January 29, 2014

International Legal Standards

Kyrgyzstan has ratified the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, both of which require states to prohibit and prevent torture and other cruel, inhuman, or degrading treatment or punishment, including by law enforcement agencies.[169]  The ban against torture is one of the most fundamental prohibitions in international human rights law. Rape carried out by public officials is a form of torture.[170] Many of the forms of ill-treatment described in this report, including severe and prolonged beatings, threats of rape, death threats, and denial of food and water to detainees for extended periods, are acts that can constitute torture.

International law, in addition to prohibiting torture, obliges states to prevent, investigate, prosecute, and punish acts of torture and other forms of ill-treatment. States have an obligation to conduct an effective investigation whenever there are reasonable grounds to believe that an act of torture or other forms of ill-treatment have been committed, irrespective of whether the victim has lodged a formal complaint.[171] They are also responsible for having effective systems in place for addressing victims’ complaints, and prosecuting torturers, those who order torture, and those in positions of authority who fail to prevent or punish torture.

The obligation to prosecute persons alleged to be responsible for acts of torture includes those who are complicit in acts of torture, as well as those who directly participate in torture. This includes those in the chain of command who knew or should have known that such acts were perpetrated.[172] The Convention against Torture obligates states to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”[173] States must ensure that any victim of torture “obtains redress and has an enforceable right to fair and adequate compensation.”[174]

On April 14, 2008, Kyrgyzstan also ratified the Optional Protocol to the Convention against Torture (OPCAT), which stipulates that governments should facilitate regular visits to correctional institutions by international experts and create a national prevention mechanism to combat torture and cruel treatment.[175] To fulfill this obligation, the government established a National Center for Prevention of Torture, Inhuman and Degrading treatment in 2012, discussed in more detail above.

In order for investigative mechanisms to work, victims of human rights abuses must have the confidence to bring their allegations to the attention of the authorities. This in turn requires effective mechanisms to protect victims and witnesses who report abuse by state actors from reprisals. To that end, the Convention against Torture states that “[s]teps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.”[176]

Useful guidance is also provided by the 2011 Guidelines of the Committee of Ministers of the Council of Europe on Eradicating Impunity for Serious Human Rights Violations, which provide, “States should take measures to encourage reporting by those who are aware of serious human rights violations. They should, where appropriate, take measures to ensure that those who report such violations are protected from any harassment and reprisals.”[177] The guidelines also provide, “States should establish and publicize clear procedures for reporting allegations of serious human rights violations, both within their authorities and for the general public.” [178]

The UN Committee Against Torture’s General Comment 3 emphasizes that in the context of restitution for victims of torture, “efforts should be made to address structural causes of violations, including any kind of discrimination, related to, for example, gender, sexual orientation, disability, political or other opinion, ethnicity, age and religion, and all other grounds of discrimination.”[179]

In November 2013, after reviewing Kyrgyzstan’s human rights record, the Committee Against Torture expressed concern with reports of police harassment, arbitrary arrest, ill-treatment, and torture against persons based on sexual orientation and gender identity. The committee recommended that the

Government of Kyrgyzstan ensures prompt, impartial and thorough investigations of all allegations of ill-treatment and torture committed by police and detention officials against LGBT persons or others on the basis of their sexual orientation or gender identity, and prosecute and, upon conviction, punish perpetrators with appropriate penalties.[180]

The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity state that “everyone has the right to be free from torture and from cruel, inhuman or degrading treatment or punishment, including for reasons relating to sexual orientation or gender identity.”[181] The principles call on states to “take all necessary legislative, administrative and other measures to prevent and provide protection from torture and cruel, inhuman or degrading treatment or punishment, perpetrated for reasons relating to the sexual orientation or gender identity of the victim, as well as the incitement of such acts.”[182]

ICCPR articles 2(1) and 26 prohibit discrimination and guarantee equal protection before the law for all persons without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[183] The UN Human Rights Committee has held that the reference to sex in articles 2(1) and 26 should be interpreted as including sexual orientation.[184]

The Kyrgyz government accepted a recommendation about reviewing its compliance with ICCPR nondiscrimination provisions, including with respect to discrimination on the basis of sexual orientation or gender identity, during its May 2010 Universal Periodic Review.[185] To date, the government has not given a clear indication about how it plans to respond to this recommendation.[186]

International guidelines on policing by the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe emphasize the importance of nondiscrimination in policing, and of independent oversight mechanisms in investigating police abuse.

