The Constitution of the Kyrgyz Republic guarantees its adherence to international treaties and agreements, provided that they have taken legal effect.92 To its credit, Kyrgyzstan has ratified many key international instruments; these guarantee equality and freedom from violence for all peopleincluding lesbians and transgender men. Yet failure to prevent, investigate, and punish discrimination and violence based on sexual orientation and gender identity violates Kyrgyzstans obligations under international law.
The International Covenant on Civil and Political Rights (ICCPR), to which Kyrgyzstan acceded on October 7, 1994, requires states to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.93 In the 1994 case of Toonen v Australia,the U.N. Human Rights Committee, the authoritative body responsible for interpreting the ICCPR and monitoring States compliance with their obligations, held that sexual orientation was a status protected from discrimination under the ICCPRs equality clauses. 94 Specifically, it held that the reference to sex in articles 2, para. 1 and article 26 is to be taken as including sexual orientation.95
Likewise, the Convention on the Elimination of All Forms of Discrimination Against Women or CEDAW, which Kyrgystan ratified in 1997, obligates states in article 1 to eradicate "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women." Its article 5.a. commits states to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Both articles are violated when people are singled out for unequal treatment because they fail to conform to social or cultural expectations for women and men.
In its concluding comments on Kyrgyzstan in 1999, the Committee on the Elimination of Discrimination Against Women condemned reports that lesbians were subject to punishment in Kyrgyzstan, and stated, The Committee recommends that lesbianism be reconceptualized as a sexual orientation. The Committees recommendation that lesbian identity be located under the rubric of sexual orientation requires according it the discrimination protections demanded under international law. 96
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, a set of international legal principles drafted by a distinguished group of human rights experts and released in 2007, affirm the standards of the ICCPR and CEDAW. Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. They instruct states to amend domestic legislation accordingly, including by targeting public and private acts of discrimination.97
Finally, Kyrgyz domestic law contains equivalent promises of equality. Article 13 of the Constitution of the Kyrgyz Republic guarantees that every person shall enjoy basic human rights and freedoms from birth.98 The Constitution affirms that all people shall be equal before the law without distinction: No one may be subjected to any discrimination, [and] rights and freedoms of persons shall not be abridged on account of origin, gender, race, nationality, language, creed, political and religious convictions, or on any other account of personal or public nature.99 Furthermore, while the Constitution grants support to folk customs and traditions, it does so conditional on the principle that that they shall not contradict human rights and freedoms.100
The ICCPR requires states to prohibit and prevent torture and other cruel, inhuman, or degrading treatment or punishment, including by private actors.101 The ICCPRs prohibition against torture and cruel, inhuman, or degrading treatment or punishment applies not only to acts that cause physical pain but also to acts that cause mental suffering to the victims.102 As a general principle, states may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.103
The 1993 United Nations Declaration on the Elimination of Violence against Women affirms that violence against women constitutes a violation of the rights and fundamental freedoms of women. 104 Article 1 of the declaration specifically states that the term violence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. The CEDAW Committee recognizes that pervasive sex-based stereotyping perpetuates social prejudices and contributes to gender-based violence.105 The CEDAW Committee proposes a various measures to combat gender-based violence, including instituting effective complaints procedures and remedies for survivors, and providing appropriate medical care and services.
The Yogyakarta Principles 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. The Principles further instruct 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. 106
In 2003, as noted above, Kyrgyzstan adopted the Law on Social-Legal Protection from Domestic Violencethe result of years of lobbying by womens rights groups. As also noted above, implementation of the law remains seriously inadequate.
The Kyrgyz Administrative Code also specifically addresses domestic violence. Article 66-3 imposes an administrative fine on the perpetrator of domestic violence, including physical, psychological, and sexual abuse, when that abuse does not qualify for criminal liability but is found to violate the persons constitutional or other rights, result in light damage to a persons health, cause physical or psychological suffering, or damage a persons physical or psychological developmentregardless of age or sex.
International law dictates that marriages should take place only with the clear consent of both people. Article 1 (1) of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (ratified by Kyrgyzstan in 1997) states that No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.
92 Constitution of the Kyrgyz Republic as amended in October 2007, art. 12, para. 3.
93 International Covenant on Civil and Political Rights, art. 2.1.
94 Nicholas Toonen v Australia, Human Rights Committee, 50th Sess., Case no. 488/1992, UN Doc. CCPR/c/50/D/488/1992.
95 The ICCPR states in article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
96 Report of the Committee on the Elimination of
Discrimination against Women (Fifty-fourth session, 1999), U.N. Doc A/54/38 (Part I), 4 May 1999, p. 128,
97 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, principle 2.
98 Constitution of the Kyrgyz Republic as amended in October 2007, art. 13, para. 1.
99 Ibid., art. 13, para. 3.
100 Ibid., art. 16, para. 1.
101 ICCPR, art. 7.
102 Human Rights Committee, General Comment No. 20: Replaces general comment 7, concerning prohibition of torture and cruel treatment or punishment (Art. 7), October 3, 1992.
103 Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against women (Eleventh session, 1992), U.N. Doc. A/47/38 at 1 (1993).
104 Declaration on the Elimination of Violence against Women, General Assembly resolution 48/104, December 20, 1993.