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Request for Partner for Democracy status with the Parliamentary Assembly submitted by the Parliament of the Kyrgyz Republic

Committee Opinion | Doc. 13477 | 07 April 2014

Committee
Committee on Legal Affairs and Human Rights
Rapporteur :
Mr Pedro AGRAMUNT, Spain, EPP/CD
Origin
Reference to committee: Bureau decision, Reference 3823 of 25 November 2011. Reporting committee: Committee on Political Affairs and Democracy. See Doc. 13461. Opinion approved by the committee on 7 April 2014. 2014 - Second part-session

A Conclusions of the committee

1. The Committee on Legal Affairs and Human Rights congratulates the rapporteur of the Committee on Political Affairs and Democracy, Mr Andreas Gross, on his report, and commends the work of his predecessor Mr Mevlüt Çavuşoğlu (Turkey, European Democrat Group) and his revised preliminary draft report.Note The committee supports the proposed draft resolution. However, the committee notes that the human rights situation in the Kyrgyz Republic is still far from being compliant with international human rights standards and wishes to emphasise some issues, including continuous use of torture or ill-treatment, impunity of perpetrators of such acts, lack of independence of the judiciary and threats and acts of intimidation towards human rights defenders and civil society.
2. The committee considers that granting partner for democracy status to the Parliament of Kyrgyzstan will entail closer co-operation with the Council of Europe and encourage this country to further develop democracy, the rule of law and protection of human rights and fundamental freedoms. However, more efforts are still needed to succeed on the path to democratic transition and the Kyrgyz Parliament should regularly inform the Assembly about the state of progress in implementing Council of Europe principles, as is required under Rule 61.2 of the Rules of Procedure of the Assembly.
3. The committee wishes to propose some amendments to further strengthen the draft resolution regarding human rights aspects and stress the need for the Kyrgyz Republic to carry on its reforms aimed at building up a parliamentary democracy with a vibrant civil society.

B Proposed amendments

Amendment A (to the draft resolution)

In the draft resolution, replace paragraph 14 by the following paragraph:

“In this context, pervasive corruption, an ethnically unbalanced judiciary lacking impartiality and independence, continued use of torture, impunity of law-enforcement agents for the latter, acts of intimidation of civil society and still unresolved consequences of inter-ethnic tensions cause very serious concern and must be addressed as matters of priority, including in the framework of future co-operation between the Council of Europe and Kyrgyzstan as partners for democracy.”

Amendment B (to the draft resolution)

In the draft resolution, paragraph 15.1, after the words “and improving the electoral”, insert the word “legal”.

Amendment C (to the draft resolution)

In the draft resolution, at the beginning of paragraph 15.10, insert the following words: “stepping up efforts to ensure respect of the right to a fair trial, in particular by ensuring that the right to defence is respected in practice and”.

Amendment D (to the draft resolution)

In the draft resolution, replace paragraph 15.12 with the following paragraph:

“reinforcing the training of judges, prosecutors, prison staff, law-enforcement agents and lawyers as regards respect for international human rights standards;”

Amendment E (to the draft resolution)

In the draft resolution, after paragraph 15.12, insert the following paragraph:

“erasing practices of arbitrary detention;”

Amendment F (to the draft resolution)

In the draft resolution, replace paragraph 15.13 with the following paragraph:

“effectively implementing international norms on the prevention of torture and inhuman or degrading treatment of persons deprived of their liberty; fighting impunity for torture and ill-treatment, in particular by introducing an effective complaint mechanism against such acts;”

Amendment G (to the draft resolution)

In the draft resolution, replace paragraph 15.14 with the following paragraph:

“improving conditions of detention as well as the effectiveness of the national prevention mechanism, in line with the United Nations prison-related norms and standards;”

Amendment H (to the draft resolution)

In the draft resolution, after paragraph 15.19, insert the following paragraph:

