OBSERVANCE OF THE RIGHT TO FREEDOM FROM TORTURE AND CRUEL TREATMENT IN
TEMPORARY AND PRE-TRIAL
DETENTION PLACES, PSYCHIATRIC FACILITIES AND CHILDREN HOUSES
OF THE KYRGYZ REPUBLIC
Report on monitoring results
1
This Report has been produced in connection with the project “Addressing human rights in closed facilities in Kyrgyzstan through nationally-owned human rights mechanisms,” supported by the OSCE Centre in Bishkek, as well as the Freedom House Project on Strengthening Human Rights in Kyrgyzstan, financed by the United States Agency for International Development (USAID), and the Soros-Kyrgyzstan Foundation.
The Report is intended for public institutions, nongovernmental organizations, human rights defenders and others who are interested in the respect for human rights and fundamental freedoms and conditions in temporary detention facilities under the jurisdiction of the Ministry of Interior and detention facilities under the jurisdiction of the State Service for the Execution of Punishments under the Government of the Kyrgyz Republic, as well as in psychiatric and children’s institutions.
All opinions expressed herein belong to the authors of this Report and do not necessarily reflect the official position of the OSCE, USAID, Freedom House and/or Soros-Kyrgyzstan Foundation.
2
CONTENT:
1. INTRODUCTION……………………………………………………………………………………… 7 2. CONCLUSIONS AND RECOMMENDATIONS……………………………………………………. 13 3. PROJECT METHODOLOGY………………………………………………………………………... 30 4. THE MONITORING FINDINGS OF COMPLIANCE WITH THE RIGHT TO FREEDOM FROM TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
4.1. MONITORING FINDINGS OF THE COMPLIANCE WITH THE RIGHTS TO FREEDOM FROM TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN TEMPORARY DETENTION FACILITIES AND PRE-TRIAL DETENTION FACILITIES 4.1.1. Access to temporary detention facilities and pre-trial detention facilities………………..… 33 4.1.2. Key statistic data ………………………………………………………………………..….. 35 4.1.3. Respect for the right to freedom from torture and cruel, inhuman or degrading treatment in temporary detention facilities and pre-trial detention facilities………………………..…… 40 4.1.4. Respect for the right to protection ………………………………………………...... 49 4.1.5. Issues of medical examination …………………………………………………………..…. 51
4.2. MONITORING FINDINGS OF THE COMPLIANCE WITH THE RIGHTS TO FREEDOM FROM TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT AND MEDICAL TREATMENT IN PSYCHIATRIC INSTITUTIONS OF THE KYRGYZ REPUBLIC 4.2.1. Review of the legislation, policies and practices ………………………………………..… 54 4.2.2. The right to protection from torture and other cruel, inhuman or degrading treatment and medical treatment………………………………………………………………………..…. 55 4.2.3. Funding of services or financing the infrastructure: direct correlation of the level of abuse with the financing principle ……………………………………………………………….. 56 4.2.4. Absence of accreditation of psychiatric facilities………………………………………….. 57 4.2.5. Absence of an independent investigation of the causes of death in psychiatric institutions 58 4.2.6. Low potential of the staff of psychiatric institutions ……………………………………… 59 4.2.7. Absence of guidelines, protocols, quality standards, monitoring and evaluation of psychiatric institutions …………………………………………….……………………… 59 4.2.8. Absence of social integration programs for persons with mental disorders and intelligence disabilities …………………………………………………………………………………. 60 4.2.9. Absence of quality control of services in psychiatric institutions ….……………………... 60 4.2.10. Absence of an independent re-examination of persons held in psychiatric institutions …... 61 4.2.11. Slavery in psychiatric institutions …………………………………………...... 62 4.2.12. Absence of control and prosecutorial supervision over the observance of the rights of patients ……………………………………………………………………………………. 63 4.2.13. Absence of interaction between boarding institutions and health organizations at the scene 64 4.2.14. Problems of guardianship matters ………………………………………………………… 64 4.2.15. Forensic psychiatry and prison psychiatry ………………………………………………... 65 4.2.16. Particularly vulnerable groups: the elderly, children and patients with tuberculosis; patients 65 who have committed offenses ……………………………………………………………... 66 4.2.17. Corruption in psychiatric institutions …………………………………………………….... 67
4.3. MONITORING FINDINGS OF COMPLIANCE WITH THE RIGHTS TO FREEDOM FROM TORTURE AND CRUEL TREATMENT OR PUNISHMENT IN CHILDREN’S INSTITUTIONS OF THE KYRGYZ REPUBLIC. 4.3.1. Illegal detention and imprisonment of children …………………………………………… 68 4.3.2. Cruel, inhuman and degrading punishment ……………………………………………….. 70 4.3.3. Obstacles in maintaining communication with the child's family ………………………… 77 4.3.4. Absence of accessible and effective complaints procedures ……………………………… 80 4.3.5. Absence of effective tools for legal protection …………………………………………… 83
3 4.3.6. Absence of independent control …………………………………………………………. 84 4.3.7. Ineffective investigation of violations of children’s rights ……………………………… 86 4.3.8. Neglect of the basic needs of the child in institutions for children with disabilities …….. 88
4.4. DOCUMENTING CASES OF TORTURE. PROVISION OF LEGAL ASSISTANCE TO VICTIMS OF TORTURE …………………………………………………………………….. 92
4 ABBREVIATIONS:
CARM – Center of Adaptation and Rehabilitation of Minors CC of KR – Criminal Code of the Kyrgyz Republic CCIU MI – Chief Criminal Investigation Unit under the Ministry of Interior CPC of KR – Criminal Procedure Code of the Kyrgyz Republic CDI – City Department of the Interior CIU – Criminal Investigation Unit Convention against Torture – The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Committee against Torture – The UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment DIW – Discipline isolation ward DSFC – Department on support of families and children DDI – District Department of the Interior DoI – Department of the Interior IAB – Internal Affairs Body IAU – Internal Affairs Unit 1 ICCPR – International Covenant on Civil and Political Rights Internal Regulations - Internal Regulations for Temporary Detention Facilities under Internal 2 Affairs Bodies of the Kyrgyz Republic Law on Custody Procedure – Law of the Kyrgyz Republic “On the procedure and conditions 3 of custody for arrested persons suspected of and charged with committing offences” LSGB- Local self-government body MoI – Ministry of Interior NGO – Non-governmental organization OSCE – Organization for Security and Co-operation in Europe PA – Public Association PDF –Pre-trial detention facility PSB – Public Supervisory Board PF – Public Fund PEC of KR – Penal Execution Code of the Kyrgyz Republic PIC – Punishment Isolation Cell Report – Observance of the right to freedom from torture in closed facilities of the Kyrgyz Republic SCNS – State Committee for National Security Special Rapporteur on Torture – The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment SSEP – State Service for the Execution of Punishments under the Government of the Kyrgyz Republic Standard Minimum Rules - UN Standard Minimum Rules for the Treatment of Prisoners4
1Adopted by General Assembly resolution 2200A (XXI) of December 16, 1966. 2 Approved by the Resolution of the Government of the Kyrgyz Republic of February 2, 2006 (Ref. No. 57). 3 As amended by Laws of the Kyrgyz Republic of June 11, 2003 (Ref. No. 100), August 13, 2004 (Ref. No. 124), August 19, 2004 (Ref. No. 158), June 25, 2007 (Ref. No. 91); Decree of Interim Government of the Kyrgyz Republic of September 17, 2010 (Ref. No. 128) and Laws of the Kyrgyz Republic of July 14, 2011 (Ref. No. 99) and October 19, 2011 (Ref. No. 180).
5 TDF – Temporary Detention Facility TID – Transportation Interior Department UN – United Nations 5 UN Basic Principles - UN Basic Principles on the Role of Lawyers Universal Declaration - The Universal Declaration of Human Rights YLS – Youth Liaison Service
4 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders on August 30, 1955. 5 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September, 1990.
6 1. INTRODUCTION
January 2014 will mark twenty years since the Kyrgyz Republic joined in the ICCPR6, and fifteen years since the country became a party to the UN Convention against Torture7. Thus, twenty years ago the Kyrgyz Republic voluntarily undertook an obligation to respect and ensure the human right to freedom from torture and other cruel, inhuman or degrading treatment or punishment. Unfortunately, however, this lengthy period has not been an effective one in addressing these issues. On the contrary, according to authoritative experts, torture and ill-treatment today "are widespread in Kyrgyzstan"8 and have become "almost a part of the professional activities of law enforcement officers.” 9
It must be acknowledged that certain progress has been made in improving the national legislation in the fight against torture and ill-treatment. (We will generally refer to “torture and ill-treatment” in this Report collectively as “torture,” although of course ill-treatment is considered a broader concept.) However, the right to freedom from torture cannot depend solely on legislative provisions, which in themselves are often insufficient. Obligations under the ICCPR are not confined just to the general respect of human rights; rather State parties are affirmatively obligated to ensure the enjoyment of these rights by all individuals under their jurisdiction. State parties must ensure that specific activities are conducted, so that people can enjoy their rights.10 States must provide effective protection through some mechanisms of control. Competent authorities of the State should thoroughly investigate complaints of abuse. Those who are found guilty of abuse must be brought to justice, and the alleged victims should have at their disposal an effective remedy, including the right to receive compensation.11
During the hearing on the Second national periodic report of the Kyrgyz Republic on the implementation of the Convention against Torture at the 51st session of the UN Committee against Torture in November 2013, members of the Committee expressed criticism of the country on this subject. Claudio Grossman, Chairman of the Committee, noted that "For two years the country has not done anything other than improving legislation." Another member, George Tugushi, talking to the official delegation of the Kyrgyz Republic, also noted that "All human rights guarantees are enshrined in law, but they do not work in practice. People are held in TDFs more than the prescribed term, lawyers are not allowed to them, and medical examinations are not of a quality nature. We cannot always refer to the legal norms; the problem, which is deepened by corruption and low-skilled workers, must be addressed. You say that you have everything working, but reading statistics and specific data, we understand that in the fight against torture Kyrgyzstan leaves much to be desired. There are reports that people are dying in custody, prisoners are dying from diseases. All these facts must be investigated, and the situation must change."12
6 The Kyrgyz Republic joined by the Resolution of the JK, January 12, 1994 No. 406-XII. 7 The Kyrgyz Republic joined by the Law of KR No. 47, July 26, 1997. 8 http://www.un.org/russian/news/story.asp?NewsID=16610#.UprwH8RdVMQ. 9http://atamekenkg.com/index.php?option=com_content&view=article&id=15530:2012-06-04-10- 09-44&catid=101:public&Itemid=30. 10General Comments of the UN Committee on Human Rights No. 3 – Implementation at the national level (Article 2) (1981). 11 General Comment No. 7 was replaced by the General Comment No. 20 (forty fourth session, 1992). 12 http://www.fergananews.com/articles/7951.
7 Of course, in order to really make a difference, the State, in addition to the legislative innovations, must do more, including administrative, financial, educational and social measures. In this regard, it is very important that people know their right to freedom from torture, and that all administrative and judicial authorities are aware of the obligations that the Kyrgyz Republic has accepted under international treaties. With this purpose, international treaties establishing the absolute prohibition of torture should be made public. It is also necessary to take measures to ensure the familiarization of the relevant authorities with the content of these treaties, in the framework of programs for training and retraining of their staff.
In the Sustainable Development Strategy of the Kyrgyz Republic for 2013-2017, one of the key objectives is freeing people from the threat of torture, from the risk of degrading treatment. The Government of the Kyrgyz Republic and other State agencies were mandated to implement the provisions of the Strategy, including through the development, acceptance, and approval in the prescribed manner and implementation of State programs. These programs were to define specific measures, timelines for their implementation, and the authorities and officials responsible for implementation. Despite the fact that the Strategy was approved eleven months ago, the Government has not designated any specific programs, measures, deadlines and persons called upon to solve this crucial task.
The starting document for the Government in performing this task should be an Action Plan, aimed at implementing the recommendations of the Special Rapporteur on torture, and other mechanisms of the UN on human rights to prevent and combat torture. Such a document was developed a year ago by an interdepartmental group, in which experts of human rights NGOs and international organizations actively participated, and then was sent to the Government for approval. However, to this date the status of the document is not defined.
Over a year ago, the Law "On the National Center of the Kyrgyz Republic for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" entered into force. The Law aims to establish a system to prevent torture and other forms of ill-treatment and abuse in places of detention in the framework of the State's obligations under the Optional Protocol to the Convention against Torture. This Law is fully consistent with international standards, and the model system on prevention of torture received a good expert assessment from international organizations and of international human rights bodies. But in reality, the new State agency, for which great expectations were set, cannot exercise its powers, as the Government, in violation of this Law, did not solve the basic organizational and technical issues.
By Resolution of the Government on November 18, 2013, the Coordination Council for Human Rights under the Government of the Kyrgyz Republic was established, headed by Vice-Prime Minister for Security, Mamytov T.B. Perhaps this structure, designed to track the performance of the obligations of the Kyrgyz Republic under international treaties and the recommendations of international human rights bodies, will create a new positive impetus to the development of the Government's activities with respect to observance and protection of human rights.
In reality, today only in the context of the Memorandum of Understanding in the sphere of human rights and freedoms, can the problem of torture in the country be widely discussed on an ongoing basis and feasibly solved.
8 Continued cooperation under the Memorandum, now in its third year, among Akyikatchy (Ombudsman), the General Prosecutor’s Office, the four key ministries and departments, as well as fifteen NGOs and three international organizations, is required to allow the situation on the observance of the right to freedom from torture in places of detention to be monitored. Its unique format of cooperation and working methods are attracting new members to the Memorandum. Willingness to cooperate in the monitoring was already expressed by the Ministry of Social Development of the Kyrgyz Republic and a number of non-governmental organizations.
Members of the Memorandum of Understanding share the conviction that the protection of people deprived of the freedom from torture can be improved by non-judicial means of a preventive nature, based on regular visits to places of detention This conviction is based on the fact that: • the simple existence of external control will have an important moderating influence on the administration and officials of places of detention who will not want to be criticized from the outside and who will, in the absence of such external control, assume that they will never be held accountable for their actions; • visits allow independent experts to familiarize themselves with how detained people are being treated, as well as with their conditions of detention. Based on the observations of each particular situation, monitoring personnel can give practical advice, as well as engage in dialogue with the competent authorities to resolve any problems found; • visits to places of detention by people not associated with these institutions can be an important source of moral support for the persons held therein.
The main component of the 2013 Memorandum of Understanding remains an objective monitoring of detention facilities. Approximately the same volume of monitoring coverage is being conducted in temporary detention facilities of the Internal Affairs Body and pre-detention facilities under the State Service for the Execution of Punishment. However, this year, psychiatric and children's institutions were additionally included in the list of places of detention covered by monitoring.
In the Kyrgyz Republic there is a cumbersome, isolated network of closed institutions of a residential type, in which are housed a variety of categories of people deemed to be "mentally ill." In hospitals and boarding schools there are not only people with mental or intelligence disorders, but also orphans and homeless. In the recent past, people with epilepsy were held in psychiatric hospitals. Their number has decreased, but a high number of these people are still in boarding schools.
Monitoring of psychiatric institutions is intended to inform the public and decision-makers about the status of the right to protection from torture and degrading treatment, and also the quality of medical treatment in so-called "stationary" (residential) institutions for persons with mental disorders.
According to the results of monitoring, recommendations were developed for the Parliament, the Government and local authorities to improve the organization of mental health services, to protect people from suffering, and to save their lives. The Ombudsman and the General Prosecutor’s Office must conduct regular monitoring and supervision of compliance with the law in mental institutions. The level of civilization of each society can be evaluated by the conditions of people with mental
9 disorders. The creation of modern, integrated mental health services will be a significant step in the development of democracy and the rule of law in the Kyrgyz Republic.
Because of their immaturity, lack of knowledge about their rights, and dependence on activity and effectiveness of their legal representatives, children are not able to use the existing legal procedures and protect themselves against torture. This explains the importance and necessity of monitoring of children's institutions. Monitoring should contribute to the prevention of torture and abusive treatment of children and to a timely response to identified cases of torture and abuse. Compilation and analysis of the results of monitoring of closed institutions allows drawing conclusions and making recommendations aimed at eradicating torture and abuse in children’s institutions.
Government officials of the states participating in the Memorandum of Understanding have pledged together with partner organizations of civil society to promote monitoring and immediate response to reports of torture, including the obligation to actively monitor detention centers; to promote, as and when necessary, access to detention centers for partner organizations of civil society, lawyers and international organizations, including the monitoring groups established by them; to conduct an effective, thorough, rigorous and prompt internal investigation into allegations of violations of human rights and freedoms in accordance with national legislation and international standards, and report their findings to the management of the relevant public authority, partner organizations of civil society and international organizations; to provide an immediate response to allegations of violations of human rights and freedoms, defining the public official responsible for participation in a joint investigation and documenting of reports of violations.
The Report summarizes the findings of the monitoring of the observance of the right to freedom from torture in temporary detention facilities of the IAB, pre-trial detention facilities, psychiatric and children's institutions, during the period from February to December 2013 in framework of the project “Addressing human rights in closed facilities in Kyrgyzstan through nationally-owned human rights mechanisms,” with the financial support of the OSCE Centre in Bishkek and the local OSCE office in Osh, and the Freedom House project "Strengthening human rights in Kyrgyzstan," financed by the U.S. Agency for International Development (USAID) .
The Report is intended for public institutions, nongovernmental organizations, human rights defenders and others who are interested in the respect for human rights and fundamental freedoms and conditions in detention and closed centers of the Kyrgyz Republic, particularly, in temporary detention facilities under the jurisdiction of the MoI, pre-trial detention facilities under the SSEP, and psychiatric and children’s institutions.
The Report contains recommendations aimed at ensuring the respect for human rights and fundamental freedoms of those held in closed institutions, and in the execution of punishment, as set out in international law and national legislation of the Kyrgyz Republic, including the right to freedom from torture and ill treatment.
The first part of the Report includes a list of recommendations addressed to the Parliament, the Government and relevant State and local self-government bodies on the findings of the study in 2013.
10 The second part of the Report contains a description of project methodology, including general information about project goals and objectives, as well as its major components, and activities carried out in the course of the project.
The third section of the Report contains a description of monitoring results as regards the right to freedom from torture in TDFs under the MoI and PDFs under the SSEP, as well as in psychiatric and children’s institutions, including statistical data, also in the form of tables and diagrams, and the status of implementation of existing legislation. This section also includes cases extracted from monitoring reports from specific visits.
Chapters 4.2. and 4.3. are composed, respectively, by experts of "Mental Health and Society" PA and "Youth Human Rights Group" PA on the basis of the material collected during the monitoring of mental health and children’s facilities.
Activities by the project team concerning individual cases of torture and abusive treatment disclosed and documented during the monitoring visits, and provision of free legal aid to victims of torture, are described in the final section of the Report.
For three years there has been coordinated work of non-governmental organizations and their employees, observers, doctors and a forensic expert, who formed the project team:
PA Aman Plus (Bishkek) – Berg Ruslan; PA Ventus (Karakol) – Ruziev Kamil; PF Golos Svobody (Bishkek) – Bagishbekov Sardar, Koilubaeva Asel, Sydykov Aidar, Esenamanova Elmira; PA Za Druzhbu Narodov (Kyzyl-Kiya) – Mirkadyrov Mukhtar; PF Kylym Shamy (Bishkek) – Abdirasulova Aziza, Adamaliev Rysbek; PF Luch Solomona (Osh) – Makhmudov Sadykzhan, Asanov Tair, Abdulazimov Ulugbek,Batyrkulov Jusubali; PA Youth Human Rights Group (Bishkek) – Eshmatova Nadira, Utesheva Natalya, Korzhova Olga; PF Independent Human Rights Group (Bishkek) – Sayakova Dinara, Azimov Ulugbek, Votslava Yulia; PF Open Position (Bishkek) – Abdirasulova Gulshayir; PF Golos Svobody Rehabilitation Centre (Bishkek) – Bektemirova Aisalkyn, Maksutova Begayim, Kolbina Nadezhda, Novikova Svetlana, Asanov Tynchtyk; PA Free Generation Liberal Youth Alliance (Bishkek) – Shaihutdinov Timur; PA Soyuz Edineniya (Talas) – Bozhkova Svetlana, Bayaliev Kemel, Torobekov Chynybek; PA Spectrum Social and Legal Centre (Karakol) – Matveeva Ella; Regional human rights organization “Spravedlivost” (Jalal-Abad) – Gritsenko Valentina, Japarova Baktykan, Jabbarov Utkir, Shasalimov Farhod, Ismailov Bahodir; PA Mental health and society (Bishkek) – Makenbaeva Burul; PF ElSite (Kyzyl-Kiya) – Akhmedov Halimjan. Observers: Ismailova Jibek (Bishkek), Kalykov Murzakmat (Batken), Ivanova Elena (Ala- Buka), Khalilov Murzalim (Kerben), Popsuy Sergei (Mailuu-Suu), Sukhorukova Elena (Tash-Kumyr), Asakeev Tulanbek (Toktogul); Kalnazarov Taalai (Kara-Kul).
11 doctors: Ozubekova Gulumkan, Kaumova Zadikan, Subanbaev Aibek, Sulaimanova Minozhotkhon, Sultanmuratov Ismail, Mamarziev Alokulbek, Satybaldiev Shukhrat, Toltoev Myktybek, Kurmakulov Nurbek. forensic expert: Khalitova Elena.
The present study, which includes extensive monitoring of detention centers across the country, would have been impossible without the support of partners. The project team extends its gratitude to:
• The OSCE Centre in Bishkek and its Osh Field Office, for financial support and assistance in conducting the research and publishing this Report. • Freedom House Project on Strengthening Human Rights in Kyrgyzstan for their assistance in the training of health workers in pre-trial detention facilities under the SSEP on standards of effective documentation of torture in accordance with the Istanbul Protocol. • Soros-Kyrgyzstan Foundation for its assistance in carrying out activities under this project. • Akyikatchy (Ombudsman) of the Kyrgyz Republic and staff for their assistance in providing access to members of the monitoring groups in the TDFs under the MoI, PDFs under the SSEP, and psychiatric and children’s institutions, as well as active participation in the study and monitoring of detention centers. • All organizations that took part in carrying out this research and monitoring, observers, doctors and the forensic expert, who participated in the monitoring of detention centers.
We extend special gratitude to the leadership of the Ministry of Interior of the Kyrgyz Republic and the State Service for the Execution of Punishments under the Government of the Kyrgyz Republic, the Ministry of Health of the Kyrgyz Republic, Ministry of Education and Science of the Kyrgyz Republic, Ministry of Social Development of the Kyrgyz Republic, the administration and staff members of TDFs, PDFs, psychiatric and children’s institutions, where monitoring visits took place, as well as those held in the above-mentioned institutions who participated in interviews, for providing assistance with the research.
12 2. CONCLUSIONS AND RECOMMENDATIONS
Some important conclusions were drawn from the 2013 study, and specific recommendations were addressed to the Parliament, the Government, the Supreme Court, the General Prosecutor’s Office, ministries, agencies and local self-government bodies of the Kyrgyz Republic.
The main conclusion is that most of the problems identified by the 2012 study are still relevant today.
Two years after the visit of the Special Rapporteur on torture, Juan Mendez, to the Kyrgyz Republic, the situation on observance of the human right to freedom from torture has not changed significantly. Torture and abuse are in fact more widespread in Kyrgyzstan.
The expected impact from the positive achievements in the criminalization of torture is still not noticeable due to serious problems in policy and law enforcement practice.
The lack of reliable legal restraints from torture and abuse are inevitably creating an atmosphere conducive to impunity.
Mainly, torture is used by officials of the IAB in the first hours of detention and pre-investigation verification of statements and reports of crimes. The practice of torture by the IAB is spreading as a result of obsolete criteria being used for evaluating the effectiveness of the IAB’s activity, and as a result of the significant tendency of the judicial system to rely on confessions. There is a serious lack of reliable procedural guarantees during the first hours after the actual detention of the person. During this period the person is held in unofficial places, and officials are practicing so-called "conversations" with potential suspects or witnesses. These people are deprived of procedural rights provided by the criminal procedure law for suspects and witnesses.
However, torture is also widely used in psychiatric and children’s institutions of the country. Treatment of the patients and children is cruel, inhuman and degrading. Exceptions are the few institutions which have an “open door” policy.
In practice, the personnel of closed institutions for children do not have special training to work with children and adolescents in crisis situations, as well as sufficient resources and adequate working conditions. Personnel of hospitals and boarding schools do not have advanced knowledge about mental health issues and do not have the skills to provide quality services. Often the personnel uses the services of certain patients to discipline others. In children’s institutions there are common cases when a child is designated as a so-called "watching" person - those who are responsible for discipline in their unit, to report about the "guilty" ones to the authorities. Violence is the main way to maintain the established order in psychiatric and children’s institutions.
The general conditions in many places of deprivation and restriction of freedom lead to inhuman and degrading treatment. Funding of agencies are not related to the quality of services. There is no regular monitoring and evaluation of psychiatric and children’s institutions. Psychiatric institutions do not pass accreditation. In all the institutions visited, the administration acknowledged the presence of the dismal conditions, old buildings and the lack of allocated budget funds.
13 Existing mechanisms for complaints about the protection of persons who are in places of deprivation and restriction of freedom, are ineffective or unavailable. These mechanisms do not provide the necessary protection of the alleged victim from repression in the institutions.
Lack of prompt, impartial and full investigations of complaints about the alleged torture and abuse means that such criminal acts remain unpunished. Cases of torture are almost never investigated and perpetrators of torture are not penalized.
There are high hopes for the reform of the prosecution authorities of the Kyrgyz Republic. It is necessary to completely eliminate the conflict of interest between the functions of investigation and supervisory functions of the prosecution authorities, as the criminal cases on charges of torturing by the officials of internal affairs bodies during preliminary investigations cast a shadow on the effectiveness of supervision over the legality of investigations, over which prosecutorial supervision is also carried out.
The courts do not always show a real interest in verifying the allegations of torture. If the defendant claims during the trial that the confession was extracted under torture, the courts either ignore such statements or conduct a superficial investigation, just interviewing police officers in court. After denial by an official about the alleged torture, the judge concludes that the allegations of the defendant are unfounded and it should be viewed as an attempt to avoid responsibility. It is mandatory to restore the people's confidence in the judiciary and to the fairness and predictability of its decisions.
The new version of Article 305-1 of the Criminal Code of the Kyrgyz Republic (the “CC of KR”), on "Torture," narrows the circle of people who are criminally responsible for torture, to "officials," and does not impose criminal liability for torture on other persons acting in an official capacity, which are mostly employees in psychiatric and children’s institutions.
In the country there are still no state-supported specialized rehabilitation services for victims of torture.
