Some human rights defenders and lawyers state about high level of corruption in the amnesty and pardon procedure.
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Last autumn, the then prime minister Sadyr Zhaparov (the president of Kyrgyzstan since January 11) promoted the discussion of low quality performance of the law enforcement bodies, big number of wrongly convicted persons and persons whose prison term is incommensurate with the crime committed, as well as high corruption rate for the right to be released from prison.
“In Kyrgyzstan, you don’t get only medals and ranks for money. When I was a prisoner, I saw that some prisoners paid money to be amnestied. Of course, it’s not the president who takes the money, but responsible officials,” acting president, prime minister Sadyr Zhaparov said on November 3 at the meeting with the residents of Dzhalal-Abad region.
Until October 5, 2020, Sadyr Zhaparov had spent more than 3.5 years in prison. Since March 2017, he was serving 11 years in prison for the organisation of mass unrests and hostage taking. During mass riots on the night of October 5 to 6, he and some other politicians and officials were released from the colony. The Supreme Court remitted the case for re-examination. Later on, all accusations against him were withdrawn, and he was completely rehabilitated.
Keeping in mind this gloomy experience, Zhaparov has voiced an opinion that many innocent people and people who do not deserve to be imprisoned stay in prisons.
“For example, if we have 5 thousand inmates, 2 thousand of them are not guilty. There are no children of officials, rich people there; they are common people there. Many of them were imprisoned just because police wanted to close cases and show their good performance. If they file a petition for amnesty, they will be released. We’ll release them,” said Sadyr Zhaparov at the press conference on November 12.
On November 18, the State Penitentiary Service of the Government of the Kyrgyz Republic (GSIN) reported that over 1,800 petitions for amnesty were filed to the Amnesty Office of the President of the Kyrgyz Republic. 230 people were released from prisons, 38 people had their prison sentences cut. As for other petitions, GSIN reported that they “continue to work in this regard and the remaining appeals will be considered soon.”
According to the Constitution of the Kyrgyz Republic, the president has a right to grant a pardon to a convict regardless of the degree of a crime. GSIN submits petitions to the office of the Board of Pardons of the President, which are then submitted to the president. Speaking about pardons, Zhaparov said that “the people to be pardoned should not be persons convicted of grave crimes, members of organised criminal groups. These should be persons who were in tight situation, convicted of petty thefts, mothers with children who had to take this step.”
Amnesty does not cover all inmates, it has its own criteria, according to the representatives of the above office.
Kyrgyzstan often announces amnesty: in honour of the Independence Day, Victory Day, April People’s Revolution, anniversary dates of the UN. The amnesty of the convicts applies either by a special law adopted by the parliament and endorsed by the president, or by relevant court decisions.
Both experts, human rights defenders and lawyers declare that both processes – of amnesty and of making lists for pardon – are non-transparent and filled with corruption schemes, mentioned earlier by Sadyr Zhaparov.
On May 1, 2020, the State Penitentiary Service (hereinafter, GSIN) reported about three thousand convicts who will be released or will have their prison sentences cut to celebrate the upcoming anniversary of the Victory in the Great Patriotic War (On May 9, 2020, Russia and some countries of the former USSR celebrated the 75th anniversary) and the 10th anniversary of the April Revolution.
The law covers the 1st and 2nd group disability persons, the older persons, women with many children, single mothers, sole breadwinners with minor children who have committed minor offences, as well as women and minor children who have had less than one year left at the time the law becomes effective. On November 8, 2020, the amnesty law became invalid. Its outcomes are as follows: 65 persons were released, 56 persons were released on parole. Nearly five hundred inmates had their prison terms cut. The GSIN explained that the number of amnestied persons declared in spring did not match the number of actually released because the law was written in this manner.
“If the amnesty covers a person on one charge, it does not cover them on another one,” said Samat Kalykov, head of press service of GSIN. “For example, a person may be released based on their age, but he was accused of material damage. The court won’t release such person. We did file nearly three thousand petitions, but courts did not release many people.”
According to Kalykov, the agency would welcome the reduction of the number of inmates – it would be easier to work.
“We are interested in this even more than human rights defenders. But once we are the executive agencies, we can act under the law only,” he said.
The human rights defenders interviewed by us doubt the sincerity of such statements.
“This is easy as ABC: 100 som is allocated for food of one inmate per day,” human rights defender Indira Sautova said. “10,000 inmates mean 1 million som per day. This is only for food. Plus seasons clothing, detergents, bedding items. The number of inmates in the last 5 years does not change – more or less than 10,000 inmates. The amnesty does not ease prison overcrowding, although it is said to cut the budget costs. If it happens, there would be less financing, which is unprofitable for them.”
“MPs always say that 2.5-3 thousand people would be amnestied,” one of ex-officers of GSIN said. “In fact, only 100 persons were released, some just had their prison terms cut. We’ve never had so many people released.”