“refraining from adopting laws aimed directly or indirectly at restricting civil society activities;”

Amendment I (to the draft resolution)

In the draft resolution, after paragraph 15.19, insert the following paragraph:

“refraining from harassing human rights defenders and civil society activists and protecting them against attacks or other acts of intimidation by non-State actors; releasing Mr Azimjon Askarov and guaranteeing him a fair trial;”

Amendment J (to the draft resolution)

In the draft resolution, at the end of paragraph 18.1, add the following words: “, on the understanding that it will regularly inform the Assembly on the state of progress in implementing Council of Europe principles;”

C Explanatory memorandum by Mr Agramunt, rapporteur for opinion

1. I can only congratulate Mr Gross on his report, which takes stock of the recent political developments in the Kyrgyz Republic. The report rightly points out some remaining serious problems concerning human rights and the rule of law in this country, in particular pervasive corruption, widespread use of torture, the lack of impartiality and independence in the judiciary, and unresolved consequences of inter-ethnic tensions, especially with relation to the Uzbek minority.
2. I should like to propose a few amendments to the draft resolution so as to strengthen it with regard to the respect for human rights and fundamental freedoms. My proposals are based on the findings of competent United Nations bodies and prominent human rights non-governmental organisations (NGOs), including Amnesty International, Human Rights Watch and the Fédération internationale des droits de l’homme. I will not deal here with the situation of women, minorities and other discrimination issues, as I expect that they will be examined in detail by the Committee on Equality and Non-discrimination. Although granting the status of partner for democracy should allow the Kyrgyz Republic to enhance its co-operation with the Council of Europe and pursue its transition to a democratic system, the Assembly should remain cautious about the situation in this country regarding human rights, democracy and the rule of law and insist on being systematically informed about further developments in this respect, as it is foreseen in the Assembly’s rules regarding partner of democracy status.
Amendment A (to the draft resolution)

Explanatory note: This amendment aims to strengthen the draft resolution by putting more emphasis on human rights problems, by adding the words “impunity of law-enforcement agents for the latter, acts of intimidation of civil society” after “continued use of torture”. Besides the areas of concern mentioned in the paragraph in question, impunity of law-enforcement agents for acts of torture or ill-treatment remains a problem, especially as there is no effective complaint mechanism in this respect (as stated, for example, by the United Nations and prominent NGOsNote). Recently, some NGOs have also reported acts of intimidation of civil society, including towards human rights defenders dealing with LGBT issues, corruption or torture cases or simply criticising the governmentNote. What is more, harassment towards LGBT activists is encouraged by members of parliament. These two problems should be included in paragraph 14 of the draft resolution. Moreover, this paragraph should also state that all issues mentioned therein raise concern, which is not only “particular”, but even “very serious”.

Amendment B (to the draft resolution)

Explanatory note: As stated in paragraph 57 of the report by Mr Çavuşoğlu, there are still some shortcomings in the election legislation of the Kyrgyz Republic. Therefore, I propose to add the word “legal” before “framework” to have a more accurate wording.

Amendment C (to the draft resolution)

Explanatory note: This amendment aims to stress the need not only to ensure the impartiality and independence of the justice system in general, but to guarantee the right to a fair trial in particular. NGOs reported several cases of unfair trials, based on fabricated charges, threats and acts of aggression against defendants and defence lawyers within and outside the courtroom, especially in relation to the 2010 incidents of ethnic violence in the south of the countryNote (see also paragraphs 100 and 102 of the report by Mr Çavuşoğlu). The need to ensure fair trials was also stressed by the United Nations High Commissioner for Human Rights.Note

Amendment D (to the draft resolution)

Explanatory note: This amendment aims to reinforce paragraph 15.12 by replacing the words “providing better training” by “reinforcing training” and by adding prosecutors and lawyers as other legal professionals who should also benefit from training on international human rights standards.

