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Review of the partnership for democracy in respect of the Parliament of the Kyrgyz Republic

Committee Opinion | Doc. 15553 | 20 June 2022

Committee
Committee on Legal Affairs and Human Rights
Rapporteur :
Mr Serhii KALCHENKO, Ukraine, EC/DA
Origin
Reference to Committee: Doc 15184, Reference 4551 of 25 January 2021. Reporting committee: Committee on Political Affairs and Democracy. See Doc. 15526. Opinion approved by the committee on 20 June 2022. 2022 - Third 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 Jacques Maire (France, ALDE), on his report. It supports the proposed draft resolution and fully agrees with the Committee on Political Affairs and Democracy that the Parliamentary Assembly’s partnership with the Parliament of Kyrgyzstan has produced mixed results.
2. The committee also notes that the human rights situation in the Kyrgyz Republic has not improved much since 2014, when it examined it in its opinion on the report of the Committee on Political Affairs and Democracy on “Request for Partner for Democracy status with the Assembly submitted by the Parliament of the Kyrgyz Republic”.Note Although the report by Mr Maire rightly points out the increased number of threats and acts of intimidation towards human rights defenders and civil society, the committee wishes to emphasise some other human rights issues, including law enforcement agents’ impunity for acts of torture or ill-treatment, poor detention conditions or issues concerning lack of independence of the judiciary.
3. The committee considers that granting the partner for democracy status to the Parliament of Kyrgyzstan entails closer co-operation with the Council of Europe and that the Parliament of Kyrgyzstan should make more efforts to pursue this co-operation and should make it more concrete in order to further develop democracy, the rule of law and protection of human rights and fundamental freedoms in Kyrgyzstan. Therefore, more efforts are still needed to succeed on the path to democratic transition and the Parliament of Kyrgyzstan should regularly inform the Assembly about the state of progress in implementing Council of Europe principles, as is required under Rule 64.2 of the Rules of Procedure of the Assembly. In case there is still no improved co-operation, the Assembly should consider suspending or even withdrawing partner for democracy status, as stated in paragraph 12.1 of Resolution 1680 (2009) “Establishment of a ’partner for democracy’ status with the Parliamentary Assembly”Note and Rule 64.7 of the Rules of Procedure of the Assembly.
4. Hence, the committee wishes to propose some amendments to further strengthen the draft resolution regarding human rights aspects and to stress the need for the Parliament of Kyrgyzstan to be more proactive in fulfilling its obligations stemming from the partner of democracy status and, in particular, to inform the Assembly on a regular basis about the progress achieved in this respect.

B Proposed amendments

Amendment A (to the draft resolution)

At the end of paragraph 10, add the following words:

“and fundamental freedoms”.

Amendment B (to the draft resolution)

In paragraph 11 replace the first two sentences by the following sentences:

“In this connection, the Assembly is concerned about recent reports from representatives of Kyrgyz civil society and international governmental and non-governmental organisations about violations of human rights and fundamental freedoms. These violations relate, in particular, to gender issues, the practice of torture and ill-treatment, particularly in detention or police custody, impunity for such acts, poor conditions of detention, enforced disappearances, issues concerning access to an independent and impartial tribunal, the right to a fair trial and fundamental legal safeguards for persons in pretrial detention. The Assembly is also concerned about violations of the right to freedom of expression and assembly.”

Amendment C (to the draft resolution)

At the end of paragraph 16.2, add the following words:

“and, in particular, consider possible amendments to legislative provisions which are deemed to be contrary to them”.

Amendment D (to the draft resolution)

In paragraph 16.5, replace the word “regularly” by the following word:

“annually”.

Amendment E (to the draft resolution)

In paragraph 17.1, after the words “paragraph 15 of Resolution 1984 (2014) of the Assembly”, add the following words:

“and develop a plan of implementation for the following two years”.

Amendment F (to the draft resolution)

Replace paragraph 17.2 by the following paragraph:

“boost co-operation with the Venice Commission in order to bring the country’s Constitution and laws closer to international standards and to implement the previous recommendations, in particular with regard to elections, and those included in the Joint Opinion (No. 1021/1021) on the Draft Constitution of the Kyrgyz Republic”.

Amendment G (to the draft resolution)

After paragraph 17.2, add the following paragraph:

“adhere to the United Nations International Convention for the Protection of all Persons from Enforced Disappearance”.

Amendment H (to the draft resolution)

At the beginning of paragraph 17.4, add the following words:

“guarantee and promote the right to freedom of association and peaceful assembly and”.

