Committee Opinion | Doc. 13477 | 07 April 2014
Request for Partner for Democracy status with the Parliamentary Assembly submitted by the Parliament of the Kyrgyz Republic
Committee on Legal Affairs and Human Rights
A. Conclusions of the committee
(open)
The committee supports the proposed
draft resolution. However, the committee notes that the human rights situation
in the Kyrgyz Republic is still far from being compliant with international
human rights standards and wishes to emphasise some issues, including
continuous use of torture or ill-treatment, impunity of perpetrators of
such acts, lack of independence of the judiciary and threats and
acts of intimidation towards human rights defenders and civil society. B. Proposed amendments
(open)Amendment A (to the draft resolution)
In the draft resolution, replace paragraph 14 by the following paragraph:
“In this context, pervasive corruption, an ethnically unbalanced judiciary lacking impartiality and independence, continued use of torture, impunity of law-enforcement agents for the latter, acts of intimidation of civil society and still unresolved consequences of inter-ethnic tensions cause very serious concern and must be addressed as matters of priority, including in the framework of future co-operation between the Council of Europe and Kyrgyzstan as partners for democracy.”
Amendment B (to the draft resolution)
In the draft resolution, paragraph 15.1, after the words “and improving the electoral”, insert the word “legal”.
Amendment C (to the draft resolution)
In the draft resolution, at the beginning of paragraph 15.10, insert the following words: “stepping up efforts to ensure respect of the right to a fair trial, in particular by ensuring that the right to defence is respected in practice and”.
Amendment D (to the draft resolution)
In the draft resolution, replace paragraph 15.12 with the following paragraph:
“reinforcing the training of judges, prosecutors, prison staff, law-enforcement agents and lawyers as regards respect for international human rights standards;”
Amendment E (to the draft resolution)
In the draft resolution, after paragraph 15.12, insert the following paragraph:
“erasing practices of arbitrary detention;”
Amendment F (to the draft resolution)
In the draft resolution, replace paragraph 15.13 with the following paragraph:
“effectively implementing international norms on the prevention of torture and inhuman or degrading treatment of persons deprived of their liberty; fighting impunity for torture and ill-treatment, in particular by introducing an effective complaint mechanism against such acts;”
Amendment G (to the draft resolution)
In the draft resolution, replace paragraph 15.14 with the following paragraph:
“improving conditions of detention as well as the effectiveness of the national prevention mechanism, in line with the United Nations prison-related norms and standards;”
Amendment H (to the draft resolution)
In the draft resolution, after paragraph 15.19, insert the following paragraph:
“refraining from adopting laws aimed directly or indirectly at restricting civil society activities;”
Amendment I (to the draft resolution)
In the draft resolution, after paragraph 15.19, insert the following paragraph:
“refraining from harassing human rights defenders and civil society activists and protecting them against attacks or other acts of intimidation by non-State actors; releasing Mr Azimjon Askarov and guaranteeing him a fair trial;”
Amendment J (to the draft resolution)
In the draft resolution, at the end of paragraph 18.1, add the following words: “, on the understanding that it will regularly inform the Assembly on the state of progress in implementing Council of Europe principles;”
C. Explanatory memorandum by Mr Agramunt, rapporteur for opinion
(open)Amendment A (to the draft resolution)
Explanatory note: This amendment aims to strengthen the draft
resolution by putting more emphasis on human rights problems, by
adding the words “impunity of law-enforcement agents for the latter,
acts of intimidation of civil society” after “continued use of torture”.
Besides the areas of concern mentioned in the paragraph in question,
impunity of law-enforcement agents for acts of torture or ill-treatment
remains a problem, especially as there is no effective complaint
mechanism in this respect (as stated, for example, by the United
Nations and prominent NGOs ). Recently, some NGOs have also
reported acts of intimidation of civil society, including towards
human rights defenders dealing with LGBT issues, corruption or torture
cases or simply criticising the government . What is more, harassment towards
LGBT activists is encouraged by members of parliament. These two
problems should be included in paragraph 14 of the draft resolution.
Moreover, this paragraph should also state that all issues mentioned
therein raise concern, which is not only “particular”, but even
“very serious”.
Amendment B (to the draft resolution)
Explanatory note: As stated in paragraph 57 of the report by Mr Çavuşoğlu, there are still some shortcomings in the election legislation of the Kyrgyz Republic. Therefore, I propose to add the word “legal” before “framework” to have a more accurate wording.
