Kyrgyzstan: government resists judicial reform

On March 13, 2020, the Kyrgyz government initiated a draft law “On amending certain legislative acts of the Kyrgyz Republic in the sphere of Criminal Law.” The proposed package of amendments, in order to bring the legislation in line with the Constitution and eliminate conflicts within the laws, contains a number of “very dangerous” amendments that violate the concept of adopted codes and laws in 2019, the Coalition against Torture considers.

In this connection, the Coalition appeals to the Parliament to attract the attention of lawmakers on the introduced package of amendments, which contain a number of “hidden rocks”

“The current procedural legislation didn’t resolve the issue of increasing the degree of security of process participants and compliance with procedural guarantees, degree evidence of guilt and the exclusion of falsification of evidence, provocation crimes and compliance with the basic constitutional principle that all fatal doubts must be interpreted in favor of the accused. We have all doubts in favor of the prosecution,” the appeal says.

It’s noted that the level and volume of evidence is still unacceptably low and represents only a proven scheme for constructing evidence that doesn’t exclude corruption.

“The new legislation and the proposed changes didn’t significantly solve the problem, and didn’t change the law enforcement practice. The new legislation hasn’t fundamentally resolved the issue of ensuring the constitutional right to liberty and security of person: detention until the court verdict still has no deadlines. In some cases, continued pretrial detention represents unlawful cruel treatment of a person without any proper legal assessment and reaction,” the Coalition against Torture emphasizes.

For example, the draft law proposes practically an exchange of freedom for repayment damage for economic offenses, regardless of evidence or admission of guilt (amendments to article 118 of the Criminal Procedure Code of the Kyrgyz Republic).

According to human rights activists, in this way, the government doesn’t hide that it’s already using the arrest not for strictly legal tasks, but for other illegal purposes!

“A sophisticated way is proposed to exclude liability for unlawful arrest, by an additional criterion: the “knowledge” of unlawful arrest, which makes this article practically “dead”, and offenses in this matter become unpunished (amendments to article 187 of the Criminal Procedure Code of the Kyrgyz Republic). Against the background of these unresolved issues in the new legislation, the draft law proposes to exclude the registration of applications and reports of falsification and other gross violations of the law by an investigator, an authorized official of the inquiry body, a prosecutor, or a judge. In other words, if the application contains a complaint against officials and doesn’t contain clear evidence of violations, then it may not be registered, and accordingly no one will verify and investigate it,” the Coalition focuses on amendments to the law.

They also add that the proposed changes demonstrate the systemic problems of supervisory and investigative bodies, when a person doesn’t have protection against police arbitrariness, and justice in the current conditions is only conditionally preserved, as evidenced by the percentage of acquittals, argumentations, convictions and other court decisions.

It’s important that the draft law proposes to exclude the rule on the review of the sentence in case of recognition of human rights violations by international authorities (Article 442).

“We consider that the exclusion of the norm, that prevents citizens of Kyrgyzstan from applying to national courts for new circumstances, if their rights have been violated and this has been established by international bodies, is illegal and deprives the Kyrgyz people of hope for justice. At one time, the Coalition welcomed the new legislation, that was adopted by the Jogorku Kenesh [the Kyrgyz Parliament], the President and the government, which has increased human rights standards. With the adoption of innovations, the renunciation of the repressive nature of the judicial system was indicated. However, the constant attempts by lawmakers to make large-scale changes indicate that the authorities are resisting the implementation of judicial reform by rolling back into the old law enforcement practice,” the human rights activists say.

It was expected that the introduction of this legislation without distortion and renunciation of the concept would mean that citizens would have a solid legal foundation to protect their rights, as well as an obstacle to judicial, prosecutorial and police arbitrariness. And the full implementation of codes and laws will have an impact on the cessation of violence, torture of people and prison arbitrariness.

“A number of amendments, which were indicated in the appeal, are only vivid examples that hinder progress in promoting judicial reform. They are not an exhaustive list of norms that concern the Coalition against Torture. The complete legal analysis of changes will be submitted to the Parliament in the near future. We hope that it will consider this bill carefully and without violating the regulations,” the statement notes.

The Coalition against Torture considers that judicial reform cannot be implemented without the participation of parties to the process: lawyers, civil society and the business community. In this regard, we urge all interested parties to actively participate in the discussion of the draft law “On amending certain legislative acts of the Kyrgyz Republic in the sphere of Criminal Law”, since the positive changes will be possible due to joint efforts.