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

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.

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.

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.

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.

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.

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.

  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.