At the end of July 2021, the parliament of Kyrgyzstan adopted new versions of the Criminal, Criminal Procedure Codes and Code of Offences on the second and third readings. According to experts, they curtail civil rights, reduce humanisation and cause a high risk of corruption.
Moreover, the legal community thinks the new drafts of the criminal law were prepared not for the sake of citizens, but for the sake of law enforcement bodies.
According to the explanation given by the law enforcement body, the amendments were based on the president’s decree and were caused by low effectiveness of reforms held in the justice and law enforcement systems.
The General Prosecutor’s Office initiated the drafts. According to the General Prosecutor, Kurmankul Zulushev, the draft is 92 per cent different from the existing Criminal Code. The new draft contains 47 amendments and removes 34 enactments.
After the president’s endorsement, the draft will become effective on September 1. The Cabinet of Ministers, including the General Prosecutor’s Office, declared that they are ready to implement the drafts from autumn.
How will the life of Kyrgyzstanis change after the amendments to the criminal law and is it true that the criminal laws will be less humane? Let’s check it out with lawyers Irina Letova and Gulmira Mamatkerimova.
First, for the fact that the new version of the document is actually the return to the 1997 version. According to experts, the code gives priority to the interests of law enforcement bodies rather than to the protection of civil rights.
“The 1997 code is a code with prevailing punitive methods of work of law enforcement bodies. They come from the Soviet Union where law enforcement bodies used to have more rights and we are getting back to them. I think this is how the country throws back and gets back to punitive methods of work,” Gulmira Mamatkerimova said.
According to her, the amendments made to the criminal law cause the throwback from all what was achieved in recent years, including in human rights area. She emphasised that the criminal code developed in 2017 and adopted in 2019 was recognised by international experts as the best among Central Asian states.
It contained standards that imply that everyone has a right to counsel and to make a phone call – thus a person protects oneself from the security agencies. Now this right is suggested for removal. A person will be detained now and won’t have a right to counsel, to examine one’s psychological status. One had such an opportunity in the old code,” Mamatkerimova said.
She added that the new version also curtails the lawyer’s rights. If earlier a lawyer could request examination upon detention of their client, the new draft enables examination only via a prosecutor and an investigator.
According to the new draft of the Code of Criminal Procedure, the victim will have the rights (to counsel, to petition, to claim damages) only after the pre-investigation check and issuing an order on institution of criminal proceedings and an order on recognition of a victim.
According to lawyer Gulmira Mamatkerimova, previously the victim upon detention could immediately get the status of witness and was under control of the investigation and the lawyer. In the new law, the victim does not have such a status and won’t be able to protect oneself.
According to the existing Code of Criminal Procedure, the victim begins to have rights on the day of registration of their report with the Unified Register of Crimes and Offences, without issuing any orders on recognition of the person as a victim.
They will enjoy their rights not from the moment of police custody, but from the moment of actual bringing to the investigative agency.
“24 hours can pass between the actual custody and bringing to the agency. […] This is a dangerous thing as the suspect will be without the lawyer all this time,” according to the expert opinion of lawyers.
The suspect will also be deprived of the following rights:
- To defend oneself per se or with a selected lawyer,
- To have a counsel during checking of legality,
- To demand checking of legality and validity of detention.
Not exactly. For example, the new version of the Criminal Code allows conciliation of parties, which seems like humanisation. But when it comes to, for example, abduction of girls with intent to marry, it this case conciliation is not humanisation, but the violation of rights of victims, Irina Letova said.
The same is true about the article of religious ceremonies of marriage with minors. It gives a right to conciliation of the parties.
According to Letova, the Criminal Code has a concept of “probation service”, which is comparable to the parole. In the past, this practice was applied to misdemeanours, when the term of deprivation was up to 5 years, now it can apply to crimes punishable by up to 10 years.
“It is a big corruption risk here – either 10 years in prison, or 10 years at home under probation service supervision. This is the violation of the inevitability of punishment principle and it is unacceptable for a person to be home. There are so many relevant examples,” the lawyer said.
According to the draft Criminal Code, conciliation is possible in minor offences and (or) misdemeanours. In addition to articles about abduction with intent to marry and violation of law on the marriage age during religious ceremonies, there are articles “Rape”, “Sexual battery”, “Human trafficking”, etc.
The guilty person can reconcile with the victim, indemnify against damage and be released from criminal responsibility. The exclusion is cases when the crime affects interests of the public and the state, or if a crime is committed by an organised crime group/community or in a state of intoxication.