Amendment E (to the draft resolution)

Explanatory note: The use of arbitrary detentions is still quite frequent in Kyrgyzstan according to reports by United Nations bodies (see the Human Rights Council resolution of June 2011, quoted in paragraph 108 of the report by Mr Çavuşoğlu, and the report by the United Nations special rapporteur on tortureNote). As arbitrary detention violates one of the most fundamental human rights, I propose to add a new sub-paragraph to highlight the need for the Kyrgyz authorities to fight this phenomenon.

Amendment F (to the draft resolution)

Explanatory note: This amendment aims to reinforce paragraph 15.13 by replacing the word “legislation” by “international norms” and thus by stressing the need to comply with international legal standards on the prevention of tortureNote. As mentioned above (under Amendment A), the impunity of law-enforcement agents remains a serious problem and the Kyrgyz system lacks an effective mechanism of complaint against abuses by such agents. Therefore, this amendment also aims to put emphasis on this need by adding, at the end of this paragraph, the words “in particular by introducing an effective complaint mechanism against such acts”.

Amendment G (to the draft resolution)

Explanatory note: This amendment proposes to add the words “as well as the effectiveness of the national prevention mechanism” after “improving conditions of detention”. It aims to improve the effectiveness of the national prevention mechanism, which was established by law in 2012 under the Optional Protocol of the United Nations Convention against Torture (OP-CAT). In 2013, Kyrgyzstan was the first Central Asian country to create a National Center for the Prevention of Torture.Note However, despite this positive development, it is premature to assess its effectiveness and, according to NGOs, the authorities still either refuse to conduct investigations into torture cases or unduly protract them.Note

Amendment H (to the draft resolution)

Explanatory note: I propose to add a new sub-paragraph aimed at stressing the need to refrain from adopting new laws which may directly or indirectly restrict NGO activities and lead to a crackdown on civil society. The reason to do so is related to the 2013 proposals by some MPs and the government to adopt laws that would impose burdensome reporting obligations and restrictions on NGOs – a draft law on money laundering, a draft “treason law” and a draft “foreign agents” law.Note Although the latter two proposals have not been approved by the Kyrgyz Parliament, it is not clear whether they have been definitively withdrawn from the legislative process.Note

Amendment I (to the draft resolution)

Explanatory note

This amendment aims to stress the need to ensure a conducive environment for human rights defenders. As stated in the previous reports of our committee on the situation of human rights defenders,Note States are bound to refrain from harassing them and to protect them against attacks or other acts of intimidation by non-State actors. As several cases of recent attacks or threats towards human rights defenders, including lawyers and activists dealing with LGBT rights, have been reported by prominent NGOs,Note it will be useful to include this problem among the specific issues raised in paragraph 15 of the draft resolution. Moreover, the amendment aims to call on the Kyrgyz authorities to release Mr Azimjon Askarov, an ethnic Uzbek human rights defender who worked on police ill-treatment of detainees and was sentenced to life in prison, reportedly on politically motivated and fabricated charges (see section 7.4 of the report by Mr Çavuşoğlu).

Amendment J (to the draft resolution)

Explanatory note

This amendment refers to the formal criteria mentioned in Rule 61.2 of the Rules of Procedure of the Assembly. The Committee on Political Affairs and Democracy considered that the absence of a clear commitment to regularly inform the Assembly on the state of progress in implementing Council of Europe principles in the request of the Kyrgyz Parliament (see letter of the Speaker of the Kyrgyz Parliament of October 2011) was not per se an obstacle to granting this status. The Assembly automatically reviews the fulfilment of the commitments every two years (see section 2 of the report by Mr Gross and paragraph 20 of the draft resolution). However, from the legal point of view, the missing reference in the request by the Kyrgyz Parliament should be remedied. The easiest way is for the Kyrgyz Parliament to undertake to provide such information to the Assembly at reasonable intervals. That is why I propose to include a reference to this obligation in paragraph 18.1.

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