Amendment C (to the draft resolution)
Explanatory note: This amendment aims to stress the need not
only to ensure the impartiality and independence of the justice
system in general, but to guarantee the right to a fair trial in
particular. NGOs reported several cases of unfair trials, based
on fabricated charges, threats and acts of aggression against defendants
and defence lawyers within and outside the courtroom, especially
in relation to the 2010 incidents of ethnic violence in the south
of the country (see also paragraphs 100 and 102
of the report by Mr Çavuşoğlu). The need to ensure fair trials was
also stressed by the United Nations High Commissioner for Human
Rights.
Amendment D (to the draft resolution)
Explanatory note: This amendment aims to reinforce paragraph 15.12 by replacing the words “providing better training” by “reinforcing training” and by adding prosecutors and lawyers as other legal professionals who should also benefit from training on international human rights standards.
Amendment E (to the draft resolution)
Explanatory note: The use of arbitrary detentions is still
quite frequent in Kyrgyzstan according to reports by United Nations
bodies (see the Human Rights Council resolution of June 2011, quoted
in paragraph 108 of the report by Mr Çavuşoğlu, and the report by
the United Nations special rapporteur on torture ). As arbitrary detention violates
one of the most fundamental human rights, I propose to add a new
sub-paragraph to highlight the need for the Kyrgyz authorities to
fight this phenomenon.
Amendment F (to the draft resolution)
Explanatory note: This amendment aims to reinforce paragraph
15.13 by replacing the word “legislation” by “international norms”
and thus by stressing the need to comply with international legal
standards on the prevention of torture . As mentioned above (under Amendment A),
the impunity of law-enforcement agents remains a serious problem
and the Kyrgyz system lacks an effective mechanism of complaint
against abuses by such agents. Therefore, this amendment also aims
to put emphasis on this need by adding, at the end of this paragraph,
the words “in particular by introducing an effective complaint mechanism
against such acts”.
Amendment G (to the draft resolution)
Explanatory note: This amendment proposes to add the words
“as well as the effectiveness of the national prevention mechanism”
after “improving conditions of detention”. It aims to improve the
effectiveness of the national prevention mechanism, which was established
by law in 2012 under the Optional Protocol of the United Nations
Convention against Torture (OP-CAT). In 2013, Kyrgyzstan was the
first Central Asian country to create a National Center for the
Prevention of Torture. However, despite this positive
development, it is premature to assess its effectiveness and, according
to NGOs, the authorities still either refuse to conduct investigations
into torture cases or unduly protract them.
Amendment H (to the draft resolution)
Explanatory note: I propose to add a new sub-paragraph aimed
at stressing the need to refrain from adopting new laws which may
directly or indirectly restrict NGO activities and lead to a crackdown
on civil society. The reason to do so is related to the 2013 proposals
by some MPs and the government to adopt laws that would impose burdensome
reporting obligations and restrictions on NGOs – a draft law on
money laundering, a draft “treason law” and a draft “foreign agents”
law. Although the latter two proposals
have not been approved by the Kyrgyz Parliament, it is not clear
whether they have been definitively withdrawn from the legislative process.
Amendment I (to the draft resolution)
Explanatory note
This amendment aims to stress the need to ensure a conducive
environment for human rights defenders. As stated in the previous
reports of our committee on the situation of human rights defenders, States are bound to refrain from
harassing them and to protect them against attacks or other acts
of intimidation by non-State actors. As several cases of recent
attacks or threats towards human rights defenders, including lawyers
and activists dealing with LGBT rights, have been reported by prominent
NGOs, it will be useful to include this problem
among the specific issues raised in paragraph 15 of the draft resolution.
Moreover, the amendment aims to call on the Kyrgyz authorities to
release Mr Azimjon Askarov, an ethnic Uzbek human rights defender who
worked on police ill-treatment of detainees and was sentenced to
life in prison, reportedly on politically motivated and fabricated
charges (see section 7.4 of the report by Mr Çavuşoğlu).
Amendment J (to the draft resolution)
Explanatory note
This amendment refers to the formal criteria mentioned in Rule 61.2 of the Rules of Procedure of the Assembly. The Committee on Political Affairs and Democracy considered that the absence of a clear commitment to regularly inform the Assembly on the state of progress in implementing Council of Europe principles in the request of the Kyrgyz Parliament (see letter of the Speaker of the Kyrgyz Parliament of October 2011) was not per se an obstacle to granting this status. The Assembly automatically reviews the fulfilment of the commitments every two years (see section 2 of the report by Mr Gross and paragraph 20 of the draft resolution). However, from the legal point of view, the missing reference in the request by the Kyrgyz Parliament should be remedied. The easiest way is for the Kyrgyz Parliament to undertake to provide such information to the Assembly at reasonable intervals. That is why I propose to include a reference to this obligation in paragraph 18.1.