Outside the walls of hospitals and boarding schools, the volume of service for persons with mental disorders is very small; there are no State programs for integration into society, social integration programs for orphans, and there is no help for the homeless. Therefore, orphans and the homeless who do not have any mental disorders, end up in psychiatric institutions.
There is no independent re-examination of persons detained in psychiatric institutions. Once persons sent there, they might spend their entire lives there. There is no independent investigation of the causes of death in psychiatric institutions, and the mortality rate is hidden.
Slavery is practiced in psychiatric and children’s institutions.
Monitoring showed that the situation of elderly, children, other people with mental disorders in combination with tuberculosis, and patients with mental disorders who have committed offenses, is particularly difficult.
14 In the education system, there are no State programs for children with autism and lack of educational programs for children with speech defects and intelligence disorders. These children are sent straight to psychiatric institutions.
61.7% of the recommendations which were formed based on the findings of the study conducted in 2012 under the Memorandum of Understanding, remain unfulfilled.
Since all of these recommendations are aimed at the resolution of certain issues that remain relevant to this day, there is a continuing need for their consideration and implementation.
№ Recommendations Implementation of (2011 monitoring report findings) recommendations
IMPLEMENTATION OF OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS BY THE KYRGYZ REPUBLIC
1. Assurance of permanent parliamentary control over the implementation by the Kyrgyz Republic of obligations under international treaty in the field of human rights and freedoms and the timely provision of periodic reports on not implemented the implementation of these obligations.
2. Development and adoption by the Government of the Kyrgyz Republic of a plan to implement the recommendations, concluding observations and decisions of the Universal Periodic Review (the “UPR”) and the special not implemented procedures of the UN Council on Human Rights and the treaty bodies.
3. Initiation of declaration recognizing the competence of the UN Committee against Torture to consider individual requests for violation of the right to freedom from torture in accordance with article 22 of the UN Convention not implemented against Torture.
RECOGNITION AND ENFORCEMENT BY THE KYRGYZ REPUBLIC OF DECISIONS OF INTERNATIONAL HUMAN RIGHTS BODIES
1. Development of an effective mechanism for the implementation by the Kyrgyz Republic of decisions of international human rights bodies, establishing a violation of human rights and freedoms, including those decisions with regard to the Kyrgyz Republic, already adopted by the UN not implemented Committee on Human Rights.
2. Development and discussion of the draft law on amendments and additions to the Criminal Procedure Code of the Kyrgyz Republic, establishing that decisions of international human rights bodies, in particular of the UN not implemented Committee against Torture, is the basis for the resumption of the criminal proceedings under new circumstances.
CREATION OF AN EFFECTIVE MECHANISM FOR EXAMINATION OF TORTURE ALLEGATIONS
1) provision of a quick review of complaints and reports of torture
1. Introduction to the legislation of a special procedure of consideration of
15 applications and complaints of torture. Set the maximum duration of the review of application of torture and decision making - three days. Provide an exhaustive list of exceptional cases where the consideration of not implemented allegations of torture and decision making can be implemented within ten days. 2. Enforcing observance by prosecutors of requirements of the legislation on criminal procedure on mandatory acceptance and review of statements and reports of the crime in cases where defendants in trials on addressing the not implemented issue of restraint in custody, claim that they have been tortured. 3. To develop an effective mechanism for receiving and considering complaints about torture from places of detention while fully observing the partially principle of confidentiality. implemented
2) increasing the effectiveness of considering torture reports made while considering the main criminal case on the merits
1. To introduce specialization of prosecutors in investigating accusations of partially torture used by public officials. implemented
STRENGTHENING GUARANTEES FOR RESPECTING THE RIGHT TO FREEDOM FROM TORTURE AT THE MOMENT OF ARREST
1. To introduce amendments in the CPC KR regulating the procedure for carrying out all activities from the moment of receiving torture allegations until criminal proceedings are launched, defining the status of a person that not implemented was apprehended until they receive the status of a suspect and their rights and duties are established. 2. To introduce amendments in Article 40 of the CPC KR (Rights and duties of suspects) developed by the Working Group within the Millennium Challenge Account and to define the status of a suspect: 1) to protect oneself and to use legal assistance of lawyers from the not implemented moment of actual apprehension; 2) right to one free telephone conversation with one family member, and in case they do not have family members, with one relative or any other person at their disposal, in order to inform them about detention and the place of detention; 3) not to testify against oneself and not to admit one’s guilt; 4) to be taken to court to determine whether or not their detention was legal within 48 hours after their actual apprehension and to be released based on an investigator’s or prosecutor’s resolution with further judicial verification of whether their detention was legal; 5) to communicate with their defense lawyer without interference and with no restrictions as regards the number and duration of such meetings 3. To introduce amendments in Article 95 of the CPC KR (Procedure for detaining a person suspected of committing an offence) developed by the Working Group within the Millennium Challenge Account whereby a report on detaining a person suspected of committing an offence should be compiled at the moment of their actual apprehension. If due to objective reasons it is not possible to compile a report at the moment of actual
16 detention, a report should be produced immediately upon taking a person to an inquiry/investigation body. At any rate, at the moment of actual apprehension a suspect should be told of what they are suspected and also the right not to testify against themselves and the right to use the legal not implemented assistance of a defence lawyer should be explained to them. A copy of the report with the list of rights and duties should be immediately handed to the detainee and within twelve hours it should be submitted to a prosecutor. The rights should be presented taking into account the suspect’s ethnicity and in terms of readability. 4. To introduce amendments in Article 99 of the CPC KR (Notification of a suspect’s relatives about detention) developed by the Working Group within the Millennium Challenge Account whereby at the moment of actual detention an investigator is obliged to inform one of the suspect’s family members about his/her detention, and in case he/she does not have family members, one of the relatives or a close person should be informed, or provide a suspect with an opportunity to inform them for free not implemented himself/herself. If, for objective reasons, notification is not possible at the moment of apprehension, such a possibility should be provided forthwith upon a suspect being taken to an inquiry agency. A note is made about such notification in the detention report. 5. To introduce amendments in the CPC KR developed by the Working Group within the Millennium Challenge Account regulating the judicial procedure for verifying whether or not the detention of a suspect who was released not implemented following an investigator’s or prosecutor’s resolution was legal.
SAFEGUARDS OF PROTECTION FROM TORTURE IN PLACES OF DETENTION
1. To introduce the practice of a centralized register (database) of all those who were detained and remain in custody, providing information as to who carried out the detention, what time a person was apprehended, taken to a police station, placed in a temporary detention facility and taken into not implemented custody, and about their movement inside and outside the facility. 2. To introduce amendments in the Law “ On the procedure and conditions of custody for arrested persons suspected of and charged with committing offences” establishing absolute prohibition of: a) censorship on correspondence of persons placed in detention institutions with their lawyer, parliamentarians, Ombudsman of the Kyrgyz Republic, director of the Kyrgyz National Centre for Prevention of Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment and international human rights bodies; not implemented b) placement of juveniles in the same cell with adults with “positive references” in temporary detention facilities.
IMPROVEMENT OF DETENTION CONDITIONS
1. To ensure transparency regarding the allocation and the use of budget funds to improve detention conditions. not implemented
17 2. To appoint a commission that should consist of experts from across multiple disciplines for carrying out urgent inspection visits to all places of detention for purposes of closing those places that would be regarded as unacceptable not implemented for holding people immediately. 3. To comply strictly with the Strategy for the Development of Penitentiary System in the Kyrgyz Republic for 2012-2016 (Umut-2) approved by the are being Government of the Kyrgyz Republic on May 15, 2012. implemented
4. To improve coordination of joint actions with the Ministry of Health on issues related to providing medical services to convicts and persons placed are being in detention institutions under the SSEP. implemented
EFFECTIVE LEGAL ASSISTANCE TO VICTIMS OF TORTURE
1. To establish a solid legal basis for defence lawyers to carry out their activities to the full extent not implemented 2. To support the establishment of a professional bar association in the framework of ongoing and planned judicial reforms. not implemented
3. To develop a comprehensive free legal assistance programme guaranteeing are being access to a defence attorney for all those in detention. implemented
4. To increase the effectiveness of the Law “On guaranteed state legal are being assistance” by adopting further information awareness measures. implemented 5. To make amendments in the CPC KR stating that in case a defence attorney provided to citizens is not on the Guaranteed State Legal Assistance list this will be considered a significant violation of the law and result in not implemented cancellation of a sentence. 6. To review the rates for defence attorney services within the guaranteed state legal assistance framework and to increase those in order to hire not implemented experienced defence lawyers providing qualified services to their clients. 7. To establish a mechanism allowing monitoring the quality of legal assistance provided. are being implemented 8. To make a revision of the defence lawyers register so that it could include sufficient information allowing suspects, alleged offenders and defendants are being to invite a lawyer of their own choosing. implemented
EFFECTIVE DOCUMENTATION OF TORTURE, INDEPENDENT EXPERT EXAMINATION
1. To integrate the Istanbul Protocol in all graduate and post-graduate training programmes for medical workers (doctors, nurses, medical assistants). not implemented 2. To integrate the Istanbul Protocol in the practice of all institutions providing treatment and diagnostic assistance regardless of which agency they belong are being to. implemented
3. To introduce the Istanbul Protocol as a mandatory diagnostic standard based are being on evidence-based medicine. implemented 4. To introduce torture documentation, on the basis of the Istanbul Protocol, in the existing statistical reporting system in the area of health care and monitoring and evaluation of medical and diagnostic facilities. not implemented 5. To make sure that the entire staff of the State Forensic Medical Service takes special training on the basics of the Istanbul Protocol. not implemented
18 6. To develop and to introduce, together with the Ministry of Health, a universal medical examination form for registering health condition and bodily injuries of detainees at the moment of their arrival in TDFs for the first time and when they are taken back after being not implemented transferred from TDFs for purposes of investigative activities. 7. To design a plan on transferring medical personnel in closed institutions to the Kyrgyz Ministry of Health on a step by step basis. not implemented
8. To introduce, for purposes of registering signs of torture effectively, a primary examination sheet when detainees are placed in TDFs, reception are being partially centres and PDFs, developed in conjunction with doctors of these implemented institutions and independent experts from nongovernmental human rights organizations.
CIVIL CONTROL
1. To adopt a draft law “On civil control bodies on the respect for human rights in the activities of internal affairs bodies.” not implemented 2. To provide public supervisory boards with a possibility to carry out public control, on an unimpeded and effective basis, in places of detention and to are being partially publicize public control results and recommendations. implemented
NATIONAL PREVENTIVE MECHANISM
1. To ensure the adequate allocation of budget funds and providing the Kyrgyz National Centre for Prevention of Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment with sufficient human and financial not implemented resources to carry out an effective work.
REHABILITATION AND REINTEGRATION OF TORTURE VICTIMS
1. To develop a mechanism for psychological and psychiatric and/or medical rehabilitation of victims of torture. not implemented
2. To develop a social and psychological service and educational activities within the SSEP, with appropriate state support, particularly in the area of financing, including with respect to the are being partially National Strategy for Penitentiary System Development in Kyrgyzstan implemented
3. To develop standard social, psychological, restorative and rehabilitation services for these target groups and appropriate documents, and to introduce are being partially a system for evaluating the effectiveness of these services. implemented
POLICE REFORM
1. To shift the criteria for evaluating the performance of police officers from crime detention rate to a system based on public trust and safety. Within the framework of the police reform, it is imperative that police performance indicators be reformed. The importance of quantitative indicators should, without further delay, be lowered significantly. The performance evaluation system should include a public opinion poll on police work that should be carried out by independent institutions. Within the framework of this
19 reform, more modern comprehensive indicators for evaluating police are being performance must be considered, such as the feeling of safety among the implemented public, appraisal of police work (general evaluation, satisfaction with their work, and satisfaction with communication), evaluation of latent crimes and evaluation of the scale of human rights violations.
2. Not only should the leadership of the MoI declare zero tolerance toward torture, but they should also denounce the use of torture and provide real- life cases when this crime was committed by police officers along with partially punishment that ensued afterwards. implemented
3. The MoI should inform the public on a regular basis about cases of torture (publish such information in criminal news sections) and reports of the offence called “torture” and cruel treatment by police officers. not implemented
PERSONNEL TRAINING AND RE-TRAINING
1. To review and to improve, on a constant basis, the legal education system targeting police officers, in particular special investigation officers, investigation units and services that are responsible for detention conditions. are being Special attention should be paid to their moral and professional faculties. implemented
2. On a mandatory basis, to include international standards in academic curricula and to discuss issues related to inconsistency between national legislation and practices and international standards in the course of educational activities. Such academic curricula should also include all are being decisions of the UN Human Rights Committee regarding the Kyrgyz implemented Republic and other decisions of UN treaty bodies and the European Court of Human Rights related to torture, and obligations to investigate torture and cruel treatment.
However, to authorities and LSGBs new recommendations are offered aimed at preventing and combating torture and ill-treatment in psychiatric and children's institutions.
Parliament of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. To ratify the UN Convention on the Rights of Persons with Disabilities 2. To improve the parliamentary control over the implementation of the Development Strategy of Social Protection for 2012-2014, in the direction of de-institutionalization and social integration of people with mental disorders.
Respect for the right to freedom from torture and ill-treatment in relation to children
1. To introduce amendments to Article 305-1 of the CC KR in order to ensure that persons acting in an official capacity, although not “officials,” responsible for torture or abuse of children will also be prosecuted for torture. 2. To introduce amendments to the Law "On guaranteed state legal assistance" in order to provide a mechanism of provision of free legal assistance to juveniles in closed institutions of any
20 type, in addition to a lawyer of a suspect or accused. This should include legal assistance to minors who are victims of abuse, torture or ill-treatment. 3. To introduce amendments to the Code of the Kyrgyz Republic "On Children," and the Civil Procedure Code of KR in order to ensure that when making a decision regarding the placement of a minor in the Special school for minors who need special conditions for education (in village Belovodskoe), the period of stay in the facility must be set. Any questions relating to the extension of this period shall be considered by the courts. 4. It is necessary to review the rules of Penal Execution Code of the Kyrgyz Republic and the Law "On the procedure and conditions of custody for arrested persons suspected of and charged with committing offences," restricting the right of minors in prisons and places of detention for contacts in the form of visits, telephone and correspondence with family members, and to provide in practice for meetings in conditions that take into account the need of the juvenile for privacy, contact and unrestricted communication with the family and lawyer. It is also necessary to provide to a juvenile the possibility of telephone conversations with family members without limiting their duration and preservation of confidentiality of communication. 5. To introduce amendments the Criminal Procedure Code of the Kyrgyz Republic. It is necessary to provide a juvenile with the right, when he/she is a victim of torture or ill-treatment, to choose a public defender to participate in the interests of the juvenile at all stages of criminal proceedings, when the legal representative of the child's rights may himself/herself be a violator and is not interested in protecting the juvenile’s rights or does not have the actual opportunity to ensure timely protection of the juvenile’s rights. To develop procedures for establishing the legal status of the public defender. 6. It is necessary to review the protection measures provided by the Law "On protection of witnesses." In case a claim by a minor of torture or ill-treatment in a closed institution, the person who is suspected for committing torture should be promptly removed from his/her performed duties and should not have access to the facility during the investigation.
To the Government of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. It is necessary to assist the Ministry of Health, by uniting efforts of ministries and departments in the development of the National Mental Health Program, and complete the creation of a budget for a single-payer compulsory health insurance fund in 2014. 2. All social obligations and the obligations of the State in the field of mental health should be supported by appropriate expenditures in the budget. To do this, financial flows from boarding schools should be redirected to services in the community. 3. Basic funds for mental health services should be restructured in the near future. Extensive hospital land and other possessions should be evaluated and sold at public auctions. The proceeds should go to other needs, such as mental health services in the community. Civil society should be involved in this process. 4. Financing of mental health services should be based on the needs of users and depend on the quality of services rendered. Indicators of quality of services in the psychiatric health field should be developed and should include indicators of quality of medical treatment, increasing quality of life and increasing social work. Financing should take into account the different needs
21 and stimulate the emergence of various forms of care in the community; the needs assessment should not be limited to the number of hospital beds. 5. Different service providers, both public and private, should have equal access to the funds of Payer with the equal demand for quality service delivery. 6. Institutions providing assistance to persons with mental disorders should be accredited. 7. Indicators of mental health should be developed and implemented to assess the practice of family doctors no later than 2014. 8. It is necessary to ensure wide-sectoral cooperation for the development of vital mental health services, including access to education and vocational training, employment, psychosocial assistance and crisis counseling. 9. It is necessary to develop and adopt a 10-year program of reform of mental health services, which should set the following tasks: 1) Mental health should be recognized as a priority and the basis for the well-being of individuals, families, communities and the nation as a whole. 2) It should be recognized that poverty is a contributory factor to certain types of mental disorders, but at the same time, mental disorders in the absence of adequate assistance contribute to the growing level of poverty. 3) Financing mental health services should be based on the needs of users, depending on the quality of services provided, and be based on the same basic principles as the financing of health care in general. Existing discriminatory practices against people with mental disorders should be promptly discontinued. Provisions on financing of Article 16 of the Law "On psychiatric care and guarantees of the rights of citizens in its provision" should be implemented. 4) The main types of assistance should be provided in the primary level of the health service. Vital psychotropic medications should be available at all levels of health care. 5) Institutional facilities, including neuropsychiatric boarding schools, must be replaced by various forms of community-based care depending on the location. 6) Available alternative models of mental health care, such as community care, information and support, protected homes and services in health centers should be widely used, providing access to such services in all regions of the Kyrgyz Republic 7) The local community, users and their families should be included in the development, decision-making, implementation and evaluation of policies, programs and services in the field of mental health. 8) The public should be informed and instructed on mental health issues. 9) Human resources for mental health should be developed and strengthened through educational courses, mentor training and technical assistance. 10) Other sectors must operate closely with the mental health protection services. Social protection, education, law enforcement agencies, employment services, local-self government bodies, and non-governmental organizations could make a major contribution to improving the mental health of the population. 11) Monitoring of the mental health community and the general population should be conducted continuously to evaluate the effectiveness of prevention and treatment of mental disorders. Mental health indicators should be included in information and reporting systems for the early detection of health trends and developments related to external factors such as natural disasters, catastrophes, and conflicts.
22 12) Study in the field of mental health should be supported to develop more effective programs of practical interventions, as well as to learn more about the factors affecting mental health.
Respect for the right to freedom from torture and ill-treatment in relation to children
1) To provide a system of interdepartmental inspections of closed institutions where children may be present, aimed at determining the observance of rights of the child in these facilities, with special emphasis on the protection of children from torture and abuse. Mandatory participation should be required in such inspections by qualified medical personnel, to assess compliance with rules relating to the physical environment, hygiene, conditions of accommodation, nutrition, physical education and health services, as well as any rules relating to other aspects of the work of the institution affecting the physical and mental health of juveniles. Every juvenile should have the right to talk in confidence to any inspecting officer. 2) According to the results of any check or inspection, a report must be made on the conclusions, which should include an evaluation of compliance by the closed institution with children's rights, the provisions of national law, and recommendations regarding measures that are necessary to ensure compliance. Any facts established during the inspection which show the violation of the rights of juveniles or the violation of the operation of a juvenile detention facility must be reported to the competent authorities for investigation and prosecution. 3) Jurisdiction of the Center for the Adaptation and Rehabilitation of Minors (the “CARM”) should be transferred from the MoI to the Ministry of Social Development, and necessary staff should be provided for the effective performance of the functions of social protection of minors who are in difficult situations. CARM should be considered simply as the temporary placement of minors. An option of providing rehabilitation services for child victims of torture and domestic violence should be considered, using the positive experience of the CARM in Osh. 4) To include the special school for children who need special education conditions (Belovodskoe) is the program of de-institutionalization, followed by its closing and creation at the regional level of special education centers with special conditions of education for children who are in conflict with the law, including the appropriate resources and personnel who have the necessary qualifications. The number of minors living and visiting such facilities should be small enough to enable individualized treatment and to ensure contact between the minors and their families. 5) It is necessary to revise the staffing of the institutions working with children who are in conflict with the law; staffing must include a sufficient number of specialists such as educators, vocational instructors, counselors, social workers, psychiatrists and psychologists. It should not preclude the use of specialists who are underemployed or working on a voluntary basis, in cases where it is appropriate and beneficial in terms of volume of the assistance and the level of the training that they can provide. Prisons should utilize all the remedial, educational, moral, spiritual, and other resources and forms of assistance that are appropriate and shall seek to apply them to the individual needs and problems of minors. 6) It is necessary to conduct advanced training and to provide an appropriate system of staff training in closed institutions, as well as employees of Departments, on support of families and children and on the specifics of work with children who are in conflict with the law and child victims of violence. 7) Make changes in legal acts regulating the activities of institutions where children live:
23 • in any closed institution, including orphanages, boarding schools, special schools, educational colonies, CARM and others, the range of responsibilities of management and personnel should include an explanation to each of the minors, in an accessible and understandable form, of the rules governing the internal regulation of the correctional institution, disciplinary requirements and procedures, methods of seeking information and making complaints, and all other relevant issues, which enable the minors to fully understand their rights and obligations during their period of stay in the facility. Free and permanent access to such information should be provided to each minor at any time and under any circumstances. • procedures for the application of disciplinary sanctions in all institutions where minors are located, should include the following: an exhaustive list of valid measures of strict disciplinary impact, the maximum duration of these measures, and a system for determining their proportionality, their necessity and determination of their value in the system of educational measures for minors; identification of types of behavior constituting a disciplinary offense, for which disciplinary measures could be applied; designation of officials, who have the authority to impose disciplinary sanctions; a procedure for registering decisions on the application of disciplinary measures; an order of application of disciplinary measures, including informing the minor in an understandable form about an alleged violation, and the available appeal procedures of punishment; an appeal procedure and a procedure for review of complaints; disciplinary and other responsibility for the unjustified application of a punishment. 8) On the basis of the UN Guidelines on justice in matters involving child victims and witnesses of crime, a National strategy should be developed, given the need for the protection of children in closed institutions. Such a strategy should include the following measures: • support system for children - victims and witnesses - in his/her best interests throughout his/her involvement in the justice process; • provision of certainty for children and their families about the process, including specific information for children victims and witnesses about what to expect during the investigation and trial; • the existence of procedures, laws and court rules that provide an expedited review of cases involving children victims and witnesses; • ensurance in practice of a speedy trial, except when the delays are in the best interests of the child; • special procedures for obtaining evidence from children victims and witnesses; in particular with the use of video recording in order to reduce the number of interviews, statements, and hearings involving experts or psychologists, must be developed and applied; • if necessary, interviews of children victims and witnesses and their examination in court should be conducted in the absence of the alleged offender; • professional training should be conducted on issues related to the identification and prevention of intimidation, threats and harm to children victims and witnesses; • a system for the protection of children victims and witnesses from intimidation, threats and harm must be provided. • to include in the strategy the development of social protection measures for support and rehabilitation of children victims of domestic violence and torture.
24 9) When a minor comes to any closed institution or residential care institution, it is necessary to provide a compulsory medical examination for the purpose of recording any evidence of prior ill- treatment and identifying any physical or mental condition requiring medical attention. There should be procedures for delivery of medical reports, identifying signs of abuse, to the prosecutor’s office for investigation. To eliminate conflicts of interest and risks of dual loyalty among employees of medical, psychological and social services of closed institutions, their subordination directly to the administration of institutions must be changed, and data must be transferred to the Ministry of Health, the Ministry of Education and Science, and the Ministry of Social Protection, respectively.
Supreme Court of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. Judicial practice regarding the people with mental disorders should be extended by the Supreme Court, and aligned with national and international standards.
General Prosecutor’s Office of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. Representatives of the General Prosecutor’s Office, with the participation of local authorities, must regularly visit mental institutions, in accordance with Article 45 of the Law "On psychiatric care and guarantees of the rights of citizens in providing it." At the same time, the subject of supervision should be, first and foremost, the study of causes of death in psychiatric institutions and supervision of the observance of the right to protection from torture, not just the financial activities of institutions and "state procurement" activities.
Respect for the right to freedom from torture and ill-treatment in relation to children
1. In case of identification of torture or abuse in a closed institution for children during the investigation and the administration of justice, peculiarities of work with children victims of torture and child witnesses should be taken into account. To avoid creating additional difficulties for the child, interviews, examinations and other forms of investigation should be conducted by trained professionals who act in a sensitive, respectful and thorough manner for the interest of children. Age should not interfere with the child's right to participate fully in the justice process. Treatment of any child should be conducted in the same manner as with legal witness who may be questioned. Testimony should not be void or invalid simply because of age, if the age and maturity of the child allow him/her to give clear and detailed evidence. 2. To take measures to restore the rights of minors under Article 33 of the Law "On Education" and the Code of the Kyrgyz Republic "On Children," not to be placed in Belovodskoe without a court decision, and to initiate criminal proceedings against persons who have decided to place children in such school in violation of the law. Revise the duration of the stay in this school of minors who were previously illegally placed in this institution without a court order and continue to reside there illegally. To prosecute the relevant officials, through whose fault minors from 2003 to 2012 were illegally enrolled in this school. To provide to affected minors the reinstatement of their rights and compensation for moral damages.
25 3. To ensure effective investigation of each claim for the use of torture and abuse in institutions of any type. To bring to justice all perpetrators. 4. To provide departments on support of family and children services all the necessary human, informational and material resources to enable efficient performance of duties. 5. To introduce to the functional duties of any public authority a duty to inform as soon as possible the Department on support of family and children services about the child who is in difficult life situations.
National Center of the Kyrgyz Republic for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1. Introduce systematic checks of closed children's institutions. During the visits to TDFs and to PDFs, pay special attention to the observance of rights of minors: the implementation of obligations of law enforcement agencies to provide to minors information about their rights and their actual access to procedures for making complaints to the competent authorities.
Ministry of Social Development of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. It is necessary to urgently establish an independent monitoring of mortality in boarding homes, with the involvement of both the prosecutor's office and local authorities who provide to boarding schools a place for burial of dead. 2. It is necessary to execute the Development Strategy of Social Protection for 2012-2014 in terms of rehabilitation and integration of people with mental disorders into the community, as part of de-institutionalization and the creation of small sheltered homes for the disabled. 3. It is necessary to immediately implement the Law "On the basics of social services of the population in the Kyrgyz Republic" and to provide non-stationary and semi-stationary assistance to people with disabilities. 4. It is necessary to conduct an open competitive selection and rotation of leaders of psychiatric institutions. 5. Quality standards for services should be developed and introduced in practice in all psychiatric institutions and services in communities 6. The social system should be focused on providing services to persons with mental disorders in the community.
Ministry of Health of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. The direction path of efforts and financing should be rotated from the institutional segregation model to various alternative models of care in the community, such as assertive psychiatric home care, day rehabilitation programs based on Family Medicine Centers, legal assistance centers, secure homes and temporary shelters. They can be financed by shifting resources from institutions which ultimately must be dissolved.
