The Right to Life
The Right to Life constitutes the fundamental principle of all other rights and freedoms included in this sphere. It represents the absolute value of world civilization, in that all other rights lose their meaning in the instance of the death of the individual. It is fully acceptable to consider this fundamental right as the right of the individual to freedom from any illegal infringement on his life by the government, its representatives, or private individuals.
Social conditions for the right to life are provided for in a series of constitutional guarantees: the right to safe and hygienic working conditions (Paragraph 2 Article 24 of the Constitution of Kazakhstan), social security in old age and in the case of disease, disability, or loss of a breadwinner (Article 28), the right to protection of health and medical assistance in state and private medical institutions, the development of systems of health protection (Article 29), and other guarantees.
As a matter of fact, all other rights one way or another are correlated to the right to life. For example, rights such as the right to social protection, to favorable environmental conditions, to a meaningful life, as well as the right to freedom from cruel forms of treatment or punishment serve as supplementary instruments, ensuring its effective realization. The government is obligated to recognize these rights and create favorable conditions for human life with all available resources. It is not accidental that crimes against the life or health of an individual are categorically considered particularly heavily punishable criminal acts.
A separate issue in this area is the right of the government to apply the death penalty as an exceptional measure of punishment of individuals committing particularly heinous crimes. The right to life serves as a limitation of the death penalty.
In Article 15 of the Constitution of Kazakhstan, 1995, it is stated:
- Everyone shall have the right to life.
- No one shall have the right to arbitrarily deprive a person of life. The law shall establish the death penalty as an extraordinary measure of punishment for terrorist crimes resulting in the death of people, and also for especially grave crimes committed in times of war, with the provision of the right of the condemned to solicit pardon.
The wording, “No one shall have the right to arbitrarily deprive a person of life. The law shall establish the death penalty as an extraordinary measure of punishment for terrorist crimes resulting in the death of people, and also for especially grave crimes committed in times of war, with the provision of the right of the condemned to solicit pardon” corresponds with Paragraph 2 Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and the interpretation of this article, quoted in Paragraph 7 of the UN Human Rights Committee “General Comment No. 6”.
In harmony with Section 5 Article 6 of the Criminal Code of Kazakhstan, the death penalty in the case of a pardon may be replaced by lifelong deprivation of freedom or the deprivation of freedom for a term of twenty-five years, serving the penalty in a correctional colony with a special regime, which is in harmony with Paragraph 4 Article 6 of the ICCPR.
On December 17, 2003, the President of Kazakhstan, Nursultan Nazarbayev signed the Decree “On the Introduction to Kazakhstan of a Moratorium of Capital Punishment”. The given Decree was signed by the Head of the government in compliance with Paragraph 1 of Article 15 of the Constitution of Kazakhstan, reinforcing the right of everyone to life, which was directed to the realization of determined Conceptions regarding the legal policies of Kazakhstan on the further humanization of criminal legislation, and is an appropriate continuation of the course toward the limitation of the application of the death penalty.
Many sociological surveys bear witness to the fact that the majority of the population of our country considers the complete abolition of the death penalty premature. It is impossible not to take into consideration the opinion of society; therefore, as an intermediate step toward the further limitation of the application of exceptional measures of punishment, a moratorium on the execution of the death penalty was chosen.
The decree makes the provision for the abeyance of the execution by judges of death penalty sentences. The introduction of lifelong deprivation of freedom as an alternative to the death penalty may be considered warrantable. At the same time, the death penalty in itself as a form of criminal punishment is not abolished, but the execution of death sentences pronounced by judges is only halted. The moratorium does not have a time limit, but may be revoked due to necessity.
There is good reason to believe that the establishment of institutions for life imprisonment will keep the instances of execution by judges of death sentences to a minimum and create the necessary prerequisites for the possible complete abolition of the death penalty.
Currently, discussions are taking place regarding the signing and ratification by Kazakhstan of the Second Optional Protocol to the International Covenant on Civil and Political Rights and the complete renunciation by our country of the execution of the death penalty as a criminal punishment. This is directly related to the declaration of the Constitution of Kazakhstan of the principle of the inalienable value of human life and its protection.
The introduction of amendments to Article 15 of the Constitution of Kazakhstan significantly constricts the scope of execution of the death penalty, delegating the final resolution of these issues to the law. But the law until now has not been passed, because of disagreement on the issue of the necessity to preserve the death sentence, or on the contrary, to fully abolish its execution.
Advocates of the preservation of the death sentence give as reasons for their position the danger of increase in particularly serious crimes. Meanwhile, from the day of the introduction of the moratorium on the execution of capital punishment, such an occurrence has not been observed, although penalties in the form of the death sentence practically did not occur. The convicted, condemned by past sentences (mainly before the introduction of the moratorium) to the death penalty, were held in places of imprisonment and served their sentences with the deprivation of freedom. At present, other forms of penalty have replaced all of their death penalties.
Confidence may be boldly expressed that the moratorium on the execution of capital punishment, in coming years, and possibly altogether, will not be revoked. Consequently, even if the death penalty will be given by sentence at some time, it will not be executed. The questions arise: Why, then, from year to year, accumulate the number of such convicted? Isn’t it really so, that in the future they will again be pardoned? But before that, the status of individuals condemned to the death sentence, upon whom is applied the effect of the moratorium, is legally uncertain, which fundamentally violates their rights.
Many countries have revoked the death penalty; among them, developed European countries and countries with problems in areas of economics, political life, and law and order.
The inclusion of the death penalty in the Criminal Code is only grounds for affirmation of the repressiveness and inhumanness of the legal policies of Kazakhstan. It follows, that it is necessary to bring about corresponding changes to the Criminal Code.
In Kazakhstan, there have been no instances of extrajudicial or arbitrary sentences or the forced disappearance of people, executed by law-enforcement agencies or agencies for national security.
Nevertheless, in order to realize the position of the ICCPR, it is necessary to come to as broad as possible interpretation of the right to life, including compliance with Paragraph 5 of the UN Human Rights Committee “Remarks on General Order No. 6,” that protection of this right in a broad sense requires the application of constructive measures in various spheres, for example, the reduction of children’s mortality and the increase of the average life span, the fight against poverty and disease, etc.