Letter to President Bakiev on Ensuring Refugee Rights

President Kurmanbek Bakiev
Dom Pravitelstva
Bishkek 720003
Kyrgyz Republic

Dear President Bakiev,

I am writing to urge your government to ensure that asylum seekers and refugees in Kyrgyzstan fully enjoy the protections to which they are entitled under international and Kyrgyz refugee law. Human Rights Watch also urges you to ensure that the government investigates the recent disappearance from Kyrgyzstan of an Uzbek asylum seeker and to actively inquire after and monitor the situation of individuals returned or extradited to Uzbekistan, returns which were in violation of international law.

Introduction

In recent years, the government of Kyrgyzstan undertook important efforts to host hundreds of refugees and asylum seekers from Uzbekistan, Afghanistan and other countries. It has also integrated, and is in the process of integrating, great numbers of refugees from Tajikistan, the Russian Federation (from Chechnya), and Afghanistan.

However, these welcome efforts are marred by the government of Kyrgyzstan's failure to fully implement its obligations in international and national law regarding the protection of refugees from Uzbekistan. For the last few years it has registered them only as asylum seekers and requested the United Nations High Commissioner for Refugees (UNHCR) to instead determine their refugee status and resettle them all abroad.

It has further forcibly returned or extradited refugees and asylum seekers to Uzbekistan despite the risk of torture there and failed to investigate and hold accountable those officials who have been complicit in such forced returns and extraditions. Also worrisome is the lack of public information about whether investigations into disappearances of asylum seekers from Uzbekistan were conducted and, if so, what the results were.

Human Rights Watch also received information that officials of the State Committee on Migration and Employment have recently started to arbitrarily cancel valid asylum seekers' registration certificates and to refuse to register those asylum seekers who may have entered Kyrgyzstan illegally. Both actions violate Kyrgyz legislation and international refugee law and weaken the refugee protection system in Kyrgyzstan.

1. Disappearances and forced returns to Uzbekistan

Between 2005 and 2007, the Kyrgyz government returned more than a dozen refugees and asylum seekers to Uzbekistan, including Zhakhongir Maksudov, Adil Rakhimov, Yakub Tashbaev, Rasuldzhon Pirmatov, Fayezjon Tajihalilov, Mukhamadzhon Kadyrov, Dilshodbek Khojiev, Tavakaal Khodjiev, Khasan Shakirov, Bakhodir Sadikov and Otabek Muminov, the latter having been denied the opportunity to file asylum claim in detention. At least five Uzbek asylum seekers disappeared from Kyrgyzstan during that period, (Isroil Kholdorov, Ilhom Abdunabiev, Bakhtiar Ahmedov, Valim Babajanov and Saidullo Shakirov).[1] At least one disappearance and one forced return of Uzbek asylum seekers took place in Kyrgyzstan in 2008.

On September 19, 2008, Haiotjon Juraboev disappeared. He was registered as asylum seeker by the State Committee for Migration and Employment and recognized as refugee by the UNHCR. Juraboev arrived in Bishkek on September 18 from his then place of residency in Jalalabat and went the next day to the Friday prayer at the mosque in Alamedin district. A credible source told Human Rights Watch that they interviewed witnesses who said that when arriving at the mosque, Juraboev was stopped by an unknown individual in plain clothes who introduced himself as a security official. He followed this man to a car and has not been heard from since. Juraboev, a Syria-educated teacher of Islam, was forcibly returned to Uzbekistan from Russia in 2007 and managed the same year to flee the country again. Juraboev is at serious risk of torture if returned to Uzbekistan. Kyrgyz authorities initiated investigations but to date have not made any information on the progress of investigation publicly available.

Human Rights Watch is deeply concerned that on May 13, 2008 the Kyrgyz government forcibly returned Erkin Holikov to Uzbekistan, even though his asylum case was pending before a court and he was at serious risk of torture.

Erkin Holikov was arrested on August 21, 2007 with four other individuals in Jalalabat; three weeks later the Uzbek authorities put him on a wanted list for alleged involvement in religious extremism and requested his extradition. On March 6, 2008, the Jalalabat City Court found Holikov guilty of concealing a crime and illegal border crossing and sentenced him to four years imprisonment. On April 30, 2008, Holikov's lawyer tried to register Holikov as an asylum seeker with Kyrgyzstan's State Committee for Migration and Employment - a prerequisite for receiving asylum in Kyrgyzstan. Although the committee accepted the documents, it refused to register Holikov. A court was scheduled to hear Holikov's appeal against this decision on May 22 but on May 13 prison authorities in Osh handed Holikov to Uzbek police.[2]

Torture in Uzbekistan and Kyrgyzstan's non-refoulement obligations

The widespread torture of detainees in Uzbekistan has been well-documented. The UN Special Rapporteur on torture concluded in 2003 that torture in Uzbekistan was "systematic." There is no evidence to suggest that the situation has improved since. The UN Committee Against Torture concluded in November 2007, after its periodic review of Uzbekistan's compliance with the Convention against Torture, that torture and ill-treatment remain "widespread" in Uzbekistan and continue to occur with "impunity."