26 2. It is necessary to motivate the hospitals to provide psychiatric care, for example, by grant competitions for equipment repair and provision of small areas within hospitals and Family Medicine Centers. The source of such grant funds may be the Central Fund for Poverty Reduction. 3. Mental health problems should be under constant supervision by the inclusion of indicators of mental health information and reporting systems on health care. Indicators should include information about the number of people suffering from mental disorders, the quality of their care, the dynamics and structure of disability, as well as some other common characteristics of mental health in the regions. 4. Minimum standards for the provision of various forms of mental health care should be developed and approved. 5. Fixed funds for mental health services should be restructured in the near future. Extensive hospital land and other possessions should be evaluated and sold at public auction. The proceeds should go to other needs, such as mental health services in the community. Civil society should be involved in this process. 6. Treatment of psychiatric diseases should be maintained in general hospitals. 7. The list of vital psychotropic drugs by the State Guarantee Program should be expanded. 8. Access to psychotropic drugs at the primary level in each city and region, regardless of size, should be ensured. 9. Training courses for psychiatric nurses and social workers working in mental health should be developed and included in the curricula of the relevant educational institutions. 10. Training of family physicians on mental health should be continued.
Respect for the right to freedom from torture and ill-treatment in relation to children
1. To conduct routine departmental inspection of guardianship and custodianship agencies, regardless of their jurisdiction, at least once every six months, with the assistance of independent medical experts to assess the quality of treatment, supervision, rehabilitation work and observance of sanitary norms and rules. To organize a permanent retraining programs and training of medical personnel of guardianship and custodianship institutions, with the ability to pay transportation costs.
Ministry of education and science of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. To develop and implement educational standards in modern mental health courses at undergraduate and postgraduate levels of training of school teachers, nurses and social workers.
Respect for the right to freedom from torture and ill-treatment in relation to children
1. Curricula should be reviewed in the higher education system, and there should be training courses for health workers, psychologists and lawyers, providing information about modern methods of detection of torture, reporting, prevention, and the effects of torture and abuse on children. Such training should necessarily include the study of international standards for the investigation and documentation of torture and ill-treatment, ethical behavior, working with victims of torture, understanding of medical and psychological symptoms of torture, as well as information on the national capacity to provide assistance to victims of tortures and good practice in other
27 countries in this sphere. Education of lawyers should also include information about decisions of the UN Committee on Human Rights and the legal status of these decisions under the Constitution of the Kyrgyz Republic. 2. No minor should be admitted to the Special school for children who need special education conditions (Belovodskoe) without a court order.
State Service for Execution of Punishment under the Government of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment in relation to children
1. It is necessary to revise the system of education in closed institutions for children who are in conflict with the law, in accordance with modern scientific approaches, and to remove punitive approaches to education. The staff of these institutions should be trained and be able to systematically improve their skills. 2. To develop and implement in all closed facilities, including pre-trial detention facilities, correctional and special educational institutions, an effective and available mechanism for minors which allows minors independent from the administration of such institution, to file complaints and to protect them from reprisals. 3. Disciplinary sanctions for minors should be used only in strict accordance with the provisions of applicable law or regulations. Sanctions against a minor may be used only after he/she was informed of the alleged violation in a very understandable form and provided an adequate opportunity for defense, including the right to appeal. Each disciplinary proceeding should be documented and saved. 4. The use of such disciplinary measures as putting a minor in the children’s pre-trial detention facility (juvenile correctional facility) or in a punishment isolation cell (pre-trial detention) should be excluded from the list of allowable types of disciplinary sanctions. The restriction or denial of contact with family for any purpose should be prohibited. 5. It is necessary to review the staffing of institutions where work is conducted with children who are in conflict with the law. The composition of the staff must include a sufficient number of specialists such as educators, vocational instructors, counselors, social workers, psychiatrists and psychologists. This should not preclude the use of specialists who are underemployed or working on a voluntary basis, in cases where it is appropriate and beneficial in terms of volume of the assistance and the level of the training that they can provide. Correctional institutions should utilize all the remedial, educational, moral, spiritual, and other resources and forms of assistance that are appropriate and should seek to apply such resources to the individual needs and problems of minors.
Audit Chamber of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. Legislation and audit practice should be brought into line with international standards. The competence of the Audit Chamber should be expanded and should operate in accordance with the standards of the international organization, INTOSAI. 2. Each budget cycle in mental health protection must be concluded by an efficient and effective audit based on international standards. For this, the ability of the Audit Chamber to audit effectiveness of mental health service should be increased. The Audit Chamber should ask the
28 World Health Organization for methodological assistance to develop effective audit tools of mental health services. 3. Institutions of public supervision of mental health services should be developed through strengthening the capacity of the Supervisory Board of Statutory Health Insurance Fund and the Ministry of Health. The powers of the Supervisory Board should include the right of supervision over the budget cycle and the use of fixed assets.
Civil society of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. Human rights NGOs, organizations representing the interests of users of mental health services and their families, and other community organizations should work together to promote the protection against torture and abuse of persons with mental disorders, as well as to promote the ratification of the UN Convention on the Rights of Persons with Disabilities, thereby contributing to the development and implementation of the National Program on Protection of Mental Health
Local self-government bodies of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment of persons with mental disorders
1. Local self-government bodies should develop local policies and strategies to prevent members of their communities from being admitted to a psychiatric institution. For this there is a need to improve the identification of families who are in difficult circumstances and to assist them in a timely manner in access to affordable State services. 2. Local self-government bodies can organize small protected homes for members of their communities who suffer from mental disorders. 3. Local self-government bodies can promote the employment of persons with mental disorders, help organize self-help groups, and support the families.
Subdivisions of the authorized body for the protection of children, the Ombudsman (Akyikatchy), Prosecutor’s Office of the Kyrgyz Republic
Respect for the right to freedom from torture and ill-treatment in relation to children
1. During inspections in closed institutions for children, introduce the practice of: • Individual interviews with children on the condition of confidentiality; • Regular visits to closed institutions for children and investigation of any alleged violations of the rights of children in these places based on their complaints or on the independent initiative of the investigative body. • Publicizing the results of litigation and investigations concerning cases of torture and abuse of children in order to create in the society an intolerance to this phenomenon.
29 3. PROJECT METHODOLOGY
The project on “Addressing human rights in closed facilities in Kyrgyzstan through nationally- owned human rights mechanisms” was implemented from February through December 2013.
Main project goal:
To support torture prevention efforts in places of deprivation and restrictions of freedom, particularly in temporary detention facilities of the MoI of the Kyrgyz Republic, pre-trial detention facilities of the SSEP under the Government of the Kyrgyz Republic, and the specialized agencies of the health, education and social protection system, through national human rights protection mechanisms.
Project objectives:
• Collection of reliable information on compliance with international standards on treatment of prisoners in TDFs under the IAB, PDFs under the SSEP, and psychiatric and children’s institutions of the country. • Objective monitoring of TDFs under the IAB, PDFs under the SSEP, and psychiatric and children’s institutions, by civil society representatives with detailed documentation of the respect for national legislation and international standards on the treatment of prisoners, as well as effective documentation of human rights infractions. • Effective response to cases of torture and cruel treatment revealed in the course of monitoring visits. • Providing legal, medical and psychological assistance to victims of torture and cruel treatment, discovered in the course of monitoring. • Raising awareness among the wider public and international human rights bodies and organizations about the situation related to the right to freedom from torture in places of detention; • Identification of the reasons preventing effective verification and investigation of violations and punishment of the perpetrators, development of relevant recommendations, followed by promotion of their practical implementation. • Providing monitoring findings to interested governmental bodies and further discussion of these findings for purposes of improving the detention system in places of deprivation and restriction of freedom.
Particular focus during the project was made on the analysis of the effectiveness of existing national protection mechanisms for victims of torture identified during the visits to places of detention, by referring results to the relevant authorities and for further monitoring based on the results of requests.
Monitoring coverage
Monitoring coverage included TDFs of the IAB, PDFs of the SSEP under the Government of the Kyrgyz Republic, and psychiatric and children’s institutions.
30 The following places of detention were covered throughout monitoring visits: 47 TDFs of the IAB; 4 PDFs under the SSEP; 23 psychiatric hospitals, and 3 special children’s institutions.
Observers
The project team included representatives of 16 non-governmental organizations, more than 30 observers, 9 doctors and one medical examiner, who have experience in law, medicine, psychology and protection of human rights.
All project team members and observers were trained on the issues of human rights standards and the mechanisms for their protection.
Memorandum of Understanding on human rights and fundamental freedoms
In June 2011, the first MoU was signed by the Akiykatchy (Ombudsman) of the Kyrgyz Republic, the OSCE Centre in Bishkek and the NGO “Kylym Shamy.” In the same year, seven nongovernmental organizations joined in the Memorandum.
In June 2012, a new MoU was signed, and the number of participants, including state authorities and human rights organizations, has increased. In 2012 the following state bodies joined in the Memorandum – the General Prosecutor’s Office, the Ministry of Interior, the Ministry of Health, the Ministry of Justice, the State Service for the Execution of Punishment under the Government of the Kyrgyz Republic; international organizations – Freedom House, Soros-Kyrgyzstan Foundation and four more non-governmental organizations.
In December 2012, the third Memorandum of Understanding was signed for 2013, which, like the previous two, was aimed at strengthening the protection of persons against torture and other cruel, inhuman or degrading treatment or punishment, by a joint visit of locations of places of deprivation and restriction of freedom throughout the country, without prior notification.
The Memorandum clearly defines the framework of co-operation within the mandates of all parties, in particular, obligations of government bodies, partner civil society organizations, the OSCE Centre in Bishkek, the Freedom House Project on “Strengthening Human Rights in the Kyrgyz Republic” and the Soros-Kyrgyzstan Foundation. 13
Project components and procedure for their implementation
For achieving project goals and objectives, a methodology and an action plan were developed in the following main areas of activities:
1. Carrying out monitoring visits to places of deprivation and restriction of freedom, chosen as an object of the study in the framework of the project. 2. Effective documentation of torture cases and response to reports of torture and cruel treatment.
13Memorandum of Understanding on human rights and freedoms, pages 1-3.
31 Monitoring visits to places of deprivation and restriction of freedom
Activities in this area included the following: • Training for members of the monitoring group on the theoretical background and practice of carrying out a monitoring study regarding the respect for human rights in closed institutions and the behavior of observers. For purposes of adhering to such principles as objectivity, impartiality and confidentiality in the course of monitoring visits, project experts produced a document called “Memo for monitoring observers in closed institutions.” • Developing uniform tools for collecting information. At the previous stage of the research study, a tool was developed to be used across the field both in the work of government institutions and for public control. These tools were improved taking into account the experience from the previous monitoring study carried out in 2011-2012. • Collecting, analyzing and documenting monitoring findings. Preparing recommendations for improving the human rights record in closed institutions of the country. As the main method for collecting information in the course of the monitoring study, semi-structured interviews were used with administration and personnel of institutions, and those held in custody at the moment of visits. Respondents were selected on the basis of information received or receiving allegations of torture. At the same time, a random sampling method was used, when people had to agree to participate in the study on a voluntary basis.
The research study has been carried out in full compliance with generally accepted international standards and principles on monitoring studies.
Documentation of torture cases. Reacting to reports of torture and ill treatment.
Activities in this area included the following: • Identification and effective documentation of cases of torture and ill treatment. • Providing legal assistance to victims of torture and ill treatment, including the provision of defence lawyers and representation in national courts.
An impressive volume of reliable information sources used throughout the research study, as well as the extensive experience, expertise and analytical abilities of the project team, ensure fairly high accuracy of the results and conclusions.
32 4. THE MONITORING FINDINGS OF COMPLIANCE WITH THE RIGHT TO FREEDOM FROM TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
4.1. MONITORING FINDINGS OF COMLPIANCE WITH THE RIGHTS TO FREEDOM FROM TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN TEMPORARY DETENTION FACILITIES AND PRE-TRIAL DETENTION FACILITIES.
Despite the three-years of activity under the Memorandum of Understanding, access to the temporary detention facilities is still difficult. It is particularly Access to TDFs difficult to get access to the TDFs in the event information is obtained of a and PDFs mass beating of the prisoners or beating of an individual held in a TDF.
During the implementation of the project, seven instances of refusing access to observers in six TDFs of the country took place.
During an attempt to conduct monitoring in a TDF of the IAB of the Jeti-Oguz district, the chief of the IAU said that there were no prisoners in the TDF and did not grant access to a monitoring team. Only an hour later, after an appeal to the Prosecutor’s Office of the Jeti-Oguz district and intervention of deputy prosecutor Abdimambetov K., members of the monitoring group were admitted to the TDF. There were 5 prisoners in the TDF.
Access to a TDF of an IAB of Jalal-Abad, after the mass beatings of prisoners on February 6, 2013, was granted only after the intervention of the General Prosecutor’s Office. Throughout the project activity, the monitoring team constantly was faced with the problem of access to this TDF. The permission for granting for each visit took 1-1.5 hours.
In April and May 2013, the monitoring team had problems with access to four temporary detention facilities – a TDF of the IAB of the Mailuu Suu, a TDF of IAU of the Aksy district, a TDF of IAU of the Bazar-Kurgan district and a TDF of the IAB of Jalal-Abad.
In April of this year, the members of the monitoring group were not allowed into the TDF of the IAB of the Aksy district by deputy police chief of IAU, Baymyrzaev T., to whom observers turned due to the absence in the workplace of the police chief of the IAU. His ground for refusal was the order of Internal Affairs Management banning strangers to access to the TDF, including civil society organizations. To a request to read this document, the deputy chief also refused, saying that he had no relevant order/resolution allowing him to show the document prohibiting admission to the TDF. On May 17, 2013, observers were denied access to the TDF of the IAB in Jalal Abad, where according to information a beaten detainee was held. Only after the request of the regional human rights organization "Spravedlivost" to the Prosecutor’s Office of the Jalal-Abad district, the deputy prosecutor instructed the Prosecutor’s Office of Jalal-Abad to allow admission of observers to the TDF.
On June 1, 2013, the monitoring team was denied access to the TDF of the IAB of the Suzak district.
On July 8, 2013, the deputy head of Municipal Department of the Interior did not allow observers in the Town Police Department "Kurmanbek" of the IAB of Jalal Abad, saying that there is a
33 commission check in the TDF. Later it became known that two days before, on July 6, there was an attempted escape by prisoners.
Until now, visits to the TDF of the IAB of the Ala-Buka district remain problematic. The Head of the IAU, Colonel Baichiev A., despite the signed Memorandum, forbade a representative of "Spravedlivost" regional human rights organization to monitor without the permission of supervisors. Visits to the TDF took place under conditions that prevent an open and trusting relationship with a prisoner, as an observer was accompanied by an official from the Prosecutor's Office. The Head of IAU has also established a time limit visits to the TDF - 20 minutes. According to him, communication of prisoners with the monitoring team adversely affects the behavior of the prisoners because after meeting with observers, they begin to complain more about the conditions of detention, health, illegal investigative and operational activities, i.e., they "push for rights,” which is uncomfortable and creates unnecessary problems for TDF employees.
Analysis of visits showed some effectiveness of the Memorandum of Understanding in the field of human rights. Regional coordinators noted that in previous years access to TDFs has been hampered. When presenting the permission to visit the TDFs, the monitoring team had an opportunity only to examine the conditions of detention. Conversations with detained persons were strictly limited.
Currently, there is a need for mandatory notification of the IAB management or Prosecutor’s Office before visiting a TDF, which again confirms the old stereotypes of employees thinking about the execution of orders from senior management, rather than simply complying with the law.
However, despite the positive changes in the practice of granting access to the TDFs and PDFs , mainly due to the Memorandum of Understanding, Article 2 of which grants the monitoring team, when detecting cases of torture, the right to receive statements, explanations and other forms of documentation of torture, during the implementation of the project various kinds of obstruction of activity of monitoring teams by the administration of TDF and by officers of the IAB and the Prosecutor’s Office were noted.
From the report of the monitoring group: Deputy prosecutors of the Bazar-Kurgan district said that the monitoring group may continue to attend TDFs only with his knowledge and in his presence.
From the report of the monitoring group: During the monitoring of the TDF of the Bazar-Kurgan district, observers found a detainee with clear signs of beatings, allegedly with a broken jaw. However, the deputy chief of Bazar-Kurgan district of the IAB forbade the monitoring group to obtain from the detainee a statement about being subjected to torture.
From the report of the monitoring group: In April of this year, the IAB of Mailuu-Suu forbade members of the monitoring group to use questionnaires during the monitoring, justifying its ban by the lack of the necessary documents authorizing it by the Department of the Interior.
34 From the report of the monitoring group: In the temporary detention facilities of the IAB of the Mailu-Suu and the Aksy region, the monitoring group was not allowed to use a questionnaire. The restriction was imposed by the chief of IAU, who, after becoming familiar with the provisions prescribed in the Memorandum, withdrew it. In the IAB of the Aksy district, the head of TDF refused to cooperate, indignant about questions in the questionnaire relating to torture. His decision was motivated by the fact that many of the detainees dislike police officers, as they see them as their main reason for imprisonment. Also, in his opinion, many questions involve confidential information.
From the report of the monitoring group: During the monitoring of TDFs of the IAB of the Suzak district on June 25, 2013, the Head of the IAU openly accused the observers of nationalism and warned that if they would "inflate it," he will not allow them into the TDF.
Monitoring visits under this project covered 47 TDFs of the IAB and 4 PDFs of the SSEP.
Key statistic data The number and frequency of visits to a closed institution was determined by the monitoring group, depending on the situation of torture, as well as the availability of information about torture or statements of the parties detained therein on the use of torture.
The total number of monitoring visits was 432, of which: . TDFs – 393 visits, . PDFs– 39 visits.
Temporary detention facilities
The monitoring project covered all 47 TDFs of the IAB of the Kyrgyz Republic.
Table 1. List of TDFs of the IAB of KR, covered by the monitoring
Bishkek TDF of the IAB of the Issyk-Kul district TDF of MDI of TDF of the IAB of the Ton district Bishkek TDF DIAT Talas oblast: Chui oblast: TDF of DoI of the Talas oblast TDF of the IAB of Tokmok TDF of the IAB of the Kara-Bukin district TDF of the IAB of the Sokuluk district Naryn oblast TDF of the IAB of the Jayil district TDF TDF of the IAB of Naryn of the IAB of the Moskva district TDF of TDF of the IAB of the At-Bashi district the IAB of the Panfilov district TDF of TDF of the IAB of the Kochkor district the IAB of the Issyk-Ata district TDF of TDF of the IAB of the Ak-Talin district the IAB of the Kemin district TDF of the IAB of the Jumgal district Issyk-Kul oblast: Jalal-Abad oblast: TDF of the IAB of Balykchy TDF of the IAB of Jalal-Abad TDF of the IAB of Karakol TDF of the IAB of the Suzak district TDF of the IAB of the Jety-Oguz district TDF of the IAB of the Bazar-Korgon district TDF of the IAB of the Tup district TDF of the IAB of the Ala-Bukin district
35 TDF of the IAB of Tash-Kumir TDF of the IAB of the Uzgen district TDF of the IAB of Mailuu-Suuг TDF of the IAB of the Alay district TDF TDF of the IAB of Kara-Kul of the IAB of the Aravan district TDF of TDF of the IAB of the Nooken district TDF the IAB of the Karasui district TDF of of the IAB of the Toktogul district TDF of the IAB of the Nookat district TDF of the IAB of the Toguz-Toroi district TDF of the IAB of the Chon-Alai district the IAB of the Ak-Siy district TDF of the Batken oblast: IAB of the Chatkal district TDF of the IAB of Kyzyl-Kiya TDF of the IAB of the Kadamjai district Osh: TDF of the IAB of the Batken district TDF of MDI of Osh TDF of the IAB of the Leilek district Osh oblast: TDF of the IAB of Sulukta TDF of the IAB of the Kara-Kulzhin district
During the visits to TDFs, interviews were conducted with 704 prisoners, among whom were persons charged with committing offences, defendants, convicts and those subjected to administrative detention. The selection of respondents was made taking into account the presence of traces of physical violence or a complaint of torture, with mandatory compliance with the principle of willingness to be interviewed.
Diagram 1. TDFs. Percentage of respondents by procedural status
Among the respondents were 26 women and 678 men. 31 interviews were conducted with underage suspects accused of committing crimes.
Diagram 2. Diagram 3. TDFs. Percentage of respondents by gender TDFs. Percentage of full-aged and underage respondents
36 Diagram 4. TDFs. Percentage of respondents by age
Table 2. TDF. Respondents by ethnicity
Ethnicity Number of people Kyrgyz 519 Russian 84 Uzbek 83 Tatar 7 Uighur 3 Ukrainian 2 Kazakh 1 Karachay 1 Kurds 1 Tajik 1 Turks 1 Chechen 1
Table 3. TDF. Nationality of respondents
Nationality Number of people Kyrgyz Republic 695 Republic of Uzbekistan 7 Republic of Tajikistan 1 Stateless persons 1
37 Diagram 5. TDFs. Percentage of persons with and without prior conviction
Pre-trial detention facilities
Monitoring visits were conducted in four prison PDFs under the SSEP: 1) Pre-trial detention facility No. 23 in Bishkek; 2) Pre-trial detention facility No. 23 in Karakol 3) Pre-trial detention facility No. 24 in Naryn; 4) Pre-trial detention facility No. 25 in Osh
127 persons held in PDFs participated in interviews, among whom were accused of crimes, defendants and convicted persons.
Diagram 6. PDFs. Percentage of respondents by procedural status
Diagram 7. Diagram 8. PDFs. Percentage of respondents by gender PDFs. Percentage of full-aged and underage respondents
38 Diagram 9. PDFs. Percentage of respondent by age
Table 4. PDFs. Ethnicity of respondents
Ethnicity Number of Enthicity Number of
People people Kyrgyz 88 Azerbaijan 1
Uzbek 19 Korean 1
Russian 15 Turkmen 1
Tatar 2
Table 5. Nationality of respondents PDFs.
Nationality Number of
people Kyrgyz Republic 122
Republic of Kazakhstan 3
Russian Federation 1
Republic of Tajikistan 1
Diagram 10. PDFs. Percentage of persons with and without prior conviction
39 As in previous years, the project team identified monitoring of the right to
freedom from torture among detainees as a priority during monitoring visits to
Respect for the right TDFs and PDFs planned for 2013. to freedom from torture and cruel, The assessment of the situation has been based on information gathered in the inhuman and course of the monitoring work with the use of a previously tested monitoring degrading treatment methodology. Direct sources such as torture allegations during interviews by in TDFs and PDFs suspects, persons charged with committing offences and convicts, were a determining factor.
Monitoring results in 2013 again confirmed the findings of the Special Rapporteur on torture that the reason for an increasing amount of torture by police officers is a significant tendency of the judicial system in Kyrgyzstan to rely on confessions.14 Thus, 90.4% of persons interviewed described the use of torture by police to coerce confessions. In 2012 the figure was 89.5%.
For comparison of the dynamics of the overall situation of torture in TDFs and PDFs of the country, the following tables and graphs show the comparative indicator results of monitoring carried out in 2012, and the results of the present study.
Diagram 11. Purposes of torture
In comparison with the results of the monitoring in 2012, methods of torture remained unchanged. However, the monitoring group documented new methods of torture not previously encountered during the monitoring, such as burrowing into the snow, leaving a person stripped naked in the cold, and drowning in the bathtub.
14 Report of the Special Rapporteur on torture, paragraph 38.
40 Diagram 12. Types of torture
With a view to reconstruct the full picture of torture practices by law enforcement officers, the allegations of torture at various stages of arrest and detention of persons were analyzed:
. at the moment of actual arrest and between the moment of actual detention and placement in a temporary detention facility; . during detention in a temporary detention facility; . when taken out of TDFs; . during detention in pre-trial detention facilities; . when taken out of PDFs.
Use of torture at the moment of actual arrest and between the moment of actual detention and placement in a temporary detention facility
Monitoring results in 2013 again confirmed the fact that being in the TDFs of the IAB, i.e. under control of that agency, which consists of operatives, from year to year ranks as the most active circumstance for torture; suspects and defendants do not dare talk about being tortured. This is due to the fact that IAB operatives have virtually unlimited access to the TDFs and people detained therein. The threat of reprisals against the complainant is more than real. And only after a period in a PDF, which is under the jurisdiction of another agency, where access of operatives of the IAB is severely restricted, do torture victims, feel relatively safe and tell about the facts of violence.
So, if from the detainees in the TDFs of the IAB only one in four (26.9%) of the respondents decided to tell observers that they were tortured by the officers of the IAB, interviews with respondents detained in PDFs showed that every second (61.3%) of them informed about the torture used against them.
41 Table 6.
Percentage of torture reports by respondents held in TDFs and PDFs
Use of torture at the moment of actual
arrest and between the moment of actual
TDF PDF
detention and placement in a temporary
detention facility
2013 27.8% 61.3% 2012 25.4% 56.2%
According to the respondents of the TDFs, the main torturers are operatives (82.6%) and investigators (17.4%) of the IAB.
From a monitoring group report: During the monitoring "Kurmanbek" Town Police Division of Jalal-Abad, prisoner, K.T., stated that, being under investigation on October 14, 2012, in Jalal-Abad by the IAB, he was beaten by an officer of IAU, Akmal. In order to mute the screams, he taped K.T.’s mouth with tape.15
From a monitoring group report: Prisoner S. in PDF No. 21 said: "In the TDF there is a room, called "storeroom," and there were operatives."16
From a monitoring group report: Prisoner B. in PDF No. 21 said: "They tied my hands and legs and took me to the Too-Ashu pass, beat me naked in the snow."17
From a monitoring group report: Prisoner K. said that in July 2012, officers of the IAB of the Nooken district transferred him from the TDF of the IAB of Jalal-Abad to the Nooken district. On the way he was taken into a private apartment on Turgenev street and two officers of Municipal Department of the Interior, named Bykyt and Tair, started beating and kicking him, pulled his hair, drowned him in a bathtub.18
From a monitoring group report: Prisoner D. of the TDF of the IAB in the Uzgen district said that he was insulted and beaten by operatives of the IAU.19
From a monitoring group report: Prisoner B. of the PDF No. 21, informed observers: "So I confess, agents broke my fingers of both hands with a wrench." 20
15 Monitoring group report, № 1/2/7. 16 Monitoring group report, № 1с/1/7. 17 Monitoring group report, № 1с/2/19. 18 Monitoring group report, № 2/2/6. 19 Monitoring group report, № 23/15/18. 20 Monitoring group report, № 1с/1/10.
