On 1 June 2020, at 10 a.m., a preliminary hearing will be held in the administrative court of Bishkek (64 Ibraimova St., tel: 0312 681390, 622731) to consider the administrative claim of Azimzhan Askarov against the Government of the Kyrgyz Republic.
On 11 May 2020, the trial did not take place due to the reorganization of the Inter-district courts in accordance with the Law of the Kyrgyz Republic dated 11 April 2020 “On Amending Certain Legislative Acts of the Kyrgyz Republic”.
The essence of the matter. On 23 November 2019, the journalist, artist, human rights activist Azimzhan Askarov appealed to the Government of the Kyrgyz Republic, addressing the Prime Minister M.D. Abylgaziev to inform him of the measures taken by the Government to implement the decision of the UN Human Rights Committee dated 31 March 2016, which recognized that the rights of Azimzhan Askarov had been violated by the state: article 7, separately and in conjunction with article 2, paragraph 3; article 9, paragraph 1; article 10, paragraph 1, and article 14, paragraph 3 (b) and (e) of the International Covenant of Civil and Political Rights.
The UN Human Rights Committee found that the human rights activist Azimzhan Askarov was subjected to torture, cruel, inhuman and degrading treatment. It also found that the state, in violation of the contractual obligations stipulated by the aforementioned Covenant, violated his rights and freedoms, did not provide an effective remedy established by law and provided for by the state’s legal framework. Askarov was subjected to arbitrary arrest and detention, imprisoned in violation of the procedures established by law. Askarov’s lawyers and defense were attacked by crowds. The lawyers received life threats, court hearings were held in an atmosphere of threats and discrimination.
In paragraph 10 of the Views in this case, the State party was obliged by the Committee to take the necessary measures to immediately release Azimzhan Askarov, and to annul the criminal record, including full compensation for the damage.
It should be noted that more than 4 years have passed since the adoption of the Views of the UN Human Rights Committee. The Government of the Kyrgyz Republic, which, by virtue of Part 2 of Article 83 of the Constitution of the Kyrgyz Republic, is the supreme executive authority of the Kyrgyz Republic within the framework of the powers granted to it by the Constitutional Law, has not taken any practical measures to implement the Views of the UN Human Rights Committee dated 31 March 2016.
The prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment is contained in article 7 of the International Covenant on Civil and Political Rights of 1966 (ICCPR), to which Kyrgyzstan acceded by the resolution No. 1406-XII of the Jogorku Kenesh of the KR dated 12 January 1994.
Article 7 is supplemented by article 10, which guarantees the right to humane treatment of all persons in custody as a particularly vulnerable group.
The authorities did not show any political will to review the case of torture victim Azimzhan Askarov, completely ignoring the format of consideration of the UN Committee’s Views.
As Mary Lawlor, Special Rapporteur on the situation of human rights defenders, emphasized: “I believe that, in the end, the state should decide which side to choose – justice or lack thereof, and this is a political decision. This is a case that I am not going to retreat from…”.1
The legal opinion of the International Commission of Jurists (ICJ), which was published on 4 July 2019, following the consideration of the criminal case of A. Askarov in the Chui regional court, stated: “Our analysis showed that, despite the many years of the law proceedings, Azimzhan Askarov was denied the right to a fair trial and an effective investigation of the allegations of torture.”
The ICJ called on “the Kyrgyz authorities to take measures due to these findings and overturn the conviction of Askarov, as well as release Askarov from custody.”
The ICJ concluded that it was necessary to initiate an investigation into complaints of torture and other human rights violations against Askarov. He should be provided with appropriate compensation for damage caused as a result of the violations.
The response of the Government of the Kyrgyz Republic to Azimzhan Askarov was delivered to the Institution No. 19 of the State Penitentiary Service under the Government of the Kyrgyz Republic, where he is serving his sentence, only on 10 February 2020, in violation of the requirements of Article 8 of the Law “On the Procedure for Considering Citizens’ Appeals”, which provides for no more than 30-day term for consideration.
The Ombudsman of the Kyrgyz Republic, by virtue of Part 1 of Article 3 of the Law “On the Ombudsman (Akyikatchy) of the Kyrgyz Republic”, whose task is to “protect the rights and freedoms of a person and citizen, proclaimed by the Constitution and laws of the Kyrgyz Republic, international treaties and agreements ratified by the Kyrgyz Republic”, provided a formal reply to A. Askarov’s appeal, where, having listed the lawsuits initiated by lawyers, the Ombudsman stated: “You have used the available legal remedies provided for by the national legislation of the Kyrgyz Republic”.
The National Center of the Kyrgyz Republic for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an authorized state body established to facilitate the fulfillment by the Kyrgyz Republic of its obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, does not take the initiative in protecting the victim of torture Azimzhan Askarov.
In substantiation of his claims, Azimzhan Askarov referred to part 1 of Article 10 of the Constitutional Law “On the Government of the Kyrgyz Republic”, which established that the Government ensures the implementation of international treaties that the Kyrgyz Republic is a party to and enforces the law and rights and freedoms of citizens.
The Kyrgyz Republic, having acceded to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Civil and Political Rights, Article 1 of the Optional Protocol of the Covenant, has committed to recognize the competence of the UN Human Rights Committee.
In the lawsuit, Azimzhan Askarov noted that by virtue of Article 26 (Pacta sunt servanda) of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), to which the Kyrgyz Republic acceded by the Law No. 49 of 5 July 1997 (it became effective for the Kyrgyz Republic on 10 June 1999), the current contract is binding upon its participants and should be faithfully executed by them.
By virtue of Articles 27 and 46 of this Convention, a party cannot invoke the provisions of its domestic law as an excuse for its failure to fulfill a treaty. That is, the state does not have the right to invoke the fact that its consent to be bound by the contract was expressed in violation of one or another provision of its domestic law.
In his administrative claim, Azimzhan Askarov asks the court to invalidate the actions of the Government of the Kyrgyz Republic to ensure the enforcement of the Views of the UN Human Rights Committee dated 31 March 2016 in his case. He also requests to oblige the Government of the Kyrgyz Republic to ensure the implementation of international treaties that have entered into force in the manner prescribed by law, to which the Kyrgyz Republic is a party.
At the trial, the interests of Azimzhan Askarov will be represented by lawyers Valerian Vakhitov and Khusanbay Saliev, as well as Tolekan Ismailova – Chairman of the Board of the HRM “Bir Duino-Kyrgyzstan”.
We hope that, in accordance with Article 104 “Judicial Summons” of the Administrative Procedure Code of the Kyrgyz Republic, the courts will conduct proper work in advance to invite all the participants of the judicial process. We hope that representatives of the Government of the Kyrgyz Republic, the Institute of the Ombudsman of the Kyrgyz Republic and Askarov’s defense will be in court. We request the court to provide a safe and favorable environment for an effective and fair trial of the complaint of the prisoner of conscience, victim of torture, human rights activist Azimzhan Askarov.
For further information, please, contact the lawyer V.A. Vakhitov by phone: + 996 703 407 293.
Human Rights Movement “Bir Duino-Kyrgyzstan”
1https://rus.azattyk.org/a/oon-spetsialnyi-dokladchik-mary-lawlor-interview-azattyk/30608602.html