The OSCE Guidebook on Democratic Policing emphasizes that “[a]lleged human rights violations [by police] must be reported and independently investigated.”[187] The guidebook notes that “[without] external oversight mechanisms, police leaders would have the freedom not to investigate or punish misconduct, which could lead to ineffective internal control,” although it points out that effective, internal oversight is also important.[188] The OSCE guidebook adds, “[In] order to fulfill their mandate, external and internal oversight bodies need sufficient resources, legal powers and independence from executive influence.”[189]

In 2009 the commissioner for human rights of the Council of Europe published an opinion concerning “independent and effective determination of complaints against the police.”[190] The starting point of the opinion is that “[an] independent and effective complaints system is essential for securing and maintaining public trust and confidence in the police, and will serve as a fundamental protection against ill-treatment and misconduct.”[191]

The opinion sets out five principles for effective investigation of police complaints, derived from case law of the European Court of Human Rights. The principles include: independence; adequacy [of investigations]; promptness; public scrutiny; and victim involvement.[192] The opinion notes that in some countries, national human rights institutions perform the function of independent police complaints bodies.[193]

The UN Rules for the Protection of Juveniles Deprived of their Liberty

indicate that children deprived of their liberty are highly vulnerable to abuse, victimization, and the violations of their rights.[194] In keeping with the Convention on the Rights of the Child (CRC), deprivation of liberty should be used only as a last resort and for the shortest possible period of time. The CRC, to which Kyrgyzstan is a party and is obliged to follow, prohibits arbitrary detention of children and protects children from torture, cruel, inhuman, and degrading treatment, and other abuses while in police custody.

[169] UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/39/4610, December 1984, adopted by Kyrgyzstan on September 5, 1997.

[170] UN Convention on the Elimination of All Forms of Discrimination against Women, General recommendations made by the Committee on the Elimination of Discrimination against Women, General Recommendation No. 19 (11th session, 1992), http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (accessed December 19, 2013), para. 7; European Court of Human Rights, Şükran Aydin and Others v. Turkey, January 23, 2013, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116031#{"itemid":["001-116031"]}, para. 86.; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, case No. IT-96-23 and IT-96-23/1 - A , June 12, 2002; Inter-American Commission on Human Rights, Raquel Martí de Mejía v. Perú, Case 10.970, report no. 5/96, March 1, 1996.

[171] UN Convention against Torture, arts. 12 and 13.

[172]UN Committee against Torture, General Comment No. 2: Implementation of article 2 by States parties, CAT/C/GC/2, January 24, 2008, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fGC%2f2&Lang=en (accessed December 19, 2013).

[173] UN Convention against Torture, art. 2.1.

[174] Ibid, art. 14.

[175] Optional Protocol to the Convention against Torture and other Cruel, Inhuman  or Degrading Treatment or Punishment, adopted December 18, 2002, A/RES/57/199, entered into force June 22, 2006, http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx (accessed January 6, 2014).

[176] UN Convention against Torture, art. 13.

[177] Committee of Ministers of the Council of Europe, “Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations,” March 30, 2011, https://wcd.coe.int/ViewDoc.jsp?id=1769177 (accessed November 1, 2013).

[178]Ibid.

[179] UN Committee against Torture, General Comment No. 3, CAT/C/GC/3, November 19, 2012, http://www2.ohchr.org/english/bodies/cat/docs/GC/CAT-C-GC-3_en.pdf (accessed May 1, 2013).

[180]UN Committee against Torture, Concluding observations on the second periodic report of Kyrgyzstan, CAT/C/SR.1205, November 12, 2013, http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/KGZ/CAT_C_KGZ_CO-2_15828_E.doc (accessed December 17, 2013).

[181] International Commission of Jurists. Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, Principle 10. March 2007. http://www.refworld.org/docid/48244e602.html (accessed June 13, 2013).

[182]  Ibid.

[183]UN International Covenant on Civil and Political Rights, Treaty Series, vol. 999, December 16, 1966, http://www.refworld.org/docid/3ae6b3aa0.html (accessed 19 December 2013), arts. 2 and 26.

[184] UN Human Rights Committee. Toonen v. Australia, CCPR/C/50/D/488/1992, April 4 1994, http://www.refworld.org/docid/48298b8d2.html (accessed December 19, 2013).

[185] Human Rights Council, National report submitted in accordance with Paragraph 15 (a) of the annex to Human Rights Council resolution 5/1: Kyrgyzstan, A/HRC/WG/6/8/KGZ/1, February 22, 2010, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/111/53/PDF/G1011153.pdf?OpenElement (accessed December 18, 2013).

[186] Human Rights Watch email correspondence with Veronika Yuryeva, advocacy director, Labrys, June 17, 2013.

[187] Organization for Security and Co-operation in Europe. Guidebook on Democratic Policing by the Senior Police Adviser to the OSCE Secretary General, May 2008, http://www.osce.org/spmu/23804 (accessed November 1, 2013), para. 79.

[188] Ibid, para. 86.

[189]Ibid, para. 93.

[190] Council of Europe, “Opinion of the Commissioner for Human Rights concerning Independent and Effective Determination of Complaints against the Police,” March 12, 2009, https://wcd.coe.int/ViewDoc.jsp?id=1417857 (accessed November 1, 2013).

[191]Ibid, para. 29.

[192]Ibid, para. 30.

[193]Ibid, para. 86.

[194] United Nations General Assembly, Rules for the Protection of Juveniles Deprived of their Liberty, A/RES/45/113, December 14, 1990,http://www.un.org/documents/ga/res/45/a45r113.htm (accessed December 19, 2013).