstan (17 components of crimes in the applicable Criminal Code of the Republic of Kazakhstan). Herewith, crimes stipulated in the project of the new Criminal Code the commitment ofwhich can result in the appointment of such punishment as death penalty do not comply with the requirements.
For instance, it is disputable to refer to planning, preparation, starting or conduct of an aggressive war as crimes of criminal nature during war period. This wording rater means a crime of aggression in respect of which there isn’t an agreed definition in the international law.
The notion «especially grave crime» for which a death penalty can be imposed does not comply with the interpretation in the international law. According to the proj ect of the new edition of the Criminal Code, death penalty is preserved for treason, even during war period, as there is no direct intention to kill and grave consequences in the form of taking a life.
The same remark can be applied to preservation of death penalty for non-obedience or non-performance of an order, resistance to superior or forcing them to infringe duty responsibilities, violent actions toward superior, abandonment of post, draft evasion by way of self-injury or other way, breaking of static duty rules, abuse of power, stretch of authority or inactivity, submitting or leaving military means to the adversary.
It’s not sufficient to indicate in the criminal law that death penalty for these crimes is imposed only if they are committed during war period. As it has been pointed out above, in accordance with the modern interpretation of the notion «especially grave crimes» for which death penalty can be imposed (in case it was not completely aborted in the given country), there is a need for direct intention to kill and the onset of grave consequences in the form of taking a human’s life (Resolution № 1984/50 of the UN Economic and Social Council as of May 25, 1984 «Safeguards guaranteeing protection of the rights of those facing the death penalty»).
Moreover, the preservation of death penalty in the criminal legislation of the Republic of Kazakhstan for crimes of military nature committed during war period presupposes that the state leaves open the possibility of entering a war with another state, which is an alarming message to the world community.
We think that the ongoing process of re-codification gives a unique opportunity to make a clear and grounded decision about complete abortion of death penalty in the criminal code of the Republic of Kazakhstan and exclude this punishment from the project of the new edition of the Criminal Code.
Death penalty was aborted in 11 former union republics — Azerbaijan, Armenia, Georgia, Latvia, Lithuania, Estonia, Ukraine, Moldova, Kirgizia, Turkmenistan and Uzbekistan. In post-Soviet space death penalty as a measure of punishment is active only in Belarus. There is moratorium in Russia, Kazakhstan and Tajikistan.
Correctional works
The proj ect of the new edition of the Criminal Code presupposes traditional labor-related punishment such as correctional works. Part 1, article 43 of the project of the new edition of the Criminal Code of the Republic of Kazakhstan defines that «correctional works are a forceful engaging in labor at main working place with the deduction
of penalty in favor of the state income in the amount corresponding to certain number of monthly calculation indicators established by the legislation and applicable at the moment of criminal offence. It is performed by way of monthly transfer from 20 to 40 % of income (monetary support) of the convicted in favor of the state’s income. For criminal offences, correctional works are appointed within twenty-five to five hundred of monthly calculation indicators; for crimes — within five hundred to ten thousand of monthly calculation indicators».
In accordance with article 24 of the Constitution of the Republic of Kazakhstan, forceful labor is allowed only under the court’s sentence or in case of an extraordinary situation. Article 8 of the Labor Code of the Republic of Kazakhstan duplicates the constitutional provision about the prohibition of forceful labor and defines that works required from any person as a result of the court’s sentence coming into force is not considered as forceful labor if the work is performed under the supervision and control of state authorities and that a person performing the work will not be transferred to the supervision and control of physical persons and (or) legal entities.
On the assumption of legislative provisions one can conclude that criminal punishment, even if it is connected with an obligation of the convicted to work, is not a forceful labor in the sense that was put in it by the Constitution of the Republic of Kazakhstan and labor legislation.
Being a criminal punishment the aims ofwhich are restoring of social justice, correction of the convicted and prevention of new crimes, correctional works cannot be considered as forceful labor. Hence, the norm should be corrected with the exclusion of the phrase «forceful engaging in labor», especially, that it talks about main working place of the convicted where they were working voluntarily before committing the offence on the basis of an employment agreement or contract.
Moreover, in our opinion, for the purposes of realization of the principle of differentiation of punishment imposed for a criminal offence or crime, maximal and minimal limits of monetary penalty charged for a crime should be changed.
We believe article 41 of the project of the new edition of the Criminal Code of the Republic of Kazakhstan presupposing types of punishment should be corrected. It seems right to change article 41 of the project of the new edition of the Criminal Code of the Republic of Kazakhstan by naming it «System of punishments».
The system of punishments is built on the principle from less severe punishment to more severe punishment. In this respect, it appears logical to include engaging in social works in item b), part 1, article 41 of the proj ect of the new edition of the Criminal Code of the Republic of Kazakhstan, i. e. before the correctional works taking into account the punitive nature of these types of punishment.
