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).
