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Kazakhstan: Letter to the Prosecutor General regarding 29 Asylum Seekers

To the Prosecutor General of the Republic of Kazakhstan
Mami K. A.
The Prosecutor General of the Republic of Kazakhstan
8, Orynbor St., House of Ministries, Entrance № 2
010000, Republic of Kazakhstan, Astana

Via fax: +7 7172 502534, +7172 33 3928
Via email: procuror@nursat.kz

Dear Kairat Abdrazakovich:

I am writing to express serious concern over the fate of at least 29 asylum seekers, most of whom are Uzbek citizens, currently in the custody of Kazakh authorities.  (See Appendix of Asylum Seekers in Detention as of December 2, 2010 attached to this letter).  According to fellow Uzbek asylum seekers with whom these men are acquainted, these individuals are all devout followers of Islam and have fled Uzbekistan because they fear persecution based on their religious affiliation.  While not charged with any offenses under Kazakh law, some or all of these individuals are reportedly wanted by Uzbek authorities on "religious extremist" charges under the Uzbek Criminal Code.  As detailed more fully below, for well over a decade, authorities in Uzbekistan have waged an unrelenting campaign of persecution against Muslims who practice their faith outside strict state controls or who belong to unregistered religious organizations, with thousands incarcerated for non-violent offenses.  During this period, Human Rights Watch has documented numerous cases of arbitrary detention, ill-treatment, torture, and deaths in custody of individuals accused of "religious extremist" crimes in Uzbekistan.  If these men are forcibly returned to Uzbekistan, they face a grave risk of torture and ill-treatment. 

Our concern is heightened further by reports that Kazakhstan has already extradited to Uzbekistan four men who had sought asylum who were previously detained with those currently in custody.  According to research conducted by Human Rights Watch, on September 8, 2010, authorities extradited Khurshid Kamilov, a Kyrgyz citizen and ethnic Uzbek, to Uzbekistan.  According to various sources, he is now being held at the Tashkent city prison.  We understand that on September 27, Kazakh authorities extradited Saidakhmad Kholmatov (b. 1974), an Uzbek citizen, to Uzbekistan, although we have been unable to confirm this directly.  On October 30, 2010, authorities also extradited Umarali Abdurakhmanov (b. 1975) to Uzbekistan.  Abdurakhmanov is a Tajik citizen and ethnic Uzbek asylum seeker detained earlier this year in the city of Taraz.  Finally, Human Rights Watch learned that on November 10, 2010, Rasul Rakhmonov (b. 1987), an Uzbek citizen, was also extradited to Uzbekistan.

Given the grounds on which the Uzbek government has reportedly sought the extradition of these men and its abysmal human rights record which has been well-documented and publicized by numerous authoritative bodies, these extraditions and any further forced returns would constitute violations of Kazakhstan's domestic and international obligations not to return any individuals to any place where they are likely to face torture or cruel, inhuman and degrading treatment.  This obligation exists regardless of whether these men are considered refugees under the 1951 Convention Relating to the Status of Refugees (Refugee Convention).

In accordance with Kazakhstan's domestic and international obligations, including the UN Convention against Torture and the International Covenant on Civil and Political Rights (ICCPR), we urgently call on you to prevent any further forced returns of any remaining asylum seekers to Uzbekistan.  Moreover, in accordance with the Refugee Convention and Kazakhstan's Law on Refugees, we urge you to ensure that each detained asylum seeker and his relatives are given prompt access to careful, thorough, and individualized refugee status determinations in which full due process rights are protected.  Kazakhstan's Prosecutor General should prevent the forced return of these individuals to Uzbekistan and suspend extradition proceedings until after the merits of each asylum case-and the possibility of torture on return-have been thoroughly examined by the court.  In addition, Kazakh authorities should ensure that the wives and children of the detained asylum seekers are also given access to refugee status determination procedures where their due process rights are protected.

