January 29, 2014

III. Government Responses

In recent years, particularly since the visit by United Nations Special Rapporteur on Torture Juan Mendez to Kyrgyzstan in 2011 and his February 2012 report on the visit, the government has taken steps to acknowledge and to begin to address police violence, including torture and ill-treatment. The government proposed amendments to the criminal code that brought the Kyrgyzstan legal definition of torture closer in line with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment definition.[139] The government also created a national preventative mechanism on torture, in line with obligations under the CAT and its optional protocol, and the Ministry of Interior issued a decree citing the need for police reform to improve effectiveness and public trust.

While the government is engaged in police reform efforts promoted by international organizations and domestic nongovernmental organizations (NGOs), there remains a climate of general impunity for police violence due to ineffective complaint mechanisms, fear of retaliation by police officials against victims who complain about abuse, and ineffective investigations.

Impunity is a particularly serious problem when it comes to police abuse of LGBT people. Out of forty gay and bisexual men interviewed about police abuse by Human Rights Watch, only two reported the abuse to the police or the general prosecutor’s office. In only one case, that of Mikhail Kudryashov, did the prosecutor’s office conduct an initial inquiry, but it later refused to conduct a criminal investigation.

Under Kyrgyz and international law, the authorities are obligated to conduct prompt, thorough, and impartial investigations into all allegations of abuse, including torture, ill-treatment, threats, and extortion by the police. The prosecutor’s office is obliged by law to investigate allegations of torture that it became aware of through victims filing a formal complaint, or if they confirm through other means that a crime has occurred.[140] As part of this, victims must be protected from further repercussions or potential harm, such as the harm they might suffer should their sexual orientation be made public. The CAT’s General Comment No. 3 calls on states to ensure that victims who have suffered “violence or trauma” receive adequate care and protection throughout the investigation process.[141]

Inadequate Police Complaint Mechanisms

Existing police complaint mechanisms are inadequate. In his 2012 report, the special rapporteur on torture noted that “there is not enough public awareness about the existing complaint mechanisms or confidence in their protective role.”[142]

A victim of alleged ill-treatment or torture can file a complaint with any law enforcement body, which, in turn, will refer the complaint to the prosecutor’s office, which oversees investigations involving allegations of torture or ill-treatment committed by the police. People may also petition the prosecutor’s office directly. The complaint must include personal information of the alleged victim including his or her name and address.  Upon receipt of the complaint, the prosecutor’s office initiates a preliminary inquiry. Within three days, on the basis of the results of the inquiry, the prosecutor’s office will decide whether to open a criminal investigation.[143] There is an internal affairs department within the police force that has an ambiguous mandate to protect the rights of police officers and take disciplinary measures in case police officers commit various abuses. There is no independent police complaints commission, which makes it difficult to investigate police abuse.

While only the prosecutor’s office is authorized to investigate allegations of torture, ill-treatment, or crimes committed under “exceeding authority” provisions, prosecutors and investigators depend on Ministry of Interior staff to provide investigative support.[144] The special rapporteur on torture notes in his 2012 report that, although prosecutors have formal investigative functions over these types of cases, “they lack real investigatory powers, depend on the police to conduct searches and seizures and do not have their own operative groups or criminologists.”[145]  Under this system, the police are very frequently involved in investigating torture allegedly perpetrated by their own officials,[146] leading to a high likelihood that alleged perpetrators will know that a complaint has been filed against them and by whom it was filed. This conflict of interest seriously limits the effectiveness and integrity of investigations.

The lack of effective mechanisms to guarantee confidentiality or protection from retaliation is a particularly serious obstacle when it comes to investigating police abuse of gay and bisexual men. Our research found that most gay and bisexual men do not report police abuse and extortion, fearing retaliation and police disclosure of individuals’ sexual orientation to family members and employers.

