ON THE NEW EDITION OF ARTICLE 146 OF THE CRIMINAL CODE OF THE REPUBLIC OF KAZAKHSTAN AND ITS COMPLIANCE WITH THE UN CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT

Abstract

Kazakhstan, as a democratic, law-abiding state, follows the norms of international law and has made it its duty to respect human rights and freedoms, protecting them from any unlawful encroachments and violations, including through the legislative prohibition of cruel, inhuman or degrading treatment and torture. This article analyses the new wording of Article 146 of the Criminal Code of the Republic of Kazakhstan, which establishes cruel, inhuman or degrading treatment or torture as a separate offence. On the basis of comparative legal analysis of criminal legal norms establishing liability for these acts, as well as for torture, intentional infliction of serious harm to health with particular cruelty and intentional infliction of moderate harm to health with particular cruelty, the question is raised about the complexity of differentiation of these forms of violence against a person due to the lack of precise criteria for their differentiation in the criminal law. The simple elements of tortures, torture and ill-treatment are absolutely the same in terms of objective side. At the same time, it should not be overlooked that the purpose of torture can be absolutely any. The situation is similar with the qualified corpus delicti of ill-treatment and tortures. This significantly complicates the differentiation of these offences between themselves in their qualification, and therefore it is problematic to carry out the correct qualification. While the provisions of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment in relation to the definition of tortures establishes the criterion of "severe pain or suffering" and recommends to classify torture as a serious offence. The authors present their arguments to eliminate the inconsistency of the new definition of tortures with international norms and to distinguish Article 146 of the Criminal Code of the Republic of Kazakhstan from other related offences.