42 From a monitoring group report: Prisoner R. in PDF No. 21 said that he was forced to plead guilty to the crime, being threatened to "put his wife in jail." 21
From a monitoring group report: Prisoner G.. of the PDF No. 24 reported that operatives threatened to arrest his wife. "If you give testimony, everything will be all right, if you do not want your wife will sit with you." 22
From a monitoring group report: Prisoner No. 21 reported that police "threatened to prosecute my wife and send my children to an orphanage. Since I and my wife - came from the orphanage, I was scared and signed a confession."23
From a monitoring group report: Prisoner M. said that on November 11, 2012, in the building of Vice Squad in Jalal-Abad he was beaten by officers, Almaz and Chyngyz. From an interview with him: "Strongly beaten with crabstick on the head." 24
From a monitoring group report: Prisoners E. said that in the period from March 18-21, 2011, he was tortured by Subanaliev Kalyk, chief of Main Directorate for Combating Organized Crime Bishkek, and his assistants named Chyngyz, Samat, Sultan and Bekzhan. In order to obtain confessions they tortured him with a stun gun, put a plastic bag on his head, and beat him in the chest, head, and kidneys. 25
From a monitoring group report: In an interview with prisoner N. in the PDF No. 21 he said: "When I was put in jail, I stated that I am pregnant, I was sent to the ultrasound test with an investigator of IAU of the Leninsky district, Kanat. She went to the doctor first. They did only an external examination and the doctor issued a certificate that I am not pregnant. Then in the TDF my stomach began to hurt really badly, they called an ambulance, and they confirmed the pregnancy.“26
From a monitoring group report: Prisoner Z.K. stated that on January 17, 2013, he was beaten by an officer of the Counternarcotics Department, named Ernis, who in order to coerce confessions punched and put a gas mask on the head of a detainee.”27
From a monitoring group report: In an interview with prisoner T.Z: "When I was detained, I was with my 8-year old daughter. Iin spite of this, she and I were forced into a car and taken to the IAU. My daughter was frightened and cried all the time. Meanwhile they offended me and shouted at me in front of the daughter." 28
Previous studies have revealed widespread violation of the minimum standards of fair trial and the right to liberty and security of person. In particular, the analysis of the data revealed a massive
21 Monitoring group report, № 1с/1/23. 22 Monitoring group report, № 3с/2/5. 23 Monitoring group report № 1с/1/42. 24 Monitoring group report № 4/2/6. 25 Monitoring group report № 5/2/6. 26 Monitoring group report № 1с/1/47. 27 Monitoring group report № 1/3/7. 28 Monitoring group report № 1с/1/38.
43 violation of the prescribed method for arrest and detention of suspects. During monitoring in 2013, it was concluded that this situation has not changed.
According to Article 95 of the CPC KR, a detention report with respect to those suspected of committing an offence should be compiled no later than three hours from the moment of actual detention, and an investigator should deliver it, in writing, to a prosecutor within twelve hours from the moment a detention report is compiled. A detention report should mention the time of detention (hours and minutes), starting from which the 48-hour detention period is calculated. Furthermore, Article 98 of the CPC contains a strict requirement whereby persons suspected of committing an offence should be held only in temporary detention facilities.
In his report, the UN Special Rapporteur expressed concern over the fact that torture and coercion are already applied at the moment of actual detention and when detainees are taken to a police station, and this time period is never registered. National legislation allows the police to carry out arrests on suspicion of committing an offence without judicial orders, which “in itself creates the opportunity for maltreatment.”29
The illegal – and almost routine – procedure for unregistered arrests makes it difficult to identify whether or not the maximum three-hour detention period used at the first stage of deprivation of liberty is followed at all. As detainees are not registered at the moment of actual detention, persons deprived of their liberty are highly vulnerable and not protected from torture, because in practice it is at this very stage that basic safeguards are normally not provided, and those arrested are left without any protection. 30
In this connection, recommendations of the Special Rapporteur on Torture on the need for strict compliance with the requirement of registration at the actual moment of detention are very important. Unfortunately, the recommendation did not receive the appropriate attention, and the study revealed numerous violations of the requirements of the law as part of a registration procedure and detention, as well as in terms of the placement in TDFs and the length of stay of detainees in them.
Diagram 12. Period of time from the moment of detention before placement in the TDF
29 Report of the UN Special Rapporteur on torture, para. 44. 30 Report of the Special Rapporteur on torture, para 43.
44 In most cases, illegally detained persons were held in the offices in the buildings of district and city departments of internal affairs (police control rooms, rooms of operatives, investigators, deputies and heads of law-enforcement bodies, the corridor, the exercise yard). Respondents also reported cases of torture when they were detained in settlement (Settlement Militia Division), urban (Town Police Division) police departments and other units in buildings of the IAB. There were reports in which detainees were held in personal vehicles of police officers for hours.
The use of torture during the detention period in the TDF
The monitoring findings showed that, unfortunately, police officers continue to enter TDFs without obstacles, where victims of torture are detained. This has been noted in studies of previous years. Persons in custody are removed from the TDFs, including at night time, and made available to the operatives who apply physical violence to them to induce confessions. Operatives were also given the opportunity to communicate with prisoners in the TDFs.
As previously noted, this is contrary to the common rule that communication with the suspect, including detainees in a criminal case, is allowed for only people who are investigating a criminal case for the purpose of gathering evidence. Communication of operatives with detainees in connection with their operational investigative measures is not permitted without the consent of the person who is in charge of the criminal case.
9.3% of respondents informed on the use of torture during detention in the TDFs, (in 2012 - 5.8%). Moreover, among the individuals accused of performing torture were operatives (71.4%) and investigators (8.6%) of the IAB. Every fifth respondent (20%) said that he was beaten by officers of the TDF.
Among the places where torture is applied during detention in the TDFs, they survey said: TDF ward (22.9%), visiting rooms (11.4%), exercise yards (31.4%). Every third person who alleged torture (34.3%) said that he was tortured outside of the TDF.
From a monitoring group report: In an interview, prisoner T. of the "Kurmanbek” Town Police Division of the TDF of the Jalal-Abad said: "Basically, they hit during the" shakedown "of all who sit in the TDF. And other times they beat, but not much." 31
From a monitoring group report: Prisoner A. of the "Kurmanbek" Town Police Division of the TDF of Jalal-Abad: "Janish beat me in the office of TDF employees, and above, in the "monkey", I was beaten by Kadyrov Janybek and Nazaraliev Ulan." 32
From a monitoring group report: Prisoner Ch. of the TDF of the Department of Interior of Osh: "Agents put a bag on my head and beat me in the chest.” 33
31 Monitoring group report № 3/2/6. 32 Monitoring group report № 7/2/5. 33 Monitoring group report № 13/1/3.
45 From a monitoring group report: In an interview, the prisoner S. of the TDF of the IAB of the Jaiyl district said that operatives tortured him to compel testimony, "crabstick to the back and photographed." 34
Use of torture outside of the TDF
5.6% of respondents informed about the use of torture by the operatives and investigators of the IAB in the period of investigation occurred outside of the TDF (in 2012 - 11.6%).
From a monitoring group report In an interview, the prisoner A. of the "Kurmanbek" Town Police Division of Jalal-Abad said: "The staff took me out from the TDF for "investigative activities," but give us to the agents of Municipal Department of the Interior of Jalal-Abad, who beat. I was taken out several times from the TDF and beaten by agents named Meder, Akmal and Nurlan. They clamped hands with handcuffs and punched in the kidneys, clamped his left thumb with the pliers, stabbed needles in the back of the head.” 35
Monitoring group report: Prisoner B. of the PDF No. 21 said: "I was taken out of the city, they put a gun to my head and threatened to kill." 36
Monitoring group report: On June 19, 2013, during the monitoring of PDF No. 1 in the quarantine room, prisoner A. was discovered with bruises, according to him inflicted after being detained by police. Observers noted he had three bruises on his chest, size 2x5 cm, and the trace of cigarette burns on his right hand.
In 2012, the Special Rapporteur reminded Kyrgyzstan that the rules for presenting evidence and misinterpretation thereof should not be a stimulus for illicit actions by law enforcement bodies and investigators, and that removing inadmissible evidence from consideration during court proceedings is one of the effective ways to counteract illegal actions and abuses during criminal proceedings. 37
He noted that judges are widely seen as formally present in the criminal process, but mainly to rubberstamp decisions of investigating officers or prosecutors rather than take a genuine interest in following up on torture allegations. 38 He also advised that the immediate consideration by courts of any complaints on torture and ill treatment should be ensured ex officio without the need to submit a relevant motion by the defence lawyer. 39
Unfortunately, these recommendations of the Special Rapporteur have not been implemented in practice, which is confirmed by the results of the present study.
34 Monitoring group report № 2/5/14. 35 Monitoring group report № 8/2/7. 36 Monitoring group report № 1с/1/16. 37 Report of the Special Rapporteur on torture, para.81 (f). 38 Report of the Special Rapporteur on torture, para.52. 39 Report of the Special Rapporteur on torture, para.80 (b).
46 Many torture victims do not report the use of illegal methods against them. As observers have noted, only 15.1% of the persons interviewed told the court about the use of physical or psychological pressure. Most respondents see no point in dealing with the complaint because, in their opinion, "nothing will change from it" and "no one will be punished anyway." One of the reasons for not filing a complaint is the fear of retaliation by law enforcement officials.
Fears of torture victims that their complaints will be left without attention, unfortunately, are not unfounded. During all trials, where a person claiming to be a victim of torture declared this to the judge, in any case, neither the judge nor the prosecutor conducted an effective and impartial investigation of the complaint.
Monitoring group report: In an interview, the prisoner B. told members of the monitoring group, "I told about torture in court and on the sanctions. But the sanctions the judge did not react. I was quickly taken out of the hall. And when later in the court I said that I was beaten, the judge told me to appeal to the prosecutor and a lawyer. The prosecutor at the trial did not say anything, just smirked. Then, after the meeting, he came to us to the "monkey", and warned us to be silent. He said: "All you will have is" punishment."40
Monitoring group report In an interview the prisoner Ch. said: "At the sanctions, I informed that I confessed after I was given a" dose." The judge told me I could not be trusted. "41
Monitoring group report: In an interview, the prisoner E. said: "I informed about the torture in court in a case on its merits. The Judge of the Toktogul district, Egemberdiev, did not even pay attention to it. Prosecutor as well." 42
Monitoring group report: The prisoner P. reported that he told about the torture in court. "The judge tried to check with the witnesses, whether I was really beaten. The prosecutor, on the contrary, said that I am lying."43
Monitoring group report: The Prisoner, G. informed members of the monitoring group, that she informed in court about the use of torture, but nobody listened. "No identifications and confrontations have been conducted. I wrote to the prosecutor, the answer came to me in the Kyrgyz language, which I do not understand."44
During the interview, respondents reported that even in those cases when defendants, who appeared at the court hearing in front of the judge and the prosecutor, had obvious signs of physical abuse, they did not react in any way.
40 Monitoring group report, № 1с/1/10. 41 Monitoring Report № 1с/1/11. 42 Monitoring Report № 5/2/6. 43 Monitoring Report № 6/4/3. 44 Monitoring Report № 1/11/10.
47 Monitoring group report: In an interview, the prisoner O. of the PDF No. 21, said that he informed about the torture in court in a bail hearing. "I was beaten at hands and feet, put bag over my head. The judge saw my condition and did not even ask why I was beaten and why my head is smashed. "45
Monitoring group report: The prisoner D. of the PDF No. 21: "At the sanctions in court, I was covered in blood, but the judge did not even ask why I was in such a condition." 46
Monitoring group report: Prisoner B: "At the trial, I was afraid to say that I was beaten because agents warned me that if I complain, then I will not get out alive. Neither the judge nor the prosecutor asked where I got bruises and contusions on my face.” 47
Monitoring group report: Prisoner K. of the PDF No. 21: "Even though I looked beaten, the judge did not even ask. I myself did not say anything because nothing would have changed. There were a lot of people, I did not understand who is the prosecutor. "48
Monitoring group report: Prisoner Zh. of the PDF No. 24: "I informed about the torture in the district court. Judge Zh.Omurzakov pretended to not hear, and did not pay attention to my words."49
Upon completion of his mission to Kyrgyzstan, the Special Rapporteur on torture concluded that there was an absence of prompt, impartial, or thorough investigation of torture complaints in the country, which means that such crimes remain unpunished. 50 He pointed out that impunity, in turn, reinforces the trend to rely on confessions in criminal proceedings and to reject an independent forensic examination.
With a view to recovering some public trust in the judicial system and justice as such, the Special Rapporteur recommended to the relevant Kyrgyz authorities not to further delay the conduct of prompt, impartial and thorough investigations on torture allegations and to launch criminal proceedings forthwith if this is supported by evidence; except for cases when such accusations are unsubstantiated. Law enforcement officers involved in such cases should be at least temporarily discharged of their functions while the investigation and judicial proceedings are taking place. 51
The established procedure for the receipt of prisoners coming from a TDF to a PDF, when there are visible signs of physical violence, requires special attention. In such cases, the administration of the PDF refuses to receive him/her and sends the detainee back to the TDF.
45 Monitoring Report № 1с/1/9. 46 Monitoring Report № 1с/1/12. 47 Monitoring Report № 1с/1/16. 48 Monitoring Report № 1с/1/30. 49 Monitoring Report № 3с/2/1. 50 Report of the Special Rapporteur on torture, para.77. 51 Report of the Special Rapporteur on torture, para.81 (d).
48 This practice has caused serious concern to the members of the UN Committee against Torture, who asked the relevant questions to the governmental delegation of the Kyrgyz Republic which was presenting the Second national periodic report at the 51st session of the UN Committee against Torture in November of this year.
Monitoring group report: From an interview, the prisoner O. of the PDF No. 21: "I was not accepted to the PDF twice, since I was beaten." 52
During visits to pre-trial detention centers, statements of prisoners about the use of torture during the period of their stay, have been reported. However, observers actually witnessed the beating of the prisoner A. in the PDF No. 21. He was beaten by employees of the PDF as a punishment for a fight with fellow inmates. The members of the monitoring group described the act. Their report was passed to the administration of the institution which promised to deal with the guilty employees.
In its Concluding Observations, the UN Human Rights Committee noted that all detainees should enjoy immediate access to a defence lawyer. 53
Respect for the right The UN Basic Principles on the Role of Lawyers envision everyone’s right protection to be assisted by a lawyer of their own choice for protecting their rights and for preparing the defence at all stages of criminal proceedings. Immediately upon arrest all persons should be forthwith informed by the competent authority about this right. Anyone without access to a lawyer of their own choice should be entitled, in all cases in which the interests of justice so require, to have a lawyer assigned to them by a judicial or another body, free of charge if they lack sufficient financial resources to pay for such services. 54
The UN Basic Principles on the Role of Lawyers also envision the right of an arrested individual or an individual taken into custody to communicate and consult with a lawyer for a sufficient amount of time and to meet with their lawyer in conditions without censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.55
The Constitution of the Kyrgyz Republic guarantees everyone’s right to receive qualified legal assistance at the expense of the state in the cases prescribed by law. 56 An investigator who is in charge of a criminal case is required to provide a defence attorney to participate in criminal proceedings, and, as regards those who have the right to legal assistance at the expense of the state, to demand that a defence attorney be assigned by competent public officials who are responsible for providing legal assistance guaranteed by the State.57
52 Monitoring group report № 1с/1/9. 53Human Rights Committee, Concluding Observations on Georgia, U.N. Doc. CCPR/C/79/Add.74, April 9, 1997, para.28. 54 UN Basic Principles on the Role of Lawyers, Principle 17. 55 UN Basic Principles on the Role of Lawyers, Principle18. 56 Constitution of the Kyrgyz Republic, Article 40, para. 3. 57 CPC, Article 36, Section 1, para. 12
49 According to the CPC KR, a defence lawyer should be involved in the case from the moment of the first interrogation of a suspect (or a person charged with committing an offence) or from the moment of their actual detention.58 At the same time, a defence lawyer is obliged to use all remedies prescribed by law for purposes of detecting and providing evidence that can exonerate a suspect or mitigate his liability, and to provide him with all necessary legal assistance. 59 A suspect has the right to communicate with his lawyer on an unimpeded basis, without limitations as regards the number and duration of such meetings. 60
17.7% of the respondents in the TDFs said they never saw their lawyer.
Diagram 13. Participation of defence lawyers during investigation
49.8% of detainees claimed that they saw their lawyers only once in court when pre-trial restrictive measures were considered by the judge.
In 43.1% of cases the lawyer has been appointed by the investigator, in 56.9% - invited by relatives of the detainee.
When observers were asking about the quality of assistance provided by defence lawyers, almost every third (29,4%) respondent said that he/she was dissatisfied with the work of the lawyer for various reasons (“comes rarely,” “asks too much money,” “silent at the court,” etc.).
Nevertheless, most of the detainees are satisfied with the (66.6%) work of their lawyer.
The remaining 4% of respondents could not answer this question, justifying it by the fact that they had seen a lawyer only once or twice, or a lawyer just started to defend them.
It should be mentioned that the quality of assistance provided by lawyers was evaluated only on the basis of the data obtained during interviews with those in detention. To formulate accurate and objective conclusions about the effectiveness of assistance provided by lawyers, a more full-scale research study is required that should include examination of case files, interviews with defence
58 CPC, Article 44, Section 3. 59 CPC, Article 48, Section 2. 60 CPC, Article 40, 42.
50 lawyers working with all respondents held in TDFs and PDFs, and so forth.
The United Nations has highlighted in the UN Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, the Issues of medical examination important role played by the ethical duties of health care workers in protecting detainees from torture and other cruel, inhuman and degrading treatment or punishment. 61 The Principles spell out the moral obligation of medical workers to protect physical and mental health of detainees and prisoners, and they make it clear that “active or passive participation in torture or conniving in torture in any form is an egregious violation of medical ethics.”
From the viewpoint of international standards, it is particularly important for a physician working in a closed institution not only to provide medical assistance, but also to carry out the medical examination of detainees arriving in the detention facility after being held in custody by the police.
The CPC KR provides that every time a suspect or a person charged with committing an offence is taken to a temporary detention facility or pre-trial detention facility, and also if they, their lawyer or relatives complain about physical violence used against them by investigation officers, they shall be subjected to compulsory medical examination, and the relevant documentation should be compiled.62
Monitoring in 2011-2012 revealed that the internal affairs bodies provide the medical officer for the TDF. Unfortunately, the situation to the date has not been changed.
The provisions of the CPC KR which are not implemented, as explained by authorities, due to financial restraints, are fortunately temporarily ensured as a result of support of donor organizations. Thus, at the time the monitoring was carried out there were doctors working in all TDFs in Osh and Batken provinces who were financed within the OSCE project.
As already stressed in the conclusions of previous studies, this measure is temporary, and in the absence of financial support from international organizations, activities of medical workers in the TDFs will stop. Financing from external sources should not become a common practice and fully replace the financing by the State. Funds should be allocated for the work of medical workers in TDFs from the State budget through the MoI of KR.
The monitoring findings have demonstrated that, as in previous years, even when a medical worker is present in a TDF, medical examination is not always carried out when a detainee is admitted to the institution for the first time, in violation of relevant international standards and national law.
28.5% of respondents held in a TDF reported that no medical examination was carried out when they first arrived. This is primarily due to the lack of medical officers in the TDF.
61 Adopted by the UN General Assembly in 1982. 62 CPC KR, Article 40 part.5, Article 42 part 7.
51 In most cases, medical examinations in TDFs are conducted by doctors on duty in territorial medical institutions.
In a number of cases, when a medical examination is carried out in the regional hospital, as can be gathered from the interviews, there is serious doubt about the impartiality of medical workers from the health care system. Some respondents reported that before they were placed in a TDF, they were taken to a hospital, but the doctor neither examined them nor asked any questions. A police officer accompanying them would enter the doctor’s office and come out with a certificate about the detainee’s state of health.
From a monitoring group report: In an interview, the detainee B. said: "The examination was conducted by the doctor in the territorial hospital in the Panfilovka village. I was beaten, covered in blood, but the doctor, without examining me, gave a certificate that I'm healthy." 63
Not all respondents correctly understood the procedure for a medical examination, confusing it with the examination by employees on admission to a TDF. Thus, some respondents said that a medical examination in respect of them was carried out by a patrol guard, chief of TDF or deputy chief.
As can be deduced from the survey results, the medical examination procedure is not compliant with international standards, in particular the UN Istanbul Protocol (Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
Thus, some respondents said that a medical examination was carried out with clothes on, or a doctor or a paramedic only asked questions.
As reported by the respondents in the overwhelming majority of cases, a medical examination is not carried out after detainees are taken out of a TDF for investigation activities.
This causes even greater concern in light of the information presented above that respondents placed in TDFs and in PDFs reported that they were subjected to torture when they were taken outside the TDF.
One of the detainees held in a PDF drew the attention of observers to the possibility of falsification of the results of medical examinations by doctors in PDFs.
From a monitoring group report: In an interview, detainee A. of the PDF NO. 21, said: "The police officer agreed with the doctor of the PDF that he would not record the signs of torture." 64
In general, the situation of medical examinations in PDFs is somewhat different than in the TDFs, because of the presence of medical staff in all PDFs.
63 Monitoring group report № 1с/1/10. 64 Monitoring group report № 1с/3/44.
52 In interviews only a few detainees of PDFs said that a medical examination in respect of them was not carried out.
Project experts concluded that the procedure of medical examination itself may be degrading treatment of prisoners. A paramedic conducted a medical examination of persons admitted for the first time in the corridor in front of the police control room of PDF No. 21. One of the detainees said that he had no underwear, so he cannot undress. The paramedic rudely forced him to remove his pants, in the presence of members of the monitoring group (among whom were women), other detainees and staff of the TDF and PDF who were in the hall.
The need to review procedures for medical examination in PDF No. 21 has been raised repeatedly in meetings with representatives of the SSEP, including the relevant passage of the Memorandum of Understanding. However, to this date, the examinations are still be carried out in the hallway of the detention facility.
In 2012, on the initiative of the OSCE Centre in Bishkek and several non-governmental organizations in the country, the development and implementation of a Standard Medical Examination Form as regards effective documentation of cases of torture and ill treatment in accordance with the UN Istanbul Protocol, has begun. In August 2013, this form was approved by Order of the Chairman of the SSEP under the Government of KR and implemented in practice.
In September and October 2012, the standard form was tested in two pre-trial detention facilities: PDF No. 21 and PDF No. 25.
In April 2012 and June 2013, NGO experts conducted trainings for medical officers of detention facilities of the country on standards of the Istanbul Protocol and effective documentation of torture.
At the moment, the form is already being used in daily activities of medical officers of PDFs. The effectiveness of this work will be determined in the near future based on the results of monitoring of the practical implementation of the Istanbul protocol.
Currently, representatives of the Ministry of Health of the Kyrgyz Republic have joined in the work on the development and implementation of a form for the psychiatric and neuropsychiatric institutions.
The UN Special Rapporteur on torture pointed out that it is difficult to prove that torture was used unless a medical examination is carried out immediately. In this light, the Special Rapporteur recommended that Kyrgyzstan set, in its national legislation, a minimum timeline within which a medical examination should be conducted without delay in conformity with the Istanbul protocol, 65 and also advised that the number of qualified medical workers in temporary and pre-trial detention facilities should be increased, while medical personnel should be guaranteed independence in places of detention by transferring them from the MoI and SSEP to the Ministry of Health. Forensic medical service providers should receive adequate training on medical investigation of torture and other forms of abuse. 66
65 Report of the Special Rapporteur on torture, para.81 (с). 66 Report of the Special Rapporteur on torture, para.81 (е).
53 4.2. MONITORING FINDINGS OF THE COMPLIANCE WITH THE RIGHTS TO FREEDOM FROM TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT AND MEDICAL TREATMENT IN PSYCHIATRIC INSTITUTIONS OF THE KYRGYZ REPUBLIC
Review of the The Kyrgyz Republic has taken the initial steps for the formation of a legislation, policies national policy on mental health. In 1999, a Law "On psychiatric care and and practices guarantees of citizens' rights in its provision," was passed, which, according to estimates of national and international experts,67 generally meets international standards.68 The Law emphasizes principles of legality, compassion, humanity and respect for the rights and freedoms of persons and citizens. A voluntary request for help is guaranteed, except where otherwise provided by law.
In 2001, the National Program "Mental health in the Kyrgyz Republic for 2001-2010" was adopted. The program contained a serious conflict between the Declaration and Plan of Action. It received no support from international donors, and has not received national funding. Thus it is simply a program on paper.
Currently, mental health protection service is provided by large psychiatric institutions, managed and funded directly by the Ministry of Health. Other services are available through funding from the Single Payer financing provided for the Compulsory Medical Insurance Fund (the “CMIF”). In the Single Payer Fund, are offices of psychiatrists, neuropsychiatric units of eight general hospitals, and mental health units in the ambulance service in the cities of Osh and Bishkek. Since 2006, the CMIF pays for psychotropic drugs for persons suffering from paranoid schizophrenia and affective disorders of various origins, under the Government Guarantee Program through pharmacies. In addition, under the supplementary program of Compulsory Medical Insurance on pharmacological support of insured persons on an outpatient basis, a prescription for psychotropic drugs can be obtained.
All institutional agencies of the Ministry of Health have facilities: old buildings on large plots of land, closed by fences; windows and doors are equipped with bars, some are geographically isolated.69
Other institutions are run by the Ministry of Social Development.
The Law "On the basis of social services in the Kyrgyz Republic" of 2003 in the theory ensures humane and progressive services, including social rehabilitation. Social assistance in the Kyrgyz Republic is to be based on targeting, accessibility, voluntarism, and other progressive and humane principles. Social services involve social adaptation and rehabilitation of citizens who are in difficult situations.
67 MDAC, Mental Health Law of the Kyrgyz Republic and its implementation, Budapest, 2004. 68 Resolution of the UN 46/119 of December 17, 1991. Principles of protection of persons with mental illnesses and improvement of mental health care. 69 For example, Republican Hospital in the Kyzyl-Jar village. This hospital was founded in the wilderness, where there are no natural sources of fresh water
54 The glossary of the Law contains the notion of "social rehabilitation" as a set of measures aimed at restoring (or compensation for) impaired or lost abilities to self-service, engaging in various professional activities, allowing persons with disabilities to lead a full life and ensuring the realization of their rights and potential. In the Law there is the definition of "social case work,” as providing assistance mainly at home and encouraging self-help.
Besides stationary forms of assistance, the Ministry of Social Development should have semi- stationary and non-stationary forms of assistance: emergency psychological assistance centers (hotlines), emergency services (operational) of social assistance (field team). An additional network of social service organizations should include hospices, home overnight stays, crisis centers for women, gerontological centers, and much more.
