Kyrgyzstan: Decision to order the partial confiscation of the house of Mr. Azimjan Askarov
New information
KGZ 001 / 0910 / OBS 109.9
Restriction of property rights /
Judicial harassment /
Arbitrary detention
Kyrgyzstan
November 20, 2019
The
Observatory for the Protection of Human Rights Defenders, a partnership
of FIDH and the World Organisation Against Torture (OMCT), has received
new information and requests your urgent intervention in the following
situation in
Kyrgyzstan.
New information:
The
Observatory has been informed by reliable sources about the decision of
the Jalal-Abad Regional Court to order the partial confiscation of the
house of Mr.
Azimjan Askarov, Director of the human
rights organisation “Vozdukh” (Air), who is currently serving a life
sentence on trumped up charges (see background information).
According
to the information received, on September 6, 2019, the Bazar-Korgon
District Court refused to satisfy a claim of the authorities to seize
the property of Mr. Askarov. The
authorities appealed this decision and the hearing has been held on
November 20, 2019 before the Jalal-Abad Regional Court. The Court
overturned the Bazar-Korgon District Court's decision and ordered the
partial confiscation of Mr. Askarov's property in the
amount of 125,000 KGS (1,620 EUR), corresponding to the “moral damage
compensation” awarded to the wife of the killed policeman, given that
his mother recently died and the 50,000 KGS (647 EUR) originally awarded
to her on the same ground can therefore no
longer be claimed.
The
Observatory recalls that on March 11, 2019, Ms. Khadicha Askarova, Mr.
Azimjan Askarov's wife, received a notice from the Oktyabrsky
District Department of Service of Court Bailiffs in Bishkek, dated
February 28, 2019, stating that the house that she is currently living
in would be seized. The decision was issued in connection with the
“moral damage compensation” of 175,000 KGS (around
2,230 EUR), awarded by the Jalal-Abad Regional Court to the family of
the policeman allegedly killed by Mr. Azimjan Askarov (see background
information) as follows : 125,000 KGS (1,620 EUR) to the wife of the
killed policeman and 50,000 KGS (647 EUR) to his
mother. The wife of the killed policeman demanded the property seizure.
The
Observatory expresses its concern over the ongoing attempts to
confiscate the only property of Mr. Azimjan Askarov and his
relatives, and considers this unlawful measure as a means of harassment
and pressure against Mr. Askarov and his family. Confiscation of the
only property of a person is prohibited under the Kyrgys Constitution
and by the decision by the Constitutional Chamber
of the Supreme Court of Kyrgyzstan dated December 23, 2013, N 16-p.
This
is already the second attempt to confiscate Mr. Askarov’s property.
Previously, on September 15, 2010, the Bazar-Korgon District
Court had ordered the confiscation of Mr. Azimjan Askarov’s property as
part of a life sentence handed down against him which was upheld
by the Chuy Regional Court on January 24, 2017.
However,
the Penal Enforcement Code of Kyrgyzstan (Annex to the Section VII,
Chapter 22) prohibits the confiscation of the main residence of a
convicted person or that of their
family members. Mr. Azimjan Askarov’s house, where his wife lives, is
their only residence and therefore, according to Kyrgyz law, cannot be
subject to confiscation, nor to seizure[2].
Since
2010, the Prosecutor's Office of Bazar-Korgon District has conducted
several visits in view of the confiscation of Mr. Azimjan
Askarov's house.
On May 25, 2016, shortly after the United Nations (UN) Human Rights Committee (HRC) requested Kyrgyzstan to release Mr. Azimjan
Askarov, the
court bailiffs and representatives of the State Property Fund of
Kyrgyzstan
(SPFK) paid a visit at Mr. Azimjan Askarov’s house and took photos of
the property. The SPFK explained to Mr. Askarov's wife that they were
implementing a decision adopted by the SPFK itself on April 27, 2016 to
execute the confiscation order of the Bazar-Korgon
District Court. Subsequently, Mr. Askarov's
lawyer filed a lawsuit before the Inter-district Court of Bishkek
requesting it to declare the above-mentioned SPFK decision unlawful.
