In Kyrgyzstan, a man was illegally convicted and almost deprived of his house

A resident of Osh was illegally convicted for allegedly locking up his younger brother in a mental hospital. They tried to deprive his family of a single house in order to pay the fine prescribed by the court.

The judicial authorities of the Kyrgyz Republic grossly violated four times the rights of the resident of Osh Akylbek Kabylov. In 2010, the man was convicted because he allegedly illegally placed his brother Sultanbek Kabylov for compulsory medical treatment in the Republican psychiatric hospital of the village of Kyzyl-Zhar (Jalal-Abad oblast). On this charge, he was sentenced to two years in prison and the fine of 250 000 KGS in favor of the victim.

While reviewing the case in appeal and supervisory level, despite the presence of violations, both the Regional Court of Osh and the Supreme Court of the Kyrgyz Republic upheld the verdict without any significant changes.

In July 2019, due to newly discovered circumstances, the case of Akylbek Kabylov was considered in the Supreme Court. And again, the servants of Themis did not see any inconsistencies in the case materials, having recognized the verdict of the Osh city court of 2010 as legal.

As a result, Akylbek Kabylov addressed to the Ombudsman’s office. Having studied the case materials, the Ombudsman of the Kyrgyz Republic Tokon Mamytov sent an appeal to various authorities asking for assistance in restoring the rights of the Kyrgyz citizen.

“There is a situation when, due to an unfair sentence, the family of seven persons remains in disastrous situation, literally stays outside. On the part of Akylbek Kabylov, relevant appeals were repeatedly sent to the Supreme Court and the Prosecutor General’s office of the Kyrgyz Republic, where facts were presented testifying to his innocence of committing the crime for which he was convicted. However, state bodies responded with recommendations to turn to each other. In particular, the Supreme Court suggested that the applicant send an appropriate appeal to the General Prosecutor’s office, while the Prosecutor General’s office recommended that the applicant appeal to the Supreme Court,” the appeal says.

State human rights activists believe that Kabylov did not commit any crime. The basis for such conclusions are the materials of the case itself.

Sultanbek, the younger brother of Akylbek Kabylov, was admitted for treatment to the Republican psychiatric hospital as part of the execution of the relevant decision of the Osh city court of March 28, 2006. The court made the decision on the basis of the conclusion of the forensic psychiatric examination of psychiatrists of the Osh Regional center for mental health No.58 of March 25, 2006. Doctors diagnosed Sultanbek Kabylov with delusions of greatness and the threat of murder of his brother; they identified his behavior as socially dangerous and came to the conclusion that he doesn’t realize his actions.

Kabylov spent three months in the psychiatric hospital. This was followed by several new medical examinations. According to the results of the last one, he was recognized as responsible and released from compulsory treatment. Soon after, he filed a lawsuit against his older brother, accusing him of criminal acts against himself.

 “Here, it should be noted that the statement on the basis of which Sultanbek Kabylov was subjected to examination and further compulsory treatment, was not written by Akylbek Kabylov. Kankyz Mirkamilova, the mother of both men, turned to the district Police department of Nookat.

She asked to take measures against her son Sultanbek in connection with the aggressiveness of his actions, which pose a social danger to those around him,” Head of the Legal Department of the Ombudsman’s office, Urmat Aralbaev, said ACCA.

“The reliability and independence of the will of Mirkamilova, in the legislatively established order, was not called into question or refuted by anyone,” the Ombudsman’s office says.

“So, any arguments that Kabylov’s mother’s statement is a fake drawn up by her eldest son can be considered subjective speculation and conjecture. They cannot support the version of the accusation that it was Akylbek Kabylov who, following the criminal intent, organized and participated in all the procedures related to the illegal placement of his brother on compulsory treatment in the mental hospital,” the representative of the Ombudsman’s office explains.

Nevertheless, the Osh city court, like the courts of other instances, considered otherwise. Akylbek Kabylov was found guilty of a crime, the composition of which the servants of Themis… could not describe.