According to the draft of the Code of Criminal Procedure, the criminal prosecution may be either semi-public or public depending on the nature and degree of a criminal act.
Semi-public cases are minor offences and misdemeanours. Pre-trial procedure on such cases may be commenced only upon report of the victim or their legal representative, and may be dismissed by conciliation of parties.
According to the draft Criminal Code:
- Minor crimes are intentional and negligent crimes that are not punishable by imprisonment;
- Misdemeanours are intentional crimes that are punishable by imprisonment for up to 5 years, as well as negligent crimes that are punishable by imprisonment for more than 5 years.
However, the prosecutor and investigator may initiate judicial proceedings at their discretion on semi-public crimes in cases when the criminal act affects the interests of:
- The state and the society;
- A person who is helpless or dependent, or who is not capable of exercising their rights on their own.
Other cases are public charges and may not be reconciled. Criminal proceedings on these cases will be initiated regardless of victim’s report.
A prosecutor issues an order on institution of criminal proceedings on public cases. It contains the time and place of issue, issuing officer, cause and reason, relevant criminal article, as well as the progress of the case.
Yes, in addition to existing crimes in the applicable law, the draft also contains crimes that were available in the 1997 Criminal Code:
- “Trafficking of children” – imprisonment for 5 to 8 years, if a child was transported abroad – 8 to 11 years;
- “Organisation of illegal migration, illegal trafficking of migrants” – imprisonment for up to 5 years, with the deprivation of the right to hold specific posts for up to 3 years, and for a group of persons – from 5 to 10 years with the forfeiture of property;
- “Arbitrariness” – community service from 100 to 300 hours, or correctional labour from 1 to 3 years, or a fine from 500 to 1,000 estimate indicators or 50-100 thousand som (589-1,179 dollars). In case of violence or threat use – up to 5 years;
- “Sabotage” – imprisonment for 10 to 15 years with the forfeiture of property;
- “Illegal trafficking of precious metals, natural precious stones” – fine 300 to 600 estimate indicators – 30-60 thousand som (353-707 dollars) with the deprivation of the right to hold specific posts or carry out specific activities for up to two years;
- “Violation of the rules of return of precious metals and precious stones to the state” – fine from 300 to 600 estimate indicators – 30-60 thousand som (353-707 dollars) with the deprivation of the right to hold specific posts for up to two years;
- “Unauthorised access to computer information – community service for 40 to 100 hours or deprivation of the right to hold specific posts or carry out specific activities for up to 3 years, or correctional labour for 2 months to 1 year, or fine 200 to 500 estimate indicators – 20-50 thousand som (235-589 dollars);
- “Mass distribution of telecommunication messages” – fine from 200 to 500 estimate indicators – 20-50 thousand som (235-589 dollars).
Yes, according to the analysis of lawyers of ‘Strategic Solutions’ Public Foundation, the new draft of the Criminal Code mitigates responsibility of members of organised crime groups. Article 24 “Special rules of penal qualification” was deleted from it. According to the article, a person may be punished under two articles – for participation in a crime group – from 7 to 12 years of imprisonment – and for a committed crime – from 5 to 10 years.
“Moreover, the penalty is increased to 15-20 years. Now, the draft proposes that responsibility be only under one article and the perpetrator will be sentenced to 5-7 years”, according to lawyers of the public foundation.
According to the analysis of the legal community, the draft Criminal Code mitigates punishment of officials for corruption (misdemeanour in office). According to the existing law, such crimes qualify as abuse of office individually and additionally under the Criminal Code for actual criminal act (extortion, corporate raiding, embezzlement, torture, etc.). Thus, an official can be punished to 15-20 years for multiple offences.
According to the new draft code, officials will be tried only for the actual criminal act, either extortion, torture, or anything else. And it will automatically lead to the mitigation of punishment to 5-8 years in prison.
The new draft of the criminal law has an extended list of articles that assume parole supervision – an alternative to imprisonment. A convict comes under parole supervision and must fulfil certain requirements: treatment, study, etc.
According to the existing law, the parole supervision may apply to persons who are sentenced to up to 5 years in prison taking into account the following: severity, nature of crimes and other conditions. According to the new version, it can apply to imprisonment for up to 10 years.
According to the analysis of lawyers, the parole supervision can apply to imprisonments from 1 to 5 years for the following crimes:
- Causing bodily harm,
- Torture,
- Rape,
- Sexual battery,
- Abduction of a human,
- Human trafficking,
- Children trafficking,
- Abduction of a person with intent to marry.