Before the case was brought to trial, on September 26,
2016, the SPFK annulled its decision.
On
August 16, 2017, the Bazar Korgon District Court of Jalal Abad Oblast considered another lawsuit filed by Mr.
Azimjan Askarov requesting the court to prevent the family’s main and only residence from being seized[3]
. On September 5, 2017, following an appeal, the Bazar
Korgon District Court lifted the order to seize the property due to a
“mistake in the confiscation procedures”[4]
.
Background information:
As
the Director of the human rights organisation “Vozdukh” (Air), Mr.
Azimjan Askarov has been documenting police ill-treatment of detainees
and monitoring the human rights situation
in the province of Jalal-Abad, in particular the mass violence in Bazar
Korgon in June 2010.
On
June 15, 2010, Mr. Askarov was arbitrarily arrested by agents of Bazar
Korgon police department for allegedly having urged ethnic Uzbeks to
take the district official Mr. A. Artykov
hostage, for having ordered the blockade of the Bishkek-Osh highway and
for having urged to attack police officers. One of the attacks caused
the death of a policeman, Mr. Sulaimanov.
On
September 15, 2010, following a mock trial, Mr. Askarov was sentenced
to life imprisonment after he was found guilty of complicity in Mr.
Sulaimanov’s murder. The trial was marred
with irregularities, including alleged torture and the courtroom
intimidation of witnesses by police and of lawyers by the audience. Mr.
Askarov and the other defendants had pleaded not guilty during the
trial. Mr. Askarov’s lawyer, Mr. Nurbek Toktakunov,
asked for a medical examination, which was denied.
On
November 10, 2010, the Court of Appeal upheld the life sentence of Mr.
Azimjan Askarov following another trial marred by irregularities. At
that time, the health of Mr. Askarov had
already severely deteriorated.
On
January 26, 2011, the defence lawyers requested the Supreme Court to
examine and include new evidence in the criminal case, including a
testimony made by Ms. Aziza Abdirasulova,
Director of the human rights organisation Kylym Shamy, that showed
that, in May 2010, Mr. Azimjan Askarov had warned the authorities that
acts of violence were being prepared in Bazar Korgon. According to Mr.
Azimjan Askarov’s lawyer Nurbek Toktakunov, this
warning might have triggered the fabrication of this case. In addition,
defence lawyer Kairat Zagibaev provided evidence showing that Mr.
Askarov was not present at the scene where the incidents took place. The
Supreme Court accepted the new evidence and on
February 8, 2011, the same Court decided to open an investigation into
the conditions of detention in Kyrgyzstan, especially in provisional
detention centres, and to suspend
sine die the trial against Mr. Askarov. This decision was taken
following a petition made by Mr. Nurbek Toktakunov, lawyer of Mr.
Askarov, on the appalling conditions of detention of his client and
other prisoners in the temporary detention facilities
of Bazar Korgon, which have hampered the preparation of the defence.
In
October 2011, Mr. Askarov’s defence team conducted a private
investigation and gathered evidence pointing to the innocence of the
latter and reporting use of torture and inhuman
treatment against him.
On
December 20, 2011, the Supreme Court upheld the sentence to life
imprisonment. After years of pressure, in May 2013, a new investigation
was ordered by the Vice Prosecutor General
of the Kyrgyzstan Republic, but was closed nine months later for lack
of legal basis.
On
September 3, 2014, the Supreme Court overturned the Bishkek District
Court decision of April 30, 2014 which requested the re-opening of Mr.
Askarov’s case. The hearing was marked
by acts of intimidation against Mr. Askarov.
However,
on January 24, 2017, the Chuy Regional Court of Kyrgyzstan confirmed
the life sentence against Mr. Azimjan Askarov following
a retrial marked by bias and procedural irregularities, including court
refusal to hear some defence witnesses, inaction towards threats and
violent behaviour of the deceased police officer's wife, restrictions to
access to the courtroom, failure to investigate
credible allegations of torture, and inaction towards acts of pressure
and intimidation targeting defence witnesses and lawyers.
