Because of deficient criminal laws, rapists and child molesters in Kyrgyzstan avoid actual punishment and are put on probation supervision instead.
At least in three child abuse cases in 2022, judges used supervised probation to offenders born in 2002, 2001, and 19.. instead of actual imprisonment. It is based on the study of acts by CABAR.asia regarding crimes provided for by article 157 of the Criminal Code of the Kyrgyz Republic (“Sexual acts with a child under sixteen years of age”) available on the website of the Supreme Court of Kyrgyzstan.
In another case of probation on the same charge, it was impossible to find out the age of the offender because this information is not available in acts.
Supervised probation is an alternative form of sentencing. A convicted offender is released under the supervision of the probation service and must comply with certain requirements: for example, get employed, undergo medical treatment or training.
According to article 157 of the Criminal Code of the Kyrgyz Republic available on the website of the Supreme Court, in 2022, eight acts were published, among which one case was closed, and one was acquitted. In six remaining cases, the court found all of them guilty, in two cases it applied probation, and only in two cases the perpetrators were sentenced to imprisonment – for seven and eight years.
If we look at the general statistics of crimes against minors and adults, in 2022, courts considered three criminal cases under article 156 (“Sexual coercion”) and article 155 (“Sexual battery”), two of which were closed, and one was sent for revision to fill the gaps.
According to article 154 (“Rape”) of the Criminal Code of the Kyrgyz Republic, eight criminal cases were considered in 2022 – five cases were closed, and in the remaining three cases, where the accused were found guilty, one case was revisited, another case was reconsidered under article 157 of the Criminal Code of the Kyrgyz Republic, and probation was applied, and one case was left unchanged and the court used probation. And only one case led to 18 years of imprisonment for the accused.
According to the statistical data provided to CABAR.asia by the Probation Department, the actual terms of imprisonment under the said articles in 2022 were replaced with supervised probation in Kyrgyzstan to 19 convicted. These criminal cases cannot be qualified by types of crimes and age of perpetrators as personal files of probation clients may not be disclosed.
To get the full picture of the law enforcement practices regarding criminals against sexual immunity, CABAR.asia sent a request to the Supreme Court. However, no reply was delivered in return.
However, the latest criminal cases of sexual immunity of adolescents show that courts in Kyrgyzstan are supportive of rapists and molesters.
On March 26, 2022, a schoolgirl was cleaning up the shop in the village of Petrovka, when a man came in, asked for cigarettes, and showed his penis to her. Then, he paid, showed a middle finger and left. The incident was caught on a CCTV camera installed inside the shop.
First, the man was released to home arrest. However, after public resentment, he was taken into custody. The judge who adopted the first decision was relieved from office. Later on, the man was sentenced to five years in prison.
Another high-profile case regarding the rape of a 13-year-old girl is pending now. Four people are suspected of the rape, two of whom are police officers. A curious thing about it is that they were charged under article 156, part 3, of the Criminal Code of the Kyrgyz Republic “Sexual acts with a person under the age of fourteen”, which is a milder article than article 154 of the Criminal Code “Rape”. In the former case, the question is about 8 to 11 years, whereas article 154 of the Criminal Code of the Kyrgyz Republic provides for punishment from 15 years to life sentence.
The rally near the Sverdlovsky District Court in Bishkek, July 8, 2022. Photo: CABAR.asia
In early July, a rally against violence took place near the Sverdlovsky District Court of Bishkek. Nearly a hundred people joined the rally and demanded fair justice for the criminals. At the same time, it became known that the judge of that court released those charged with the rape of a 16-year-old girl in a perverted form and changed the judicial restraint to recognisance not to leave. Later on, the judge turned in his voluntarily retirement to the Judicial Council of the Kyrgyz Republic.
Dangerous practice
The supervised probation in Kyrgyzstan appeared as something new in 2017, when the country’s criminal law was amended. Initially, the option alternative to imprisonment was suggested for persons who committed misdemeanours. Punishment under such articles usually does not exceed five years of imprisonment.
However, in part of humanisation of the law, Kyrgyzstan decided to go further and give the right to probation to criminals who committed grave crimes instead of the actual imprisonment.
“This question has been discussed by an expert group that included all parties concerned: representatives of state bodies, public organisations, professional communities of lawyers, etc. It was an open discussion. Based on all opinions, it was decided to apply probation to offenders of grave crimes,” said Ruslan Romanov, chief of the Probation Department office.
The norm became effective in December 2021, after the new Criminal Code was adopted in the same year.