There is no mechanism to ensure confidentiality of investigations or to limit the number of officials involved in investigating a case of police abuse. There are mechanisms, however, to ensure confidentiality during criminal proceedings in court. Under current legislation, such mechanisms can be used in trials related to sexual violence[147] and crimes that involve state security issues.[148] Article 22 of the Kyrgyzstan Criminal Procedure Code also permits holding closed court hearings in cases when the “security of the victim, witnesses or other people who participate in the court hearing” is at stake.[149]

Most of the gay men interviewed for this report told Human Rights Watch that they were reluctant to file a complaint out of fear of retaliation on the part of police. Edik E., a shopkeeper in his 20s whom Bishkek police beat and threatened with rape in 2010, as described in detail above, was afraid to press charges against his perpetrators, telling Human Rights Watch about his fears of further violence:

If [the police] detain us like this, without any sanctions, what are we to think? If we go after them or initiate an investigation, they will simply get angry. They will kill us.[150]

Several other victims of abuse interviewed by Human Rights Watch expressed similar fears and reluctance to file complaints, as described above.

Even LGBT activists, many of whom speak publicly on gay rights issues, and some of whom are openly gay, told Human Rights Watch that they are unwilling to report police abuse out of fear for their safety. For example, Adyl A., a transgender activist in Bishkek, told Human Rights Watch that two police officers stopped him and a colleague in 2010 as they left work, detained them for a few hours, humiliated them by asking, “Are you fags or what?” and threatened them with death, saying, “These beasts should be killed.”[151] Only after Adyl A.’s colleagues, who are well-known human rights defenders in Kyrgyzstan, intervened did the police release the men.

Activists encouraged Adyl A. to file a complaint about the arbitrary detention, humiliation, and threats he had experienced, but both Adyl A. and his colleague feared public disclosure of their gender identity and were not confident that their complaints would be fairly investigated because of their gender identity.[152] Adyl A. told Human Rights Watch:

After this incident, I became a coward…. I myself am a human rights defender and I know my rights, but one thing is knowing, and another is when you encounter this and you see how they treat you. The police officers feel their impunity, and that they will be covered since, [as the saying goes], “A crow doesn’t bite another crow.”[153]

In March 2012 the Bishkek-based LGBT rights group Labrys sent a letter to the Ministry of Internal Affairs with detailed descriptions of 14 cases of abuse of LGBT people, including eight cases of entrapment and extortion through dating website advertisements. In its written response in May 2012, the general prosecutor’s office responded that they were unable to investigate any of these cases because the victims did not identify themselves, as is required under Kyrgyz law.[154] None of the victims were willing to make official complaints due to fears of police and disclosure of their sexual orientation to family members or employers.[155]

This understandable reluctance underscores the need for the authorities to take positive steps to broaden the routes through which complaints can be transmitted, discussed in more detail below.

Human Rights Watch interviewed three Ministry of Internal Affairs officials in November 2012, all of whom confirmed that the fears expressed by gay men, lesbians, and bisexual and transgender people are well founded and that their ministry cannot protect any victims of abuse, including gay and bisexual men, during investigations and trials.[156] Referring specifically to gay men, an official told Human Rights Watch,

If they [gay men] weren’t scared of public disclosure [of their sexual orientation], then they wouldn’t be afraid of the police officer, no matter how hard he tried [to scare them]. If they want justice, they should go all the way…. [But] nobody will provide them [the victims] with bodyguards. At least a certain circle of people will know about them [and their sexual orientation] during the investigation.[157]

Lack of Investigations

In the rare instances that gay men file complaints about police abuse, investigations are not opened, or are ineffective.  Human Rights Watch is not aware of any police officers being charged, let alone tried or convicted, for the types of abuses against gay men described in this report.

There is a general climate of impunity in Kyrgyzstan for crimes committed by police officers and law enforcement agents. Despite the prohibition of torture under Kyrgyz law, authorities often decline to open investigations into allegations of torture, and even on rare occasions when an investigation is carried out, the perfunctory manner of the investigation and delays mean that perpetrators are unlikely to be held to account.[158]

Official statistics indicate that in 2012, among 371 official complaints regarding torture by law enforcement officials, only 11 police officers were convicted.[159]

Various UN human rights bodies, including the UN special rapporteur on torture and the CAT have criticized Kyrgyzstan for not addressing its “widespread use of torture,” including due to a lack of effective investigations.[160] The special rapporteur specifically stated in his 2012 report on Kyrgyzstan that, with regard to investigations into police torture, “in most cases, if any inquiries are held, preliminary inquiry usually concludes that the allegations of torture and ill-treatment have not been substantiated and do not merit a full-scale investigation.”[161]