In our November 2007 report, "Nowhere to Turn," Human Rights Watch documented widespread torture and ill-treatment in Uzbekistan that goes largely unpunished. Human Rights Watch found that common methods of torture and ill-treatment include beatings with truncheons and bottles filled with water, electric shock, asphyxiation with plastic bags and gas masks, sexual humiliation, and threats of physical harm to relatives.

The extradition or forced return of individuals to Uzbekistan violates the Convention against Torture, to which Kyrgyzstan acceded in 1997. This convention absolutely prohibits the return of persons to places where they risk torture. The International Covenant on Civil and Political Rights (ICCPR), to which Kyrgyzstan acceded in 1994, unconditionally prohibits torture. These international obligations prevail over Kyrgyzstan's obligations under bilateral and regional agreements relating to extradition. The UN Human Rights Committee, the body that interprets and oversees the implementation of the ICCPR, has unambiguously addressed this issue, stating, "[I]f a State party extradites a person within its jurisdiction [...], and if, as a result, there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant."

In additional to violating the provisions of the Convention against Torture, forced returns of refugees and asylum seekers also violate the 1951 Refugee Convention, which bars the return of refugees and asylum seekers to countries where they face persecution.

UN Human Rights Committee decision

In its first decision on Kyrgyzstan (Maksudov et al. v. Kyrgyzstan) the UN Human Rights Committee ruled on July 16, 2008 that Kyrgyzstan breached the rights to personal liberty, freedom from torture, and right to life of four Uzbek refugees extradited to Uzbekistan. The decision once again stresses the obligations of Kyrgyz authorities to refrain from returning individuals wanted by Uzbekistan's government taken into account the great risk of torture there. Zhakhongir Maksudov, Adil Rakhimov, Yakub Tashbaev, and Rasuldzhon Pirmatov fled Uzbekistan after the Andijan violence in 2005 and were taken into custody in Kyrgyzstan on the basis of the request from the Uzbek General Prosecutor's Office. All four were granted refugee status by United Nations High Commissioner for Refugees (UNHCR), denied refugee status by Kyrgyz authorities and extradited to Uzbekistan in August 2006.

The Committee noted that ‘...there were widely noted and credible public reports that Uzbekistan resorted to consistent and widespread use of torture against detainees and that the risk of such treatment was usually high in the case of detainees held for political and security reasons. In the Committee's view, these elements in their combination show that the authors faced a real risk of torture in Uzbekistan if extradited... The procurement of assurances from the Uzbek General Prosecutor's Office, which, moreover, contained no concrete mechanism for their enforcement was insufficient to protect against such risk."

The Committee also indicated the lack of effective and independent review of the extradition decisions and noted that "Kyrgyz laws do not allow for judicial review of the General Prosecutor's extradition decisions before the extradition takes place and that in the case of Maksudov et al these decisions were implemented the following day. The Committee recalls that by the nature of refoulement, effective review of an extradition decision must have an opportunity to take place prior to extradition, in order to avoid irreparable harm to the individual and rendering the review otiose and devoid of meaning."

In 2006, the Committee had requested interim measures of protection for the four applicants, which would have precluded the Kyrgyz government from extraditing the men until the end of the Committee's proceeding. However, the government did not comply with the request. The Committee recalled that by not adhering to the Committee's request Kyrgyzstan committed grave breaches of its obligations under the Optional Protocol [to ICCPR] as it "acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile."

2. Registration of asylum seekers

In August 2008 the State Committee for Migration and Employment arbitrarily stopped extending asylum seeker certificates issued to Uzbek nationals who were seeking asylum. In mid-September the committee renewed extensions for some asylum seekers, but did so in many cases with restrictions that violate the registration procedure established by law. Newly arrived asylum seekers face difficulties in registering.

Kyrgyzstan's law on refugees states that "an asylum seeker shall be provided with a genuine opportunity to submit such application," and establishes that the asylum seeker certificate is issued for 3 months and should be extended until the decision granting or denying the refugee status is adopted, including time of the consideration of appeal.

In September 2008 Human Rights Watch conducted interviews in Kyrgyzstan with 11 asylum seekers from Uzbekistan some of whom have been designated mandate refugees by UNHCR. In addition, we studied asylum seeker certificates of seven other individuals who are family members of the interviewees and conducted three telephone interviews in November 2008. Out of 18 Uzbek refugees and asylum seekers four received their asylum seeker certificates between September 15 and 19, 2008 valid for one month with a handwritten note "without right to further extension!" and one reported that he had been warned by the official of the State Committee for Migration and Employment that his certificate will not be extended in the future.

Human Rights Watch documented three cases in which the State Committee for Migration and Employment refused to issue asylum seeker certificates to Uzbek asylum seekers. One was a woman with two children, who submitted an application for an asylum seeker certificate in August 2008 but by the end of September had no answer from the migration committee. The second was woman who came to Kyrgyzstan in August 2008 to join her husband and children, who were registered and received asylum seeker certificates in May 2008. The woman was interviewed by the State Committee for Migration and Employment which, nearly three months later, has still not issued her an asylum seeker certificate.