“The descriptive and motivating part of the court verdicts of all instances concerning this criminal case, according to which Kabylov was found guilty of the offense under part 1 of article 126 of the Criminal Code of the Kyrgyz Republic, does not contain a description of the criminal act, indicating the place, time and method of its commission. Also, they do not provide evidence on which the court’s conclusions regarding the defendant are based and the reasons why the court rejected other evidence,” Aralbaev said.

“But in the case there are enough facts confirming that Akylbek Kabylov was not involved in the crime of which he was charged,” state human rights activists believe.

 The Osh city court considered that the man personally initiated and organized a forensic psychiatric examination against his brother. According to the court, he directly influenced psychiatrists, misled them by providing knowingly false information regarding his brother’s mentally ill state. As a result, doctors had the erroneous opinion that Sultanbek Kabylov had a mental illness. They came to the wrong conclusions and made the wrong recommendations.

“However, this conclusion of the forensic psychiatric examination, which became the basis for the placement of Sultanbek Kabylov for compulsory treatment, has not yet been canceled,” say in the Ombudsman’s office.

When the criminal proceedings were launched against A. Kabylov, also the criminal case was initiated against the psychiatrists, who issued the opinion on S. Kabylov. They were charged with crimes under part 2 of article 126 “Unlawful placement of a person to a psychiatric hospital committed by a person using his official position”, article 315 “Official forgery”, part 1 of article 330 “Knowingly false testimony, expert opinion” of the Criminal Code of the Kyrgyz Republic (dated 1997).

During a law enforcement audit, none of these allegations was confirmed. The criminal case was terminated for the lack of corpus delicti.

As regards Akylbek Kabylov’s direct influence on doctors, the criminal case file contains an explanatory note addressed to the Supreme Court, signed by psychiatrists preparing the opinion on S. Kabylov. In it, they confirm that the forensic psychiatric examination was carried out on the basis of the investigator’s decision, and during its conduct Akylbek Kabylov did not participate in the process and did not give any testimony.

In addition, Akylbek Kabylov was convicted of “contributing to the erroneous and unjust decision of the Osh city court” against his younger brother. At the same time, the Ombudsman’s office assures, there is no evidence in the case file that the man could bribe the judge in any way or put pressure on him.

“At the trial, where the issue of placing Sultanbek Kabylov in the psychiatric hospital was examined, the prosecutor D. Ismailova was directly involved, providing supervision of the legality of the trial and the court decisions made during it. On her part, no complaints about the legality and objectivity of the conduct of this trial were expressed. In the actions of the judge of the Osh city court B. Nurmamatov, who ruled to satisfy Kankyz Mirkamilova’s statement about the placement of her youngest son on compulsory treatment, there were no violations. Otherwise, the judge B. Nurmamatov would be subject to disciplinary or other liability,” Urmat Aralbaev said.

The indictments set out in the verdict of the Osh city court of April 22, 2010 (as well as in judicial acts of the appellate and supervisory instance bodies, which were therefore issued to the same criminal case), are called illogical and even absurd in the office of the Ombudsman.

In addition, state human rights activists found out that having accepted the case against Akylbek Kabylov, the Osh city court (and with it the courts of other instances) violated a number of articles of the Criminal Code and the Code of Criminal Procedure of the Kyrgyz Republic.

“The verdict of the court in this criminal case was issued on April 22, 2010, that is, more than 4 years after the commission of the so-called crime. The judge did not have the right to impose criminal punishment, as the statute of limitations, which is 3 years, has expired on the incriminated elements of the crime,” the representative of the Ombudsman’s office explains.

Today, Akylbek Kabylov is still seeking justice. Not particularly effective yet. All that, he has succeeded at the moment, is to achieve the abolition of the court ruling on the recovery of damages concerning his house.

“Now they decided to take my car as a fine. This is already good, at least, I will have the roof over my head,” Akylbek Kabylov says.

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