In Mikhail Kudryashov’s case, described in detail above, the Bishkek prosecutor’s office conducted an internal inquiry but refused to open a criminal investigation following Kudryashov’s original complaint. Kudryashov appealed this decision to the general prosecutor’s office, which issued an official request for further consideration of the case. However, Bishkek prosecutors again declined to open a criminal investigation.[162]  As noted above, Kudryashov was unsuccessful in appealing the refusal to open a criminal investigation. His appeals cited the prosecutor’s refusal to consider medical evidence that Kudryashov had suffered a concussion and other serious injuries.[163]

Demetra D., a gay man from Bishkek whose case is described above, also filed a complaint of an instance in which he was sexually assaulted at a police station in 2009. In response, however, he never received any information from police or prosecutors, including about whether an investigation had been opened or not.[164]

Asel Koilubayeva, a lawyer from Voice of Freedom (Golos Svobody ), a leading human rights NGO in Kyrgyzstan, confirmed that LGBT people are vulnerable to police abuse and more reluctant to report ill-treatment.  NGOs can also face societal pressure to not participate in cases involving LGBT victims or to not show support for LGBT rights. Koilubayeva told Human Rights Watch:

We talk about torture issues more openly now after the special rapporteur’s visit. There are more complaints filed [about torture]. [But] LGBT people are more vulnerable and rarely file complaints because not only the government, but also people, society, do not accept them.… There are no measures enacted by the government to better protect them. When organizations try to talk about LGBT people and their rights, it is seen as showing off. There is an opinion in society that LGBT people should just keep quiet and nobody will touch them then. LGBT people don’t write complaints, but without complaints there won’t be any results.[165]

Deeply homophobic attitudes among police, including among senior Ministry of Internal Affairs officials, contribute to the lack of effective investigations and a lack of willingness to confront the problem of police violence against gay and bisexual men. One official at the Ministry of Internal Affairs interviewed by Human Rights Watch denied that it would even be possible for a police officer to commit sexual violence against gay men, referring to strong social stigma surrounding homosexuality. He stated:

It is not acceptable [for anyone] to shake hands with gay men. A police officer wouldn’t give his hand to a gay man. They [police officers] wouldn’t detain gay men or force them [to do anything] because they are disgusted. How could a police officer rape a gay man?[166]

Steps to Address Police Torture and Ill-Treatment

Following the visit and subsequent report of the UN special rapporteur Juan Mendez, Kyrgyzstan revised its legislation to strive to adhere to the international definition of torture, and it established a national preventative mechanism in June2012 called the National Center of the Kyrgyz Republic on Prevention of Torture and Other Cruel, Inhumane and Degrading Treatment. The center, which is not yet functioning, enshrined nondiscrimination into its operating guidelines, and by law, the center’s staff must include representation of different minority groups and not consist of more than 70 percent of people of one gender.

Once it is up and running, the National Center for Prevention of Torture will have the authority to conduct unannounced visits to places of detention, file complaints with state agencies about possible ill-treatment of people in detention based on the results of their inspections, cooperate with NGOs to prevent and address torture, propose legislative changes, and organize educational events.[167] The center is not authorized to receive complaints of police abuse from people not in detention.

In April 2013 the Ministry of Internal Affairs issued decree No. 220, “On Measures to Reform Law Enforcement Bodies of Kyrgyz Republic,” which lists human rights violations, corruption, disciplinary infractions, disrespectful and rude treatment of citizens, and low levels of professionalism as the underlying causes of a lack of public trust in the police.

This decree calls for a number of improvements, including improved cooperation with civil society, mechanisms for public oversight and assessment of law enforcement bodies, and effective mechanisms to guarantee law enforcement bodies’ strict adherence to professional ethics and human rights norms. The decree, however, does not specify torture and ill-treatment as central concerns requiring law enforcement reform or specific measures to prevent and remedy torture and ill-treatment.[168] Furthermore, the decree has yet to be implemented.

Both steps are too new to assess their potential effectiveness in addressing ill-treatment and torture.

[139] UN Committee against Torture, Concluding observations on the second periodic report of Kyrgyzstan, CAT/C/KGZ/CO/2, December 20, 2013, para. 10: “While welcoming the recent amendment in the Criminal Code on the definition of torture, the Committee regrets that the current definition of torture in article 305(1) of the Criminal Code limits criminal responsibility to public officials, excluding other persons acting in an official capacity. Furthermore, the Committee regrets that the specific offence of torture is not punishable by appropriate penalties, as required by the Convention. The Committee is also concerned that the statute of limitations applicable to the offence of torture under domestic law may prevent investigation, prosecution and punishment of these non-derogable crimes (arts.1, 2 and 4).