Notwithstanding the provisions of law70, the present study established that the main "care" for people with mental illness continues to be placing them in neuropsychiatric boarding schools that have all the features of prisons and unacceptable conditions of detention. Often, they stay there for life, without any medical reason to justify that, and are subjected to inhuman treatment, even slavery. There is no exact count of the people detained in these boarding schools, as there is no independent monitoring of mortality; causes of death are not established, although it is obvious that lack of sanitation and neglect often leads to death.
The Government approved the first Development strategy for social protection for 2012-201471, which envisages deinstitutionalization of residence institutions. But the Ministry of Social Development Strategy has failed to perform activities under the Strategy.72
The right to Torture is everywhere and is widely used in psychiatric institutions of the protection from Kyrgyz Republic; the treatment of people is cruel, inhuman and degrading. torture and other There are rare exceptions, such as the psychiatric unit of the Batken cruel, inhuman or Regional Hospital. Torture in this institution is excluded for a simple degrading treatment reason – the institution is “doors open.” Patients come for treatment and medical themselves, freely leave and return to the unit. Obviously, people would treatment not come to the institution on their own volition if there they were tortured or treated cruelly. The Osh Regional Addiction Center is “doors open” as well.
The most common method of torture is physically fixing patients to beds, so-called "tying." It is argued that this is a way to preserve the safety of the patient, who could cause injury to himself/herself or others, but it is also a means of punishment of patients, so they would obey the staff and follow the established rules. Another most common method of punishment is isolation in a closed room. In psychiatric institutions there is a continuing use of high doses of antipsychotic drugs for the purpose of punishment. It happens that therapeutic doses of neuroleptics are prescribed. Patients suffer from serious side effects of neuroleptics. 73
70 Law "On the principles of social services in the Kyrgyz Republic" editorial, April 12, 2003, No. 71, Bishkek. 71 http://www.mlsp.kg/index.php/bank-dokumentov. 72http://www.tushtuk.kg/society/3427_parlamentariy_schitaet_chto_pravitelstvo_ne_ispolnyaet_strategiyu_razvitiya_so tsialnoy_zaschityi_naseleniya/
55 Beating of patients by staff is widely practiced; often the beating tool is a mop. The staff often uses some patients to beat other patients in order to achieve submission and punishment. In one institution, even a former prisoner was kept as a hospital attendant for this purpose.74 “Horizontal violence" often occurs without the sanction of the staff. In the institutions there is no categorization of patients. One group of patients may be a source of violence to others. For example, in Pokrovsky boarding house for children with special needs, 4 year old children, teenage girls with intelligence disabilities and 17 year-old boys, were kept weak and immobilized. The boys were sent to this a psychoneurological boarding school from the boarding school of the Ministry of Education for bad behavior and use of drugs.75 Children complained that they were beaten by the boys. The female staff of the boarding school was also afraid of them. It is obvious that these different groups of children need different services and require staff with different competences. But they were all gathered in one institution only for the reason that there are not other places available, and other institutions have decided to get rid of them. This poses a threat to patients and staff. The demoralized staff also begins to use violence.
The threat of transfer to a psychiatric hospital with a brutal procedure is often a method of intimidation, especially in boarding schools. The most frightening hospital is the Republican psychiatric hospital in the village of Chym-Korgon.
Funding of services During monitoring, the following institutions have been studied in the or financing the health system: specialized psychiatric hospitals, which are financed by the infrastructure: direct Ministry of Health based on the number of "beds," and so-called correlation of the "psychonarcological" units of territorial hospitals, financed by the level of abuse with Compulsory Medical Insurance Fund on the principle - "per treatment the financing case." principle Institutions which are called psychoneurological boarding schools are funded by the Ministry of Social Development on the principle - the number of places.
Monitoring showed that the institutions where the service is financed by "per treatment case" is preferable from the point of view of human rights. Such a principle of financing does not create perverse motivations for management and staff to unreasonably delay a person in the institution to fill beds. Financing services gives the patient the right to choose the institution. Where the patient goes, the financing follows. This creates conditions for competition between institutions.
Financing of services reduces the risk of torture and ill-treatment, but does not eliminate it. As shown by the example of the psychonarcological unit of the Territorial hospital in the Kyzyl Kiya village,76 with funding per treatment case, abuse is also possible. Conditions of this unit were evaluated as inhumane. Alcohol-dependent men and women with depression and intelligence dysfunction are housed in one room and share the same toilet, posing a threat of violence, including sexual abuse. The unit is far from the main hospital building and stands in isolation from all other hospital buildings. In the accreditation procedures of psychiatric institutions, such conditions should
73 Interviews in Kadamjai mixed neuropsychiatric boarding house. Batken oblast, Kara-Tube village. 74 Interview at the Republican Psychiatric Hospital in the Chym-Korgon village, Chui oblast. 75 Observation card of the Pokrovsky boarding school for children with special needs, located in the Manas district of the Talas region. 76 Observation card of the psycho-drug treatment department of Territorial hospital. Batken oblast, Kyzyl-Kiya.
56 be considered unacceptable. Despite the fact that these services are financed by the Compulsory Medical Insurance Fund, apparently no one looked into this institution and did not conduct quality control of services. Infrastructure financing - on the number of beds, is uniquely evil and leads directly to torture and ill-treatment. This financing principle is unrelated to the quality of services, and creates perverse incentives for staff to hold people to fill beds. Another reason for the inhuman conditions is lack of accreditation of institutions. Patients can be transferred from one institution to another arbitrarily, without considering the needs of patients and the availability of resources in a particular institution required for the patient. An example is the "tuberculosis department" in the Republican Psychiatric Hospital in Kyzyl-Zhar77, that does not appear in the registry of the National Phthisiology Center and is not included in the statistics.
The unit is located in an isolated old building, where there is no running
water; instead toilets are cesspool. Patients with mental disorders and
Absence of tuberculosis are treated there because other institutions do not wish to
accreditation of provide services for them.
psychiatric facilities In the Kyzyl Zhar village staff is ready to provide such services in hazardous work conditions, because there are no other jobs in the neighborhood. The village is located 40 kilometers from the town of Tash-Kumyr, where there is unemployment. Almost all the villagers work in the psychiatric hospital.
There is no accreditation of institutions in the social protection system.
Date July 26, 2013
Name: “Pokrovsky rehabilitation boarding house for children with disabilities" Location: Kyrgyz Republic, Talas oblast, Manas district, Pokrovka village
It was built in 1940. Initially this orphanage was a "house for the elderly." In 1985 it was a boarding house for disabled adults; from 2006 to 2009 it was closed. In April 2009, it reopened after renovation and is designed for the disabled "with antisocial behavior," but in October of the same year by the decision to the Ministry of Social Development it was reconstituted as a boarding school for children with special needs. Capacity is 100 patients. During the monitoring 53 children with varying degrees of physical and mental disorders were there. Some children with physical disabilities obviously did not have mental disorders. They can easily engage in contact, talked about their life in other boarding schools, talked about how they had never been trained. 26 children had severe physical and mental development issues; they were not sitting, did not speak, could not perform their own physical needs, and could not eat food on their own.
Excerptthe monitoring reportfrom Among them were 17 - year old boys who were physically developed according to their age, and did not show any visible signs of mental illness. Employees told that these boys were orphans , transferred from the boarding school of the Ministry of Education for " bad behavior " : for fights , escapes , use of " naswar " and alcohol.
77 Observation card and interviews in the Republican Psychiatric Hospital in the Kyzyl Zhar village, of the Jalal- Abad oblast.
57 According to the job table, there are 88 working positions. Actually 47 people work there. Among them, 7-8 people were sitting in the administration building, which is located across the road from the main boarding building, and worked with some papers.
None of the staff had ever received training, other than an accountant who took new accounting standards training.
The Director, Otubekov Sagynbek, has been leading the institution for 19 years. At the time of monitoring, he was in Talas, where the regional authorities are located.
Human rights organizations, who have visited this institution, considered conditions as inhumane and demanded that it be closed. During the transfer of children to other facilities, one child died. The Minister of Social Development, Kudaibergen Bazarbayev, at a meeting of the JK Committee on Social Policy lied, saying that "no child died during the transfer." Meanwhile, three of the transferred children from Pokrovsky boarding school were enrolled in the Jalalabad children's psychoneurological boarding facility with a high temperature. One of them, Kerimbekov uluu Arzybek, born in August 21, 2007, died on September 11, 2013.
Causes of death in psychiatric institutions are not investigated by an Absence of an independent body. independent investigation of the Currently, judicial authorities continue to review the lawsuit brought by the causes of death in former director of the National Mental Health Center, Suyuntbek psychiatric Nazarkulov, against doctors and human rights activists. This gentleman is institutions outraged by the fact that doctors and human rights activists recalled that during his work as the head of major psychiatric institutions in the country, the mortality rate was hidden. S. Nazarkulov wants to return to the post of Director, with the support of MPs, and filed a lawsuit to recover his reputation. Meanwhile, a Note of the Board of the Ministry of Health was presented to the Court, which states that 137 corpses from the hospital, which S. Nazarkulov directed, were transferred to the Plastination Centre of Dr. G. Hagens, and according to medical records the patients were discharged alive. The story was told by the Sunday Times newspaper78 in 2005.
In the Kyrgyz Republic, the control of mortality in psychiatric institutions has failed.
In 2008, the hidden corpse of a young woman was discovered in the Aksu boarding school.
In 2013, there was still no independent investigation of the cause of deaths in the boarding school.79 Deceased persons in the institution are still buried without post-mortem examination. For example, in the certificate of death of one woman, it was stated that she died of "heart failure," but the staff said that she died because of a "hole in the back," apparently bed sores. This means that this boarding school is quite capable of hiding a cause of death which was due to poor care. The decision to waive postmortem examination is made by director of the boarding school.
One of the women there told that she was vomiting blood, but no one called a doctor. It is not known whether anti-tuberculosis measures are taken in the boarding school.
78 Hospital sold bodies of starved patients. Mark Francetti. Ferb, 13 , 2005 http://www.freerepublic.com/focus/f- news/1341991/posts. 79 http://vof.kg/?p=11425.
58 During the monitoring an interesting joint order was found, signed by the member of the Provisional Government, Damira Niyazalieva, who was acting as the Minister of Health, and by the current State Secretary of the Ministry of Social Development, Bakyt Zhekshenov.80 This order gives the director of the institution discretion to decide whether or not to pursue a postmortem autopsy of the deceased person at the boarding school. 81
In psychiatric hospitals, medical staff is incomplete. Most of the doctors are retired or people close to retirement age. Their knowledge is obsolete. Low potential of the Special courses on child psychiatry, geropsychiatry or forensic psychiatry staff of psychiatric institutions are not found at all in the country. There are no courses on mental health for nurses at either the pre-graduation or the post-graduation levels. Nurses who do daily care - are people without any special education. In boarding schools a salary is often paid for a doctor, but there is no doctor. Doctors, who are still working, do not pass any retraining.
Meanwhile, there is a direct correlation between the professionalism of management and staff and the level of cruelty in the institution. The higher the professional level, the fewer complaints about cruelty. Even the simple preparation of human rights reports and outreach efforts reduced the level of violence in the Kadamjai boarding school. A few years ago it was one of the most inhumane institutions. 82 During current monitoring, the residents of this boarding school complained, but the nature of complaints has changed: now they complain that they would like to get a job, leave the boarding school and meet with their families. They were not complaining about torture and ill- treatment by nurses.
th The International Statistical Classification of Diseases 10 Revision
(ICD 10)83 has been implemented in the system of health. The Ministry
of Health has developed and implemented 14 clinical protocols of mental Absence of guidelines, disorders. Protocols are used better in institutions that are funded by the protocols, quality CMIF. In psychiatric institutions funded by the Ministry of Health, the standards, monitoring diagnosis is often unreasonable and the treatment is improper. 84 and evaluation of
psychiatric institutions In institutions funded by the Ministry of Social Protection, the ICD is not applied and diagnoses are arbitrary. There is no standard medical documentation. There is a folder called "Portfolio." Records are maintained in copybooks arbitrarily. This documentation is checked by no one, so the documentation is being done carelessly or not conducted at all, since there is no doctor or there are doctors who work only part-time. Lack of guidelines, protocols, quality standards, monitoring and evaluation of neuropsychiatric boarding schools leads to the abuse and neglect of patients. For example, one of the causes of death of a
80 Order "On postmortem examination and fluorography of wards in boarding houses" MH KR No.280, May 26m 2010, State Agency on Social Welfare No. 120, May 20, 2010. 81 http://vof.kg/?p=3754 82 Monitoring of the budget of mental health. 2009. www.mhealth.in.kg 83ICD-10. International Statistical Classification of Diseases. Clinical descriptions and diagnostic guidelines, Saint- Petersburg, 1994. 84 Overview of case histories in the Osh Mental Health Center.
59 woman in Aksu boarding school was called simply "hole in the back," which was apparently bed sores. In boarding schools, monitoring groups have seen men and women with broken faces. Staff explained this as a result of epilepsy, they fell and hit their faces. Some of these people looked more like they were battered, but others seem really to have damaged their faces during an epileptic seizure. This would seem to prove that the doctors are not able to prescribe adequate anti-epileptic medication.
In psychiatric institutions there is a lack of services for patients to maintain proper communications; people cannot see their loved ones, and they cannot Absence of social call or write a letter. Able-bodied people, whose “slave” labor is used by staff integration programs or the institution itself, do not have the ability to earn and enjoy the fruits of for persons with their labor. Legal rights of persons with mental disorders are not protected. mental disorders and They do not have the opportunity to complain or go to court. In the intelligence 85 disabilities community there are no programs for children with autism. Attempts to organize educational centers for them are conducted only by the parents. Work of parents caring for their children with special needs is not recognized and supported by the State. Children deprived of parental support fall into residential institutions. They do not know their origin, no one attempts to find their biological relatives, and residential institutions in the State do not have social workers who are obliged to unite biological families. Social integration is not an indicator of the quality of social services.
All this causes severe mental suffering of people with mental disorders. Their dignity is lost.
The very existence of an isolated status deprives a person of the opportunity to be a member of the human family. Therefore, the absence of social integration programs should be recognized as a cruel, inhuman and degrading type of treatment.
Social integration is not an indicator of the quality of social services.
In general, there is a lack of agreed and validated quality indicators for psychiatric institutions. Psychiatric units of territorial hospitals should be Absence of quality checked by CMIF, but the condition of the hospital in the city of Kyzyl- control services in psychiatric Kiya creates doubt that control by CMIF is effective. The Ministry of institutions Health is making some fragmentary attempts to check the activities of various institutions. This often occurs in connection with the receipt of complaints. Complaints almost never come from patients, who are deprived of the opportunity to do so during their stay in the hospital. Usually the reason for checking a hospital relates to financial activities, not the quality of services for people with mental disorders.
85 Parents of autistic children, trying to attract the attention of authorities. http://www.24kg.org/community/163943-roditeli-detej-stradayushhix-autizmom-pytayutsya.html
60 In the boarding schools of the Ministry of Social Protection there is no principle of assessment of the quality of institutions. For example, Aksu female psycho-neurological boarding school is a kind of "champion" in media scandals and human rights reports. Repeatedly, investigative reporting on slavery in this institution have appeared. Journalists who covered this fact were detained in the institution by the staff, in order to take away video materials. At the same institution a lot of rose bushes and other flowers grow in the yard. Some of the rooms are well kept and have a typical smell of psychiatric institutions. At the same time, patients in this institution are in constant fear and are afraid to complain. Human rights activists have found a hidden corpse86 in this institution, and the head of the boarding school, Usenbaeva N., is often awarded with diplomas of the Ministry of Social Protection. One would assume that the number of rose bushes is an indicator of quality of the institution, because the Minister of Social Development, Bazarbayev K., in ordering training workshops on “organization of effective work,” 87 used this institution as a positive example. Perhaps the reason of the influence and status of the directors of psychiatric institutions, managing multi-million dollar budgets, is that they become local politicians and able to influence the outcomes of “elections.” In the same Aksu boarding school in 2008, a portrait was placed of the fugitive President Bakiev and his visit was expected.
During the monitoring in 2013, human rights defenders again made a complaint to the General Prosecutor’s Office, indicating the concealment of causes of death of people detained in this institution. In response to complaints of human rights defenders, suddenly the chairman of the Parliamentary Committee, Erkin Alymbekov, stood up for human rights defenders. At the request of the director of the boarding school, he decided to hold a visiting session of the Committee on human rights, constitutional legislation and structure of the State, on September 20, 201388 . The Committee invited a journalist, who then wrote an article stigmatizing people with mental disorders, claiming that they simply gave the impression of fears being instilled in them by the staff of the boarding school. 89
If psychiatric units of territorial hospitals funded by CMIF on a "treatment Absence of an case" basis are interested in quickest treatment and discharge of patients, independent re- then the principle of funding of specialized psychiatric hospitals and examination of neuropsychiatric boarding institutions on the basis of number of beds are persons held in motivated to keep patients as long as possible and even for a lifetime. psychiatric institutions Although the Law on mental health guarantees the person the right to "be in the hospital only for the period necessary for examination and 90 treatment," in reality, once a person got into such an institution, the person is at the mercy of the staff. The only exception is the will of family members who can "pick up” the patent, as described by the staff of the institution, a person "from hand to hand." Although
86 http://vof.kg/?p=3754 87 http://ktrk.kg/ru/content/kbazarbaev-posetil-aksuyskiy-zhenskiy-psihonevrologicheskiy-dom-internat 88 http://www.kenesh.kg/RU/Pages/ViewNews.aspx?id=8&NewsID=13401 89 http://www.knews.kg/society/37252_ne_takie_kak_vse_ili_vse_ne_takie/ 90 Article 5 of the Law "On psychiatric care and guarantees of citizens' rights in its provision" June 17, 1999 No. 60.
61 the law requires a release from the hospital or from an institution of social support at the request of the person91, in practice this is very rare, because according to the law "the findings of the medical commission with participation of a psychiatrist saying that the condition of the health of the person allows him/her to live independently" is required.
During the monitoring, it was possible to find only one case where one person was discharged voluntarily from Kadamjai boarding house. This was announced by the Director, Kalmatov Talas.92 It was impossible to obtain any evidence that someone had been discharged as a result of an independent re-examination, as it was impossible to find the existence of a body which would conduct regular independent assessments of the persons detained in psychiatric hospitals. In general, the system of social protection does not take any action regarding persons with mental illness who have gained the ability to live independently. While everyone knows that many people detained in psychiatric institutions are capable of being self- efficient, the system uses their labor.
There are numerous journalistic publications and human rights reports on slavery in psychiatric institutions. The post-Soviet structure of psychiatric Slavery in psychiatric institutions itself traditionally included the so-called "subsidiary farms." institutions These were agricultural and industrial facilities where people with mental disorders worked in a planned economy. There were sewing workshops, mills, bakeries, and production of packaging, fields, orchards, cattle, tractors and more. The prevalence of such facilities declined due to the market economy, but still the structure of institutions motivates staff to retain the most able-bodied persons and maintain the conditions for slavery.
Products of slave labor do not supplement to the meager *** diet of persons with mental disorders. Most often, these “Yes, we wash our things, we wash products are purchased by the same institution in the the things of weak ones, and bed budget money, called "public procurement." settings also, and we shower the weak ones, also clean, wash floor, Patients are involved in caring for heavily immobilized nurses never do such kind of job." patients, so-called "weak." This practice is found in all institutions, except psychiatric units of territorial "Very often we are working on the field, hospitals. basically always whenever there is a good weather, in rainy weather we do t k i t t Patients also take care of the people who have tuberculosis: feed them, re-make the bed and wash clothes. If people die in the boarding house or hospital, they also wash and prepare them for burial.
91Article 40 of the Law "On psychiatric care and guarantees of citizens' rights in its provision" June 17, 1999 No. 60. 92 Telephone interview on October 31, 2013.
62 The law on mental health Absence of control grants the local self- *** and prosecutorial government bodies the supervision over “Yes, we wash our things, we wash the authority to carry out things of weak ones, and bed settings the observance of "control of institutions and also, and we shower the weak ones, also the rights of individuals providing clean, wash floor, nurses never do such patients mental health care." kind of job."
Control over the activities of psychiatric and OBSERVER’S REPORT neuropsychiatric institutions is carried out by republican bodies ... health, welfare and education, as well as ministries and administrative departments, which have such institutions.93
Compliance with the law on the provision of mental health care is monitored by the General Prosecutor of the Kyrgyz Republic and subordinate prosecutors.
Local self-governments are not aware of their powers of
*** control of psychiatric institutions. Local leaders often collaborate with leaders of the boarding houses in matters "We take care of the weak, each of us
of local politics, such as elections. Locals often use has an assigned weak one, whom we residents of boarding houses to work in the fields or at take care off" home as a slave, and pay for the services to the director of
the boarding house or doctors.
OBSERVER’S REPORT
The Ministry does not conduct systematic control, but can conduct a check in response to complaints of human rights defenders. The Ministry of Social Development refused to inspect Aksu boarding house in response to reports of concealing death.94 The deputy minister wrote in his letter that the institution has been checked "for the period of 2008, for 51 times." The inspections have failed to achieve even the control of mortality.
Prosecutors often appear in psychiatric institutions for “checks,” but patients’ rights or causes of their deaths are not subject to their control. Prosecutors check "public procurement" and other financial aspects of the institutions.
These checks do not change the situation for the better for the residents. Moreover, people who dare to say something negative about the institution are punished.
93 Article 45 of the Law of KR "On psychiatric care and guarantees of citizens' rights in its provision" June 17, 1999, No. 60. 94 Letter from the Deputy Minister of Social Development N. Eshenkulov No. 13/4405 of September 10, 2013.
63 Date August 5, 2013
r e p o rt Name: “Aksu female psycho neurological boarding house”
Location: Kyrgyz Republic, Issyk-Kul oblast, Teplokluchenka village, 55 Kalinina street
monit oring “It was hard to conduct a conversation with residents of this institution, because the staff at
t h e all times sought to eavesdrop on the conversation, many residents were scared, saying that
o f it is better to be silent. They feared that they would be punished. Those who dared to tell the
truth had to be in the room with another person, one participated in the survey, the other
stood in the doorway to check whether there is someone from the staff behind the doors. To
Ex ce rpt be alone with boarding inhabitants was not easy. Residents who are likely to be close to the
director or staff keep breaking into the room during the interview and often followed us
everywhere. "95
In this institution different participants of the monitoring received the same information from different women: that the director of the boarding house, Usenbaeva N., is personally involved in the beatings, collects a pension, and those who complain are sent to Chym-Korgon hospital.
The Ministry refused to organize a comprehensive review. Alymbekov Erkin, Member of Parliament, defended the Director, and, at her request, did a field check by the Committee for Human Rights in Aksu.
Boarding houses are reluctant
***
Absence of to cooperate with health
interaction between organizations at the site and “Director told us that if we complain,
boarding institutions complain that hospitals are we will be sent to Chym-Korgon.
When a commission came, I told them and health asking money for their
that the owner steals soaps. After that
organizations at the services, referring to the reason she took the soap, rolled it with a
scene they do not even conduct anti- material and beat me with it in the
face. Repeatedly, they don’t give us tuberculosis activities. A query full pension. Recently, she took money
to the Compulsory Medical Insurance Fund showed that of one old lady, who used to receive there is no exchange of information between health care 8,000, and sent her to Chym-Korgon.”
institutions and boarding houses: the Deputy Director of
OBSERVER' REPORT CMIF, Imanbaev A., replied that persons with disabilities
should receive free health services. And boarding houses, especially Ak-Suu boarding house, actively cooperate with the Republican Psychiatric Hospital in the village of Chym-Korgon and send people there from the boarding houses, as well as for treatment.
Near Karakol city, there is a psychiatric unit which is part of the regional combined hospital. The head of this department was asked this question: "Does the hospital admit people from Ak-Suu boarding house for treatment?” She replied that with the arrival of the Director Usenbayeva N., for
95 From the report of the observers, T. Sabirov. Date of visit August 5, 2013.
64 10 years they did not receive a single woman. This fact confirms the women's complaints that people are sent for punishment to Chym-Korgon hospital instead, known for its brutal discipline.
Guardianship issues of people with mental disorders is a problem, and this
aspect of human rights is unexplored. Problems of The analysis of the legislation conducted by the Center for the Protection guardianship of persons with mental disorders in 2004 96, does not include guardianship
matters
issues in the Kyrgyz Republic.
Cases when guardians put their wards into a psychiatric institutions are not uncommon. Monitoring participants met people who complained that their guardians visit them only for prolongation of the power of attorney to receive benefits and pension. The staff of the institutions confirms this fact, because the directory certifies the power of attorneys. Thus, it means that the State pays twice: for the benefits and for supporting in boarding houses. Guardians utilize pension benefits in their own interests; take away and sell houses and other property.
There is no state control over the *** actions of guardians. This must
Forensic psychiatry
be explored and requires further "I've been here for 3 years, my sister and prison psychiatry with the local police officer brought investigation. me here, we had a conflict because of The Criminal Code includes the house, she brought me here, and sold my apartment, now she forensic-psychiatric care, and establishes a procedure and periodically visits me to prolong my order of expert assessment of criminal defendants with a time being here. I heard about your mental disorder, to determine whether the mental disorder organization, found out address, is fully or partially the cause of a criminal offense, as well wanted to come, but did not know how.” as the validity of placement of a person in a psychiatric hospital instead of prison. OBSERVER’S REPORT
Persons who have committed criminal offenses are placed in psychiatric hospitals under guard. However, special measures for their treatment, recovery of capacity and correction of their criminal behavior, are not performed. The Kyrgyz Republic has no such specialists or institutions. This category of persons is held in the cruelest unit, in the most remote and isolated psychiatric hospital in the Kyzyl-Jar village.
96 http://www.mdac.info/sites/mdac.info/files/Russian_Mental%20Health%20Law%20of%
65 Date September 26, 2013.
Name: Republican Psychiatric Hospital in Kyzyl-Jar village
Location: Kyrgyz Republic, the Jalal-Abad oblast, Kyzyl-Jar village
During the monitoring of the research group, in Department No. 8 (forensic-
re po rt psychiatric examination), among the patients - 20 men are under the strict regime,
and most of them are not receiving treatment, and two women. We could not figure
out who the women are and what happened to them. One of the women was barely
standing on her feet, her whole appearance made an impression of being apathetic,
monit oring not caring about anything. She had a very pale face and big black eyes. During
monitoring of patients, a fight occurred and staff could not stop it. In general, the o f t h e staff does not control the situation inside the unit. Security is on the perimeter of the
unit, and detained patients inside the unit are tormented with dogs, but guards do
Ex ce rp t not go inside. Based on the facts above, we suspect that these two women are
constantly subjected to sexual violence.
