Kyrgyzstan: Kempirabad case. Denial of fair trial.

Perpetrators of human rights abuses, torture, politically motivated persecution must be sanctioned

On June 7, 2024, the judge of the Pervomaisky District Court of Bishkek Marat Sydykov illegally and unreasonably decided to end the investigative part of the trial. Grossly violating the requirements of the Constitution of the Kyrgyz Republic and the Code of Criminal Procedure, the court proceeded to the judicial debate, while the materials of the criminal case were not examined at all, witnesses from the prosecution side were not questioned, the petitions of the lawyers and their defendants were not considered, and the evidence submitted by the lawyers confirming the innocence of the accused were not accepted for consideration during the trial.
Thus, the court continued the violations of the requirements of the Kyrgyz Republic’s Constitution, criminal and criminal procedural legislation, and international norms committed by the investigation.
The court grossly violated the requirements of Art. 1, 23, 32, 39, 55, 57, 59, 61 of the Constitution of the Kyrgyz Republic of May 5, 2021, as well as the requirements of the Universal Declaration of Human Rights, adopted by resolution 217 A (III) of the UN General Assembly of December 10, 1948, the International Covenant on Civil and Political Rights, adopted by resolution 2200 A (XXI) of the General Assembly of December 16, 1966, the Optional Protocol to the International Covenant on Civil and Political Rights.
According to the requirements of Art. 1, 23, 32, 39, 55, 57, 59, 61 of the Constitution of the Kyrgyz Republic of May 5, 2021, Art. 2, 7 of the Universal Declaration of Human Rights adopted by resolution 217 A (III) of the UN General Assembly of December 10, 1948:

• No one shall be obliged to prove his innocence; any doubts about guilt shall be interpreted in favour of the accused.
• Everyone shall be proven guilty according to the procedure established by law.
• Everyone is guaranteed judicial protection of his or her rights and freedoms under the Constitution, laws, international treaties to which the Kyrgyz Republic is a party, and universally recognized principles and norms of international law.

The International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966, and the requirements of the Optional Protocol to the International Covenant on Civil and Political Rights stipulate that each State Party to the present Covenant undertakes 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, including the protection of the rights and legitimate interests to effective, fair and impartial remedy for violations of the rights recognized in the present Covenant.
In accordance with the requirements of Articles 6, 13, and 17 of the Criminal Procedure Code of the Kyrgyz Republic, the protection of the individual against unlawful and unfounded accusation, conviction, restriction of his or her rights and freedoms, fair trial and correct application of the criminal law are the objectives of criminal proceedings, and the prosecutor and the court must ensure the protection of the rights and freedoms of the accused, create conditions for their realization, and take timely measures to satisfy the legitimate demands of the participants in the proceedings. Any doubts about the accused’s guilt shall be interpreted in their favour. Doubts arising in applying criminal and criminal procedure laws shall also be resolved in his or her favour.
The court and the prosecutor grossly violate or blatantly ignore all the above-mentioned international and national standards of fair justice.
The prosecution did not present a single argument, witness or piece of evidence.
The court was obliged to provide the parties equal opportunities to exercise procedural rights and obligations and adversarial proceedings guaranteed by part 3 of article 99 of the Constitution of the Kyrgyz Republic.
Nevertheless, the defence side was systematically deprived of an equal opportunity to participate in the trial. The court consistently rejected the motions brought, including those to appoint expert examinations, summon witnesses, and admit and examine the evidence presented by the defence side. This enormous disregard for the defence’s rights further underscores the unfairness of the proceedings.

During a year-long trial on the “Kempir-Abad” criminal case the court systematically committed gross violations of the requirements not only of the criminal procedural legislation but also of the Constitutional Law “On the Status of Judges of the Kyrgyz Republic”, such as autonomy of courts and independence of judges; equality of all before the law and the court; legality and fairness; objectivity and impartiality; respectful attitude to all participants of the process; openness and publicity of proceedings in all courts.

On the procedural violations committed by the court:

