With Askarov Case, Kyrgyzstan Belies Pledges to End Torture and Uphold the Rule of Law

NEW YORK—The Open Society Justice Initiative says Kyrgyzstan is failing to honor its stated commitment to eradicate torture and uphold the rule of law, by keeping  66-year-old human rights defender Azimjan Askarov in prison serving a life sentence, despite manifest and profound shortcomings in the handling of his case.

The United Nations Human Rights Committee (HRC) called on Kyrgyzstan in April last year to immediately release Mr Askarov, finding he had been arbitrarily detained, tortured and denied fair trial rights after he was arrested following a wave of ethnic violence that erupted in southern Kyrgyzstan in 2010.

Mr Askarov was given a life sentence in 2010, charged with inciting ethnic hatred and involvement in the death of a policeman who was killed during the 2010 violence in the predominantly ethnic Uzbek south of Kyrgyzstan. During that trial, the defendants were not allowed to speak, no defense witnesses were present, and the defense’s lawyers were attacked in the courtroom by relatives of the deceased policeman. 

Following the HRC’s findings, Kyrgyzstan declined to release Mr Askarov or to quash his conviction, but ordered instead a retrial before the regional court which encompasses the capital, Bishkek. On January 24 that court confirmed the original life sentence imposed on Mr Askarov in 2010, after a process in which the defendant’s rights were again summarily ignored.

The retrial began on October 4, 2016 and included thirteen subsequent court hearings. The proceedings again demonstrated a willful disregard for the presumption of innocence, and for the basic principle that the defense should have equal standing with the prosecution in presenting its case. The legal shortcomings included:

• The sole evidence presented against Mr Askarov again consisted of witness testimony, often contradictory and vague, by police officers and other state agents. This included tainted testimony from police officers previously subject to criminal or disciplinary proceedings over their conduct as a result of Mr Askarov’s work as a human rights defender. Police statements that could be interpreted in favor of Mr Askarov were excluded from the text of the verdict.
• None of the witnesses called actually saw the alleged killing of the policeman. As a result, the actual circumstances of the death are still unknown. The court declined to question the sister of the deceased who at an earlier Supreme Court hearing stated that she saw gunshot wounds on her brother’s neck—contradicting the prosecution’s version of events. The court also refused to consider any irregularities in the forensic medical examination of the body, including the fact that the examination was only ordered after the person was buried and there is no evidence that an exhumation was conducted.
• The court refused to take into account any of the testimony from defense witnesses, stating that they were “neighbors or relatives” of Mr Askarov and were thus interested parties;
• The court ignored witness statements asserting that Mr Askarov’s co-defendants at the original trial had been tortured into giving incriminating evidence against him.  It also failed to order an investigation into those allegations, as required by the UN Convention against Torture to which Kyrgyzstan is a party and its domestic legislation;
• During the trial, Mr Askarov was kept in a metal cage despite numerous applications by the defense to let him sit with them, violating the presumption of innocence and hindering communication with his lawyers;
• No official translation into Mr. Askarov’s native Uzbek was provided, hindering Mr. Askarov’s ability to follow the proceedings, which were conducted in Kyrgyz;  
• The court did not acknowledge the relevance of Mr. Askarov’s work as a human rights defender who had represented members of the local residents in dealings with the local police. To the contrary, it accused him of actively stirring up interethnic tensions in the south of the country where the 2010 violence occurred;
• The court summarily dismissed the HRC findings on torture and on the shortcomings of the original investigation and trial.

The decision can be appealed to the Supreme Court.

Nurbek Toktakunov, defence co-counsel of Mr Askarov, said: “This decision is an unfortunate signal for the law-enforcement that torture and other human rights abuse are tolerated by the courts. Police and judiciary reforms in Kyrgyzstan will represent even a bigger challenge in such context”.

James A. Goldston, the executive director of the Open Society Justice Initiative said: “Askarov’s case is a litmus test of Kyrgyzstan’s ability to demonstrate respect of the rights of its people of any ethnicity—rights which include the presumption of innocence, the right to a fair trial, and freedom from torture. Kyrgyzstan should immediately release Mr Askarov in line with UN Human Rights Committee decision.”  

The Justice Initiative and Mr Toktakunov co-filed Mr Askarov’s original communication to the UN Human Rights Committee.