Changes to criminal procedure legislation have significantly expanded the rights of criminal prosecutiors. The reform has not eliminated, and in some cases – even exacerbated – the problem of violation of the right to defence at trial, the right to freedom of peaceful assembly and gatherings, as well as the freedom of expression and dissemination of information.
The General Prosecutor’s Office of Kazakhstan is developing a new Criminal Code (CC), the Criminal Procedure Code (CPC), the Penal Code (UIC) and the Code of Administrative Offences (CAO). It is carrying out a revision of almost all key legislative acts relating to civil penalties and procedures of this punishment.
The initiator of the reform of the criminal law was the General Prosecutor’s Office of Kazakhstan on instructions from the President of Kazakhstan, Nursultan Nazarbayev, issued on 6 January, 2012. After a year and a half since the beginning of the reform, the government is planning to adopt the amendments made. As stated by the expert of the working group of the General Prosecutor’s Office on the development of the Criminal Code, Ruslan Toktagulov, a new Criminal Code isto be presented for consideration of the parliament as early as in August 2013, and is scheduled to be enactedon 1 July, 2014. According to human rights defenders, the accelerated pace of reform of the criminal law is unacceptable, since it renders it impossible for experts and representatives of civil society to discuss potential consequences of the reform for the society of Kazakhstan.
On 8-9 November, 2012, EU-Kazakhstan Civil Society Seminar on Human rights, entitled “The civil society contribution and participation in criminal/penal law reforms inKazakhstan” was held. Following the discussion, the participants of the seminar addressed the President of Kazakhstan and the General Prosecutor, expressing their concern about “the hasty adoption of the revised Criminal Code, the Criminal Procedure Code and the Penal Code of the Republic of Kazakhstan in the absence of the necessary broad discussion with civil society and experts”. Human rights activists also offered to send the draft codes for examination by the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights.
As stated by Nicholas Havronyuk, representing the Centre for Political and Legal Reforms (Ukraine), “the development of a new version of the Criminal Code is of a political nature and if the relevant governmental authorities make such a decision, they take on the responsibility for all the potential negative consequences of this step”.
The authors have identified the following main objectives of the reform:
- to improve the efficiency of criminal procedure system,
- to reduce crime, particularly in the field of information technology,
- to provide a “high level of protection of social stability in view of the toughening of the punishment for any attempt to undermine the foundations of national reconciliation and to provoke social conflicts”.
Draft codes were submitted for public discussion. A detailed examination of the new codes was conducted by experts from Kazakhstan, Ukraine and Russia:
- Igor Loskutov (‘YurInfo’ Company LLP),
- Arykbay Agybayev (professor at the Al-Farabi Kazakh National University),
- Isidor Borchashvili (Ministry of Justice of Kazakhstan), Sagaydulla Kustavletov (Presidential Administration);
- Paul Evans (President of the International Commission of the French National Council of the Bar Association),
- Nikolay Khavronyuk (Ukrainian Centre for Political and Legal Reforms),
- Leonid Golovko (Moscow State University).
Also, several research and practice conferences, seminars and ‘round tables’ were held with the participation of human rights defenders, lawyers and journalists. However, the principal observations and suggestions made by human rights activists, lawyers, journalists, representatives of civil society have been ignored.
The most controversial points of the Criminal Code are described in more detail below (we indicate only those items of articles that have been changed.)
DOWNLOAD TABLE: The most controversial points of the Criminal Code
A disregard by the authorities forthe demands of theKazakhandinternationalcommunity that the article on libel be decriminalised and the article on ‘incitingsocial discord’ be annulled (as such aterm has nospecific legal context) causes the greatest concerns. Inparticular, theEuropean Parliament Resolutionsof15 March, 2012 and 22 November, 2012 urged Kazakhstan to:
• introduce amendments to the punitive article on ‘incitingsocial discord’ in accordance with international standardsof human rights protection;
• put an end to thepersecution ofthe political oppositionand independent media outlets in the country,as well as to releaseall thosedetainedon politicallymotivated charges;
•stop usinglaws againstterrorismas a pretextfor banning the activity of the opposition and for hindering theexpressionof opinion.
Under suchcircumstances, newthreats ofpoliticallymotivatedpersecution are appearing inKazakhstan.
The annulment of pre-trial investigation and of institution of criminal proceedingsin the newCriminal Procedure Code.