Finally, Human Rights Watch interviewed the son of a re-settled refugee who came with his mother and three siblings from Uzbekistan in the fall 2008. The family applied to the State Committee on Migration and Employment for registration as asylum seekers in the beginning of October. An official of the State Committee on Migration and Employment refused to accept their applications, claiming an existence of a quota for the registration of Uzbek asylum seekers. The official said that until a certain number of UNHCR mandate refugees currently on the territory of Kyrgyzstan are re-settled, no new applications will be accepted. The legal basis of this quota is unclear, as Kyrgyz legislation does not provide quotas for asylum applications. Quotas which prevent individuals from exercising their right to seek asylum, and deny them protection to which they would be entitled by law, would be a violation of Kyrgyz human rights obligations.

With two exceptions, all asylum seekers interviewed by Human Rights Watch whose certificates expired at the end of July-August 2008 reported that their certificates were confiscated by the State Committee for Migration and Employment officials who claimed that their office is being re-structured, and new certificates or extensions will only be issued after this process is completed.

In October 2008 the State Committee for Migration and Employment told Human Rights Watch that the handwritten notes could only have been the unauthorized actions of its employees. The committee assured Human Rights Watch that asylum seekers could count on having the certificates extended, but that it would "additionally study" new requests for asylum as the situation in Uzbekistan stabilized.

In June 2008, the State Committee for Migration and Employment had started to deny registration to new asylum seekers who may have arrived in Kyrgyzstan illegally. The committee alleged to Human Rights Watch it took this action in response to "criminal channels of illegal transfers of citizens for further illegal transfer to the third countries."

Human Rights Watch is aware that 20 asylum seekers from Afghanistan and Iran challenged this denial of registration in court. After the first instance court in Bishkek had ruled in favor of 14 of these applicants, the State Committee for Migration and Employment filed new lawsuits under "newly discovered circumstances," claiming the asylum seekers had abused the asylum procedure to justify illegal entry. In mid-November, while these new lawsuits were still pending, the appeals court in Bishkek ruled against the State Committee for Migration and Employment, holding that its refusal to register the asylum seekers violated Kyrgyz legislation. At this writing, Human Rights Watch's information is that the State Committee for Migration and Employment has not amended the unlawful practice.

Kyrgyzstan acceded to the 1951 Convention relating to the Status of Refugees in 1996 and is under an obligation "not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened [...], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

The arbitrary suspensions of the asylum seekers' certificates and additional barriers put by the migration authorities before a person can register as an asylum seeker weaken the protection asylum seekers are entitled to in Kyrgyzstan. While states have the right to regulate their migration and asylum policies, they must ensure that applicants can freely exercise the right to seek asylum and access the necessary procedures. The process of registering as an asylum seeker is the first step in accessing the process of refugee status determination, and should be available to anyone who has a claim that they are in danger in their country of origin. Kyrgyzstan has an adequate system for the registration of asylum seekers, and should not undermine it. Kyrgyzstan should ensure that state officials act within the limits established by the law and are held accountable for failing to carry out their duties.

We urge your government to take immediate action to rectify the problems that are currently emerging in the system of refugee protection in Kyrgyzstan and to prevent further violations of Kyrgyzstan's international obligations. Kyrgyzstan should also fully implement the decision of the UN Human Rights Committee in the case of Maksudov and al. v Kyrgyzstan.

We urge you to:

Cease any extraditions to Uzbekistan, where individuals are at risk of torture. Revise the extradition procedure to ensure that those who face extradition have access to effective remedies, such as the right to appeal any extradition to a court capable of making a substantive review of their risk of ill treatment if extradited. There must be an automatic suspension of the extradition decision while an appeal is pending.
Conduct an effective investigation into the disappearance of Haitjon Juraboev and make its results public;
Fully comply with the decision of the UN Human Rights Committee:
1. provide Maksudov, Rakhimov, Tashbaev and Pirmatov with an effective remedy for their unlawful extradition and the failure to provide them with an ability to appeal against the extradition order, and provide them adequate compensation;
2. monitor the situation of Maksudov, Rakhimov, Tashbaev and Pirmatov and inform the UN Human Rights Committee about their situation;
3. make this information publicly available.
Conduct an effective investigation into all forced returns and disappearances of Uzbek asylum seekers from Kyrgyzstan, sanction those implicated in these actions and make the results of the investigations public;
Provide an effective remedy against forcible returns or extradition to Uzbekistan, and provide compensation to those who have been forcibly returned or extradited in the absence of an effective remedy.
Fully comply with international standards and Kyrgyz legislation on refugee protection, including by:
1. Ensuring that every asylum seeker is registered as such immediately after presenting their claim and interview with the officials of the State Committee on Migration and Employment. This should occur regardless of the legality of his or her entry and stay in Kyrgyzstan.
2. Clarifying the legal basis, if any, for asylum seeker quotas and ensure that such practice is not used to deny the registration of asylum seekers or prevent the exercise of the right to seek asylum and access to protection for those entitled to it.
3. Ensuring that the State Committee on Migration and Employment complies fully with Kyrgyz legislation and extends these certificates every three months until it adopts a decision on the applicant's refugee status (including the time of appeal consideration) or until the person is re-settled to a safe third country.