Yes, the new draft of the Criminal Code excludes the chapter providing for compulsory penal measures to legal entities. It was introduced to the 2017 version. The previous 1997 code provided no legal responsibility for legal entities.
According to lawyers, it can lead to failure to follow recommendations under the Istanbul Anti-Corruption Action Plan. It will also lead to the inclusion of Kyrgyzstan into the FATF “grey list”.
FATF is the Financial Action Task Force, whose purpose is to fight money laundering and terrorist financing.
A country’s inclusion into the “grey list” means that it is under the increased control of the organisation. It can lead to:
- Reputational risks for businesses,
- Such problems as hindered business relationships with partners for the private sector,
- Restriction of correspondent relations with foreign financial institutions,
- Lowered positions in global rankings.
In the existing version of the Criminal Code, legal entities must pay a fine within one month. If they fail to pay it on time, it doubles. The legal entity may be even liquidated later. The new draft does not have this measure.
According to the General Prosecutor’s Office, it is explained by the difficulty of bringing legal entities to responsibility for crimes committed by their employees.
“For example, if we find out that a production plant violates the mineral resource conservation and use regulations due to the improper execution of duties by responsible officers, we must take measures not only against specific individuals, but also against legal entities, who may be liquidated or whose property may be forfeited. In this case, we disregard the rights of owners or co-founders of such plants, including their right to inviolability of property,” according to the explanatory note of the state agency.
In the 2017 criminal law, law drafters introduced the so-called table of compliance of types and amounts of punishment. It means that every type of punishment (fine, community service, imprisonment, etc.) is divided into four categories – from minimum to maximum. Every individual article has specific sanctions.
This table was removed from the new draft law. Instead, it specifies amounts of fines, hours of community services and imprisonment for 5 years and more. It means that it is up to judges to choose the type and amount of punishment.
“We will again face the problem of balance between all types of punishments, which will lead to the chaotic sanctions in the Criminal Code. And again we will encounter wide judicial discretion in place,” lawyers said.
According to the new draft, specific amendments were made to crimes committed by persons under 18. Once the draft law does not have the Table of compliance of types and amounts of punishments, it has certain terms of punishments and fines specified for the minors.
For example, community service for 20 to 120 hours imply execution of works that are within the minor’s powers. It should be done at their spare time. This type of punishment may not exceed two hours per day for the minors at the age of 14 to 16, and three hours per day for minors at the age of 16 to 18.
The existing code provides for community service for up to two hours a day for persons who study or work, and up to four hours a day for other persons. The fine, in turn, amounts to 50-1,400 estimate indicators, or 5-140 thousand som (59-1,651 dollars) for minor workers.
The existing Criminal Code reads that the court must determine the amount of a fine depending on the gravity of a crime and on the property status of a minor within the categories of fines.
As to imprisonment imposed on a minor, this type of punishment can apply to minors for minor offences or misdemeanours: to minors under 16 – 2 to 6 months, to minors at the age of 16-18 – from 1 year to 3 years. The maximum time of imprisonment is 10 years.
In the existing version, imprisonment of minors may apply depending on the crime grade. First grade crimes are punishable from 6 months to 1.5 years, sixth grade crimes are punishable for up to 10 years in prison.
Yes, it will be excluded according to amendments. The General Prosecutor’s Office proposed to remove it by saying that there are discrepancies between the Code of Offences and Criminal Law in practice.
The Code of Offences emerged in 2017 and provided for punishments for minor offences (offences) and for some types of administrative offences (petty crime, violation of traffic safety rules and others). Now it will become inoperative and its specific norms will be included into the Criminal Code and Code of offences against administrative procedures.
However, according to lawyers, liquidation of the code contradicts the Constitution, which contains the concept of “offence”. Thus, according to article 57 part 1, “every person is presumed innocent of crime or offence until they have been proven guilty according to law and by court verdict.”
According to explanations of the General Prosecutor’s Office, the criterion for the difference between the crime and the offence was the extent of the damage. The damage of the offence is not severe or significant.
But, according to the state agency, in practice it turned out that liberalisation and decriminalisation of the criminal law was reduced to the formal division of delinquencies into crimes and offences. Moreover, qualification of offences was a problem.
