Investigative reporting / Kyrgyzstan

IWPR Kyrgyzstan: Guilt of the innocent – Radio Free Europe Radio Liberty

20.04.2016

The 31-year-old citizen of the town Kyzyl Kiya Azamat Kojomberdiyev together with other people was accused of stealing a “Zhinlippi” and was sentenced to 10 years in prison. In the first instance, he was acquitted by the town court of Kyzyl Kiya but in the following instances, the courts did not take into account the testimonies of the victim party and the witnesses that described him not being involved in the crime.

The following journalist investigation was published in the framework of the Bureau of journalistic investigation IWPR.
Author: Kubanychbek Joldoshev, correspondent of Radio Free Europe Radio Liberty is the winner of the national competition of journalist investigation in the field of human rights nominated by “Online Media/Radio”.

On the 21st of January 2013 in the town of Kyzyl-Kiya criminal proceedings were launched by virtue of bodily harm and threats done to Aman Mamatov who was born 1939 (living in Frunze Street) and the theft of clothes and of his “Zhinlippi” TV.

In connection with the criminal proceedings, a citizen of Kyzyl-Kiya named Ulugbek Murzayev who was born in 1989 was arrested. During the court trial, he pleaded guilty. In the same year on 24th of January, police arrested and detained Azamat Kojomberdiyev as an accomplice. The criminal case was reviewed by the city court of Kyzyl-Kiya on 4th of June 2013. The defendant U. Murzayev was sentenced to 8 years in prison. Due to the facts that the charges against A. Kojomberdiyev were not proven, he was acquitted.

During the course of the trial evidence supplied by the victim party and the witnesses were considered relieving the defendant of any involvement with the crime. However, on the prosecutor’s side, a case had been made against illegal justification of A. Kojomberdiyev and an arrest warrant was issued. Thus after a year, while returning from Kazakhstan Azamat Kojomberdiyev was arrested and sentenced to 10 years in prison.

A Kojomberdiyev who is currently serving a prison sentence said the following:

– On the day of the crime, I was at home. My fellow villagers have given a testimony regarding this. Regarding the matter that I went to Kyzyl-Kiya to photograph myself the taxi driver confirmed. Police officers have detained, and having accused me that I participated in a robbery and beating of the elderly person, have locked into custody. I have told that I have no relation to this crime, but they continued to put me injuries. They then showed me a young person who was accused of this crime and he in turn pointed towards me saying I was his partner. Later in the prison cell, he explained to me that the police forced him to testify that I too was involved in the case. I did not admit to committing a crime that I am accused of. The victim also testified at the trial that I was not among the criminals. In the first instance all these circumstances were taken into account and I was acquitted. After that, I married and moved to Kazakhstan. After some time I decided to return home because my wife was pregnant and near giving birth. During this time, I was arrested and taken into custody. Afterwards, when I began analyzing, I remembered that on that day when they brought me to the police officer’s cabinet they released a young man. As it turns out, instead of this person called Almaz who was an accomplice in the crime they put me into prison because he came out of prison through his relatives in the authorities. Thus, I was indicted without any guilt or reason on my part. My father, who, running through various instances and proving my innocence and seeking justice died at the end.

The circumstances remain unresolved

The lawyer of Azamat Kojomberdiyev by aiming to restore his violated rights and the request of reviewing the new circumstances in the criminal case appealed to the general prosecution of Kyrgyzstan.

The lawyer of Kaliybubu Alybekova noted the following with respect to the fact that accusatory evidence was prepared against her client:

–  In the very beginning, as it turns out, he was shown to the victim and accused of committing the crime. However, he later wrote in his testimony that A. Kojomberdiyev had nothing to do with the crime and wrote an appeal pledging for his release. Despite the fact that both victim and witnesses gave testimonies, verifying that A. Kojomberdiyev was not involved in the crime and on that day was not even present in the town, the Batken regional court supporting the prosecution decided to deprive him of his freedom. The deprivation of freedom based purely on the grounds an existing previous conviction is illegal. If the court had any doubts, then it should have sent the case for re-investigation. Nevertheless, the court, regardless of the fact that the charges were bogus and made up, was together with the state prosecution more interested in imprisoning A. Kojomberdiyev. If he could fully justify himself before court, then the investigators should have been punished. In addition, this is exactly why this case has remained a farce.

When testimonies of witnesses remain unaddressed

Besides the lawyer A. Kozhomberdiyeva revealed a number of violations of the law during his detention and holding investigative actions. It was established that in case of interrogation of witnesses and the victim, they were specially misled.

Niymatilla Akbotoyev, one of the witnesses who gave evidences, regrets that he gave in to arrangements of police officers and gave evidences which served imprisonment of the innocent person:

–  On 22nd of January in the late evening two men came up to me and said that they wanted to sell a TV. One stood at a distance. We could not discern him. I bought a TV for 300 Soms. Afterwards, police officers came and confiscated it saying that it was a stolen good. Later on, they came, showed me a photo on their cellphone, and told me that this was the man that stole the TV. At the same time, they asked me to say that this person came together with the other man that sold the TV. We delivered such a testimony because we were unaware that they just found him from somewhere and were imprisoning him without any grounds. When we heard that a son of a poor man was imprisoned without any guilt, I was very upset. Later we said in court that it was not this person and that his height did not measure up either.

Another witnesses remarked that when he was summoned to the police, he was in a hurry and respectively, as it turned out, some passages of his testimony were changed and falsified. However, during the appeal proceedings of the Batken regional court these circumstances were not taken into account. Thus, the witness Abdijalil Junusov said that both during the investigation and during the trial he did not testify against A. Kojomberdiyev.