On
July 30, 2019, the Chuy Regional Court of Kyrgyzstan was to review the
conviction of Mr. Askarov following the mitigation of several provisions
of the new Criminal Code of Kyrgyzstan.
In 2017, Mr. Askarov had been found guilty of violating, inter alia,
Article 30–340 of the Criminal Code of the Kyrgyz Republic (“complicity
in murder of law-enforcement officer”) which carried life imprisonment
as the maximum sentence, but this provision
was removed from the new Criminal Code of Kyrgyzstan, and, according to
Mr. Askarov’s lawyer, Mr. Valerian Vakhitov, the defender has already
served the term in respect to the other charges brought against him[8]
.
At
the July-30 hearing, despite requests from Mr. Askarov himself and his
lawyer Mr. Valerian Vakhitov, Mr. Askarov was not allowed to attend the
retrial, in violation of Article 14.3
(d) of the International Covenant on Civil and Political Rights (“In the determination of any criminal charge against him, everyone shall be entitled [...] to be tried in his presence”).
During
this hearing, Mr. Vakhitov pleaded in favour of Mr. Askarov’s release
pursuant to the provisions of
the new Criminal Code, and stressed the deterioration of Mr. Askarov’s
health. However, the state Prosecutor alleged that the cases of convicts
sentenced to life imprisonment shall not be subject to revision. The
Court followed the state Prosecutor's position
and upheld the sentence, stating that under the article on which Mr.
Askarov was convicted, the new Criminal Code also provides for life
imprisonment.
After
the retrial, Mr. Askarov’s advocate stated that the state Prosecutor
did not get acquainted with the
legislation, according to which they should have reclassified the case:
the law of the Kyrgyz Republic No. 10 of January 24, 2017, that
establishes the procedure for the entering into force of the new
Criminal Code, indeed provides for the revision of criminal
cases under Article 340 which was repealed in the new Code.
Mr.
Askarov’s defence appealed the decision of the Chuy Regional Court to
the Supreme Court of the Kyrgyz Republic. The hearing will take place on
December 2, 2019 and Mr. Askarov demanded
the authorities’ permission to attend the hearings.
Mr.
Askarov has already served nine years in prison following an unfair
trial marred by a flawed investigation, bias, lack of substantial
evidence and allegations of torture and the
absence of investigation thereof.
Actions requested:
Please write to the authorities of Kyrgyzstan, urging them to:
i.
Immediately and unconditionally release Mr. Azimjan Askarov as his
detention is arbitrary since it only seems to aim at punishing him for
his human rights activities, and severely
contributes to the deterioration of his medical condition;
ii. Comply with the national legislation regulating property confiscation;
iii. Provide Mr. Azimjan Askarov with adequate compensation in accordance with the decision of the
;
iv.
Undertake a prompt, impartial and thorough investigation into the
claims of torture, otherwise, ill-treatment of Mr. Azimjan
Askarov with a view to publishing the results and bringing those
responsible to justice in accordance with international standards;
v.
Put an end to all acts of harassment, including at the judicial level,
against Mr. Azimjan Askarov and all human rights defenders in
Kyrgyzstan;
vi.
Ensure Mr. Askarov's rights to due process and to a fair trial
including by ensuring that the recent changes in the Criminal Code are
duly respected thus allowing for a revision
of his case;
vii.
Conform with the provisions of the UN Declaration on Human Rights
Defenders, adopted by the General Assembly of the United Nations on
December 9, 1998, especially Articles 1 and
12.2; and
viii.
More generally, ensure respect for human rights and fundamental
freedoms in accordance with international human rights standards and
international instruments ratified by Kyrgyzstan.
Addresses :
-
Mr. Sooronbay Jeenbekov, President of the Kyrgyz Republic, Chuy Ave, 205, Bishkek,
Kyrgyzstan Tel: +996 312 63 91 17, Fax: + 996312626191
- Mr.