The Coalition Against Torture in Kyrgyzstan filed an official request to GSIN to analyse the legitimacy and effectiveness of the amnesty law enforcement on January 14, 2021. The Coalition wanted to know the fate of 697 inmates who were covered by the amnesty, but had to serve time under material lawsuits. Did they pay out the required ¾ of the damage they caused? What is meant by it – the material damage caused by the crime committed or the aggregate amount of the lawsuit and moral damage? Did the prison administration challenge negative court decisions? The questions remain unanswered for more than three months after the request.
Meanwhile, the convicts say that they have to pay for the opportunity to get into the amnesty list. Sadyr Zhaparov, when he was the prime minister and acting president of the Kyrgyz Republic, said the same.
According to the convicts, lawyers name various amounts. According to one of them, a convict must pay 15 thousand som (nearly 200 dollars) and he is willing to sell his kidney to pay and get released. Some inmates, according to them, have to pay 1,000 dollars.
“Three people at least who serve time in prison and to whom I managed to talk said directly that each of them has to pay over 200 dollars for the amnesty,” one of the lawyers said to CABAR.asia. “Moreover, they do understand that amnesty does not mean freedom to them and they will need to go to court again to be released on parole as they will be eligible for it once the amnesty applies.”
Human rights defender Sautova said about stable corruption schemes around the amnesty that involve not only GSIN facilities.
“To be released, for example, on parole, the convicts say they need to pay 300 dollars and more. The case won’t be even considered in court without this money,” said the human rights defender. “There may be another option: recommendation for placement in the penal colony settlement. Courts consider such cases according to a set procedure. It is a big corruption scheme. As to the amnesty, courts may apply it or not. GSIN will recommend the convict for amnesty, if it wants to. There’s no logic seen in their decision-making. Not all convicts dare to appeal against their actions. It all depends on their dependence, illiteracy, lack of qualified legal aid.”
A special board consisting only of GSIN officers and the public board of the agency makes decisions on recommending a convict for amnesty. However, the inmates may not appeal against their decision. There is no such mechanism in the penitentiary code, although the constitution guarantees judicial protection of rights and liberties absolutely to every citizen of the country.
Last December the Ombudsman Institute appealed to the government with a suggestion to amend the law.
No right to be released
The Osh City Court found K.D. guilty of a crime on February 17, 2016. By the time of the court judgement, according to the court estimates, the accused had served 10 of 13 years of the sentence. After applying the amnesty to him, the court held that K.D. must be released before May 2018. Ten days later, the sentence took effect because neither GSIN, nor prosecutor’s office appealed against the judgement. However, the inmate was not released. Three (!) years later, when human rights defenders learned about this fact, the administration of colony No. 8, where K.D. was the inmate, in the request disputed the correctness of calculations of the prison term, and eligibility for the amnesty. By the time that was set by court as the beginning of the prison term, K.D., according to the colony, was on the wanted list. However, human rights defenders deny this fact, and the Osh City Court arrived at the same conclusion twice (!) by confirming the correctness of the prison term calculation and eligibility for the amnesty. Despite this, the inmate was transferred to the facility in Kyzyl Kiya, which became known to the lawyers only when the court was considering their appeal against the illegal detention of K.D. and for his immediate release.
“We went to court to protect his lawful rights, and the judge did not even want to consider the case and said the case was transferred to Kyzyl Kiya, and turned us out,” lawyer Arsen Ambaryan said. “She could call the prosecutor, prison governor and ask them about such a delay? They recalled it only three years later! Moreover, it’s not up to GSIN to discuss the sentence, they just must execute it. But they thought the inmate was in prison for a very short term.”
The court of second instance did not take a side with the human rights defenders – on May 20, 2020 the judicial panel of the Chui regional court denied their complaint about illegal and unjustified detention of K.D.
Later on, the Osh City Court reversed its initial sentence, which is a rare event in judicial practice. According to their new court order, the prison term of K.D. will end on March 5, 2024. Human rights defenders are going to appeal this decision to the Supreme Court.”
New rules, old players
In August 2020, the same Moskovsky district court considered the petition of lawyer Saadabek Sadyrov regarding eligibility of his client B.T.B. for the amnesty. Despite full compliance with the requirements – committing a misdemeanour and no damage caused – the court dismissed the lawyer’s petition because “the authorised body that carries out punishment did not submit the documents for the convict.”
“The question here is why GSIN failed to submit his documents for amnesty,” said Sadyrov. “My client was fully eligible for the law and they had to apply the law to him. Once the court decision was voiced, I advised him to write a petition to the prison governor. If they refuse his petition, we’ll have to sue GSIN for the failure to execute the law.”
According to the experts of the penitentiary system, the right to recommend the inmates for amnesty belonged to the state penitentiary service in the past. Moreover, they executed their own decisions upon their approval. They did not need any court decisions for that. However, after the new codes became effective on January 1, 2019, the rules of applying the humane act to the convicts have changed.
“There is no clear mechanism of who has the right to recommend a prisoner for amnesty,” said Irina Letova, the member of the working group on development of the code of offences of the Kyrgyz Republic. “In other words, everything which is not forbidden is allowed. A lawyer may make such a recommendation, and if he is refused this right, he may turn to the special prosecutor’s office or appeal this decision in the higher court. Courts seem to work in an old way as if they don’t know that the system has changed. As to the GSIN, they are possibly waiting for some gratitude to apply amnesty to the persons who are eligible for it.”
