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What Prevents the Domestic Violence Criminalization in Kazakhstan and Why Is It Necessary?

In 2017, domestic violence was removed from the Criminal Code of Kazakhstan. At the same time, according to the public fund “NeMolchi.kz” (“Do Not Be Silent” – tr.), an average of 120 rapes, 5232 beatings, 72 injuries, 14 murders and 48 suicides of women is registered per month in the country.

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One of the promises made by the second President of Kazakhstan Kassym-Jomart Tokayev during the first year of his presidency was to toughen punishment for domestic and sexual violence. In September 2019, he gave the government two months to amend the legislation. In December 2019, Tokayev signed the amendments, but they caused criticism in society and among human rights defenders.

However, domestic violence was never included to the Criminal Code of Kazakhstan. The new amendments abolished the penalty in the form of a fine; instead, a written warning or administrative arrest for up to 20 days is suggested.

In addition, according to the amendments, the court is obliged to limit punishment with the warning if there were no aggravating circumstances in the case, for example, if the victim was not pregnant. In addition, “the first time” abuser can be released from liability if the parties “have reconciled with the victims, the applicants, including through mediation, and made amends for the harm”.

Experts believe that these changes worsened the situation of the domestic violence victims. The activists in a special working group proposed their own vision of the law, but it must first be assessed by the government, and then by the two Chambers of the Parliament.

Together with the co-founder of the SVET public fund Moldir Alban, the head of the NeMolchi.kz fund Dina Tansari and the head of the Union of Crisis Centres Zulfiya Baysakova, we examine why the domestic violence situation in Kazakhstan is worsening and what should be done.

Why should one differentiate domestic violence at all? There are general articles in the Criminal Code, abusers can be held liable under them.
The General Prosecutor’s Office of Kazakhstan is also thinking this way. They believe that differentiating domestic violence into the separate article is “impractical and difficult to implement”. Indeed, the Criminal Code already contains articles for beating, rape, etc. of minors and women, which means the abusers can be held liable.

However, as the Human Rights Watch indicated to the Kazakh authorities, international standards recommend the states to introduce the separate criminal liability for domestic violence as an independent crime, since the general norms are not sufficient, do not reflect and do not adequately cover all the components of domestic violence.

Making domestic violence a separate article of the Criminal Code will improve the response to such crimes and provide specialized training for police, prosecutors and courts on how to investigate such cases effectively while ensuring the victims’ safety.

How was domestic violence removed from the Criminal Code?
Until 2017, domestic violence in Kazakhstan was prosecuted under two articles of the Criminal Code of Kazakhstan: 108 (intentional infliction of minor harm to health) and 109 (beatings). They provided for punishment in the form of arrest, fine, correctional or community service.

On July 3, 2017, former President Nursultan Nazarbayev signed a law decriminalizing these articles. According to the Ministry of Internal Affairs and the Prosecutor General’s Office, this was done “to strengthen preventive work with offenders and simplify the procedure for bringing them to justice”. In addition, if the abuser is prosecuted under a criminal article, this excludes the possibility of reconciliation of the parties.

That is, according to the authorities, women did not address the police because they did not want the fathers of their children to go to prison, and, in addition, they had to collect evidence and witnesses’ testimonies themselves. The decriminalization means that the police should find the evidence, which means the number of domestic crimes will decrease.

However, the plan failed. The number of such crimes has not decreased, but rather increased. The police do not always accept the victims’ statements, do not explain their rights, and examinations and investigations are often cursory.

What is decriminalization?
This means that there is no longer criminal prosecution for the certain crime, and the punishment for it is mitigated.

After decriminalization, the abusers are prosecuted for causing minor harm to health under Article 73-1 (up to 20 days of arrest), and for beatings under Article 73-2 (up to 15 days of arrest) of the Administrative Offenses Code.

In addition, the Code includes the Article 73 (illegal actions in the sphere of family relations), which provides for responsibility for “abusive language, offensive harassment, humiliation, damage to domestic items and other actions expressing disrespect to the persons being in family relations with an offender, violating their calm, committed in an individual residential house” – up to five days of arrest. If the offense is committed again within six months, then the arrest is increased up to 10 days.

According to the Committee on Legal Statistics of the General Prosecutor’s Office, in 2019, Kazakh courts heard 24,149 cases under this article.

How else is domestic violence regulated in Kazakhstan?
Since the beginning of 2020, the country has the updated law “On the Prevention of Domestic Violence”. It contains the main measures that the government agencies should take to prevent violence and coordinate the actions of local executive authorities, police and healthcare workers.

However, as many activists note, the law is aimed primarily at preserving the family. For example, it provides for the eviction of the abuser, but if he has no other housing, then he is allowed to keep living with his family. Another corrective action is preventive conversations, protective orders, a ban on communication with the victim and the use of alcohol and drugs.

With the introduction of quarantine due to the coronavirus pandemic, it is clear that the law proved its ineffectiveness. According to the Ministry of Internal Affairs (data available at the editorial), during 2019, the police issued 64,852 protective orders to the abusers. During the first four months of 2020, it is 30,016 orders. During the last year, special behaviour requirements were ordered to 7,712 people, and during the four months of 2020 – to 3,830 people.

Why does not this law work?
Human rights defenders and activists believe that it is too soft. After all, warning after the first violence expression is similar to giving a slap on the wrist.

In addition, it does not provide for any penalty for violation of the protective order. That is, now it is just a formality: a piece of paper with abuser’s signature and his acknowledgement of the preventive conversation.

For example, in the United States, the penalty for violating a protective order is up to five years in prison. In Kazakhstan, this document does not stop anyone.

Human rights activists note that the law should also include such definitions as “abuser”, “stalking”, “correctional program”, “neglect of the interests and needs of the child”. In addition, the agencies of justice, culture, sports, information and social development should be involved in the prevention of domestic violence.

What should we do?
In the past three months, a special working group has been developing a new draft law on combating domestic violence. The petition, which human rights defenders addressed to the government, proposes 27 major changes that should be included to the new law.

The work will be completed soon and the draft law will be sent to the government for approval; in September, after the beginning of a new parliamentary convocation, – to Mazhilis (the Lower House of Parliament) as well. However, there are concerns that after approval by the government, the document may significantly change for the worse.

What is the difference between this new law and the existing ones?
  Among the requirements:

  • the creation of separate mobile teams and separate investigation units on violence against women and children in the district police stations,
  • ensuring interagency cooperation on blocking accounts and bank cards, as well as movable and immovable assets of abusers,
  • including the separate articles “Stalking” and “Harassment of a Partner” (spouses,female partners, relatives, ex-spouses, intimate partners, etc.) into the Criminal Code,
  • toughing the punishment for violence during an emergency, etc.

It is also necessary to create a single body that will coordinate actions between the government, NGOs and the police for countering violence and help violence victims.

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