This unit has signs of abuse and degrading treatment: dirty rooms, rotten beds,
general unsanitary conditions, unpleasant smell. People in this unit are unwashed,
with bruises and different wounds. Women are kept together with the men. Female
rooms do not have locks from the inside. The toilet is shared. Toilets traditionally
never have locks in psychiatric hospitals.
The outrageous situation in this institution was reported to the Ministry of Health. In response, the chief psychiatrist, Musabaeva Sabira, explained that the Ministry of Health is not able to solve this problem, since the strict regime is determined by the court, and there is no other institution in the republic. She asked that complaints be made to higher authorities, and expressed the hope that maybe complaints will help to the problem. 97
In the framework of this monitoring, it was not possible visit the prison psychiatric hospital. The monitoring group did not have enough legal resources and time to analyze the legislation, to determine the legal standards for monitoring the prison psychiatric hospital. This sphere is the subject of a separate study.
Particularly vulnerable Older people with mental disorders are sent to Chym-Korgon hospital, as groups: the elderly, if there are special resources for the elderly. The so-called "geriatric children, patients with department" has no special resources for geriatrics. In fact, the elderly tuberculosis, and with mental disorders is an undesirable category of patients, because they patients who have are poor. committed offenses
97Meeting at the Ministry of Health of the Kyrgyz Republic, October 28, 2013.
66 The Protection Service of patient’s rights received information that in the National Center of Mental Health, in department No. 2, a 73-woman was subjected to torture. "I saw her in the window, she was barely alive. Two girls supported her from both sides. She showed me her hands, wrists were covered with blood and cut almost to the bone from the "tying." She was tied to the bed, and held for a long time.” 98
The complaint was forwarded to the Prosecutor’s Office, but at the time of writing this report the decision was not received. Management of the institution explained that the elderly woman’s “skin was thin because of the age" and therefore the usual "tying" led to such consequences.
Corruption in the country is one of the main reasons for the preservation
of mental health facilities in their current state, and is an obstacle to
Corruption in reform. Financing by infrastructural principle is the most corrupt method psychiatric of financing.
institutions
While maintaining huge institutions, huge funds for capital expenditures are being constantly allocated for repairs, but they do not reach their goal. The same Aksu boarding house received 161,000 dollars of capital investment, but still there is no water. In 2013, during monitoring, the media reported that the boarding house again is complaining about the lack of water and is requesting capital expenditure.99
98From the complaint of Tanerykov Alym to Service of protection of the rights of patients in psychiatric hospitals. October 3, 2013. 99 http://www.vb.kg/doc/239953_aksyyskiy_jenskiy_internat_pojalovalsia_na_problemy_s_vodoy.html
67 4.3. MONITORING FINDINGS OF COMPLIANCE WITH THE RIGHTS TO FREEDOM FROM TORTURE AND CRUEL TREATMENT OR PUNISHMENT IN CHILDREN’S INSTITUTIONS OF THE KYRGYZ 100 REPUBLIC
Order of the Ministry of Interior No. 65 of February 18, 2002, on approval of the Regulations of the center of adaptation and rehabilitation of minors Illegal detention and of the Ministry of Interior was adopted in violation of the current imprisonment of legislation of the Kyrgyz Republic (Criminal Procedure Code, the Code of children Administrative Responsibility, Code "On Children") and violates the constitutional rights of minors. The Constitution (Article 24) provides that: "Everyone shall have the right to freedom and personal immunity. No one may be arrested, kept in custody or be deprived of freedom except by court decision and solely on the basis of and in accordance with the procedures established by the law. No one may be detained in custody for more than 48 hours without a court ruling."
CARM of the Ministry of Interior is in fact a closed detention center for children had which significantly restricts freedom of children. According to the Regulations, almost any child under the age of 18 years, who is on the street without an adult, could be placed without a court decision in the CARM for up to 30 days.
According to the data, children most often are brought to CARM when there are not accompanied by an adult, in order to establish their identity. As a rule,
CARM in case of detention of children, law enforcement officials do not inform them about the reasons for detention, and the protocol of detention is not followed.
When the authorities conduct interviews with minors in CARM, parents or legal representatives of the child are not called, or a lawyer, even in those cases when a basis of sending a child to CARM is committing an offense or suspicions of a crime. The analysis of the causes of placing a children in CARM shows that minors detained for committing an offense or offenses constitute only 3% of the total number of children in CARM101. Thus, for the most part, homeless and neglected children, who should be in the spotlight of the social security authorities and not of the internal affairs bodies, are in CARM.
After the child is brought to CARM, Bishkek City, a personal examination of the child must be made. The personal examination is conducted without witnesses, in the presence of only the employees of Inspection of Juveniles and CARM, in contradiction with the rules of CPC KR. Also, in accordance with Article 95 of CPC, on a mandatory basis, the protocol of the examination must be signed by the person subjected to examination, but in all such protocols there are no requirements for signatures of minors.
The Ministry of Interior acknowledged the illegality of the Regulations of CARM. In 2013, the Ministry of Interior formed a working group, a department, with representatives from Inspection of Juveniles, CARM, the Mayor of Bishkek, and the authorized body of territorial subdivisions, on the
100 Analysis of the legislation and the situation concerning juvenile justice institutions, presented in this section, has been prepared by "Youth Human Rights Group" PA and was first published in the report "Protecting children from torture and ill-treatment in the context of juvenile justice", UNICEF, 2013. 101 According to a study by UNICEF "Torture in the context of the juvenile justice system" in 2012, of 507 children who have been through CARM Bishkek for the period from January to June 2012, only 15 children were detained on suspicion of having committed an offense.
68 protection of children. According to the results of the working group, recommendations were made for changing the Regulations in order to bring them into compliance with the law.
In March 2013, the Ministry of Interior raised an issue with the Government on the shift of responsibility of the institution to the Ministry of Social Development. However, the proposal was opposed by the Government and the mayor of Bishkek.
In this regard, the Ministry brought the Regulations into compliance with the law, amended the time period during which a child can be in the institution, as well as referral procedures. According to current Regulations, children can be sent to CARM no more than for 48 hours, after which they are temporarily sent either to institutions of a boarding house type or delivered to the family.
In the Kyrgyz Republic, minors who are in conflict with the law, from age 11 to 14 years, may be directed to Belovodskoe special boarding school for minors Special school who need special education, which has all the attributes of a prison, and is the only institution of such type in the country.
Belovodskoe special boarding school is an institution under the Ministry of Education and Science of the Kyrgyz Republic. According to official government reports relating to matters of reforming of the juvenile justice system, the placement of children in the institution is considered by authorized state bodies as a punishment alternative to imprisonment. At the same time, such a position is unfounded, since in practice the institution meets all criteria of a prison: children are not able to leave the institution and return to their family as they wish, their lives and their movement is strictly regulated and controlled by the administration of the institution and staff; the building of the institution is fenced with a high wall, on top of which is barbed wire; no rehabilitation or special training programs for the children in this school are carried out. Training is conducted by a secondary school program; teachers and educators of the school did not have any training on working with children who are in conflict with the law or with children in difficult situations.
69 According to the Model Regulation,102 this school is a public institution for the detention and correction of intractable juvenile offenders. Monitoring, carried out in Belovodskoe special school by “Youth Human Rights Group" PA in May 2012 showed that there are a large number of minors who have not committed an offense. Procedures for placing children in a special boarding school, established by the law, are not respected. Usually, the reason for sending children there are homelessness, vagrancy, absenteeism in school. 103
According to Article 33 of the Law of the Kyrgyz Republic "On Education," placement of minors from age 11 to 14 years old in a specialized boarding school is only possible on the basis of a court decision and only if a minor has committed a socially dangerous act. In violation of the law from 2003 until 2013, minors were sent to this special school on the basis of permits of the Ministry of Education and regulations of district state administration without any judicial decision.
The Prosecutor's office of the Moscow region, on February 18, 2013, while recognizing the gross violation of the law by the officers of the Commission for Children and the Ministry of Education and violations of rights of 44 minors who are in the institution, refused to open a criminal case because of the "lack of a criminal offense." In April 2013, in the Moscow district court, a case was considered on contesting the refusal to open a criminal investigation on the illegal deprivation of liberty of minors by placing them in Belovodskoe special school.
The Moscow district court recognized a gross violation of the requirements of Article 33 of the Law "On Education," which establishes a judicial procedure for sending children to this facility, but dismissed the appeal and upheld the ruling of the Prosecutor’s Office because the case did not establish the body of a crime in the actions of the Ministry of Education and district state administration. Thus, the Prosecutor’s office and the court, which recognizing the violation of procedures of placement of minors in the Belovodskoe special school, nevertheless refused to minors an appropriate remedy and protection of their rights. Minors held in violation of the law are still in this facility.
According to the United Nations Rules for the protection of juveniles Cruel, inhuman deprived of their liberty, the following disciplinary measures are in the list and degrading of cruel, inhuman or degrading treatment: punishment . Physical punishment; . Placement in isolation ward; . Strict and solitary incarceration; . Reduction of food; . Limitation and deprivation of contact with family, for any purpose; . Collective punishments; . Any other punishment which can harm the physical and psychiatric health of the minor.
All disciplinary measures and procedures in any institution in which a minor cannot leave on his/her own should maintain the interest of safety and order and be consistent with upholding the inherent
102 Model Regulation "On special secondary schools for children and teenagers who need special education" from July 19, 1996 No.330 103 Analysis of the decision of the Commission on Children to send children to a special boarding school, 2012
70 dignity of the minor and the fundamental objective of the institution, namely, instilling a sense of justice, self-respect and respect for fundamental rights of each person.
Disciplinary sanctions against minors may be used only in strict accordance with the provisions of applicable law. Sanctions against a minor may be used only after he/she was informed of the alleged offense in a very understandable form for him/her and subject of provision of adequate opportunity for defense, including the right to appeal to a competent impartial authority. Minutes of all disciplinary proceedings must be maintained.
All disciplinary measures constituting cruel, inhuman or degrading treatment are strictly prohibited.
According to national legislation of the Kyrgyz Republic, disciplinary measures, procedures and their application to minors in closed institutions do not differ significantly from the system provided to maintain discipline for adult prisoners.
The Penal Execution Code of the Kyrgyz Republic (hereinafter the “PEC KR”) 104, the Law "On the procedure and conditions of custody for arrested persons suspected of and accused of committing offences,"105 as well as Rules on internal regulations of correctional institutions of the penitentiary system of the Kyrgyz Republic106 and Rules regulating the activities of the TDFs107 and PDFs108, do not provide a differentiated approach in determining the disciplinary penalties for minors and adults.
Despite the fact that the rules of the PEC KR and the Law on Custody Procedure provide an exhaustive list of the types of disciplinary sanctions in institutions, questions of misdemeanors and determination of sentence and proportionality of specific type of penalties for misdemeanors remain uncertain.
The number of permissible disciplinary actions in PDFs and Juvenile Correctional Facilities includes the placement of the child in the children's pre-trial detention centers in combination with a range of additional restrictions, such as deprivation of family visits, receipt of parcels, buying food and other essentials. Pursuant to the law, such these forms of disciplinary punishment are permissible for minor misdemeanors as they are not characterized as extreme and exceptional measures of punishment. The PEC KR does not provide a list of specific and exhaustive reasons for placing a juvenile offender in DIW.
Disciplinary action in the form of placement of juveniles in children’s pre-trial detention centers is unacceptable in terms of the minimum standards set by international law. According to the United Nations Rules on Protection of Juveniles Deprived of their Liberty, measures such as a "placement
104 Penal Execution Code of the Kyrgyz Republic, December 13, 1999, No.142, amended and restated as of July 16, 2012. 105 Law of the Kyrgyz Republic “On the procedure and conditions of custody for arrested persons suspected of and charged with committing offences”, October 31, 2002 No. 150 106 Regulation of internal order of penal execution institutions system of the Kyrgyz Republic, approved by Decree of the Government of KR, September 23, 2011 No. 604. 107 Approved by the Resolution of the Government of the KR, February 2, 2006 No. 57. 108 Approved by the Resolution of the Government of KR, August 30, 2006, No. 631.
71 in a dark cell, closed or solitary confinement, restriction or denial of contact with family members for any purpose, are manifestations of cruel, inhuman or degrading treatment or punishment." 109
The list of permissible disciplinary measures and procedures for application in closed institutions for children under 14 years old (CARM, Bishkek, and Special boarding school) is not defined. The Law of KR "On Education,"110 on the basis of which the Special boarding school is built, does not provide any rules for this facility relating to matters of discipline and sanctions.
Applicable laws do not establish procedures for disciplinary sanctions in a Juvenile Correctional Facility, pre-trial detention center and PDF, so sanctions are limited only by rulings of officials who have the authority to impose penalties.
Thus, at almost all closed institutions where there are minors, many questions of application of acceptable forms of disciplinary measures remain open, namely: • an exhaustive list of the types of disciplinary sanctions in institutions, questions of misdemeanors and determination of sentence and proportionality of specific type of penalties for misdemeanors remain uncertain; • definition of types of prohibited actions for which strict disciplinary measures may be applied; • the designation of officials with authority to impose disciplinary sanctions; • the procedure for registering decisions on the application of disciplinary sanctions; • the procedure for the application of disciplinary measures, including informing a minor in an understandable form about violations and about the available appeal procedures for punishment; • the procedure for appealing disciplinary measures; • disciplinary and other responsibility for the unjustified application of the measures.
Application of punishment in detention facilities imposes additional restrictions of freedom and integrity of the individual, but application of punishment to minors also directly relates to the development of the child's personality. Therefore, to ensure children's rights to protection of privacy and protection from violence, there is a need to fill all of the above gaps in national legislation on the definition of procedures for the application of penalties.
Juvenile Rules stipulated by Articles 87, 107 of the PEC KR define the Correctional following list of disciplinary measures which can be applied to Facility juveniles in Juvenile Correctional Facilities, as well as in a women’s penal colony:
• admonition; • disciplinary fine of up to 2 minimum salary wages;
109 UN Rules for the Protection of Juveniles Deprived of their Liberty, adopted Resolution 45/113 of the UN General Assembly, December 14, 1990. 110 Law of KR "On Education," April 30, 2003 No.92, as amended and supplemented as of December 29, 2011.
72 • prohibition of watching movies for a month; • placement in a disciplinary cell for up to 7 days (with an opportunity to go out for purpose of study).
Placement in a disciplinary cell, according to Article 108 of the PEC KR, may be accompanied by additional restrictions: prohibition of meetings, telephone conversations, to buy food and other essentials, to receive parcels and packages, to watch movies and TV shows, to use group games, and smoking. However, according to Article 13 of the PEC KR, children who are convicted, or detained in a children’s pre-trial detention center, may have a visit from clerics with the condition to ensure their personal safety.
Additionally, all other penalties may be applied to convicted persons placed in a children’s pre-trial detention center.
In case of placement in a children’s pre-trial detention center, minors have the right to a daily walk for 2 hours.
.
According to the Rules on the internal procedure of correctional institutions of the penitentiary system of the Kyrgyz Republic, detention conditions of detainees in a disciplinary isolation ward (the “DIW”) are equal to detention conditions in a punishment isolation cell (the “PIC). According to paragraph 2 of the Rules, the DIW must meet the following requirements: a minimum area of 3 m2, size of windows 0.5 m (width) x 0.9 m (height), the cell doors have thickness of 6 cm, with sheet iron, with a pane for the transfer of food and a manhole, wiring is completely unavailable, the light switches are located in the corridor, a button to call the inspector, sanitary unit, folding cot, which can be locked during the day, and bedside table, tightly attached to the floor.
According to Articles 85 and 105 of the PEC of KR, the early release of juvenile from the DIW is allowed by the official who imposed the penalty, in the form of incentives, as well as for medical reasons.
73 The only officials who have the authority to implement fully the incentives and penalties are the chief of the Juvenile Correction Facility or the person replacing him. According to Article 109 of the PEC of KR, the authority of chiefs of groups (senior tutors) are limited to the following:
• admonition; • prohibition of watching movies for a month.
Placement in a disciplinary cell is not included in the range of powers of chiefs of groups and educators.
Application of incentives and punishments is issued in the form of regulations or orders of eligible officers. An extract of the orders must be placed in the personal file of the convicted. Personal records of rewards and punishments shall be followed by a chief of group (senior tutor).
Placement of a minor in the DIW is not defined as an extreme measure. Neither the Law nor the Rules indicate specific and exhaustive reasons for placing the minor offender in the DIW.
Article 88 of the PEC of KR defines a general list of malicious violations, which include: drug use; disorderly conduct; threat, insult or disobedience to representatives of the administration of the correctional institution; sodomy, lesbianism, organization of strikes or other disobedience, as well as active participation in them; organization or active participation in the groups of convicts, aimed at committing violations mentioned in these articles. Also, in the event of the repeated violation of the established order of punishment within one year, the convicted may be subjected to a penalty in the form of placement in a children’s pre-trial detention center or punishment isolation cell.
At the same time, the Rules on the internal procedures of correctional institutions of the penitentiary system of the Kyrgyz Republic defines a list of prohibited acts by convicts, some of which go beyond the necessary constraints. Such restrictions with regard to minors as a ban on placing on the walls of photographs, reproductions, postcards, clippings from newspapers and magazines, or a ban on the use of colored pencils and paint111–- are not necessary for security purposes and can negatively affect the ability of self-expression of children, their rehabilitation and development.
According to Articles 35, 36, 37 of the Law "On the procedure and conditions TDF, of detention of persons held on suspicion and accused of committing crimes" of October 31, 2002, No. 150, the following penalties may be applied to PDF accused minors: • admonition, which is imposed by Resolution of the chief of the place of detention or his deputy; • placement in a children’s pre-trial detention center for up to 5 days.
Minors as well as adults can be placed in solitary confinement or a PIC (Punishment Isolation Cell) for:
111 Internal regulations of penal institutions in the penal execution system of the Kyrgyz Republic, approved by Decree of the Government of KR, September 23, 2011 No. 604, List of things, objects, documents and food that convicted persons are prohibited to carry, receive in parcels, packages, wrappers or acquire, paragraph 23.
74 • actions that offend and oppress the other defendants; • disobedience to lawful orders of staff or for insulting them; • repeated violation of the rules; • manufacture, possession and consumption of alcoholic beverages; • manufacture, storage and use of objects or substances prohibited in accordance with the established rules; • participation in gambling; • disorderly conduct.
Punishment in the form of placement in a PIC or solitary confinement is also applied to the defendant for whom two or more disciplinary penalties previously had been used.
Placement in a PIC is carried out on the basis of a decision by the chief of the place of detention or person performing his duties, and the conclusion of a medical worker about the absence of medical problems resulting from the placement of an accused in a PIC.
Only one penalty may be imposed per violation of a perpetrator, but during the period of detention of juvenile defendants in a PIC, correspondence, visits (except for meetings with lawyers), as well as of purchasing food, except for necessary essentials, receipt of letters and parcels, use of board games, books, newspapers, magazines and other literature, telephone, watching videos and TV programs are forbidden. Parcels are given to the accused after the end of their stay in a PIC. Perishable foods, in the absence of conditions for their proper storage, are returned to the owner.
Juveniles in a PIC must have a daily walk for 30 minutes.
Penalties are imposed considering the circumstances of the violation and the conduct of the accused. Punishment can be imposed no later than 7 days from the date of discovery of the violation, or if the violation was being checked - from the date of its completion, but not later than 1 month from the date of the violation. Penalties are usually applied immediately, and in case of failure of its immediate application - not later than 10 days from the date of its imposition. Prior to imposition of penalty the defendant shall give a written explanation, and in case of failure to give an explanation, an act specifying the reasons for refusal shall be prepared.
According to the law, an accused of any age is eligible to apply to appeal the penalties to a superior officer, prosecutor or court. However, the appeal to a court for a minor, without a lawyer or legal representative, is actually an unavailable mechanism.
According to the law, filing any appeal does not suspend the execution of a penalty.
In the Regulations of the Bishkek CARM, approved by the Ministry of Interior CARM on February 18, 2002 No.65, there are no rules governing permissible disciplinary measures and procedures. At the same time, the list of documents that must be included in the record files of juveniles (paragraph 3.10 of the Regulation) includes information about the rewards and punishments of the minor.
75 Also, in accordance with paragraph 4.4 of the Regulation, individual preventive and educational work shall be conducted with minors who committed a flagrant violation of discipline and internal rules.
Persons authorized to impose disciplinary measures, as well as the specific Special content of "preventive and educational work," are not indicated in the schools Regulation, nor are procedures of complaints regarding penalties imposed.
According to the Charter of the Special boarding schools, pupils have the right to protection from physical and psychological violence (paragraph 4.4), which implies the exclusion of any disciplinary measures leading to disruption of the physical or psychological well-being of pupils. According to the Charter, there is a possibility of application of sanctions against staff of special schools in case of violence against pupils: "The employment relationship of special school employees may be interrupted by administration for methods involving physical or psychological abuse of the pupil."
The Charter defines the responsibilities of students, which include: an Honor Code of students, diligent study, respect for property and uniforms issued, respect for the honor and dignity of other students and workers.
There is also a list of prohibited acts: of use weapons, alcoholic beverages, tobacco products, toxic and narcotic substances, use of any means and substances causing an explosion and fire, use of physical force to clarify a relationship, intimidation, extortion and incitement towards others, performance of any actions that will disrupt intraschool regulations, unauthorized withdrawal from school. Other duties are determined by order of the director of the special school.
The Model regulation of special education schools for children and teenagers with special educational needs (hereinafter - Model regulation of special schools) determines the principles of the system of education, according to which "the principle of voluntarism is combined with the principle of compulsion" (p. 5). At the same time, according to this document, discipline and order in the institution is supported by methods that are based on mutual respect and justice and exclude humiliation of pupils.
The acceptable disciplinary measures are not defined in the Charter of special boarding schools or in the Model Regulations on the special schools.
At the same time, certain provisions of the Model Regulation on special boarding schools and the Charter address the actions of certain categories of employees concerning the maintenance of discipline. Thus, according to paragraph 40 of the Model Regulation for special schools, "an assistant of director of the school manages the services of the school, provides 24 hour monitoring of the pupil’s compliance with established procedures and rules of conduct, oversees the daily routine, keeps records of offenses and analyzes their causes and conditions, organizes the work to prevent violations of discipline, and maintains order in the Special secondary school for children and teenagers with special education needs."
According to paragraph 4.13 of the Charter, the duties of the teaching staff of the institution include overseeing discipline. In addition, the authority of the Director includes the opportunity to discuss
76 academic performance and behavior of individual pupils in the presence of their parents or legal representatives. It is obvious that this power can be equally used as a reward and as punishment.
Provision of support to the child by the family is an important component of an effective juvenile justice system and an integral part of the right to Obstacles in fair and humane treatment. Contacts of a child in a closed institution with maintaining family members is a necessary component of protection from abuse and communication with torture, especially taking into account the crucial role of parents and legal the child's family representatives in any proceedings, including an appeal to the prosecutor or the court in the interests of the minor.
Limiting contact of a juvenile in custody with family members may be imposed only when strictly necessity due to the interests of a minor or security or the interests of justice, and must be convincingly justified. Unfortunately, in closed institutions of juvenile justice, restriction of rights and freedoms of minors often is not justified and is beyond the necessary restrictions directly related to the imprisonment or detention.
Contact with the family of the child in a correctional colony or PDF are limited in time and number.
Contact with family (Dates and phone conversations)
Types of TDF CARM in PDF Juvenile Special contacts Bishkek and Correctional boarding- Osh Facility school Date with Visits with Juveniles placed No more than two To have twelve Visits to family relatives and in CARM have meetings per short and eight students by members other people the right to meet month for up to long visits parents or are with the parents three hours each is during the persons in conducted or persons allowed. Dates are year115. replacing under the replacing the supervised by staff Long visits are parents shall be control of parents, other of PDF in provided with permitted by TDF staff. relatives, specially equipped the right to live the authority One person representatives rooms through a together with and under per visit is of public partition wall her husband and supervision of allowed to organizations which prevents the close relatives the Director of the detainee and transfer of any (parents, special in TDF, not management of items, but do not children, boarding including enterprises, and hinder adoptive school. To children educational negotiations and parents, adopted correct the under 26 institutions. visual children, behavior of years old.112. Meetings are communication114. brothers and teenagers in the controlled by sisters, family officials of grandfather, environment, as CARM.113. grandmother, well as to
112 Internal regulations of temporary detention facilities of the internal affairs bodies of the Kyrgyz Republic, pp. 4.18 .4.20. 113 Position of the Bishkek center of adaptation and rehabilitation of minors under the Ministry of Interior of the Kyrgyz Republic, approved by the Ministry of Interior, February 18, 2002, No. 65, section 4.2.3. 114 Internal regulations of detention facilities of the penal execution system of the Kyrgyz Republic, Chapter 19.
77 grandchildren) , encourage
and in students who
exceptional were
cases, with the distinguished,
permission of the director can
the institution - let students go
with other home on
persons. Sunday and
public holidays,
At the request
for a certain
of the convicted
period during
long meeting in
the holidays,
educational and for good
colonies can be
reasons on
replaced with
other days.
living outside of
the institutions -
short-term
going outside of
the colony116.
Visits are
prohibited for
convicted
persons placed
in disciplinary
confinement.
Telephone The Regulations of In case there is a Convicts may Appropriate
conversations investigator CARM Bishkek phone in the PDF, have 10 phone normative legal
shall, within does not cover the chief of the calls per year. acts do not
twelve the granting of PDF or person As an incentive, regulate the
hours, after the right of the fulfilling the an additional possibility of
detention, child to chief’s permission for a granting the
notify telephone responsibilities phone call may right to a phone
anyone of contact with the considers a written be granted. call.
his/her family. statement of the The permissible
family accused or length of calls is members, convicted about up to 15
and in their the provision of a minutes.
absence - telephone Telephone
other conversation, conversations
relatives or which also are paid from
close indicated the personal funds
persons. The address, phone of the convicts
child is not number, and call or their close
permitted duration. In each relatives. At the
115 PEC of KR, Article 103. 116 PEC of KR, Article 61
78 telephone case, when request of the contact with considering convict, he/she the telephone may be granted family117. conversation, the an additional prison phone call upon administration arrival at the must agree with correctional the person or body facility, as well who/which is in as on charge of the exceptional criminal case. personal Payment for phone circumstances. calls is carried out Minors who are at current rates in penal, from personal disciplinary accounts of the confinement, accused or and solitary convicted. confinement, Telephone may be granted conversations are a telephone conducted under conversation the control of the only in administration, exceptional about which as an personal accused or circumstances. convicted person Telephone is warned118. conversations of the convict are monitored by staff of correctional facility119.
Imprisonment or detention of a child is an extremely stressful situation (especially for teenagers) and the provision of unlimited number of family visits should be considered as part of the establishment of the necessary rehabilitation work with minors. Moreover, in the punishment of the child by placement in a disciplinary facility or a PIC (which is itself the ill-treatment), an additional measure of punishment is usually a ban on visits or socializing with the family on the phone.
