Security during trials
Several trials related to the June violence, which have taken place in southern Kyrgyzstan since August 2010, have been marred by threats and violence before, during and after court sessions, including in the courtroom itself. Aggrieved relatives of the victims, often attending the hearings in large numbers, frequently shout insults and threats at the defendants, the defendants' lawyers and their relatives, disrupting the proceedings.
On several occasions, victims' relatives have also physically attacked participants in trials. On October 13, for example, a Human Rights Watch researcher personally witnessed an attack on a defendant outside the trial venue. Four persons had to seek medical help because of injuries sustained in attacks that day. An attack on a lawyer and her driver the next day prompted several lawyers to announce that they would not continue their work on trials concerning the June violence unless the authorities can guarantee security for them and their families.
During several of these attacks nearby police officers failed to intervene. Inside the court rooms, judges failed to stop or prevent verbal attacks. On some occasions judges made attempts to calm disruptive crowds, even issuing warnings, but they took no action when the warnings were not heeded. In at least two cases the judge ordered a person to leave the court after several warnings, but took no further action when the person failed to do so.
To their credit, government authorities have undertaken some measures to address these problems. We have noticed an increased presence of police during the trials and in some cases police have also escorted lawyers to and from trials. The authorities have also launched criminal investigations into at least two of the most violent attacks.
Recent hearings demonstrate, however, that the atmosphere during trials continues to be hostile and aggressive and in some cases constitutes a threat to defendants and their lawyers. On November 4, several defendants sustained injuries during a trial in the Nooken District Court. Two eyewitnesses told us that after the hearing ended, lawyers and other observers were asked to leave the courtroom first. When the defendants exited the court some time later, several of them seemed to be in pain and one had blood on his face. Two observers told us that they saw police officers kicking and hitting the defendants as they were being led to a police vehicle.
According to media reports, relatives of victims also disrupted a trial in Bishkek against several people charged with killing 78 demonstrators in April 2010. Despite significant police presence, the relatives reportedly attempted to attack the defendants and called for their execution, causing the defense lawyers to flee and the judge to adjourn the hearing.
The attacks and aggressive atmosphere during trials undermine the delivery of justice and fair trial rights. Lawyers have told us that they are afraid to ask some defendants or other witnesses certain questions out of fear of being attacked. In some cases they decided to not call witnesses to the stand-instead relying on written submissions- out of concern for the safety of witnesses. Relatives of the defendants and other interested parties, particularly ethnic Uzbeks, are also often too afraid to attend the trials.
Allegations of ill-treatment and torture
In the course of our research after the June violence we received credible information about the ill-treatment, including through torture, of more than 60 detainees. Some of these cases are described in detail in our August 2010 report, "Where is the Justice?" In several cases we interviewed individuals who had been beaten in custody and we documented marks of beatings on their bodies. Victims told us that the police or security officers beat them to force them to confess to having killed ethnic Kyrgyz or to give testimony against others. In the majority of cases that we documented, victims and relatives also told us that the detaining authorities had asked for bribes in exchange for the promised release of detainees.
In October we continued to receive allegations about ill-treatment and torture in different detention facilities in Osh, although fewer than in June and July. The number of reported arrests had also decreased by October.
Our research also indicated that many detainees do not make formal complaints about this treatment because they fear reprisals. Several lawyers told us that local law-enforcement authorities have routinely deprived detainees of the right to private consultations with their lawyers. This presents serious obstacles to detainees' ability to file complaints about torture and other ill-treatment.
However some detainees have filed formal complaints and several have testified during trials that they were forced to sign documents and admit to crimes that they said they did not commit. For example, at Farrukh Gapirov's trial, his lawyer presented photographs, video footage, and medical documents supporting allegations that Gapirov had been tortured during the initial stages of his detention. The presiding judge eventually acquitted Gapirov on October 26 and instructed the prosecutor's office review the allegations of torture. Gapirov's father has received no information indicating that the authorities have launched any investigation into the torture allegations, however. Instead, the prosecutor's office has appealed the acquittal.
According to information received in October from representatives of the prosecutor's office, prosecutorial authorities had at that time launched only one criminal investigation into allegations of ill-treatment and torture in connection with the June violence. In most cases, the authorities dismissed the allegations after a preliminary prosecutorial inquiry into the allegations. Sources familiar with the sole investigation that has been launched, which concerns the death of Khairullo Amanbaev from injuries he sustained while in custody on June 30, have told us that the investigation has made little progress. The investigation has apparently questioned police officers who were present during his detention, but no others. They deny any wrongdoing. While such interviews are an appropriate step in the investigation, the weight and credibility of the statements must be assessed objectively, and in light of other probative evidence, including the autopsy, other forensic evidence and statements from non-police witnesses, such as people who were in detention at the same time. It should be remembered that human rights standards on the right to life and bodily integrity, renders the state responsible for any death in custody, or death as a result of injuries sustained whilst in detention, unless there is another credible explanation.
Objectivity of the investigation
Statements by a variety of government officials have asserted that there is no ethnic bias in the investigation and prosecution of perpetrators. In November, for example, President Roza Otunbayeva told a gathering of judges that "There is no discrimination against the Uzbek-language population in the judicial trials in the south of Kyrgyzstan."
Official statistics, however, give cause for concern that investigations and prosecutions have not been impartial. In August, the prosecutor's office stated that out of 243 people in detention, 29 were ethnic Kyrgyz. In Osh province, according to the president's November speech, 100 ethnic Uzbeks have been convicted while the corresponding number for ethnic Kyrgyz was 9.
Human Rights Watch research indicates that serious crimes were committed by persons of Kyrgyz ethnicity and by persons of Uzbek ethnicity. The prosecutor's office has said that all people are equal before the law, and that therefore it does not take into consideration the ethnicity of victims or perpetrators. While the intent behind not taking note of a person's ethnicity may be valid, in practice the lack of data about the ethnic breakdown of victims and perpetrators, not only hinders an assessment of the investigation's freedom from ethnic bias, but may in fact help cover up any bias. Even in the absence of publicly available statistics the fact remains that the areas of Osh that were destroyed were mainly ethnic Uzbek neighborhoods, which clearly suggests that people were targeted on the basis of their ethnic identity. In this context we are concerned that prosecution to date of far many more ethnic Uzbek defendants is a result of ethnic bias in the investigation and not a representative reflection of the actual impact of the violence on the communities.
- Ensure security during trials by providing adequate presence of law-enforcement agents inside and outside courts; provide them with appropriate instructions to maintain law and order;
- Conduct a special initiative to provide information about witness protection to lawyers;
- Instruct judges to react decisively to threats, attacks and other disruptions on the territory of the court;
- Investigate and prosecute people who threaten or attack participants in trials;
- Launch prompt, impartial and thorough investigations into all credible allegations of torture and ill-treatment in custody and prosecute perpetrators to the full extent of the law;
- Respect due process guarantees, including the right for lawyers and clients to conduct private consultations;
- Ensure that investigations and prosecution are conducted in an impartial manner irrespective of ethnic nationality of victims or suspected perpetrators.