In Kyrgyzstan, the decision to ease the conditions of detention of convicts is taken solely by the Special Commission of the State Penitentiary Service. As it turned out, the current laws don’t allow disputing these decisions. The institution of the Ombudsman of the republic believes that the imperfection of the legislation leads to systemic violations of constitutional rights of convicted persons to judicial protection.
The gaps in the legislation were revealed when the administration of the women’s colony No. 2 submitted for consideration to the Special Commission of the State Penitentiary Service the idea of transferring the convict from the prison to the colony-settlement.
The Special Commission of the State Service for the Execution of Punishments considered the submission, and on April 29 of this year made the decision to refuse. The reason was the pending pecuniary claim in relation to the convict.
“The convict’s lawyer filed a complaint with the Court of Sverdlovskiy district of Bishkek with a request to invalidate the above decision of the Special Commission, and also replace the remaining unserved part of the sentence with being kept in a colony-settlement. On July 29, the court decided to dismiss the complaint. It referred to the Republic’s Criminal Procedure Code, which doesn’t provide for the procedure for considering a complaint against the actions of the State Penitentiary Service,” the Institute notes.
Having received the refusal, the defender again went to court, that time to the Administrative one. But even there he was refused, because, according to paragraph 1 of part 1 of Article 113 of the Administrative Procedure Code: “the court refuses to accept the claim if the claim is not subject to consideration in the administrative procedure”.
On November 1 of this year, by the determination of the appeal instance of the City court of Bishkek, the above decision of the Administrative court was left unchanged. In this regard, the Institute of the Ombudsman of the Kyrgyz Republic reminds that, in accordance with paragraph 8 of part 5 of article 20 of the Constitution of the Kyrgyz Republic, “the right to judicial protection, established by the Constitution, is not subject to any restriction”.
In addition, according to part 1 of Article 40 of the Constitution of the Kyrgyz Republic, “everyone is guaranteed judicial protection of his/her rights and freedoms provided for by the Constitution, laws, international treaties of which the Kyrgyz Republic is a member, and generally recognized principles and norms of international law.”
And finally, according to part 1 of Article 93 of the Constitution of the Kyrgyz Republic, “in cases and procedures provided for by law, citizens of Kyrgyzstan have the right to participate in the administration of justice”. Also, the right of citizens to judicial protection is vested in article 8 of the Universal Declaration of Human Rights (UDHR), in article 14 of the International Covenant on Civil and Political Rights, to which Kyrgyzstan is a party.
“In this case, there are obvious systemic violations of the constitutional rights of convicts to judicial protection. The reason for this situation is the lack of norms in the Criminal Procedure and Criminal Executive Codes of the Kyrgyz Republic that would regulate the procedure for appealing and reviewing the decision of the Special Commission of the State Penitentiary Service. In this connection, we appeal to the government of the country with a request to initiate and submit to the Parliament for consideration a draft law on amendments corresponding to the laws of the Kyrgyz Republic,” the Ombudsman’s Institute said.
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