According to established legal norms and rules, virtually in all institutions contact with family members (excluding the possibility of obtaining permission to furlough in the family in special boarding schools or long visits to a juvenile correctional facility) is controlled by staff or officials of the institution. This approach to family visits deprives the child of opportunities to let family know about their abuse or torture.
117 CPC of KR, paragraph 1, Article 99 118Internal regulations of detention facilities of the penal execution system of the Kyrgyz Republic, Ch. 21. 119 PEC of KR, Article 64
79 Telephone communication with family members and correspondence are also important means to enable notification of abuse to family members, who may come to the defense of the juvenile. However, these forms of communication are also controlled by the administration of the closed institution.
According to established legal standards, there are no complaints procedures in all institutions for children, tailored for facilities for children. Absence of accessible In any institution or boarding institution for children who are in conflict and effective complaints with the law, there is currently no information on the child's right to file a procedures complaint, about complaints procedures, or designating the authorized state bodies which can examine these complaints. None of the institutions for children could describe the complaints procedures or describe the sequence of actions of state bodies, or administration of the institution, if a complaint for abuse is filed120.
The procedures, provided by the PEC of KR and the KR Law "On the Procedure and Conditions of detention," about the filing of complaints and review, are not sufficient to ensure that juveniles in closed institutions could use them effectively and get timely protection from abuse.
Access to information about rights and the rules and procedures for filing complaints in institutions
Institutions controlled by the Institutions Institutions controlled by the SSEP Ministry of Interior of KR controlled by the Ministry of Education and Science of KR
Juvenile Correctional Facility CARM Special boarding- school According to Article 11 of the PEC of KR, According to part 4, subpart The Law "On convicts are entitled to receive information 4.2.3 of the Regulation on Education", the Code about their rights and responsibilities, and Center adaptation and of the Kyrgyz the procedures and conditions prescribed by rehabilitation of minors Republic "On the court imposing their sentence. Bishkek: statements and Children," Model Administration is obliged to provide this complaints addressed to the Regulations for special information to convicts and acquaint them prosecuting authorities shall secondary schools for with changes in the procedure and conditions not be under the control of the children who need of serving criminal sentences. administration of the institution special educational and are sent to the above conditions, do not Prisoners are entitled to make proposals, bodies. provide rules applications and complaints to the establishing an administration of the institution or body Regulation does not provide obligation of the executing the punishment, the higher rules establishing an obligation administration to authorities, state authorities and local self- of the administration to acquaint children with government bodies, public associations and acquaint children with their the their rights and the inter-governmental bodies for the protection rights and the rules of conduct rules of conduct in the of human rights and freedoms, if all in the institution, and does not institution, and do not
120 Data of various studies of NGOs, UNICEF, the Ombudsman for the period from 2009 to 2013 in boarding institutions, in juvenile justice institutions.
80 available domestic remedies are exhausted. establish procedures governing establish procedures complaints and review within governing complaints the institution. and review both inside Convicts have a right to give explanations and outside the and to correspond, and according to the part The general procedures for institution. 4 of this article make proposals, statements protecting the rights of citizens, and complaints in their native language or provided by CC of KR, CPC of any other language which they use, and KR and the Law of the Kyrgyz The general where necessary assisted by an interpreter. Republic "On the order of procedures for Answers to convicts are given in the same consideration of citizens’ protecting the rights of language. If it is impossible to give an requests" from May 4, 2007, citizens, provided by answer in the same language, it is to be given No.67 are available for legal CC KR and CPC of in the national or official language. representatives. KR and the Law of the Translation of the response into the Kyrgyz Republic "On necessary language is provided by the the order of institution or body executing the punishment. consideration of citizens requests” are According to Article 14 of the PEC of KR, available for legal proposals, applications and complaints may representatives. be oral and written. They are considered by administration agencies and bodies executing sentences.
Proposals, applications and complaints to higher authorities and other bodies are sent to the administration of institutes and bodies executing sentences.
Complaints of convicts on decisions and actions of the administration of the institution and enforcement bodies executing sentence shall not suspend these decisions and actions.
Authorities and officials, to whom complaints of convicted were sent, should consider them in terms established by legislation and bring decisions to the convicts.
According to Article 63 of the PEC of KR, proposals, applications and complaints addressed to the bodies responsible for control and supervision of correctional institutions are not censored, and no later than the deadline (except weekends and holidays) are to be forwarded to the relevant authorities.
PDF TDF
81
According to Article 16 of the Law "On the Procedure and Conditions of Detention" from October 31, 2002, No. 150 (with changes and amendments as of August 6, 2012) suspects and defendants have the right to:
- be acquainted with the text of the Internal Regulations, including their rights and responsibilities, the detention regime, disciplinary requirements, procedures for submission of proposals, applications, complaints and so on;
- a personal meeting with the chief of detention places, his deputies, or persons authorized by him;
- make proposals, statements and complaints to the authorities, including the courts, on matters of legitimacy, the validity of their detention and the violation of their legitimate rights and interests;
- prepare correspondence and use writing utensils.
According to Article 20 of the Law "On the procedure and conditions of detention," complaints of suspects and accused, addressed to public authorities, local self-government bodies and associations, are sent through the administration of the place of detention.
Complaints addressed to the prosecutor, the court or other public authorities, which have the right to monitor places of detention of suspects and accused, are not to be censored and no later than the day following their submission, and if that date falls on a weekend or public holidays - in next working day, are to be sent to the addressee in a sealed bag.
Complaints addressed to other state authorities, public associations, as well as lawyers, shall be sent by the administration of the place of detention no later than 3 days from the date of filing.
Correspondence containing information that may hinder the truth in a criminal case, made in cryptography, using a cipher, as well as containing state or other secrets protected by law, is prohibited and shall be confiscated.
Complaints about the actions and decisions of the court, prosecutor, agency of inquiry are to be sent according to the procedure stipulated by the CPC of KR, no later than 3 days from the date of filing.
Responses to the proposals, applications and complaints are to be delivered to suspects and defendants, with a signed receipt, and added to their personal file.
Prosecution of suspects or accused for submission of proposals, applications or complaints regarding violations of their rights and legitimate interests is not allowed in any form. Officials of places of detention, who are guilty of such persecution, shall be liable in accordance with the law
According to Article 36 of the Law "On the procedure and conditions of detention," defendants have the right to appeal any administrative sanctions to the superior officer, prosecutor or court. Filing an appeal does not suspend the execution of penalties.
82 It is necessary that the legal norms, relating to minors, include at least the following guarantees:
• informing children about the rules of conduct in the institution and the right to protection from abuse, in a language and form understandable to the child, shall be the responsibility of administration and staff when admitting the child to the institution; • information about the procedure for a complaint, its minimal structure and rules of review, including a description of specific safeguards to protect victims during the review of a complaint, must be in constant and free access to minors, and it must be presented in a simple form which is easy to understand; • the procedure for filing complaints of torture or ill-treatment by staff should fully exclude the possibility of review of a complaint by the administration of the facility; • any complaint of torture or ill-treatment should be immediately registered in the state body authorized for the protection of children and transferred to the Prosecutor’s Office and relatives or guardians of the child; • upon any child complaining of torture or ill-treatment, an investigation should be immediately conducted and the conclusion shall be made with careful justification for each conclusion, which should be communicated to the minor The response to the minor shall be in writing and set out in an form understandable for him/her.
Access of children-victims to justice is significantly restricted by their complete dependence on the actions of their legal representative. Absence of effective Legislation of the Kyrgyz Republic recognizes the following legal tools for legal representatives: parents, adoptive parents and guardians, as well as protection representatives of organizations and individuals in whose care or dependency a minor is.
Only the legal representative of the child shall be a party in the process - represent the interests of the child - victim of the crime, both at the stage of investigation, and in the court. The legislation does not provide the child with the right to choose a representative. Provisions of the law (part 4, Article 397 of the Criminal Procedure Code of the Kyrgyz Republic), establishing procedures for the removal of the legal representative because of conflict of interests during the investigation or trial, relate solely to the protection of children in conflict with the law, suspected or accused of committing a crime.
Legislation of the Kyrgyz Republic does not impose the same procedural safeguards for child- victims who are themselves victims of crime, violence or abuse. Thus, if the legal representative of the child does not wish to speak in his/her defense or the legal representative is guilty of an offense against a child, the child's access to justice and legal protection is virtually absent. Even close relatives of the child, wanting to protect him/her, but who do not have the official status of a guardian or adoptive parent, do not have the ability to effectively advocate for the child and represent his/her interests during the investigation or at the trial stage.
Prosecutors, as well as the Department on support of families and children, whose employees have qualifications of teachers or social workers and have no training in the field of law, have the authority to represent the interests of the child during the investigation and in court. Cases when the
83 Prosecutor’s Office defended the child-victims of abuse are rare, and the protection is inefficient and has a perfunctory character. According to the Prosecutor's Office,121 for the period from 2010 to August 2013, only 22 criminal cases relating to the protection of children from abuse were initiated. At the same time, a study by UNICEF in 2010 shows that in the Kyrgyz Republic there is a high prevalence of abuse against children - 37.3 % of children were victims of physical violence in the family122.
Methods used by public authorities in working with children-victims of crimes, or children- witnesses do not provide any specific approaches to children. Often, the child who is a victim experiences repeated stress during the investigation. Interrogations and other forms of investigation are carried out by untrained professionals, without respect for the interests of the child. Often, during the investigation, the testimony of the child is not seriously considered simply on the basis of his/her age, even if the degree of maturity of the child allows him/her to give clear and detailed evidence.
Even in cases where the interest of the child is represented by the legal representative, child-victims of crime face a dismissive attitude and formal approach of public authorities in matters concerning their fate. In practice, government agencies often make no effort to assess the short-and long-term consequences of a decision for the future of individual children.
Unfortunately, no systematic monitoring of closed institutions for children of all types in the Kyrgyz Republic is carried out by independent agencies. Absence of Independent monitoring of this kind is essential to identify cases of torture independent control and abuse in institutions. Because of their immaturity, lack of knowledge about their rights, dependence on the interests of the legal representatives, their level of activity and effectiveness of their actions, children are not able to use the existing legal procedures to complain about torture.
For closed children's institutions, subdivisions of the authorized body to protect children (Departments to support families and children, hereinafter FCSD) is the specific control mechanism.
According to the Code of the Kyrgyz Republic "On Children," the authorized body on management of the protection of children in difficult situations is the FCSD. According to the Code "On Children," FCSD responsibilities include:
. Preventive functions to solve problems of families and children in crisis situations, issues of prevention of juvenile delinquency, as well as child labor. . Research functions relate to the identification and registration of children without parental care and children whose parents do not provide them with proper care and support. . Advocacy functions include: ensuring protection of rights and legal interests of children in crisis situations; overseeing the activities of guardians, adoptive parents, foster parents, adoptive families, institutions of guardianship, and medical institutions in order to ensure the performance of
121 Answer of the General Prosecutor's Office No.17-9 of May 10, 2012, to the request of the "Youth Human Rights Group" PA. 122 Child abuse and neglect in the family in the Kyrgyz Republic. UNICEF - B: 2010.
84 their duties; representation of interests of children in bodies of investigation, prosecution and trial, participation in judicial review of cases of deprivation of parental rights, consideration of appeals relating to the protection of children's rights. .Social functions include the election of a form of temporary placement for children leftwithout parental care; the evaluation of needs of the child; assisting foster or adoptive families.
Analyzing the functions of the FCSD, it follows that the FCSD staff must be truly unique specialists, combining knowledge of a lawyer, psychologist and social worker. At the same time, the resources of the FCSD do not correspond to the real needs of the population (FCSD employs 3 specialists who serve, for example, a district with a population of over 100 thousand people). The functions assigned to the FCSD cover an extremely wide range, which not only requires appropriate specialization of employees of the body, but also enough time to solve them. Certainly, the FCSD cannot effectively perform all its assigned tasks. In addition, the FCSD usually does not have sufficient resources to perform its functions. For example, in the case of immediate and serious threat in relation to the life and health of a child, the FCSD is not able to react promptly to remove a child from a dangerous situation and place him/her temporarily in a safe environment, because transport costs are not provided, there are not enough places for temporary placement of children, and in some areas this is completely impossible. This leads to the fact that children who are in a crisis situation cannot get the help they need in time.
The powers of the FCSD include control over the activities of institutions for children, and the prevention of delinquency among children, and the prevention of child abuse in the family and children's institutions.
Also, there are no evaluation criteria which are to be followed by the FCSD during inspections. There is no clear guidance as to what form should be prepared and used for recording data on violations. In addition to this, the law does not provide for further action of the FCSD in identifying violations of the rights and legitimate interests of the children. All this leads to inefficient control by the FCSD.
Lack of appropriate monitoring of institutions is a common problem in all types of institutions where children live. But even in the case of torture and abuse of children, public authorities generally are limited to admonition of the administration of the institution, or the dismissal of the head of the institution, which promotes a more extensive effort by the administration to hide evidence of abuse. This does not lead to real change and improvement.
Thus, the Prosecutor's Office in May 2013 conducted an examination of cases of torture and ill- treatment of foster children of the Pokrov rehabilitation house - a boarding school for children with special needs. The use of corporal punishment by staff against foster children, and the use of psychotropic drugs as punishment for runaway children, were confirmed. However, prosecutors were limited only to admonition of the facility administration, and a criminal case was not initiated.
85 There are few examples of investigation, judicial protection and Ineffective prosecution of the perpetrators in the child protection system in the Kyrgyz investigation of Republic, due to the absence of complaints and petitions received from the violations of children and their legal representatives. children’s rights In this section, we present an analysis of the materials of the criminal case123 relating to the protection of foster children in one special boarding school from torture, abuse and exploitation.
On the basis of information about the massive human rights violations in Belovodsk special boarding school, presented at a press conference by "Youth Human Rights Group" PA, on May 22, 2012, investigations had been initiated to clarify and verify the facts. A medical examination in respect of 9 foster children was initiated. From the conclusion of the state expert, no traces of physical violence on the bodies of the children were found.
However, the conclusion of a pediatrician on May 17, 2012, who was a qualified forensic expert, shows that at least 7 children had traces of injuries (bruises, abrasions, soft tissue injuries), the size, location and extent of which corresponded to the stories of children about physical violence against them used by certain n staff representatives.
According to the CPC of KR, in the event of disagreement with the conclusion of an examination (including medical), the interested person may appeal the results of the examination and request the court to require a new one. However, this right could not be exercised by these foster children of the special boarding school, because the legal representative, who has the authority to appeal the medical examination in relation to the 9 children, was himself a suspect, and subsequently an accused defendant in the case, and therefore had a personal interest in the formal biased medical examination.
One of the students did not get the attention of the state examination, held on May 22, 2012, despite of the fact that, in his words and the words of other children and staff of the institution, in respect of him, an administration manager attempted to strangle the child, and the marks were clear and seen by the pediatrician and sent to the prosecuting authorities (including photos, video conversation of the doctor with foster children and statements of other foster children describing the actions of the administrative manager). On the day of the state examination, the child was not in the institution, as he was sent "on leave" to his sister. However, during the two and a half months of the investigation, prosecutors did not attempt to meet this child on another day.
Many questions relating to specific types of punishment practiced in this institution have not placed before the medical experts during other investigations.
On May 22, 2012, the Ministry of Education and Science issued an order to suspend the director of the special school from office during the investigation. However, until June 18, 2012, other persons (accountant, administrative manager, deputy director, senior tutor), reported by the children as systematically using violence, remained in the facility.
123 This analysis was based on information provided by the Ombudsman (Akyikatchy) of KR.
86 On June 2, 2012, in respect of an accountant of the special school as well as a tutor, a criminal case was dismissed, on the grounds that they are not directly engaged in educational work. Questions regarding actions of an administrative manager did not get the attention of the investigation.
On June 23, 2012, the investigator rejected a petition of the "Youth Human Rights Group" PA on the requirement of a medical and psychological examination of the foster children, explaining the refusal by the fact that these juveniles were questioned during the investigation and did not testify against the director, as well that the forensic medical examination carried out on them did not reveal evidence of physical violence. It should be noted that many types of treatment that are practiced against children in this institution leave no visible physical signs and thus demanded primarily a psychological examination.
On July 4, 2012, a resolution about bringing the director of the special school as a defendant in accordance with the Article 161 of the CC of KR "Juvenile care duty dereliction" and part 1 of Article 304 of the CC of KR "Abuse of official position," was issued by the investigator. On July 26, 2012, a resolution on completion of the investigation and requesting a trial against the director of the special school under Article 161 and 304 of the CC of KR was issued.
During the trial, the defendant admitted his guilt, and the trial court found his guilt proved124: "The court finds that the defendant A.E.D’s,125 guilt in the use by an official of his official position against the interests of his service, which caused a material breach of the rights and legitimate interests of citizens, legally protected interests of society or the state, committed in order to get the benefits and advantages for themselves or others, as well as other personal interest, non- performance or improper performance of responsibilities for the upbringing of a minor person to whom these duties are imposed, teacher or other employee of an educational institution is obliged to supervise the care of juveniles, if the act is connected with the abuse of minors, decided that collected materials on the case, testimony of the injured party S.G.A., V.A.V. , on-site investigations, phototables, is proved."
Nevertheless, by the decision of the Moscow district court of the Chui oblast on August 21, 2012, the criminal case against the former director of the special boarding school was terminated by agreement of the parties. The former director of the special boarding school and the acting director, recognized as the legal representative of all the children, were the parties agreeing to the termination of the case. At the trial, the child-victims (except for one child and his grandmother) were not present. During the trial, witnesses and experts who submitted their findings on the state of the childrens' health on May 17, 2012, were not invited.
The "Youth Human Rights Group" PO, which learned about the court’s dismissal of the criminal case, acting by power of attorney of the Director of Center of rehabilitation and safety of children, which is the legal representative of the seven juvenile victims in the criminal case, filed an appeal to the Chui regional court. The Chui regional court accepted the appeal and ordered a new trial in the court of first instance. The Supreme Court of the Kyrgyz Republic has left the ruling of the Chui regional court in force.
124 CC No.1-262, Resolution of dismissal of the criminal case, the Moscow district court of the Chui oblast, August 21, 2012 125 The accused director of Belovodskoe special boarding school at the time of the trial is temporarily dismissed from his post.
87 In April 2013, in the Moscow district court, a process against the former director of special boarding school, was started. The court interviewed two legal representatives of the victims - a representative of the special boarding school and director of Center of rehabilitation and safety of children, 18 child-victims, and 11 witnesses of the defense. At the time of preparation of this Report, the judicial investigation was at the level of interrogating the defendant.
To this date, in respect of specialized boarding schools for children with Neglect of the basic disabilities, the procedure of placement of children is based upon a decision needs of the child in of a psychological-medical-educational body applied(hereinafter PMPA), institutions for which is an advisory body. children with disabilities According to the Ministry of Education and Science, in the Kyrgyz Republic there are 16 PMPA. Of these, only the PMPA of the Ministry of Education and Science is working on an ongoing basis and conducts a meeting every day. PMPA Bishkek - 2 times a week; the rest of PMPAs work on a volunteer basis, and meetings are held two times a year (January and May) involving narrow health professionals. This work schedule of PMPAs in the regions does not allow the regular evaluation of the health status of children with disabilities and leads to absentee conclusions and unreasonable placement of children in boarding schools.
Unfortunately, discrimination in the implementation of children's rights is systematic. These include the existing system of guardianship of children with disabilities, which provides the placement of children with significant physical or psychiatric disorders in special boarding schools for children with disabilities which are within the jurisdiction of the Ministry of Education, or neuropsychiatric boarding or institutions which are their counterparts in the jurisdiction of the Ministry of Social Development.
Typically, in the case of children with disabilities placed in institutions of a boarding type, public authorities do not to take any measures to preserve communication with the families of the children. Placement of children in institutions of a boarding type occurs without territorial consideration; for example, a child residing in Bishkek may be directed to the institution of the Talas region, which creates significant obstacles to preserving family ties.
Pokrov rehabilitation house - a boarding school for children with Children’s disabilities - has been redeveloped in 2009 from the Pokrov rehabilitation boarding boarding-house for the elderly and disabled. It is located 90 km house from Talas and 380 km from Bishkek.
As of January 25, 2013, 53 children aged from 6 to 19 years with various illnesses were in the institution.126 There were only 3 children from the Talas region in this institution. 127The other children from Talas were sent to institutions in other regions of the country upon the decision of the PMPA. The building of this institution is not designed to meet the basic needs of children with disabilities: no ramps and stairs are too narrow to allow the construction of ramps. The children receive no education in this facility.
126 Monitoring Data of the "Youth Human Rights Group" PA. 127 Data of “Family and society” PA of beginning of 2013.
88 But at the time of the monitoring 7 children were there who could be trained under the program at a special school for children with mental retardation.
Despite the fact that the diseases of children in the institution are complex and may at any time require hospitalization, the nearest hospital from the institution is 2 hours away by car. There is no vehicle in the institution.
During monitoring, on March 28, 2013, the doctor found that a child with infiltrative tuberculosis of the right lung is in the facility. The child is in a room with two other children, who are also suspected of having tuberculosis. In response to a message of April 5, 2013, on the situation in the facility, the Ministry of Social Development has provided information that those children are not admitted to a hospital due to lack of material means for transport services.
Placement of children with disabilities in such a remote institution, which is not equipped for this category of children, where there is no opportunity to provide access to basic health services, with no opportunity for a relationship of the child with his/her family, is, in fact, denial by the State of reasonable accommodation for survival and development of vulnerable children. This approach of the State on provision of services for children with disabilities, unfortunately, is not an exception.
After a petition of “Youth Human Rights Group" PA on the situation in the institution, the Ministry of Social Development conducted an on-site investigation of the institution, the results of which confirmed the findings of the monitoring. The ministry has taken urgent measures for immediate comprehensive medical examination of the children, which was not available at the regional level. For that purpose the children were sent to Bishkek. According to examination of the children, taking into account the diagnoses, the Ministry decided on the transfer of the three children to institutions where they have access to appropriate medical facilities.
Unfortunately, in neuropsychiatric boarding institutions there are often children with reasonable intelligence but suffering from disorders of the musculoskeletal system, hydrocephalus or having other diseases that lead to physical disabilities of these children. Neuropsychiatric boarding institutions provide basically only physical care and are not focused on providing intellectual development and social integration for children. In the best case they provide only classes for imparting life skills and not for giving children with normal intelligence a primary, basic education.128 Thus, the State Agency for Social Welfare under the Government of the Kyrgyz Republic (currently - the Ministry of Social Development of the Kyrgyz Republic) reported129 that “...educational work in boarding-houses for persons with mental disorders is not conducted, as the children suffer from severe mental retardation.”
128 Observance of human rights in institutions for children deprived of a family environment. Report of the monitoring results of 2009-2010. "Youth Human Rights Group” PA. - Bishkek, 2011. - p. 9-11. 129 Answer of the State Agency on Social Welfare No.5/5343, December 3, 2009, to the request of "Youth Human Rights Group" PA.
89 In April 10, 2013, the "Youth Human Rights Group" PO, in
cooperation with the Office of the Ombudsman, monitored the Dmitriev boarding observance of the rights of children in the Dmitriev boarding school. school
In this institution there are positive aspects in observance of children's rights; management and staff make efforts to create the most favorable conditions for the education of children with special needs. Along with these positive aspects, however, in the institution there are a number of violations of children's rights, including those of a systemic nature that need close attention of the administration of the institution, and the Ministry of Education and Science.
The institution was intended for children diagnosed with "mild mental retardation," but two has children with Down syndrome. The capacity of the institution is 192 children; currently there are 109 children in the facility. According to plans this institution should changed in 2015 into a rehabilitation center for children with cerebral palsy.
The institution has no procedures of recording disciplinary punishments against children and no complaints procedures. In fact, children have no opportunity to complain about the personnel’s actions both inside and outside of the institution in cases of violation of their rights, especially in situations of violence against children by adults. Absence of such procedures creates a high risk of violence against children and does not provide protection of children from various forms of physical, emotional and psychological abuse, both by adults and between children.
Also, in the Regulations governing the operation of the institution there is no guidance on what forms of disciplinary measurements may be applied to children. Also, the institution does not hold training sessions for staff (teachers, educators, nurses and staff) on non-violent forms of education and training of children. There are no specialists - psychologists and social workers – in the institution, whose duties include the prevention of violence in educational institutions, rehabilitation of children affected by violence, and the creation of a non-violent educational environment.
Effective educational impact in terms of modern psychology and teaching must meet the following criteria: - Punish for a particular behavior, not the child's personality. - Punishment should not humiliate the dignity of the individual child. - Punishment should not be delayed in time. - Punishment should be of a non-violent nature. - It is necessary to consider the reasons for the child's misbehavior and offer him/her alternative ways of behavior through persuasion. - The educational model must demonstrate "good behavior" and not violent behavior.
As a consequence of all these factors, representatives of the administration and staff of the institution practice various forms of disciplinary actions of a violent nature.
90 Disciplinary sanctions and their consequences, identified on the basis of interviews with the children and staff include:
− Physical punishment. − Child is put in the corner for a long time, sometimes on his/her knees. − Shouting - a form of emotional abuse. It provokes child experiences of fear, horror, form of helplessness. At the physiological level, from strong shouting children’s small blood vessels in the brain may burst. − Public condemnation of the child, implying public humiliation of the child, not consistent with an individual approach to parenting. It is a form of collective punishment. It also contributes to the spread of violence among children. − Registration with the police for offenses not defined as offenses under the legislation. − Threats to send children to other specialized institutions (e.g., National Children's Psychiatric Hospital, Ivanovka). This kind of punishment is a form of child abuse, and creates additional stigma to the child. − Threats of dismissal of a child from the institution. This form of punishment creates an experience of fear, anxiety and worry. − A notebook for recording misconduct of children. This form of parenting, when the punishment is delayed and not applied for a specific offense or behavior, but rather for the sum of all actions, is inefficient and provokes experiences of fear, terror and anxiety. − Taking away cell phones of children, sometimes for a long period. This kind of punishment significantly impedes communication with the families of children, especially in an institution that has no other means of communication with relatives for the child.
An analysis of staff schedule showed all teachers working in the institution - 11 people, 4 people per shift. Thus, one educator accounts for about 27 children. Such a ratio of educator/child cannot create a close relationship between an adult and children, as well as emotional ties, to raise the children in a non-violent environment. This may be one of the reasons for the high level of violence in the facility.
The optimal number of children with special needs in mental health in the classroom is from 7 to 10. This number of children in the classroom will allow teachers to more effectively organize the learning process and an individual approach to each child.
