of December 15, 2020 No. 4
About official interpretation of Item 2 of article 15 of the Constitution of the Republic of Kazakhstan
The constitutional Council of the Republic of Kazakhstan as a part of the Chairman K. A. Mami, members of council A. K. Daulbayev, V. A. Malinovsky, I. D. Merkel, R. Zh. Mukashev, A. A. Temerbekov and U. Shapak,
considered in open session the address of the President of the Republic of Kazakhstan K. K. Tokayev about giving official interpretation of Item 2 of article 15 of the Constitution of the Republic of Kazakhstan.
Having heard the message of the speaker – the member of the Constitutional Council of the Republic of Kazakhstan A. K. Daulbayev, having studied materials of the constitutional production, the conclusion of state bodies, the expert opinion – the doctor of jurisprudence, professor K. Zh. Baltabayev, having analysed the international experience, the legislation and practice of certain foreign countries, the Constitutional Council of the Republic of Kazakhstan
The president of the Republic of Kazakhstan sent the appeal to the Constitutional Council of the Republic of Kazakhstan about giving official interpretation of Item 2 of article 15 of the Constitution of the Republic of Kazakhstan. In the address the following questions are raised:
"Whether oblige the constitutional provisions of Item 2 of article 15 of the Constitution of the Republic to establish in the penal statute capital punishment for all criminal actions provided in them?
Whether it is possible from line item of the constitutional requirements to circle of crimes for which the exceptional measure of punishment, ratification of the Second Optional protocol to the International Covenant on Civil and Political Rights directed to abolition of the death penalty with the clause allowed by it can be applied?".
In case of interpretation of the considered regulation of the Fundamental Law in relation to subject of the address the Constitutional Council proceeds from the following.
1. The constitution of the Republic of Kazakhstan and the international acts recognize the right to life as the main value of democratic society, determine its predominating status and establish obligations of the state on guaranteeing this right for all people without any distinctions (The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and others).
According to Item 1 of article 1 of the Constitution of the Republic of people, his life, the rights and freedoms are the supreme values of the state.
Item 2 of Article 15 of the Fundamental Law provides that nobody has the right to deprive of the person of life randomly. Capital punishment is established by the law as exceptional measure of punishment for the terrorist crimes integrated to death of people, and also for especially serious crimes committed in wartime, with provision sentenced the rights to petition for pardon.
The constitutional Council in the normative resolution of January 30, 2003 No. 10 explained that in case of interpretation of Item 2 of article 15 of the Constitution it is necessary to proceed from sense and context of this regulation in structure of the Constitution located in the Section II "Man and citizen". The regulation about exceptional measure of punishment should be considered restrictive as it extends only to especially serious crimes, but not to crimes of other severity. Specific structures of especially serious crimes for which capital punishment can be appointed are determined by the penal legislation. At the same time for especially serious crimes in the law also others can be established, except capital punishment, punishment.
"About modification and amendments in the Constitution of the Republic of Kazakhstan" Item 2 of article 15 of the Constitution was stated by the law of the Republic of Kazakhstan of May 21, 2007 in the following edition:
"2. Nobody has the right to deprive of the person of life randomly. Capital punishment is established by the law as exceptional measure of punishment for the terrorist crimes integrated to death of people, and also for especially serious crimes committed in wartime, with provision sentenced the rights to petition for pardon.".
The constitutional reform concerned only scope of capital punishment which was considerably narrowed – instead of especially serious crimes establishment of this type of punishment only for the terrorist crimes integrated to death of people and also for especially serious crimes committed in wartime is provided. It suggests that the stated legal line items of Council keep the legal force and shall be applied taking into account changes in circle of criminally liable acts for which the capital punishment is established.
The constitutional Council considers that provisions of Item 2 of article 15 of the Constitution regarding establishment of capital punishment for the criminal actions specified in it need to be considered in interconnection with subitem regulation 1) of Item 3 of Article 61 of the Fundamental Law according to which the Parliament has the right to issue the laws which govern the major public relations, establish the fundamental principles and regulations concerning legal personality of physical persons and legal entities, the civil laws and freedoms, obligations and responsibility of physical persons and legal entities. The given power including determination of categories of criminal offenses, crime and punishability of acts proceeding from degree of their public danger and criminogenic country situation cover also questions of establishment of capital punishment for crimes which list is determined in the Constitution. Taking into account these factors the supreme representative body performing legislature within the constitutional requirements and only in the penal statute can determine need of establishment of capital punishment for the crimes provided in Item 2 of Article 15 of the Fundamental Law, including narrowing of their circle. It is confirmed also by practice of development of the penal legislation of the country in which not for all acts specified in the Constitution capital punishment was established.
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