In 2019, a new Criminal Code entered into force in Kyrgyzstan. A large-scale transformation process began. Some legal institutions, which were previously unknown in the republic, appeared. However, innovations have not changed the practice of the justice system in the effective fight against torture and cruel treatment. This conclusion was reached by the drafters of the analysis “Problems of enforcing guarantees against torture and cruel treatment”, which was published on website of the Coalition Against Torture.
The authors of the document note that, although not so much time has passed since the reforms were implemented, it’s clear that regulatory changes didn’t entail changes in the actual practices of law enforcement institutions and courts in the field of preventing and combating torture and cruel treatment in criminal process.
Thus, in the new Criminal Code of the Kyrgyz Republic, the crime of torture “migrated” from the chapter on official crimes to the chapter on crimes against health. At the same time, the maximum punishment for committing torture in accordance with the new gradation of sentences (imprisonment) was reduced to 10 years.
At the same time, the authors of the document emphasize that the new Criminal Code didn’t substantially solve the problem and the prevailing practice of re-qualifying torture as a “softer” article of the Criminal Code “Exceeding official authority”. In the new Criminal Code, this article (321) is called “Excess of power”.
It is noted that all law enforcement officials who committed torture, as before, would be involved in this “soft” article and would not be sentenced. This is due to the fact that the article of the new Criminal Code on abuse of authority didn’t exclude the phrase “with the use of violence that is not dangerous to life and health, or the threat of such violence” from the crime, as well as the corruption and ambivalent wording in the sanction part of this article (“either… or”).
And as the law enforcement practice of the Coalition shows, the courts of Kyrgyzstan are more actively prosecuting law enforcement officers for this article, relieving them of responsibility under the article “Torture”.
“The existing gaps in the current legislation don’t clearly regulate the detention procedure in terms of the obligation of law enforcement agencies to record the first contact with the suspect as the moment of detention. In article 5 of the current Criminal Procedure Code of the Kyrgyz Republic, “detention” refers to a measure of procedural coercion, the essence of which is the deprivation of liberty of a suspect for up to forty-eight hours until a court decision. However, there are no concepts of “detained” and “moment of detention”. This allows the law enforcement body to abuse its powers and not register the person’s detention properly,” the authors of the report say.
Although, human rights activists note that it is in the first hours after the detention before being placed in a temporary isolation ward or a pre-trial detention center, that can last indefinitely, there are most significant human rights violations, including torture. Thus, in Kyrgyzstan, the right to freedom from torture and cruel treatment is violated precisely with the detention or other actual restriction of freedom.
The main reasons for this lie in the imperfection of the legislation of the Kyrgyz Republic. In particular, the problem is that the realization of the rights of participants in a criminal process is directly related to the official, documentary recognition of their procedural status, and is not guaranteed unconditionally. Also, the legislation doesn’t fix the obligations of operational officers or investigators to record the moment of actual detention, to make a detention protocol in a timely manner and to ensure that the rights of detainees are respected. In addition, employees of the internal affairs bodies have broad powers to implement various kinds of restrictive actions against citizens.
The new Criminal Procedure Code attempted to eliminate these gaps in the law, but law enforcement officials, as before, don’t indicate the detainee’s physical condition in the detention protocols.
“Also, there are difficulties with the realization of the rights of the detainee to one effective call, since the procedure is not regulated. All lawyers say that the detainee usually uses his phone (if it is not taken away), and in the absence, from the phone that the investigator gives him/her (usually a few hours after the arrest),” the drafters of the document note.
According to the authors of the analytical document, most of all, innovations have affected the number of persons in custody.
According to the data of the Ministry of Internal Affairs of the Kyrgyz Republic in 2019, 5581 people were detained in temporary isolation ward of the Department of Internal Affairs. For comparison, there were 9431 people in 2017, and 8735 people in 2018. That is, the number of detainees has decreased by almost half.
However, the two circumstances concerning the detention didn’t change. Firstly, there remains a superficial approach to assessing the grounds for detention and the lawfulness of the detention itself. Judges, according to lawyers and human rights defenders, don’t take into account all circumstances (availability of house, work, children, etc.).
Secondly, the decrease in the number of detention didn’t affect the number of complaints and reports of torture and cruel treatment.
Experts believe that the most important achievement of the new Criminal Procedure Code is the rule to exclude inadmissible evidence. The new Criminal Procedure Code (Article 276) states that when considering a request to exclude evidence submitted by the defense on the basis, that the evidence was obtained in violation of the requirements of this Code, the burden of proving the refutation of the arguments presented by the defense is imposed on the prosecutor. In other cases, the burden of proof is the duty of the party making the request.
If the court decided to exclude the evidence, then this evidence loses legal force and cannot be the basis of a sentence or other court decision, as well as investigated and used in the course of a trial. The decision indicates which evidence is excluded and which criminal case materials justifying the exclusion of this evidence cannot be investigated and announced at the hearing and used in the process of evidence. Illegal evidence also includes admission of guilt that was wrested from a person under torture.
However, this norm practically didn’t work either for several reasons. Firstly, a similar norm was already in the old Criminal Procedure Code (in amended and supplemented form, it “migrated” to the new Criminal Procedure Code) and also didn’t work. Even if the court recognized that the confession of the defendant was obtained under torture and excluded it, the remaining evidence was not automatically excluded.
The practice of not stopping the trial, if a person alleges torture, has also been preserved, since judges and the Prosecutor’s office believe that the defendant is trying to confuse the case and get away from deserved punishment.
“In fact, this is not even the case. They lie in the long-standing practice of the administration of justice system, which cannot be eliminated by new legislative initiatives. This is the practice of the so-called “informal interagency coordination” on complex matters. Complicated cases are crimes for which during the investigation difficulties or uncertainties arise both in procedural aspects and in how this case will then be considered by the court (the prospect that the court will not pronounce an acquittal),” human rights activists write.
Such cases are conditionally classified as frequently registered or “conveyor” cases, concerning which there are ambiguities. For example, in drug cases, such ambiguities are often present in the evidence base. Accordingly, evidence may be declared unlawful. All this forces the investigation to coordinate such cases in advance with the authorities to which these cases will go further (Prosecutor’s office or court).
Another group includes cases in which the event itself and the composition of the crime require good preparation and large resource costs (professional, expert and time). This includes almost all economic crimes, except the more or less obvious ones: theft, robbery, plunder. These include, for example, corruption crimes and fraud.
Another group includes resonant cases, which attracted public attention, as well as “political cases”. The approval process in such cases is usually formalized already through the creation of commissions or interdepartmental investigative groups. The same group includes cases of terrorism, extremism and serious crimes. As the practice of law enforcement agencies shows, a thorough investigation of such cases is conducted regardless of the complexity and non-obviousness of the case. In such cases, a person will be brought to trial and convicted, even if evidence of his/her guilt is in doubt.
“The percentage of disclosure in such cases is 80-95%, but the percentage of acquittals in such cases is the lowest. So, it is precisely in such cases, the torture is always present,” the authors of the document state.
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