Kashkar Junushaliev, Minister of Internal Affairs, Frunze st. 469,
Bishkek, Kyrgyzstan, Tel: +(996 312) 26 60 54, Fax: + 996312682044 / +
996312623853, email:
secretariat@mvd.kg
- Mr.
Marat Dzamankulov, Minister of Justice, 32 M. Gandi Str., 720010
Bishkek, Kyrgyzstan, Tel: +996 (312) 656490, Fax: +996 (312) 656502,
email:
jm.26@mail.ru
- Ms.
Otkurbek Dzhamshitov, General Prosecutor Office, 39 Erkindik Avenue,
720040 Bishkek, Kyrgyzstan,Tel: +996 (312) 663373, Fax: +996 (312)
661734
- Permanent
Mission of Kyrgyzstan to the United Nations in Geneva, Avenue Blanc 51
(3rd Floor) 1202 Geneva, Tel: +41 22 707 92 20, Email:
kyrgyzmission@bluewin.ch,
Fax: +41 22 707.92.21
- Embassy
of Kyrgyzstan in Brussels, Abdijstraat 47 1050 Brussels, Belgium, Tel: +
32 2 640 18 68 / + 32 2 640 38 83, Fax: + 32 2 640 01 31, Email:
aitmatov@infonie.be
- Mr. Mamytov Tokon Bolotbekovich, Kyrgyz Republic Akyikatchy (Ombudsman), +996 (312) 66-32-80
ombudsman@inbox.ru
- Ms Bolormaa Amgaabazar, World Bank Representative in the Kyrgyz Republic, niosipenko@worldbank.org,
dpccsecretariat@outlook.com
- Mr. Michaël Roux, French Ambassador to Kyrgyzstan, Embassy's coordinator Guzel , Email :
guzel.ishenova@diplomatie.gouv.fr
- Ms.
Natalia Gherman, Special Representative of the United Nations
Secretary-General for Central Asia, @Natalia_Gherman / press contact:
muhiyeva@un.org
-
Mr. Peter Burian EU Special Representative for Central Asia, @EUSR_CA
- Mr. Eduard Auer, Head of EU Delegation,
Eduard.AUER@eeas.europa.eu
-
Mrs. Charlotte Adriaen, Head of Cooperation of the Delegation of the European Union to the KR, charlotte.ADRIAEN@eeas.europa.eu
Please also write to diplomatic representations of Kyrgyzstan in your respective countries.
***
Paris-Geneva, November 20, 2019
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.
The
Observatory for the Protection of Human Rights Defenders (the
Observatory) was created in 1997 by FIDH and the World Organisation
Against Torture (OMCT). The objective of this programme is to intervene
to prevent or remedy situations of repression against human rights
defenders. FIDH and OMCT are both members of
ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.
[2] Article
119 Part 4 of the Criminal Procedure Code of Kyrgyzstan stipulates that
seizure cannot be imposed on property that is not subject to
confiscation.
[8]
The decision of Bazar-Korgon District Court
(Judge Mr. N. Alimkulov) dated September 15, 2010 sentenced Mr. Azimjan
Askarov to 9 years of imprisonment under Articles 28, 30, 227 Part 2 §
1, 3 of the Criminal Code (hostage taking); to
1 year of imprisonment under Article 241 Part 1 (illegal possession of
firearms); to 5 years of imprisonment with deprivation of the right to
occupy certain positions or engage in certain activities under Article
299, Part 2 § 1 (inciting hatred); to 9 years
of imprisonment under Article 233§1, to 4 years of imprisonment under
Article 233§2 and 3 years of imprisonment under Article 233§3
(organisation of riots); and to life imprisonment under Article 30-340
(complicity in the murder of a law enforcement officer).
He was acquitted for lack of corpus delicti under Article 299-2 part 1
of the Criminal Code (for more details see an ICJ legal opinion on Mr.
Askarov's retrial:
https://www.icj.org/kyrgyz-republic-icj-legal-opinion-on-askarov-retrial-concludes-his-conviction-should-be-quashed/).