Previously, Kurmankul Zulushev, the head of the General Prosecutor’s Office, during the discussion of drafts, said that division of delinquencies into crimes and offences resulted in issues for pre-trial procedure and legal proceedings as they were part of one criminal process.
No, it won’t. If, according to the Code of Offences, a person was preparing to commit an offence, but didn’t commit it, they won’t be held liable. But, according to the new law, this offence will be qualified as misdemeanour and considered as “Attempted crime”.
“In fact, drafters criminalised these two stages: “preparation of an offence” and “criminal attempt”. In other words, responsibility of citizens was increased and the principle of humanisation was violated in terms of minor offences,” according to lawyers.
Yes. For example, the time of response to complaints from parties to trial or other persons, whose rights were breached, was increased from 3 days to 10 days. In cases when additional materials are needed to be obtained, the time increased from 10 to 20 days.
According to estimation of lawyers, it will make difficult for the parties to get any response to the breaches of law committed by an investigator or an investigative agency. It will be even more difficult for persons in police custody to file a complaint to the superior prosecutor.
The criminal law has the pre-investigation check again. According to Gulmira Mamatkerimova, this practice existed in old codes of 1997, but it was removed from the 2017 version.
The pre-investigation check is a stage of pre-trial procedure from the moment of report registration or inclusion into the Unified Register of Crimes and Offences till the moment of decision on institution of criminal proceeding or on refusal to initiate criminal proceeding. Such check can last for up to 20 days. During this period, the victim and the suspect will be questioned as witnesses.
According to lawyers, it will not only increase the load on investigators, but also become the “grey zone” with no judicial control. Therefore, the constitutional rights of the suspect, victim and other persons will be violated at this stage.
Yes, it will. In the new version of the Criminal Procedure Code, the authority of the General Prosecutor’s Office will be extended, including:
- It will be entitled to carry out the pre-investigation check,
- It will be entitled to carry out investigatory actions,
- It will be entitled to impose a pre-trial restraint.
In the existing Criminal Procedure Code, the investigator turns to the investigating magistrate to get a warrant to carry out investigatory and special investigatory actions. In the new version, the investigator may no longer do so, but must get the prosecutor’s approval of each of their actions.
According to lawyer Leila Sydykova, the General Prosecutor’s Office, in the new draft, will also investigate in addition to prosecution of charges in court and supervision.
“They want to establish the Unified Investigation Department in the General Prosecutor’s Office, and the state agency wants to take control of all investigations. This huge monster will be supervising and investigating itself. This is a mixture functions and they won’t be performed qualitatively. The investigative committee may not be supervised by the General Prosecutor’s Office,” Sydykova said.
No, you cannot. As the General Prosecutor’s Office wrote in the explanatory note to the draft law, the quality of investigation was notably decreased by cooperation with investigations because the investigator stops collecting evidence after signing the cooperation agreement, and keeps to the confessionary statements of the accused.
According to the supervision agency, the analysis of cases where cooperation agreements were concluded showed the violation of the principle of inevitability of punishment and personalisation of responsibility.
“For example, the suspects under criminal cases on drug crimes enter into cooperation agreements and show persons who distribute drugs or hand over drugs to them. As a result, the suspects detained for carrying drugs in especially big amounts get away with fines, and persons who were witnessed against are sentenced to lengthy prison terms,” according to the stage agency.
That’s right, all concepts, causes and the procedure of making decision on institution of criminal proceeding and refusal to initiate criminal proceeding were restored.
The time of pre-investigation check is set to 24 hours, and up to 14 days in exceptional cases. The time of investigation is one month for misdemeanours and up to two months for grave crimes and especially grave crimes from the time of institution of the criminal proceeding.
“Moreover, the investigator will be authorised to carry out such investigatory actions as the scene investigation, questioning, schedule of examinations during the pre-investigation check,” according to the explanatory note of the stage agency.
According to the public prosecution office, the absence of specific terms of pre-trial procedure in the Criminal Procedure Code from the moment of report registration to the moment of final decision made by the investigator leads to the bureaucratic delays in pre-trial procedure.
According to the state agency, 30 per cent of registered reports in 2019 and 2020 have not been adjudicated so far. And 64 per cent of cases in the 1st quarter of 2021 are still pending for final decision.
According to the explanatory note, very often investigatory actions are not carried out at all, thus unreasonably increasing the number of incomplete pre-trial procedures every year. Now, the crime rate and the clearance rate will be based on the number of orders on institution of criminal proceedings or orders to dismiss criminal complaints.