According to Letova, the law provides for the liability of officials for untimely amnesty. Special prosecutor’s office supervises the legitimacy issue in the penitentiary system.
The reply to CABAR.asia requesting the number of violations reported during the validity of the amnesty law in 2020 was as follows: only 4 court decisions were appealed in courts of second instance; 4 court orders were discharged. One of the GSIN facilities was held liable for violation of requirements of part 2, art. 7 of the law of the Kyrgyz Republic “On the fundamentals of amnesty and its procedure” dated January 20, 2017, namely two officers were subject to disciplinary action. (Art. 7 covers the types of crimes that do not fall under the amnesty law. Part 2 reads that a defendant or a convict, who fails to pay out at least ¾ of the amount of damage, may not be eligible for the amnesty). However, the special prosecutor’s office failed to provide any information about which officials were held liable and how they violated the law, in which facilities and which 4 cases were recommended for amnesty.
Activities of the supervisory agency raises many doubts of human rights defenders.
“For example, the crutches of my client who doesn’t have one leg got broken,” Sautova said. “He could not stand in the cell doorway during the evening roll call. The squad head made up a violation protocol, which is a disadvantage in the character reference. I wrote to the special prosecutor’s office asking to dismiss this illegal protocol. And what did they do? They redirected my request to GSIN, and GSIN redirected it back to them. Yesterday I got a letter that they did not find any violation in their actions. Now my client, once he returns from the hospital, can be placed into a punishment cell for complaints. There are many similar facts. Here’s the conflict of interest and the special prosecutor’s office instead of investigating the case gives formal replies. It happens pretty often.”
“In the early 2000s, when I worked in the penitentiary system, the officer of the special prosecutor’s office committed forgery,” Batyrbek Saparbaev, the expert in penitentiary system, said. “He recommended a healthy inmate for amnesty saying he was allegedly ill with tuberculosis. The inmate had his prison term cut. When it was found out, the officer was relieved from office. Later, he worked at the Zhogorku Kenesh office. 3-4 years later, he came back to the prosecutor’s office.”
Amnesty as a way to avoid punishment
In the middle of April 2020, a drunken border guard was detained in Tokmok on a charge of sexual harassment of minor girls. The investigation proved the guilt of serviceman T.A. based on witness reports and examination results. However, the judicial board of the Tokmak Town Court diverted the charge from “sexual battery of minors” to “Disorderly conduct” and released the convict under amnesty in the courtroom.
In March 2015, ex-chief of the investigation department of the General Prosecutor’s Office Kylychbek Arpachiev was detained during taking the 100-thousand-dollar bribe. In June 2016, he was sentenced to 14 years in prison. But in February last year he had his prison term cut and was placed to the penal colony settlement. The charge of ‘corruption’ was replaced with the charge of ‘abuse of office’. Before diversion of charges by court, both convicts were not eligible for amnesty.
“The problem is not the law, but law enforcement practice,” said Leila Sydykova, the head of the working group on development of the criminal code of the Kyrgyz Republic. “They apply minor offences to avoid punishment. They fabricate the evidences, rewrite statements. I have encountered such things. We have a malpractice when the investigative bodies determine the nature of offences as grievous, while courts apply minor offences. Or vice versa. The laws are made for good investigators, normal prosecutors, honest judges. We should punish strictly for falsification, improper supervision. But it is a difficult thing to do because one hand washes another. It is a joint corruption.”
According to Letova, the fact that courts, not GSIN, can now decide who is eligible for amnesty is a great achievement.
“Before the new codes were enforced, the right to apply amnesty belonged even to an investigator who could apply it during the investigation process. It was a cushy job. Therefore, the right to apply amnesty was granted only to courts to avoid such risks. The fact that courts are accountable to higher courts and supervising prosecutor was taken into account,” the expert said.
The Soviet heritage
It was the Soviet heritage for Kyrgyzstan to apply amnesty to those sentenced for minor offences as the act of humanity. However, the republic has applied it more often, according to the experts.
“In the 90s, the number of prisoners rose from 10 thousand in the country to almost 24 thousand,” Saparbaev said. “There were situations when they had nowhere to sleep. If in the Soviet period amnesty was rather a political act and was held once in 5 or 10 years, independent Kyrgyzstan has held it almost every year, and even twice a year. We had to ease the prison population.”
According to experts, Europe and the United States do not have the practice of amnesty. Only post-Soviet countries apply the humane act of release from prisons or reduction of prison term. The Baltic countries and Georgia have refused this practice. When new codes that became effective in 2017 were under development, some experts offered to withdraw amnesty in Kyrgyzstan. Instead, they recommended the courts to pass sentences based on alternative methods provided, for example, by the probation practice, when the liability for minor offences does not imply imprisonment. In other words, according to experts, people should not be put in prison just to seek ways to release them afterwards.
This article was prepared as part of the Giving Voice, Driving Change – from the Borderland to the Steppes Project