Amendment I (to the draft resolution)

After paragraph 17, add the following paragraph:

“Upon reviewing an annual information of the progress made in implementing the Council of Europe principles and pursuant to paragraph 12.1 of Resolution 1680 (2009) the Assembly recalls that it has the authority to suspend and/or withdraw “partner for democracy status”.

C Explanatory memorandum by Mr Serhii Kalchenko, rapporteur for opinion

1. I would like to thank Mr Maire for his report that thoroughly and consistently addresses the political, constitutional, legislative, and institutional developments in Kyrgyzstan since 2014, when partner for democracy status was granted by the Assembly to the Parliament of the Kyrgyz Republic.
2. I completely share the rapporteur’s view reflected in the draft resolution that the Parliament of Kyrgyzstan has been unable to capitalise on the opportunities offered by the partner for democracy status in order to take forward democratic reforms in the country, bring it closer to the European common legal area, and contribute to European political dialogue. In Resolution 1984 (2014) “Request for Partner for Democracy status with the Parliamentary Assembly submitted by the Parliament of the Kyrgyz Republic”, “(…) the Assembly acknowledges that the parliament, the main political actors, State and public officials and civil society in Kyrgyzstan broadly share the objectives of the partnership for democracy, and consider that obtaining it would be an important incentive to further developing democracy, the rule of law and the protection of human rights and fundamental freedoms in the country”.Note However, the Venice Commission and the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR) in their Joint Opinion on the Draft Constitution of the Kyrgyz Republic,Note which was adopted in April 2021 and has entered into force, indicated that despite some positive changes, many provisions of the draft Constitution regulating the institutional framework and separation of powers, defining the powers and competencies of the President, the Parliament (the Jogorku Kenesh) and the judiciary, as well as some provisions dealing with human rights and fundamental freedoms are not in line with international standards and the OSCE commitments.
3. In my opinion, Mr Maire correctly noted the controversial evolution of the political and institutional situation in the country eight years after the status of partner for democracy had been granted. In particular, as emphasised in Resolution 1984 (2014), “(…) it is important that Kyrgyzstan, the only country in central Asia to have chosen parliamentary democracy as the basis of its political system, succeeds on the path to democratic transition. It believes that Kyrgyzstan deserves full support in this endeavour.”Note Thus the Assembly welcomed this country’s commitment to “deep constitutional, institutional, political and legal reforms in order to strengthen democracy” and encouraged the national authorities to make full use of the Council of Europe’s expertise and standards.Note It considered that the partner for democracy status provided “an appropriate framework for strengthening the involvement of the Kyrgyz Parliament in the realisation of these reforms.”Note
4. Nevertheless, as it is mentioned in the Venice Commission and the OSCE/ODIHR Joint Opinion on the draft Constitution of the Kyrgyz Republic, the proposed draft Constitution aimed at introducing a presidential model of governance and move away from the parliamentary model towards which the Kyrgyz Republic had been progressing from 2010 to date. As such, one of the fundamental concerns with the draft Constitution was the overly prominent role and prerogatives of the President over the executive and the other branches of powers, with a weakened role of the parliament and potential encroachments on judicial independence. This created a real risk of undermining the separation of powers and the rule of law in the Kyrgyz Republic.
5. Contradictions between declarations and practical actions should be addressed, too. The current draft resolution, in its paragraph 10, “(…) notes the readiness of the recently elected Kyrgyz authorities, and more specifically parliament, to co-operate, including in relation to reforms and institutions (…)”. However, since being granted partner for democracy status, the Kyrgyz Republic has not acceded to any Council of Europe conventions or partial agreements, despite having pledged to do so. The authorities of Kyrgyzstan have not taken account of the recommendations made by the Venice Commission regarding the draft Constitution and other matters (paragraph 8 of the draft resolution).
6. Moreover, the situation with the rule of law and respect for human rights in Kyrgyzstan remains the subject of deep concern. Human rights organisations report numerous violations of fundamental freedoms and the failure of the Kyrgyzstan authorities to influence and improve the situation, despite some positive developments. Thus, the report by Mr Maire rightly points out a number of human rights issues, which have already been mentioned in Resolution 1984 (2014). There has been no progress in some areas, such as combating torture and ill-treatment and the impunity of law enforcement agents for such acts, and there has even been a deterioration in the situation of civil society. All these issues need to be paid more attention by the Assembly and have to be clearly pointed out in the draft resolution.
7. Therefore, I would like to propose a few amendments to the draft resolution in order to strengthen it and, in particular, to make it more “practically oriented” and to add the outstanding human rights issues.