Background on the Detained Asylum Seekers

As described in a letter Human Rights Watch sent to your office on June 11, the majority of the 29 individuals currently detained were taken into custody during raids conducted by Kazakh migration police and plainclothes agents believed to be from the Committee for National Security (KNB) between June 9 and 11, 2010.  Human Rights Watch has learned that in addition to those detained in June other individuals associated with this group of asylum seekers were previously detained by law enforcement authorities in Almaty as well as other cities across Kazakhstan, including Taraz and Satpaev.  Since June, other ethnic Uzbek asylum seekers have also been detained by authorities in Almaty.  Approximately half of the asylum seekers are being held by the Department of Internal Affairs (DVD) in Almaty, and the others are reportedly in KNB custody.

Almost all of the 29 individuals now in detention had earlier registered as asylum seekers with Kazakh authorities before they were detained pursuant to Kazakhstan's Law on Refugees, which came into force in January 2010.  Among this group of detainees, 17 had also claimed asylum with, and been recognized as mandate refugees by, the United Nations High Commissioner for Refugees (UNHCR), a status which was reportedly withdrawn following their arrest.  With the exception of one asylum seeker who was eventually released and received provisional refugee status under Kazakh law, all of the individuals in custody have been denied refugee status by Kazakhstan's Central Commission on the Determination of Refugee Status and four men have been extradited to Uzbekistan.

As noted above, on September 8, 2010, Kazakh authorities extradited one of the individuals in custody, Khurshid Kamilov, a citizen of Kyrgyzstan, to Uzbekistan, reportedly pursuant to an extradition request issued by the Uzbek government.  On September 13, the Almaty Deputy Prosecutor announced that the General Prosecutor's office had decided to extradite the remaining asylum seekers.  In the two months since this announcement, Kazakh authorities have extradited at least three more of the detained asylum seekers.

Other than generally referring to the existence of extradition requests issued by Uzbek authorities, the Kazakh government has not identified the specific charges brought against these men or otherwise clarified the legal basis for their continued detention since June.  Many but not all of the asylum seekers have received access to a lawyer to assist them in appealing the decisions denying them refugee status.  However, none of the detainees has received access to legal counsel who could represent them in proceedings to appeal the decisions ordering their extradition to Uzbekistan.

Religious Persecution in Uzbekistan

Human Rights Watch has monitored closely the human rights situation in Uzbekistan since the early 1990s and has maintained a field office in Tashkent since 1996.  Throughout this time, Human Rights Watch has produced many reports and other materials exposing the grave human rights situation in Uzbekistan.  For more information about Human Rights Watch's work on Uzbekistan, please see https://www.hrw.org/en/europecentral-asia/uzbekistan. Of particular relevance are our 319-page report on religious persecution, "Creating Enemies of the State" (available at https://www.hrw.org/en/reports/2004/03/29/creating-enemies-state-0) and our 90-page report on torture, "Nowhere to Turn" (available at https://www.hrw.org/en/reports/2007/11/05/nowhere-turn).

According to fellow asylum seekers and statements made by the Prosecutor General's office, some or all of the 29 detained individuals are wanted by authorities in Uzbekistan pursuant to extradition requests based on various articles of the Uzbek Criminal Code, including membership in "illegal religious or extremist organizations," (article 244-2) and "attempts to overthrow the constitutional order" (article 159).  Several fled Uzbekistan after learning that they were accused of violations of these and other articles relating to religious extremism.  These and related articles of the Uzbek Criminal Code are those commonly used by Uzbek authorities to target and imprison Muslims and other religious believers who practice their faith outside state controls or who belong to unregistered religious organizations. 

For over a decade, Uzbek authorities have waged an unrelenting campaign of persecution against such individuals, with thousands incarcerated for non-violent offenses.  The Uzbek government has a well-documented record of unlawful arrest or detention of those who meet privately for prayer or Islamic study, those who belong to Islamic groups not registered with the government, or those who possess Islamic literature not generated by the government, often singling them out for no reason other than the peaceful expression of their religious beliefs.  Peaceful religious believers are often branded "extremists," with at least dozens of new arrests and convictions on charges related to extremism each year.  Human Rights Watch has documented numerous cases of arbitrary detention, ill-treatment, and torture of people in custody accused of religious extremism in Uzbekistan.