1. Thus, on September 27, 2023, without announcement of warning, in violation of the requirements of Article 307 of the Code of Criminal Procedure and without grounds, the accused A. Buzurmankulov, R. Dzheenbekov, K. Kadyrov, K. Dushebaev, A. Beknazarov, J. Moldokmatov, A. Akmatov, B. Asanov, M. Bayazov, I. Saryldyk uulu, T. Makhmudov, A. Aitbaev were removed from the court room for the entire period of the trial.
   Only due to the active actions of the lawyers the accused were allowed to participate in the trial.
2. Notably, there was a repeated formal and neglectful attitude towards the accused and their defence both on the part of state prosecutors and the court.
   During the presentation of the indictment, the court ignored the defendants’ request that the indictment should be read out clearly, intelligibly and loudly. However, the court left requests of the lawyers and their defendants without any response. Moreover, the indictment was read out only to 8 defendants out of 25, a clear instance of unequal treatment. The other 17 were not read the indictment under the pretext that the charges against them were identical. The court did not consider it necessary to question the accused whether they understood the essence of the charge, whether they pleaded guilty and what their attitude to the charge was, whereas this procedure is mandatory under the Code of Criminal Procedure.
   In addition, the indictment was read to several defendants without their lawyers’ participation. The judge’s behaviour openly demonstrated the accusatory bias and clear advantage of the prosecution. Lawyers’ participation in presenting the indictment is an integral part of the right to defence, and their absence limits the defence’s opportunities and violates the principle of equality of the parties in the trial.
3. From the beginning of the trial, the defence lawyers filed motions to consider the criminal case in open court, to summon additional witnesses to the court. However, these motions of the defence were unreasonably left without satisfaction, and the closed trial was started. In response to the defendants’ questions about the reasons for the closed trial, the court unreasonably removed the defendants without any grounds.
4. The judge systematically allowed himself to interrupt the lawyers’ speeches, to enter into polemics with the lawyers and their defendants, preventing them from presenting their thoughts and substantiating their positions on the case.
5. On February 14, 2024, at the morning court session, the judge, not showing propriety in communication with citizens, not observing the established rules of conducting the trial, not requiring appropriate behaviour from the prosecution, groundlessly removed the defendant A. Beknazarov from the courtroom for violating the order in the court session, while the accused A. Beknazarov was silent, observing the etiquette of the trial. This unfair decision of the court caused dissatisfaction on the part of the accused. However, the judge, ignoring the just indignation of the accused, provoked a conflict between the convoy and the accused in custody. The defence party on the same day 14.02.2024 filed a motion to review the records of the audio and video recordings for the validity and legality of the removal of A. Beknazarov from the courtroom and, if the violation is not confirmed, to return him to the courtroom and continue the trial with the participation of the accused. However, the judge refused to accept the defence’s motion, making an unacceptable comment: “keep it to yourself”.
6. On February 14, 2024, during the afternoon court session, in violation of the requirements of paragraph 5, part 1, article 51 of the Code of Criminal Procedure, openly leaning in favour of the prosecution, the judge ignored the absence of several lawyers of the accused, the validity of whose non-appearance is proved by the attached documents, and continued the trial with the state prosecutor’s presentation of the indictment. However, after the public speech of MP Sh. Atazov, at the session of the Jogorku Kenesh of the Kyrgyz Republic on February 21, 2024, the prosecution, recognizing the violations of the law, radically changed its opinion on the admissibility of the announcement of the indictment in the absence of lawyers. As a result, the judge agreed with this position and postponed the trial. In fact, the prosecution and the court recognized their earlier violations.
7. On March 13, 2024, the judge granted the motion of the lawyer Argymbaeva A.A. to postpone the trial to March 20, 2024 due to her illness and being on outpatient treatment. However, on March 20, 2024 at the morning court session, knowing about the continuation of outpatient treatment by the lawyer Argymbaeva A.A., not taking into account the opinion of the parties to the defence and prosecution on the need to meet the requirements of part 5 of Article 51 of the Code of Criminal Procedure on the mandatory participation of a lawyer in cases of this category, the judge instructed the state prosecutor to continue the reading of the indictment against the accused Mamataev U., the defendant of the lawyer Argymbaeva. This illegal decision to continue the trial in the absence of a lawyer once again provoked the accused in custody to express their positions on the illegality of the judge’s actions, the judge removed all the accused from the courtroom, although not all of them were expressing their disagreement with the illegality of such a decision to the judge.

The judge unreasonably and unlawfully denied the following written motions:

1. Motion to enforce the decision of the investigating judge of the Pervomaisky District Court of Bishkek city to provide the rulings on the appointment of linguistic and political science expertise in the official language.
2. Motion to enforce the decision of the investigating judge of the Pervomaisky District Court of Bishkek to provide all conclusions of the expert examinations conducted in the case in the official language.
3. Court refused to summon witnesses from the defence side. We especially note that not a single witness from the defence side was summoned to the court, although all the accused and their defenders repeatedly requested to summon witnesses.
4. The motion to add experts and specialists to the list of persons to be summoned to the court hearing on the part of the defence was denied to all the accused:

• scientific employee of the department of political science research and expertise of the Institute of State and Law of the National Academy of Sciences of the Kyrgyz Republic Janyshbek uulu Azamat;
• expert – linguist of the Forensic Service under the Ministry of Justice of the Kyrgyz Republic – N.T. Sakbaev;
• expert of the Forensic Service under the Ministry of Justice of the Kyrgyz Republic – J. Semenova;
• expert of the Forensic Service under the Ministry of Justice of the Kyrgyz Republic – T.T. Abdykojoev;

5. The motion to examine the evidence in the court session was refused, due to this the conclusions of complex and commission (and in general any expert examinations) were not examined, such evidence as screenshots, public statements and video materials from the social network “Facebook” were not studied.
   
   

The only material studied in court is the audio recording of the accused’s meeting in Casa Italia cafe. Due to the lack of technical facilities in the court for high-quality listening of the DVD disk, the recording was listened to formally. The majority of the accused had no opportunity to compare the audio recording with the transcript, because according to the opinion of the accused the transcript was falsified by U. Dzhapekov, and was the subject of linguistic and political science expertise. Thus, bypassing the stage of examination of evidence, the judge, on the same day (June 7, 2024) in the evening, for unknown reasons proceeded to the judicial debate.

We demand from the authorities of the Kyrgyz Republic to immediately stop the illegal criminal prosecution of the defendants in the Kempirabad case and release those who still remain in detention. We call on democratic countries that have adopted Magnitsky Act-style legislation to sanction officials responsible for violating the human rights of those accused in the Kempirabad case and complicit in the unlawful prosecution.