Central Asia presents a unique picture of a region on the cusp of abolition of the death penalty. Turkmenistan, Kyrgyzstan and Uzbekistan abolished the death penalty in law in 1999, 2007 and 2008 respectively. In Kazakhstan and Tajikistan, official moratoriums have been in place since January 2004 (in Kazakhstan) and July 2004 (in Tajikistan). Between 2000 and 2010, the abolitionist Central Asian countries all ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (aiming at the abolition of the death penalty).
The moratorium in Kazakhstan was imposed by Presidential decree in December 2003. This would make it easier to reverse than Tajikistan’s, which passed a law imposing the moratorium. In addition, the Tajik moratorium covers both executions and sentencing, while the Kazakh moratorium only covers executions. This means that (in theory) people could still be sentenced to death in Kazakhstan, even though there would be no way for them to leave death row. Currently, nobody is on death row in either country, as all death sentences were commuted following the moratoriums. However, in both countries, the death penalty is retained in law and in their constitutions, raising the risk that executions could be resumed.
An additional issue is that the classification of the death penalty as a state secret makes accountability almost impossible. In both Kazakhstan and Tajikistan, families were not informed in advance about the execution of their loved one, nor were the burial places of executed persons revealed (in Kazakhstan, families were told of the location after two years).
In 2014, Kazakhstan completed a reform of its Criminal Codes. This did not abolish the death penalty, instead slightly reduced the number of death penalty-applicable offences from 18 to 17. These offences are clustered under two headings of “acts of terrorism resulting in death” and “especially grave crimes committed during times of war,” the two offences that can carry the death penalty in the Constitution.
A study conducted on behalf of Penal Reform International in 2014, gauging public support for the death penalty for terrorism-related offences, found that 72 percent did not want the death penalty abolished for terrorism-related offences (though over half of that number wanted to retain the moratorium). 37 percent of all two thousand three hundred thirty-seven respondents were misinformed about the death penalty in Kazakhstan, as they did not know that there was a moratorium.
Tajikistan retains the death penalty for five offences: murder; terrorism; rape of a minor; genocide; and biocide. A review of the Criminal Code is ongoing, though there is hope that the death penalty will be abolished in the coming years. A public opinion survey carried out in 2013 for Tajik NGO Nota Bene found that of over two thousand respondents, 67 percent wanted the death penalty abolished.
In neither country is the death penalty applied to minors (those under 18 at the time of the offence) or to women of any age. Men over 63 (in Tajikistan) or 65 (in Kazakhstan) at time of sentencing cannot be sentenced to death. Those not criminally liable due to mental health issues are also exempted.
Life imprisonment is now the most severe sanction that is used in all Central Asian countries. In certain circumstances this amounts to life without the option of parole, and where there is a determinate “life” sentence, its length is overly punitive.
In Kazakhstan, the prisoners who were on death row at the time the moratorium was established had their sentences commuted to life without the option of parole. Following the moratorium, a new “life” sentence was created by lawmakers to replace the death penalty, and established the maximum sentence as twenty-five years imprisonment (thirty years for cumulative offences). This effectively established a parallel but discriminatory system, whereby those initially sentenced to death are serving a harsher sentence than those sentenced after 2004. Tajikistan also provides for whole life sentences.
The number of life sentenced prisoners is growing. In November 2011, Kazakhstan had ninety-five lifers (twenty-nine of whom are serving a whole life sentence) and Tajikistan fifty-two lifers. There are no women or juveniles serving a life sentence, and the maximum age up to which a man can be sentenced to life is 65 in Kazakhstan and 63 in Tajikistan. Furthermore, the types of crime for which a life sentence may be imposed raise doubts about whether this severe sentence is being used only for the most serious of offences. For example, prior to the introduction of the 2015 Criminal Code, Kazakhstan had twenty-four crimes for which a life sentence may be imposed. These included drug-related offences, smuggling, and various non-lethal military offences.
The growing use of life imprisonment in the region, its disproportionate length and overly punitive nature raise a number of legal and practical issues.
Across the region, people are sentenced to life after proceedings which fail to meet international standards for a fair trial as guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which all Central Asian countries are state-parties. Although the right to a fair trial is not impeded by a lack of legal guarantees, it is impeded in practice. One of the fundamental problems lie in the fact that in the judicial systems across the region, which date back to the times of the Soviet Union, the office of the prosecutor has disproportionately strong powers, often exhibited through its influence over the judiciary and an unfair advantage vis-à-vis the accused. This is amplified by a judiciary that is overly influenced by the executive, lacks security of tenure, and is subject to allegations of corruption. As a consequence thorough investigations are not carried out. Instead, investigations are often focused only on collecting evidence sufficient to demonstrate guilt rather than collecting information that may reveal innocence. This results in notoriously low acquittal rates.
Ineffective access to legal aid for indigent defendants, obstruction of detainees’ access to a lawyer during the arrest and pre-trial stages, and lawyers with limited expertise or experience further undermine the right to an adequate legal defence.
Allegations of widespread ill-treatment and torture made before, during or after trial by investigative and other officials to obtain information also raise serious concerns across the region. There is evidence to demonstrate that allegations of torture are inadequately investigated or are ignored, and although evidence obtained under torture is legally inadmissible in a court of law, courts continue to rely on “confessions” extracted through torture as evidence in criminal trials.
A harsh and discriminatory prison regime, and a lack of rehabilitation for life or long-term prisoners, reinforces the punitive nature of life imprisonment. Prison conditions across the region are far below international standards. Improvements are desperately needed to be made in terms of accommodation, nutrition, sanitation, access to medical and psychological care, visitation rights, sentence planning, and reformation and social rehabilitation programs including work and education programs. Life and long-term prisoners are often separated from the rest of the prison population and kept under a much harsher and stricter regime – including solitary confinement and semi-isolation – which is unrelated to prison security, but based on their legal status as lifers. Financial and other resources are under-committed, demonstrating a lack of prioritization by governments in the region in upholding a human rights model for the administration of justice.
To their credit, concerns related to fair trial safeguards and humane sentencing practices have prompted both government and civil society across the region to engage actively in various reform programs aimed at humanizing the criminal justice and penal systems, and establishing more stringent controls. However, these reform processes are having a slow or limited effect on those who are accused of, or sentenced to, life imprisonment. One important reform that is taking place in Kazakhstan and Kyrgyzstan is the establishment of National Preventative Mechanisms (NPM) under the Optional Protocol to the Convention against Torture (OPCAT). These bodies have the authority to enter and investigate places of detention, and (it is hoped) will serve as a mechanism to effectively prevent torture and ill-treatment towards those serving the most severe of sentences.
This article is based on Penal Reform International’s 2012 report “The abolition of the death penalty and its alternative sanction in Central Asia: Kazakhstan, Kyrgyzstan and Tajikistan,” available from www.penalreform.org.
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