Social integration - is one of the main needs of children with disabilities. In the educational process of the institution at this moment, there is a very little activity related to social contacts and interaction of children with their peers - visiting exhibitions, theaters, concerts, joint activities with socially useful purpose. The main emphasis in teaching children is on working therapy. However, only metalwork, carpentry and sewing workshops are available. Children do not actually choose the form of working therapy and leisure-time activity - their opinion is not considered.
91 4.4. DOCUMENTING CASES OF TORTURE. PROVISION OF LEGAL ASSISTANCE TO VICTIMS OF TORTURE
Despite the fact that the legislation of the Kyrgyz Republic envisions the duty to investigate the complaints of torture, this is not always executed at a proper level in practice. This is evidenced by the human rights practice of non-governmental organizations, and it is the opinion of international human rights bodies and experts.
The Human Rights Committee in its decisions about violations by the Kyrgyz Republic of the right to freedom from torture and ill-treatment, did not find convincing arguments of authorities that the statements of torture victims were properly investigated. In its decisions, the Committee noted that an effective remedy, including an impartial, effective and thorough investigation of allegations of torture and ill-treatment, and initiation of criminal proceedings against those responsible for the treatment suffered by the complainant, is not provided.
For example, in considering of the case Gunan v. Kyrgyzstan, the Committee for Human Rights noted that the complaint of torture was ignored by the prosecution and the courts. In this regard, the Committee noted that immediately after the filing of complaints of ill-treatment under article 7 of the ICCPR, the State party must investigate it promptly and impartially. "Although the author's allegations of torture and forced confessions are mentioned in the decisions of the courts, which considered this criminal case, the claims were ultimately rejected as unfounded, not confirmed by the materials of the case and made in order to avoid criminal liability. The decisions have no indication that these complaints were investigated. The Committee therefore finds that the competent authorities of the state party did not pay due and adequate attention to complaints of the author of torture, expressed by him during the criminal proceedings in national courts.130
In the case of Krasnov v. Kyrgyzstan, the Committee noted "information presented in the case file does not certify the attention of the competent authorities of the state party to the son's complaints that he was subjected to physical abuse, and the Committee concludes that the facts certify a violation of son's rights under article 7 of the Covenant." In accordance with the decision of the Committee, the Kyrgyz Republic is obliged to provide the author's son (Krasnov) an effective remedy, including the review of his conviction with regard to the provisions of the Covenant and to provide him with adequate compensation. The state party is also under an obligation to prevent similar violations in the future. 131
The UN Special Rapporteur on torture, according to the results of his mission in Kyrgyzstan in December 2011, made the disappointing conclusion that in the country there is a lack of prompt, thorough and impartial investigations of allegations of torture and ill-treatment.
In 1999, upon the results of the hearing of the initial report of Kyrgyzstan, the Committee against Torture concluded that in general, the prompt, impartial and full investigation of allegations of torture and other cruel or degrading treatment or punishment is not provided, and prosecution when necessary of alleged perpetrators of these crimes are not carried out.132
130 Gunan v. Kyrgyzstan (Communication No. 1545/2007), judgment of July 25, 2011. 131 Krasnova v. Kyrgyzstan (Communication No. 1402/2005), judgment of March 29, 2011. 132 Final comments of the Human Rights Committee, paragraph 74.
92 To this date, this is the continuing of opinion by the Committee against Torture, as evidenced by the dialogue of the members of the Committee with an official delegation of the Kyrgyz Republic in the course of the hearing of the second national periodic report of the Kyrgyz Republic for the implementation of the Convention against Torture on 51 session in November 2013.
Concerns of international human rights bodies and international experts are not unreasonable. And the proof of this is the information provided by non-governmental organizations of the Memorandum of Understanding in the field of human rights and freedoms, as well as official data of law enforcement agencies.
According to official data of the General Prosecutor's Office in 2012, out of 371 allegations of torture, 340 (91.6%) were refused for initiation of criminal proceedings. The main supervisory authority reported that the number of complaints for 9 months in 2013, compared to the same period last year, has decreased by 31.5%.
Experts believe that a reduction of the number of complaints of victims of torture to the prosecuting authorities cannot be regarded as a reduction in the practice of torture and ill-treatment. Rather, it leads more to a conclusion that there is insufficient confidence in the existing mechanisms for review.
"Obviously the public authorities report about reducing the number of appeals on torture to show their excellent work. But in reality the situation is different. Everyone knows about these facts, on such facts almost every day people turn to us. Just recently, a message about the fact of beating of two girls in prison was received. One of them had been sexually assaulted by the investigator. The girl is 17 years old. Currently, we are doing our own investigation on this matter."133
To the “credit” of the Prosecutor’s Office, human rights defenders note an unchanging, and even increased, percentage of refusals to initiate a criminal investigation of allegations of torture. As the press service of the General Prosecutor’s Office reports, out of 208 calls with complaints of torture, only 11 were prosecuted. We must assume that the prosecutor refused to initiate criminal proceedings in 197 (94.7%) cases. 134
In this regard, an interesting example is where the Prosecutor’s Office of Jalal-Abad, "instead of immediately investigating the matter," spent six months in litigation with the Jalal-Abad human rights organization "Spravedlivost," which defended several victims of mass beatings in the TDF of the Jalal-Abad Municipal Department of the Interior. The story of the mass beating of prisoners in the TDF of the Jalal- Abad Municipal Department of the Interior, when the police officers during the search of the cells began to beat prisoners, shocked many. Relatives of the detainees reported the incident to the "Spravedlivost,” human rights group which is responsible for monitoring of places of
133 http://rus.azattyk.org/content/kyrgyzstan_woman_torture/25183056.html. 134 http://rus.azattyk.org/content/kyrgyzstan_woman_torture/25183056.html.
93 detention in Jalal-Abad, after which human rights activists also met with several detainees in the facility to document their claims. Eight people gave to “Spravedlivost" written statements describing the ill-treatment to which they were subjected. In a letter to the General Prosecutor with a request to take the matter under personal control, human rights activists said that the police "brutally beat prisoners on the head, face, kidneys ... They stripped detainees naked and forced them to run. One prisoner said police officers choked him." The letter also stated that the police officers humiliated detainees during the operation. Special attention is paid to the application of one of the detainees that one of the police officers knocked on his head a bucket of filth. Several detainees have also claimed that police had seized personal clothing or medicine, although the country's laws do not prohibit arrested persons under investigation to have such items. In protest, several detainees cut their hands and stomachs with razors, and medical treatment was provided to them.
Employees of the "Spravedlivost" regional human rights organization applied to the local Prosecutor's Office to initiate criminal proceedings against the police officers of the TDF, but prosecutors did not see a crime in the actions. The refusal was appealed and two courts have decided on the need for additional examination of cases of mass beating of prisoners in the TDF. The Prosecutor's Office did not agree with this decision and sent a complaint to the Supreme Court.
On May 22, the Supreme Court considered the case with the participation of representatives of the General Prosecutor's Office and human rights defenders. The court supported the refusal to initiate a criminal case. The court justified its decision by the absence of forensic conclusions about explicit mutilation defendants suffered at the hands of police officers. Human rights activists intend to use international mechanisms of protection and apply to the Committee for Human Rights.
Thus, in spite of the recent initiatives of the General Prosecutor's Office to strengthen prosecutorial oversight of the constitutional guarantee of the ban on torture and other inhuman, cruel or degrading treatment or punishment, no real measures to prevent torture in the country have been adopted. Cases of torture continue to be ubiquitous, while cases of prosecution for torture are rare exceptions.
This situation encourages human rights organizations, as expressed by the lawyer of "Golos Svobody" PF, Koylubaeva A., to conduct "its investigation" in order to facilitate the same prosecutors in exposing the perpetrators of torture and ensure the inevitability of punishment for torture.
This activity of NGOs is consistent with the framework of the Memorandum of Understanding in the field of human rights and freedoms, and is carried out by: • documenting cases of torture and abuse in the monitored places of detention; • provision of prompt legal assistance to: - Victims of torture or other cruel, inhuman treatment or punishment;
94 - Victims of other illegal actions of law enforcement officials; - Detainees not receiving effective legal protection in court; - Detained minors not receiving effective legal protection; - Women not receiving effective legal protection.
Allegations of torture received from respondents in the course of the monitoring were immediately referred to prosecutors who are by mandate tasked to verify complaints about torture and consider the issue of initiating criminal proceedings against those guilty. The following nongovernmental organizations monitored the follow up on torture allegations and provided qualified legal assistance: • Human Rights Protection Centre Kylym Shamy, Bishkek; • Jalal-Abad province human rights organization Spravedlivost, Jalal-Abad; • Public Foundation Golos Svobody, Bishkek; • Public Foundation Luch Solomona, Osh;
All organizations attracted defence attorneys who had experience protecting victims of torture and ill-treatment.
In total, during the reporting period non-governmental organizations sent 80 complaints about torture to prosecutors, including: . Kylym Shamy - 30 . Spravedlivost - 19 . Luch Solomona - 21 . Golos Svobody - 10
Reports of torture
Kylym Luch Golos Total
Spravedlivost № Shamy Solomona Svobody
1. Total received 33 26 29 10 98
Sent to
2. prosecution 30 19 21 10 80 authorities
Criminal cases 3. 13 2 3 5 23 Launched
Criminal cases launched
4. under Article 305-1 of 135 2 1 3 0 6 the CC of KR
Criminal cases
5. submitted to 136 5 1 1 2 9 courts
Refusal to launch
6. criminal 15 14 17 5 51
proceedings
135 On 4 complaints. 136 3 criminal cases under the Article 305 of CC of KR, 1 criminal case under the Article 305-1 of CC of KR.
95 Appeals against
refusals to launch
7. criminal 12 7 1 2 22
proceedings in
court
Court satisfied a
defence attorney’s
complaint on
recognizing
6 4 0 0 10 8. refusal to initiate
criminal
proceedings by
prosecution
authority as illegal
Court failed to
satisfy a defence
attorney’s
complaint on
recognizing 5 3 1 2 11 9.
refusal to initiate
criminal
proceedings by
prosecution
authority as illegal
Upon the examination of 80 statements, the Prosecutor’s Office has launched 23 criminal cases, out of which 6 criminal cases are on the grounds of an offense under article 305-1 of the Criminal Code of KR (torture).
Over the entire period from the date of criminalization of torture in 2003, in only one case was a person convicted of torture and sentenced to imprisonment.
According to the message of the press center of the General Prosecutor’s Office of the Kyrgyz Republic sent to a court by the Prosecutor’s Office of Bishkek city, a criminal charge against A.Motuev of crimes stipulated in Articles 305 (abuse of power) and 305-1 (torture) of the Criminal Code of KR, on November 26, 2013, was considered by the Sverdlovsk district court of Bishkek. In the course of a criminal investigation, it was found that on March 24, 2013, approximately at 18:30, a policeman of PGSP of the Main department of the Interior of Bishkek, temporarily sent to the Bureau of Criminal Investigation of the Main department of the Interior of Bishkek, A.Motuev, illegally brought N.Amankulov to the Main department of the Interior and began to make threats to the accused regarding the stealing a cell phone of the "Samsung" brand. Then, in order to obtain confessions, he squeezed a wrist joint of the accused by a handcuff, and began putting a plastic bag on the head of the accused, limiting the access of oxygen. As a consequence, from these physical actions, N. Amankulov fainted. The officer of the PGSP of the Main department of the Interior of Bishkek was sentenced to 6 years for torture. 137
137 http://pda.kabar.kg/law-and-order/full/67338
96 In all other criminal cases being processed by the courts, the statutory procedural time passed a long time ago; cases are complex and any prospect of a judgment on the merits has not yet appeared; cases are referred from one instance to another, "ping-pong" of the accused continues.
An example would be a criminal investigation about the death of torture-victim, Holmirzaev Usmanzhan, reviewed by the Sokuluk District Court on September 29, 2011, i.e., more than two years ago.
A 40-year-old citizen of the Russian Federation, Holmirzaev, living in Bazar-Korgon district, was arrested by the local police officers on August 7, 2011. Law enforcement officers threatened to fabricate a case against him for participation in the events of June 2010 in the south of the country, if he did not pay them six thousand dollars. Holmirzaev was pressured not only psychologically, but he was beaten with fists, a gas mask was put over his head, and when he fell – they jumped with their knees to his chest.
Relatives of the victims brought to the extortionists 30,000 soms, which they were able to collect, and the poor man was released. However, upon returning home Usmanzhan felt bad; he was taken to a local hospital, where he died on August 9. The deceased left three children, an 80 year old sick father, and nephews. After learning about the death of Holmirzaev, police officers returned the money; one district officer took the money to the relatives of the deceased. Incidentally, he gave relevant evidence during the trial. But his colleagues, who beat Holmirzaev, threatened their colleague, whereupon he retired, and then completely changed his place of residence. The spouse of the deceased, Zulfiya Holmirzaev, appealed for help to "Spravedlivost," where she was given a lawyer without charge.
The Prosecutor’s Office of the Bazar-Kurgan district in August 2011 initiated a criminal case against four police officers who were accused of intentionally causing grievous bodily harm, which caused the victim's death, abuse of powers and extortion.
The Court traditionally "occupied" the relatives of the accused, who put pressure on the judge and the victims. Twice the case was remanded for further investigation to fill the gaps of the investigation. Last fall the Sokuluk District Court for the third time sent the case back for further investigation ... Finally, the litigation reached the Supreme Court, which was supposed to send the case back for further investigation to the prosecutor or the court for consideration on the merits. The Criminal Division of the Supreme Court upheld the determination of Chui oblast court to cancel the decision of the district court to send the case back for further investigation, thus taking the side of the victims, "Return of the case of the deceased Holmirzaev to the Sokuluk District Court for consideration on the merits, is a very delayed process." 138
In general, the problem of procrastination of cases of alleged torture in the courts has not been covered in detail in this study, and requires a separate study.
Six criminal cases, from the number initiated on the basis of applications received from non- governmental organizations, were sent to the court for consideration on the merits. At the time of
138 http://femida.kg/verxovnoe-reshenie/
97 this report, one judgment of conviction was ruled against three individuals for an offense under Article 305 of the Criminal Code (abuse of power); two criminal cases were ceased, and two are at the trial stage.
From the number of applications received from non-governmental organizations, 51 (63.8%) were dismissed by prosecutors who were asked to initiate a criminal case.
From the practical experience of human rights organizations, in all cases where due to the passage of time the victim’s injuries were not visible, the criminal case will be denied. But even if the injury were properly documented, the investigating authorities often decide to dismiss the criminal case, most often based on the allegations of alleged torturer that: - the injuries were caused by the defendants resisting arrest; - the injuries were received by the defendant prior to his detention; - the injuries were caused by the defendant himself.
An experienced torturer, in order to avoid possible criminal prosecution and liability, often uses methods of torture that leave no visible signs of torture. To document torture marks on internal organs, and to establish a causal relationship between them and torture, is difficult in practice today because of the lack of special training of experts and investigators. To this problem the Special Rapporteur on torture stated: "... forensic examiners in Kyrgyzstan do not have appropriate training on documentation of torture and other ill-treatment, and due to the existing institutional system depend on the facilities in the places where the alleged abuse took place. Their offices and laboratories are poorly equipped due to overall budgetary constraints in the country." 139
In accordance with international documents, if the applicant has no evidence to support injury, this does not mean that the complaint is unfounded. In this case the sequence of details and narrative of the application can be the justification of the complaint. This approach is fixed in conclusion of the Committee against Torture: “The Committee notes that, in accordance with the requirements of Article 12 of the Convention against Torture, the authorities should proceed with an investigation if there are reasonable assumptions about the use of torture or ill-treatment, regardless of who is expressing them. The Committee notes that at court on February 2, 1992, after the incommunicado detention (without contact with the outside world) on January 29, 1992, the applicant stated that she suffered physical and mental violence, including threats of rape. In the court there were five forensic findings, which examined her daily, the first four examinations were held in the police station, the last - in the courtroom. In conclusion, the applicant complained of ill-treatment consisting of insults, threats and beatings, detention for hours with a black hood placed over the head, as well as the fact that she was forced to remain naked for long periods, although no traces of violence on the body of the applicant were found. The Committee notes that the above should be enough to start an investigation.”140
According to international standards, the seriousness of the charges alone can and should serve as confirmation of the validity of the complaint. This position, in particular, is reflected in the judgment of the European Court of Human Rights. "The applicant, her father and daughter,
139 Report of the Special Rapportuer on torture, paragraph 51. 140 Encarnacion Blanco Abad v Spain (communication No. 59/1996, CAT/C/20/D/59/1996), par. 8.2 – 8.8).
98 complained to the prosecutor for the treatment to which they were subjected during the detention. In her statement, she (the applicant) specifically indicated in the presence of the police gendarmerie, that she was tortured and raped. Despite the fact that she (the applicant) could not show visible signs of torture, one would expect that the prosecutor will take into account the seriousness of her arguments, taking into account also the claims of her family members on the treatment to which they were subjected. In such circumstances, he (the prosecutor) has received a signal of the need for fast, thorough and effective investigation...." 141
In relation to criminal proceedings in Kyrgyzstan, in all these examples, of course, the topic is investigation in the framework of the criminal case. Without a doubt, only through effective investigation using a wide range of investigative actions will the comprehensive, full and objective verification of arguments of victims of torture and abuse be possible.
It is extremely rare that an investigator, in deciding on whether or not to initiate criminal proceedings on the application or claim on torture, conducts an examination of the cause of mental suffering of the victim of torture, which is also a result of the crime of torture.
In 22 cases, the decision not to initiate a criminal case was appealed in court. In 10 of these cases the court found the refusal to initiate a criminal case illegal, cancelled the decision, and returned materials to the prosecution authorities for further investigation and legal solutions.
Kylym Luch Golos Total
Spravedlivost № Shamy Solomona Svobody
Consultation is 154 601 345 28 1128 1.
provided
Assistance of the
142 defence lawyer is 75 1 13 10 99
2.
provided
Exhaustion of domestic 1 2 2 4 9 3.
remedies
During the period of the study, in the framework of the project, 1128 persons received legal assistance.
99 persons were provided with a defence lawyer’s assistance. At the same time, organizations that provide legal assistance have developed certain rules of selection and involvement of lawyers to provide legal assistance to victims of torture and ill-treatment.
141 Aidin v. Turkey No. 31, September 25, 1991, par. 105. 142 Lawyers were hired by the "Advocacy Centre for Human Rights” NGO.
99 "Kylym-Shamy" prefers lawyers who for several years have been working with human rights organizations, and underwent specialized courses on human rights training for conducting strategic litigation. However, a victim of torture may be provided with a lawyer which he/she chooses.
In the "Golos Svobody," each application is subject to review by the expert commission. Upon review, the decision on further actions on the merits is made. On receipt of the application, "Golos Svobody" takes measures to provide the most effective protection of the rights, freedoms and legitimate interests of the applicant under the current legislation of the Kyrgyz Republic, with international protection mechanisms. In this case, the lawyer in the existing internal registry of the fund is involved, given his/her employment, qualifications, location (region of residence of lawyer and place of investigative activities).
There are cases of unjustified termination of criminal cases regarding torture and ill-treatment.
On July 13, 2013, a resident of the Jergetal village of the Aksy, Nurkamil Ismailov, was detained by the police department of the Aksy IAU and placed in a cell for administrative detainees of the Aksy IAU at around 23:30.
On July 14, 2013, at approximately 5:30, an attendant found the dead N. Ismailov in the room, hanged. According to TDF employees, he hanged himself with a rope made of T-shirts.
On July 15, 2013, an investigator of the Prosecutor’s Office of the Aksy district, Saliev W. initiated a criminal case for negligence.
On July 19, 2013, "Spravedlivost" received a complaint from the brother, N. Ismailov, stating that the body of Ismailov N.J. had many signs of violent acts, including bruising, broken teeth, cut eyes and swollen left ear. Relatives and friends of the deceased, Ismailov N.J., are doubtful about the suicide of Ismailov N.J. and suspect that he was tortured in the police station in the Aksy IAU building, and as a result died.
On August 01, 2013, relatives of Ismailov N. wrote a statement in Aksy IAU to the Prosecutor’s Office that they do not have any claim against the police officers of IAU, who were on duty from July 1 to 14, 2013. On this basis, the investigator stopped the criminal proceedings on the basis of article 28, section 1, paragraph 12, 225 of CPC of KR, in connection with failure of the victim to maintain a private-public prosecution.
“Spravedlivost” considers that termination of the criminal investigation on the death of Ismailov N. to be illegal. An excerpt from the letter of the head of the organization, Gritsenko V.A., to the General Prosecutor of the Kyrgyz Republic:
The death of a man who was under the custody of law enforcement agencies has public resonance, and “Spravedlivost” is interested in the legality and validity of the procedural decisions made, as required by the legislation of the Kyrgyz Republic. In addition, a guarantee of successful operation of the state and civil society is the proper performance of official duties by officials of the state apparatus.
The accusation of negligence of an official person is based on the fact that he/she did not take the required actions at work or did so in an untimely, incomplete, inaccurate, or poor manner. In this regard, for charges of negligence primarily it is required to find out, in accordance with relevant
100 laws and other regulations, orders, and job descriptions, exactly what duties were assigned to the official person, in other words what he/she was obliged to do.
The case of Ismailov Nurkamila cannot be dismissed on the grounds of lack of private-public prosecution by the representative of the victim, as rules of law were violated which led to the death of a person. So in accordance with paragraph 52 of the Regulation on special receivers in the internal affairs authorities for the detention of persons, the police are required to maintain constant supervision over detainees, enforce their compliance with the established regime of detention and internal regulations, and provide measures for the prevention of suicide or bodily injury .
In addition, the Committee on Human Rights in its consideration of the proceedings in Moidunov v. Kyrgyzstan (case of death in a TDF of Bazar-Kurgan IAU that took place on October 25, 2004), in accordance with the Optional Protocol to the ICCPR, notes that the State party in the arrest and detention of individuals has the responsibility to take care of their lives, and that the criminal investigation and subsequent punishment of perpetrators are necessary remedies for the violation of human rights protected under Article 6 of the ICCPR.
The Committee recalls that the State is responsible for the safety of any person in detention, and if the detainee gets injured, the State party should provide adequate explanation of the reasons of occurrence of such injuries. The Committee further recalls its General Comment No.31, which states that in cases where during the investigation violations of certain Covenant rights are revealed, states parties are required to bring to justice the ones involved in the violation of these rights.
The problem of death in places of detention and lack of a proper investigation of the facts were noted by the Special Rapporteur on torture: "Cases of deaths of persons in custody, and a lack of responsibility for them are multiple. Independent investigations of deaths of persons in custody are the exception to the rule. In addition, the victims' families are often under pressure from the police to withdraw their complaint or agree to reconciliation and closing the case." 143
On 9 cases of torture, domestic remedies have been exhausted. Currently, defence lawyers together with human rights defenders are preparing individual messages to the UN Committee on Human Rights.
Human rights activists, based on their experience to promote the protection of the rights of victims of torture and abuse, believe that rapid and effective investigation of allegations of torture and ill- treatment in Kyrgyzstan is hampered by several factors, the most important of which are:
Lack of effective channels of complaints
In accordance with the Convention against Torture, a State is obliged to investigate any allegations of torture. The Committee against Torture indicates that it is not mandatory to have a formal written complaint for the State to be obliged to investigate such cases. The Committee also emphasizes that such complaints and reports of torture must be carried out immediately.
143See CCPR/C/94/D/1275/2004.
101 According to the legislation of the Kyrgyz Republic on the procedure and the conditions of detention of persons, persons in custody have the right to file complaints against law enforcement officers. In practice, such persons do not file complaints for various reasons: lack of appropriate conditions for the preparation of physical complaints, fear of punishment, lack of competent counsel, a general distrust of the system. The vast majority of victims of torture and ill-treatment prefer not to file a complaint, reasonably believing such action is not only useless, but dangerous. Defenders also know the practice, when the victim, under various pretexts, is forced to drop the allegation of torture.
Lack of proper body of investigation
One of the conditions for the fast, thorough and effective investigation of allegations of torture is the availability of a competent and impartial authority, independent of the suspects and from law enforcement agency where they serve. In Kyrgyzstan, to this date there is no such body, which is one of the reasons of almost absolute impunity for crimes of torture. According to Article 163 (3) of the Criminal Code of the Kyrgyz Republic, investigation of crimes of torture and ill-treatment is carried out by investigators of the Prosecutor's Office. In practice, allegations of torture usually are sent in the local Prosecutor's Office, which at the same time are called to carry on a prosecution of a person in custody and supervision of the legality of investigative activities in a criminal case by the investigating authorities.
By establishing the facts of torture during a preliminary investigation, the prosecution actually weakens the prosecution's position, questioning the legality of the evidence extracted of guilt and the possibility of their use in court. Thus, victims of torture in cases where the investigation is conducted against them in criminal cases, have no objective and effective remedies, where their complaints would be investigated properly. As previously noted, it appears that the reform of the public prosecutor's office in the framework of the development strategy must eliminate such conflicts of interest.
Lack of effective medical examination
Talking about the quality of medical examination in Kyrgyzstan, it is worth noting that despite the requirement of Article 40 of CPC of KR that "anytime a suspect is brought to a TDF, and each time he, his council, or his relatives allege a physical assault by officers, the suspect must be medically examined, with records of such examination," often the medical examination does not meet the requirements of this procedure, and has a formal character. Examining, doctors often do not record all the injuries. Such actions of doctors are explained by their dependence on the state system. As a result, it is difficult for individuals who are victims of torture to document physical damage and to prove the use of torture. Also, a medical examination is not always carried out for every detainee in a temporary detention facility. Typically, a medical examination is carried out only once, and has a perfunctory character. 144
Kyrgyzstan also has no practice of independent forensic examinations. All medical examinations are made by members of the local bureau of forensic medical examination. Although the forensic examination is administered by the Ministry of Health, employees are still not independent from law enforcement agencies, and often are not interested in a thorough recording of all injuries.
144 www.freedomhouse.kg
102 Certain hopes are left for the change of the situation in connection with the adoption of the law "On the forensic activity." 145
Thus, in Kyrgyzstan the basic requirements for an investigation of allegations of torture: independence, adequacy, efficiency and participation of victims, are not observed.
In society, there is an understanding of the importance and the need to change the situation. Achieving real improvements is impossible without a full understanding and collaboration between state agencies and civil society organizations. And emotional statements of certain officials, indicate, in fact, the official position of public authorities: "Do you have proof of such cases? In Kyrgyzstan, anyone can say anything. Human rights activists say what they want. No such facts exist.146
145 Law "On judicial-forensic activities,” June 24, 2013, No. 100. 146 http://rus.azattyk.org/content/kyrgyzstan_woman_torture/25183056.html. Press-secretary of the MoI of KR, Jorobay Abdraimov, categorically denies allegations of torture of detainees by police.
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