Amendment A (to the draft resolution)

8. This amendment aims at aligning the terminology of the draft resolution with that of international human rights instruments by adding a reference to “fundamental freedoms”, which are also mentioned in paragraph 11 of the draft resolution.

Amendment B (to the draft resolution)

9. The rapporteur of the Committee on Political Affairs and Democracy rightly points out several human rights issues which were reported to him during his visit to Bishkek in March 2022 (see, in particular, paragraph 44 and 49 of the explanatory memorandum). These concerns were also reported by the United Nations bodies and prominent human rights NGOs, such as Amnesty International or Human Rights Watch. Therefore, this amendment aims at adding a reference to “international governmental and non-governmental organisations”.
10. Moreover, some of the human rights issues pointed out in Mr Maire’s report – like impunity of law enforcement officers for acts of torture and ill treatment, the need to improve the situation in detention facilities and lack of judicial independence and impartiality – are not reflected in the draft resolution and are corroborated by the findings of UN bodies and/or international NGOs.
11. Several bodies report that police and other law enforcement agents resort to torture and inhuman treatment, especially during pretrial detention, and that their impunity remains the norm. According to a survey published in July 2021 by the NGO Coalition against Torture (a consortium of 18 NGOs), 35% of survivors were tortured during questioning as suspects, 28% while being questioned as witnesses and 24% while the police were checking their identity.Note According to statistics of the Kyrgyz National Centre for Prevention of Torture, 77 allegations of torture were registered in the first eight months of 2021.Note Torture is allegedly used to elicit confessions during criminal investigations, like for example in the case of Sharobodin Yuldashev, an ethnic Uzbek.Note Through September 2021 the Antitorture Coalition reported 63 allegations of torture (almost all of them by police) and 12 of them were dropped on administrative grounds. In 2021, the Prosecutor General’s Office did not bring criminal charges in any cases of alleged torture. Although according to NGOs the government established strong torture-monitoring bodies, the influence from some parts of the government threatens their independence.Note Moreover, the authorities fail to conduct an efficient investigation into torture allegations. According to Golos Svobody (a NGO playing a central role in monitoring cases of torture), investigators often took two weeks or longer to review torture claims, at which point the physical evidence of torture was no longer visible. Defence attorneys presented most allegations of torture during trial proceedings, and the courts typically rejected them. In some cases, detainees who filed torture complaints later recanted, reportedly due to intimidation by law enforcement officers.Note So far, the authorities also failed to conduct an effective investigation into the death in 2020 of prisoner of conscience and ethnic Uzbek human rights defender Azimjan Askarov.Note
12. As regards the situation in detention facilities, in December 2021, the UN Committee against Torture deplored the conditions of detention, including overcrowding and the lack of adequate medical care for detained women. It urged the Kyrgyz authorities to intensify their efforts to improve conditions of detention and alleviate the overcrowding of penitentiary institutions, in particular through the use of non-custodial measures.Note
13. Concerning judicial independence and impartiality, numerous sources report that judges are subject to influence or corruption and that throughout the year 2021 the conduct and outcome of trials appeared predetermined in multiple cases.Note
14. Moreover, other issues such as enforced disappearances, problems with the right to a fair trial, access to a lawyer while in detention and violations of the right to freedom of assembly have also been reported and need to be pointed out in paragraph 11 of the draft resolution.
15. As regards enforced disappearances, although their number seems to have diminished since 2010, when ethnic riots took place in the southern provinces, a small number of individuals still remain missing and bodies are pending identification. In August 2020, the UN Working Group on Enforced or Involuntary Disappearances encouraged the authorities to resolve these cases.Note
16. The UN Committee against Torture also raised serious problems as regards the fundamental safeguards for persons in pretrial detention, and in particular their prompt access to a lawyer and to legal aid.Note
17. As regards the right to a fair trial, which is inextricably linked to the above-mentioned problems concerning judicial independence and impartiality, numerous NGOs reported violations in the form of coerced confessions, torture, denial of access to counsel, and convictions in the absence of sufficiently conclusive evidence or despite exculpatory evidence.Note Journalists and civil society activists critical of the authorities are often tried on the basis of unfounded criminal charges.Note
18. As regards the right to freedom of assembly, in March 2021 the municipal authorities in Bishkek tried to ban all assemblies in the centre of the capital for two months, but the initial court order was finally overturned by a higher court. In April 2021 peaceful demonstrators in Bishkek faced violence from a large group of individuals against whom police took no action. In addition, Article 10 of the new Constitution allows new restrictions to the right of freedom of assembly.Note