The State party should continue its efforts to bring its domestic law in accordance with the Convention, inter alia, by ensuring that a definition of torture in article 305(1) of the Criminal Code covers all the elements contained in article 1 of the Convention and that acts of torture are punishable by appropriate penalties commensurate with the gravity of the offence, as set out in article 4(2) of the Convention. Furthermore, the State party should ensure that the prohibition against torture is absolute and that there is no statute of limitations for acts of torture.”>

[140] Human Rights Watch email correspondence with Asel Koilubaeva, Voice of Freedom, November 29, 2013. Criminal Procedure Code of the Kyrgyz Republic, art. 150.

[141] UN Committee against Torture,General Comment No. 3 of the Committee against Torture, CAT/C/GC/3, November 19, 2012, http://www2.ohchr.org/english/bodies/cat/docs/GC/CAT-C-GC-3_en.pdf (accessed October 15, 2013).

[142]UN Commission on Human Rights, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, Visit to Kyrgyzstan, A/HRC/19/61/Add.2, February 21, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-61-Add2_en.pdf (accessed December 17, 2013).

[143] Voice of Freedom complaint mechanism description on file with Human Rights Watch.

[144] Human Rights Watch email correspondence with Asel Koilubayeva, Voice of Freedom, September 19, 2013.

[145] UN Human Rights Council. Report of the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/19/61/Add.2, February 21, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-61-Add2_en.pdf (accessed December 18, 2013), p. 8.

[146] Voice of Freedom. “Safeguards Against Torture in Kyrgyz Republic.” Bishkek: Freedom House Kyrgyzstan, October 2012. http://freedomhouse.kg/en/reports/157-garantii-zashchity-ot-pytok-v-kyrgyzstane (accessed September 16, 2013). 

[147] Kyrgyzstan Code of Criminal Procedure, art. 22.2.

[148] Ibid, art. 22.1.

[149] Ibid, art. 22.2.

[150] Human Rights Watch interview with Edik E., Bishkek, July 28, 2012.

[151] Human Rights Watch interview with Adyl A., Bishkek, August 3, 2012.

[152] Ibid.

[153] Ibid.

[154] Letter from prosecutor of Bishkek, Oktyabrskiy District, May 7, 2012, on file with Human Rights Watch.

[155] Human Rights Watch interviews with Labrys staff, Bishkek, August and October 2012.

[156] Human Rights Watch interviews with Ministry of Interior officials, Bishkek, November 2012.

[157] Ibid.

[158]An example of this kind of investigation is the criminal case against four police officers following the August 2011 death of an ethnic Uzbek detained on charges related to an incident in June 2010. Usmonjon Kholmirzaev died several days after his release without charge, apparently from injuries he sustained from beatings by police while in custody. The case has been subjected to repeated delays over the last two years, and to date, no one has been held accountable for his death. See: “Kyrgyzstan: A Death Follows Police Torture,” Human Rights Watch news release, August 11, 2011, http://www.hrw.org/news/2011/08/11/kyrgyzstan-death-follows-police-torture.

[159] Human Rights Watch email correspondence with Asel Koilubayeva, Voice of Freedom, April 10, 2013.

[160] UN Commission on Human Rights, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, Visit to Kyrgyzstan, A/HRC/19/61/Add.2, February 21, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-61-Add2_en.pdf (accessed December 17, 2013).

[161] Ibid.

[162] Legal documents on file with Human Rights Watch.

[163] Complaint and other documents on file with Human Rights Watch.

[164] Human Rights Watch interview with Demetra D., Bishkek, July 31, 2012.

[165] Human Rights Watch Interview with Asel Koilubayeva, lawyer, Voice of Freedom, February 22, 2013.

[166] Human Rights Watch interviews with Ministry of Interior officials, November 2012.

[167] Law on the National Center for the Prevention of Torture, approved by the Kyrgyz parliament on June 7, 2012.

[168] Ministry of Internal Affairs, Decree No. 220, April 2013, on file with Human Rights Watch.