–  Of the two people who brought the TV, one of them was definitely not the person who is being accused. Moreover, in turn he only appeared later on. When we were giving our testimonies to the investigators in connection with being in a hurry, we asked them to let us leave as soon as possible. The investigators told us that we could put our signature on a clean sheet of paper and leave.When they showed us the people, I said that Azamat was not among those who brought the TV. However, as it turns out they wrote it down differently.

State accuser: indications changed on a situation

After Azamat Kojomberdiyev was acquitted by the Kyzyl-Kiya city court, the senior assistant of the city prosecutor of Kyzyl-Kiya, the state prosecutor Isak Nasirov was made a representative of the judicial board for the review of criminal cases on illegal acquittal of the Batken regional court for A. Kojomberdiyev.

In it was sought the recognition of the invalid decision by the court in the first instance. In particular, the state prosecutor underlined the acquittal of Azamat Kojomberdiyev despite the fact that he was previously convicted several times. In addition, the state prosecutor considers that the investigation has proved that Azamat Kojomberdiyev together with Ulugbek Murzayev committed a crime and the stolen TV was sold to one of the market guards.

The public prosecutor Isak Nasirov, in reviewing the accusations postulates that the witnesses and the victim later changed their testimonies:

–  In the beginning his accomplice who went together to sell the TV and the one who bought it confirmed his participation in the act. Later in court, they both pointed towards him. Now they changed their testimonies. When he was acquitted in court I made an objection that the court illegally acquitted him. The release of a person who has several previous convictions contradicts the norms of the criminal procedure code of the Kyrgyz Republic. Afterwards he was arrested and sentenced by the court. They took action by colluding with witnesses and changing their testimonies. There was an appeal made to the general prosecution with a request to review the case in connection with the emergence of new circumstances. We studied the circumstances for our part in association with the changes in the witness testimonies who said that the photos were shown specifically on purpose. In absence of the grounds for a review of the newly emerged circumstances, it was suspended.

The victim Aman Mamatov died before the case was reviewed by the Batken regional court. However, his testimony was not taken into account when the case was being reviewed by the following judicial instances. The brother of the victim Abish Mamatov confirmed that his brother starting from the investigation of the case and its review in the first judicial instance testified that Azamat Kojomberdiyev was illegally sentenced.

–  My brother told me several times that Azamat Kojomberdiyev was illegally detained by the police and was rightfully acquitted by the court in the first instance. He was later detained and placed in detention. However, my brother died before the case was reviewed by the court. The court did not recognize me in the quality of a substitute even though I was the brother of the victim. I requested the court to take into account the testimony of my brother regarding the innocence of A. Kojomberdiyev. Yet, they did not listen. Apparently, the courts and prosecutors do whatever they please. They did not listen to what my late brother said and later on, what I said. A human being who was not involved in the crime is deprived of his liberty.

Justification of the court in the first instance: legal basis

-We contacted former judge Kaldarbek Kydyrov who acquitted Azamat Kojomberdiyev. He remarked that of the two accused, the guilt of one had been proven however questions were raised over the investigation material of the second defendant.

Kaldarbek Kydyrov remarked that the evidence gathered in connection with the defendant A. Kojomberdiyev was collected in an illegal manner. In particular, he noted the following reasons for the acquittal of A. Kojomberdiyeva:

– The law stipulates that the verdict of the court shall be made only on the basis of the examination of evidence. However, A. Kojomberdiyev’s guilt has not been proven in court. That is why I made the decision of acquitting him. Because the investigation failed to prove his guilt. On top of that, the victim and the witnesses themselves testified that he was not involved in the criminal act. How could I sentence him only based on the fact that he had previously been repeatedly convicted? What would happen if all decisions were to be based on the results of the investigation? If his involvement in the crime were proven, then in reaching a verdict, I would have taken into account his previous convictions. But his guilt was not proven. And, it is no secret that the police have experience in pinning unsolved crimes on previously convicted persons and closing them. According article 24-26 of the Constitution, no one is obliged to prove his innocence, any doubts about his guilt shall be interpreted in favor of the defendant. In reaching the judgment, I was using the given provisions.

The court did not take the victim’s testimony into account

On 2nd of September 2014 the Batken regional court in reviewing the appeal case in connection with the crime sentenced Azamat Kojomberdiyev to eight years in prison. The decision of the judicial board did not take into account the testimony of the victim’s party and the witnesses but only on the basis of the initial version of the state prosecutor and investigation. The judge presiding over the review of the case Uulcha Tolubayeva remarked that the decision of the following instances were based on the fact that the testimonies of the victims and witnesses raised doubts.

– For minor or moderate crimes, if the victim’s party rejects pressing charges, then case may be abbreviated. But in this case, we are dealing with a serious crime. 168th article postulates that robbery is a serious crime. If one commits serious crimes, murdering people, robbing them, and then, if the injured party goes on reconciliate with them, the criminals are left unpunished. That is why according to the law in the case of serious and very serious crimes, if the injured party rejects pressing charges, the punishment for the accused is not alleviated.

In disagreement with the decision of the court in November 2014 A.Kojomberdiyev’s lawyer appealed to the Supreme Court with a request for further investigation. However, the judicial board of the Supreme Court for criminal cases, in examining the case due to newly emerged circumstances (testimony of the witnesses and the victim), instead of conducting a thorough investigation, made the decision to toughen the punishment for A.Kojomberdiyev. The court, based on the fact that the decision of the previous court did not take into account the repeated convictions A.Kojomberdiyeva to the previous sentence has added another 2 years and 6 months. Thus, the defendant A.Kojomberdiyev charged in participating in the robbery of a “Zhinlippi” TV was sentenced to more than 10 years in prison and is serving his term in jail.

Original investigation was published in the Kyrgyz language on the website of Radio Free Europe Radio Liberty. link

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