The legal basis for this campaign has been the "Law on Freedom of Conscience and Religious Organizations," adopted in 1998, and several subsequent amendments to the Criminal and Administrative Codes.  Article 244-1 of the Criminal Code, added in 1998, in particular, criminalizes the "publishing, storing, and distributing of materials containing ideas of religious extremism and fundamentalism."  Since Uzbekistan's laws lack any precise definition of the terms "religious extremism" and "fundamentalism," they can be applied to practically any kind of religious literature and, in practice, are used expansively to persecute citizens for their perceived religious or political convictions.  Article 244-1 fails to make a distinction between peaceful expression of "fundamentalist ideas" and calls to violence.  Beginning in 1999, thousands of Uzbeks have been charged and sentenced under this article of the Criminal Code.

Article 244-2 of the Criminal Code criminalizes "the creation of, leadership of, [or] participation in religious extremist, separatist, fundamentalist or other forbidden organizations," even where the organization's activities are non-violent.   Thousands of Uzbek citizens have been sentenced to prison terms under article 244-2.  Under Uzbek law, it is a criminal offense punishable by up to five years imprisonment, to organize an "illegal" religious group (a group that is merely unregistered) or to resume such a group's activities after it has been denied registration or ordered to disband.  Individual participation in an unregistered group is a crime punishable by up to three years in prison. The Uzbek criminal code distinguishes between "illegal" groups, which are not properly registered, and "prohibited," alleged extremist, groups.  Those who participate in prohibited groups face imprisonment for up to 20 years. However, according to the United States Commission on International Religious Freedom, Uzbek courts have often ignored the distinction between illegal and prohibited groups, and convicted alleged members of unregistered Muslim groups under both statutes.

Likewise, thousands of independent Muslims in Uzbekistan have been convicted on charges of "attempting to overthrow the constitutional order" (article 159), also reportedly listed in the extradition requests of at least some of the detained asylum seekers.  The Uzbek government has used article 159 quite broadly, including almost any activity or idea that is at variance with official ideology -even if these activities have not been accompanied by violence.  Thousands of individuals convicted under these statutes continue to languish in prison.

Human Rights Watch and other local and international human rights groups have extensively documented a clear pattern whereby the convictions in the cases described above are based on confessions and in many cases there are allegations that the confessions were made through torture or ill-treatment.  Torture and ill-treatment remain endemic in prisons, pretrial facilities, and local police and security service precincts, and includes the threat or use of physical violence, including sexual violence, stress positions, and suffocation through the use of gasmasks. Torture is used to force people to renounce their beliefs or to implicate themselves or others.  In 2003, the U.N. Special Rapporteur on Torture, Theo van Boven, found torture in Uzbekistan to be "systematic."  In 2008, the UN Committee Against Torture confirmed numerous, on-going, and consistent allegations of the use of torture, often before formal charges are brought and often to extract confessions to be used in criminal proceedings. 

Kazakhstan's International Obligations

As a party to the 1951 Refugee Convention, Kazakhstan has an obligation not to return people to persecution or who face threats to their lives or freedom upon return. The UN Convention against Torture and the International Covenant on Civil and Political Rights, to which Kazakhstan is also a party, prohibit without exception any returns to risk of torture.  The UN Human Rights Committee, the body that interprets and oversees the implementation of the ICCPR, has repeatedly stated in its General Comments and its jurisprudence that the extradition of a person to a country where he risks torture is prohibited.

These international obligations prevail over Kazakhstan's obligations under bilateral and regional agreements relating to extradition. The UN Human Rights Committee 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."

While not directly binding on Kazakhstan, there are multiple judgments issued by the European Court of Human Rights ruling that the forcible return of individuals to Uzbekistan would be a breach of the prohibition on torture, because a serious risk of torture and ill-treatment exists for detainees in Uzbekistan, in particular for persons charged with politically-motivated crimes.

Most recently, on November 4, 2010 in Sultanov v Russia, the Court affirmed its findings that ill-treatment of detainees still persists in Uzbekistan and that "no concrete evidence has been produced to demonstrate any fundamental improvement in this area in this country for several years. Given these circumstances, the Court considers that ill-treatment of detainees is a pervasive and enduring problem in Uzbekistan." The Court ruled that since the applicant, Mr Nabi Sultanov, had an arrest warrant issued against him it was likely "he would be placed in custody directly after his extradition and would therefore run a serious risk of ill-treatment." His extradition from Russia to Uzbekistan was therefore barred as a violation of Article 3 (prohibition of torture) of the European Convention on Human Rights.