- The new Criminal ProcedureCode allowsthe application to initiatea criminal investigation against an individualon the basisof one statement. From the moment of the registration of the statement until the time when a person becomes a suspect, the police carry out full investigative actions, such as searches, detentions, wiretapping, collection of evidence. A person can only receivecounsel assistance after he is given the status of suspect. In this regard, the chairman of the National Bar Association of Kazakhstan, Anuar Tugel, insists that a solicitor should be engaged in the process at the earliest stages of proceedings.
- Article190 of the newCriminal ProcedureCode provides that, in the case of a suspect admitting his or her guilt, a pre-trial investigationcan be completedin an accelarated manner. In addition, the draft Criminal Procedure Code did not change the rule on the authorisation of the arrest, and so, when deciding whether to issue arrest warrants, prosecutors do not need to interrogate the detainee and prove the validity of the charges. And, since the court which issues an arrest warrant, cannot interfere in the investigation of the case, suspects are frequently arrested despite the lack of sufficient grounds.
- Chapter 31 of the new Criminal Procedure Code provides that by the order of the pre-trial investigation body or with the approval of a prosecutor, “tacit” (secret) investigation measures may be carried out: audio tapping, video recording, interception of information in telecom networks, telephone tapping, mail monitoring, removal of information from a computer, entrance in to the place of residence of a suspect. Information, obtained as a result of the above mentioned means automatically become evidence without further verification. An authoritative expert, Aleksandr Ginzburg noted that in this way, the criminal process as well as operational and search activities consequently become one proceeding, which “places a criminal trial in a distant inquisitorial past”. Especially given that the authors of the new Criminal Procedure Code do not give reasons for their suggestions on this matter and do not refer to international experience. The lawyer Leila Ramazanova reported to the Open Dialog Foundation that the rules of a ‘tacit’ penetration of a house, a ‘secret’ search and seizure of property in the absence of a guilty sentence are contrary to the provisions of the International Covenant on Civil and Political Rights.
- The GeneralProsecutor’s Officejustifiedits proposals by the necessity to reduce the time of the investigationof crimes.Butgiven the numerous incidents of riggingaccusations and exertion of tortureduring the investigation of the Zhanaozenevents, such innovationsinthe Criminal Procedure Codemay restrictthe right to defenceand bring about the forcing suspects to give false testimonies under pressure.
Re-qualification of numerous administrative offences into the category of criminal offences.
- The new Criminal Code introduces an additional category of criminal offences – criminal misdeeds. They include the most serious administrative offences, which previously have not entailed a sentence of imprisonment. More than 200articles providing fordetention of up to60 days have been introduced in thecriminal law. Human rights activist, Yevgeniy Zhovtis, believes that it is unacceptable to consider imprisonment as one of the main means of preventing petty crime. The level of security in the community does not increase, Frequently, people leave prison embittered and prone to violence: “Thismeans that ourcriminal policy is repressive… And,as a result, I guess,we are approaching the model of apolice state”.
Recent prosecutions of opposition politicians and civil society activists, former officials at various levels, as well as a ban on the activities of independent media outlets and opposition groups confirm the existence of the problem with the rule of law in Kazakhstan. A public discussion on reforming the criminal justice system in Kazakhstan is still ongoing and there is an opportunity to suggest amendments to the codes, devised by the government.
Therefore, we hereby call upon international human rights organisations and governments of democratic states to address the authorities of Kazakhstan, pointing out the need to bringthe criminal lawinto linewith international treatieson human rights. Inparticular, to revise the articles of the Criminal Code, which can be used as weapons in the fight against dissent, opposition politicians and associations.
You can send your letters and suggestions to the folowing addresses:
- To the President of Kazakhstan, Nursultan Nazarbayev (Presidential Administration, “Akorda” building, Left Bank of the Ishim River, Astana 010000, Каzakhstan, fax: +7 7172 72 05 16).
- To the General Prosecutor, Askhat Daulbayev (House of Ministries, entrance number 2, 8 Orynborg Street, Astana 010000, fax: +7 7172 50 25 34).
- To the Minister of Internal Affairs of Kazakhstan, Kalmukhanbet Kasymov (1 Tauelsizdik Prospect, Astana, 010000, tel.: +7 7172 72-20-50, +7 7172 71-52-30).