“However, it does not mean that absolutely all those convicted of grave crimes can rely on the alternative to imprisonment. Article 82 of the Criminal Code specifies all those who are not eligible for such exemptions,” Romanov said.
According to article 82 “Release from punishment by supervised probation” of the Criminal Code of the Kyrgyz Republic, supervised probation does not apply to the following persons:
1) convicted of felony;
2) convicted of corruption and other crimes against interest of public and municipal service;
3) convicted of crimes against public security;
4) convicted of crimes against foundations of the constitutional system and the national security;
5) convicted of crimes committed by an organised group or criminal community;
7) convicted of crimes provided for by articles 137, 166, 167, 168 of the Code;
8) who do not have fixed abode, as well as foreign citizens and stateless persons who are temporarily resident in the Kyrgyz Republic.
This list misses paragraph number six for a reason. We intentionally quote it separately because it gives rapists and molesters a chance to avoid real punishment. Here it is:
6) Supervised probation does not apply to persons convicted of crimes against sexual immunity and sexual freedom of a child.
This restraint does not apply to children who committed a crime against sexual immunity of children aged 14 to 18.
This reservation, according to lawyer Indira Sautova, sets a precedent. According to her, this norm does not allow to put rapists older than 18 on supervised probation, but courts interpret it otherwise – they release criminals if the victim is aged 14 to 18:
“I started looking at the law enforcement practice, at what courts refer to when they apply probation to crimes against sexual immunity. And I found that they referred to paragraph 6 of article 82 of the Criminal Code of the Kyrgyz Republic. It says that probation may not be applied to those convicted of crimes against sexual immunity. But there is a little remark: “It does not apply to crimes committed against children aged 14 to 18 years. In other words, if the object of crime is aged 14 to 18, probation can be applied under this article. What’s the explanation behind this norm that the legislator applies to felonies? Being the lawyer, I don’t get the logic of this law.”
The Probation Department agreed with the lawyer in this regard.
“Children against children – probation is provided but facts of the case must be taken into account. An adult who commits such a crime may not be put on probation. At least, the law says so,” Romanov emphasised.
What is the probation procedure?
Previously, the probation period was up to three years. But after it applies to some felonies, the period was revised: from one to three years for misdemeanours, and from three to five years for felonies.
People under supervised probation must check-in with the probation agencies at the place of stay at regular intervals. There are nearly 54 agencies in the country, they are available in all regions and almost all regional centres. In case a person moves within the country, he/she must report it to probation agencies.
But this is the theory. In fact, there have been cases when people move freely within the country and do not report it, and continue to report in their previous location. It means that there is no strict supervision of them, Indira Sautova said.
“The supervised probation is not bad. The probation agency has many tasks. But if we look at the practice, I can say it is not that good. Previously, this agency worked as part of GSIN (State Penitentiary Service), and we saw that the convicts were monitored by the penitentiary system. The military people worked there who monitored the convicts and performed checks. Now supervised probation is under control of the Ministry of Justice and it became easier,” Sautova said.
In turn, the Probation Department said they have leverage against violators of the supervised probation: from written notices to revocation of a probation decision and its replacement with the actual imprisonment provided by an article. In fact, only court that has all the materials may decide to remove a convict from supervised probation. Moreover, the probation period will not be taken into account in this case.
Probation decision — a prerogative of judges
However, how does it turn out that a little reservation that was designed for mitigation of punishment for juvenile offenders became a window for offenders against sexual immunity? Even the Probation Department cannot explain this.
“We are the executive agency and may not interfere into the trial itself. It is the prerogative of judges who reviews the case whether to apply probation to the guilty one or not,” Ruslan Romanov said.
According to the head of the Probation Department office, previously, when the probation mechanism was just introduced, the Department prepared a probation report regarding each convict, and the court decided whether the convict could be put on probation or not. The report was rather a recommendation, yet it gave an idea of the person subject to probation services. But when the scope of people to be subject to probation was expanded, reports remained mandatory for three categories only – for convicted children, women and persons with disabilities.
In other words, there are no precise criteria to be followed by judges today. This, according to lawyer Indira Sautova, creates corruption risks:
As we see, in some similar cases judges apply probation, in other cases they sentence to 7-8 years in prison. And we don’t know what are they guided by. We all know the way it can work.
Taking this and complicacy of crimes committed against sexual immunity into account the lawyer stands for exclusion of the reservation regarding this type of crimes.
“This norm hinders protection of the injured party. We know about presumption of innocence, but laws should not be interpreted in two ways as in those cases. Remove the conflicts that exist, create the space for those who are willing to fight for women’s and children’s rights. Unfortunately, we do not have such a dialogue today,” Sautova said.