Likewise on July 8, 2010, in Isakov v. Russia, another extradition case from Russia to Uzbekistan, the court had also found that the ill-treatment of detainees remains "a pervasive and enduring problem in Uzbekistan" and that given that both men had been charged with politically-motivated crimes and that arrest warrants had been issued for them they would be placed in custody directly after extradition and would run a "serious risk of ill-treatment."  

On June 10, 2010, in Garayev v. Azerbaijan, the Court had ruled that the extradition of Shaig Garayev from Azerbaijan to Uzbekistan would violate the same prohibition of torture.  The court also stated that "any criminal suspect held in custody [in Uzbekistan] faces a serious risk of being subjected to torture or inhuman or degrading treatment both in order to extract a confession and as a punishment for being a criminal."

The court reached similar conclusions in earlier cases of extradition from Russia to Uzbekistan, including Ismailov and others v. Russia (2008) and Muminov v. Russia (2008).

Human Rights Watch's Recommendations to the Government of Kazakhstan

We call upon you as a matter of urgency to confirm the number, identity, whereabouts, and charges against the asylum seekers in custody, to grant them immediate access to legal counsel to represent them in their asylum appeals and, if those appeals are rejected to represent them in any appeal they might lodge against extradition.  Kazakh authorities should ensure that no extraditions occur without due process and without careful, thorough, and individualized refugee status determinations.  Moreover, Kazakhstan should ensure that no detainee is deported unless all their asylum appeals have been exhausted and unless a court of law has concluded that they would not face a risk of ill-treatment if extradited. In the case of extraditions or forcible removals to Uzbekistan, in particular where the return of an individual is sought by the Uzbek authorities, Human Rights Watch concurs with the findings of the European Court that there is a persistent risk of ill-treatment.

Human Rights Watch fears that the four asylum seekers who were forcibly returned to Uzbekistan and the at least 29 asylum seekers who remain in detention are at serious risk for torture and ill-treatment.  Given the grounds on which the Uzbek government has reportedly sought the extradition of these men, and its abysmal human rights record which has been well-documented and publicized by numerous authoritative bodies, further extraditions would violate Kazakhstan's domestic and international obligations, regardless of whether the men are refugees within the terms of the Refugee Convention.  Accordingly, Human Rights Watch urges you not to return forcibly any of the detained asylum seekers to Uzbekistan and ensure the fundamental, non-derogable right to be protected from refoulement is respected.  In this regard, we also strongly urge you to reject any resort to assurances provided by the Uzbek government regarding the future treatment of returnees.  Reliance on any such assurances in no way absolves a state from its obligations with respect to the ban on torture. Particularly in the context where the practice of torture in Uzbekistan is described by reputable international sources as ‘systematic,' any assurances from the Uzbek authorities that any individuals returned would not be subject to ill-treatment could not constitute a reliable guarantee against the risk of ill-treatment.

Finally, Kazakh authorities should ensure that the wives and children of the detained asylum seekers are also given access to refugee status determinations where their due process rights are protected. 

Particularly in view of the fact that Kazakhstan holds the OSCE chairmanship, it is especially incumbent on the government of Kazakhstan to fully comply with its international obligations and to respect international norms and standards. 

Thank you for your care and attention to this urgent matter. 

Sincerely,

Rachel Denber
Acting Executive Director
Europe and Central Asia Division
Human Rights Watch

cc:
Mr. Kanat Saudabayev
Ministry of Foreign Affairs
35, No.1 Street
01000, Republic of Kazakhstan, Astana
Fax: +7 7172 72 05 16
Email: midrk@mid.kz

Mr. Askar Shakirov
National Ombudsman of the Republic of Kazakhstan
The Republic of Kazakhstan,
010000, Astana, 8 Orynbor str.,
Ministry house, 15 entrance
Fax: +7 7172 74 05 48

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