oDR

Rough justice in Kyrgyzstan

New data shows that 96% of people who find themselves before a Kyrgyz court receive a guilty verdict (unless they are state officials, that is).

Savia Hasanova Anna Kapushenko
18 December 2018

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Illustration: Kamilla Khalilova for Kloop.kg. All rights reserved.

Over New Year 2018, Rustam, 42, was arrested in south-east Bishkek by two police officers, who searched him in the presence of two witnesses and found a bag containing four grammes of hashish on him.

In court, Rustam admitted to buying the drugs for personal use, but asked the judge not to give him a custodial sentence, as he was the sole breadwinner in his family — a married man with two children. He had no previous convictions and his colleagues and neighbours spoke well of him.

The judge had two options: for this offence, Kyrgyzstan’s Criminal Code provided for a 20,000-50,000 som fine, or a three to five year sentence in a prison colony. The judge chose the latter and sentenced him to three years in prison.

Pro-prosecution stance

Rustam’s case is a good example of how Kyrgyzstan’s legal system works. First, judges tend to hand out guilty verdicts. Second, it’s not serious criminals, who are actually a danger to society, that suffer, but one-off minor offenders such as Rustam.

To get their heads round the workings of the system, journalists from Kloop news agency downloaded and analysed 26,000 criminal cases tried in different level courts over the last six years.

Their first conclusion was that the overwhelming mass of defendants in lower level courts are found guilty, and in three out of four cases they receive custodial sentences. Just four percent of defendants are found innocent.

The judges in Kyrgyzstan’s appeal courts and at the Supreme Court usually show solidarity with their colleagues and confirm their sentences, although the odd appellant has had their conviction overturned — 6.6% are declared innocent at this point.

Kloop’s analysis also shows that convicted defendants usually receive custodial or suspended sentences, usually of three to five years.

Many articles of the Criminal Code provide for other types of penalty, but judges mostly ignore those. Only 0.4% of the cases analysed, for example, have ended in community service or a threefold ayip (compensation of damages).

Inquisitorial justice

Rights campaigner and lawyer Nurbek Toktakunov says that Kyrgyzstan’s judges hand down so many guilty verdicts because the country has inherited the Soviet Union’s system of “inquisitorial justice”, where judges see irregularities on the prosecution side, but take a relaxed view of them and “fills in the rest with a bias to the prosecution.”

“[Judges] don’t notice prosecution irregularities and pay little attention to the arguments of the defence, as they have already decided that the defendant is guilty,” Toktakunov says.

He sees a number of reasons for this: judges are subordinate to other branches of government, including the president; they are corrupt and afraid of the law enforcers — and they also have a condemnatory mindset.

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Illustration: Kamilla Khalilova for Kloop.kg. All rights reserved.

Rita Karasartova, a rights campaigner, believes that this situation, where judges generally hand down guilty verdicts, leads to impunity on the part of the law enforcement agencies, who “feel themselves to be masters in a police state”.

“It’s a terrible thing when an innocent person becomes a criminal simply because of someone’s whim or desire to make money,” Karasartova says. “It also leads to higher costs for the state, as prisoners have to be housed, fed and guarded.”

According to both Karasartova and Toktakunov, judges tend towards custodial sentences because they are “sources of income” for them. “It’s a source of dirty money, because freedom can be bought and sold. If people are set free or shown clemency, where will the judges get their money from? Freedom has to be paid for,” says Toktakunov.

Drug users stay behind bars

Among Kyrgyzstan’s lawbreakers it’s drug users, and certainly not the most dangerous offenders, who suffer the most. The country’s legal system punishes users a lot more harshly than dealers, and this tendency has been increasing over the last ten years.

Our research confirms this: “Illegal preparation, acquisition, possession, transport or shipment of narcotic substances without intent to sell” is the article of the Criminal Code most frequently used against defendants in Kyrgyzstan. And drug users have the highest rate of conviction in the courts: 14%, as opposed to dealers, of whom only 3.5% are convicted and imprisoned.

Rights campaigners believe that the reason for so many drug convictions is that these cases are the easiest to initiate and investigate, while boosting detection rates at the same time.

Sergei Bessonov, the CEO of Kyrgyzstan’s Harm Reduction Association Network, works with drug users and thinks the police set up the people who buy drugs from them, to show how they bring results.

“A police officer can earn money, climb the career ladder and acquire information — all without doing a thing,” Bessonov says. “People are not usually detained at random: it generally happens immediately after they’ve scored some drugs, because the cops know who is selling and where.”

According to Bessonov, a lot of users are arrested and sentenced for thefts, which they carried out in order to buy drugs.

“It is stupid to send users to jail, thinking that they’ll come off their drugs — there are even more drugs available there, and they’re cheaper. We are all paying for people to be sitting behind bars,” says Bessonov.

While the officials go free

Kyrgyzstan’s judicial system may be harsh to some people, but others get a free pass. In August 2015, the Kyrgyz security services detained a police officer by the name of Bakyt red-handed in possession of a $1,000 bribe – he was reported by his acquaintance, Zakir (names have been changed). According to Zakir, the cop extorted $8,000 out of him, as well as beating him up at the police station and threatening to plant 50 boxes of hash on him.

In court, Bakyt pleaded innocent and stated that Zakir owed him $2,000. The court believed the police officer for lack of any proof against him, although he could actually have been convicted of extortion, accepting bribes and abuse of his functions.

Data from Kloop’s analysis show that in lower courts, the highest rate of innocent verdicts (18%) come from cases of “abuse of functions” and “extorting a bribe”.

Rights campaigners feel that the courts use the law selectively when trying civil servants, officials and police officers, which is why they are so often found not guilty.

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Illustration: Kamilla Khalilova for Kloop.kg. All rights reserved.

Klara Sooronkulova, a former Constitutional Chamber judge and now rights campaigner, believes that it is not just police and officials who are absolved in court, but judges themselves.

“There have been cases when a judge has been caught red-handed for a corruption offence, but then gets off scot free in all three courts,” Sooronkulova said at a roundtable event in October this year.

Rita Karasartova also monitors the work of Kyrgyzstan’s courts and feels that there are categories of crime where it’s forbidden to issue guilty verdicts. For example, according to Karasartova, most torture cases against police officers rarely make it to court. And when they do, the judges usually take the side of the law enforcement.

The Supreme Court stays silent

The Supreme Court’s reaction to Kloop’s analysis is still unknown: its members didn’t respond to queries and requests for comment for a whole month, and then announced that “we have no material or documents on these issues”. We tried to contact the president of the court, or their deputy, to clarify the issues, but to no avail.

The court made its position somehow public in June this year, when Kachyke Esenkanov, then Supreme Court Deputy Chair, declared that “in criminal cases there should be no ‘not guilty’ verdicts in principle”.

“Given that the investigators work in accordance with the law, they should bring a case to court if guilt has been conclusively proven,” Esenkanov said. “It shouldn’t happen that an innocent person is subject to investigation and then brought to court. This just shouldn’t happen, although admittedly it sometimes does.”

The Supreme Court described its Deputy Chair’s statement as “his personal opinion”, but refrained from declaring its own position on the Kyrgyzstan legal system’s pro-prosecution stance.

This article was originally published on Kloop, a Kyrgyz investigative website. We translate it here with their permission.


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