Amendment C (to the draft resolution)

19. This amendment aims at specifying that in order to comply with international human rights standards the Parliament of the Kyrgyz Republic could consider amending some of the controversial provisions of some recently amended or adopted laws, like the Code of Criminal Procedure (on the prosecution of “extremist” individuals or organisations), the law on “foreign agents”Note and the law on “protection against false and inaccurate information”Note (see paragraph 17 of the explanatory memorandum).

Amendment D (to the draft resolution)

20. In paragraph 7 of Resolution 1984 (2014), the Assembly noted that the request for partner for democracy status contained “no formal references to the statutory obligation to inform the Assembly regularly on the state of progress in implementing Council of Europe principles”. Also, pursuant to paragraph 14 of Resolution 1680 (2009), “having regard to the particular situation in each country whose parliament wishes to obtain “partner for democracy” status, the Assembly could on the proposal of the committee concerned, set out specific conditions to be met before or after the status has been granted”.
21. In paragraph 18.1 of Resolution 1984 (2014) the Assembly resolved to grant partner for democracy status to the Parliament of the Kyrgyz Republic “as from the moment of the adoption of the present resolution” on the understanding that it will regularly inform it “on the state of progress in implementing Council of Europe principles”. But so far, the Parliament of Kyrgyzstan has failed to provide the Assembly with relevant information. The Assembly should therefore request to be informed on an annual basis on the state of progress. This would provide the Assembly with the opportunity to “periodically review the progress made” as it has been proposed in paragraph 12.4 of Resolution 1680 (2009).Note

Amendment E (to the draft resolution)

22. I concur with the rapporteur’s conclusions that “not enough progress” has been made in implementing the political commitments entered into by [the Kyrgyz] parliament” (paragraph 55 of the explanatory memorandum) and that eight years after the partnership for democracy status was granted, there is now “a need to achieve concrete progress” (paragraph 52 of the explanatory memorandum). I fully support Mr Maire’s proposal “that the Assembly continue with its partnership with the Parliament of the Kyrgyz Republic while at the same time maintaining a rigorous dialogue, and that it shall reassess the partnership in depth in two years' time based on an analysis of results and tangible progress made” (paragraph 65 of the explanatory memorandum). I consider that the Assembly should encourage the relevant Kyrgyz authorities to develop a plan of implementation of the recommendations made in paragraph 15 of its Resolution 1984 (2014) over the next two years.

Amendment F (to the draft resolution)

23. This amendment aims at specifying that the co-operation with the Venice Commission should focus not only on laws but also on constitutional provisions. It also adds a reference to the Joint Opinion of the Venice Commission and the OSCE/ODIHR on the draft Constitution of the Kyrgyz Republic (Opinion No. 1021/2021), which raises a number of concerns as regards separation of powers and respect for human rights and fundamental freedoms (see paragraph 16 of the explanatory memorandum).

Amendment G (to the draft resolution)

24. This amendment aims at calling on the Kyrgyz authorities to adhere to the United Nations International Convention for the Protection of all Persons from Enforced Disappearance. This is particularly important in light of the reported cases of enforced disappearances (see above) and Assembly’s Resolution 2425 (2022) “Ending enforced disappearances on the territory of the Council of Europe” of 27 January 2022.Note

Amendment H (to the draft resolution)

25. As stated in paragraph 58 of the explanatory memorandum, “the recent political and institutional developments [in Kyrgyzstan], such as the political crisis and the cancellation of the October 2020 elections, the constitutional reform and the adoption of several laws aimed at strengthening the executive at the expense of parliament and the judiciary, restricting freedom of association and amending the electoral legislation, are cause for concern”. Hence, I propose to encourage the Kyrgyz authorities to guarantee and promote the right to freedom of association and peaceful assembly.

Amendment I (to the draft resolution)

26. In the last few years, the Kyrgyzstan’s authorities and the parliament in particular have not demonstrated a genuine political will to fully implement their commitments that were clearly indicated in the letter of the Speaker of the Parliament of Kyrgyzstan dated 27 October 2011. Thus, I propose to include a new paragraph in the draft resolution recalling the possibility of suspending and/or withdrawing partner for democracy status, as stated in paragraph 12.1 of Resolution 1680 (2009).