Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Kyrgyzstan***
Contents
Paragraphs Page
I.Introduction1–8 3
II.Access and cooperation9–124
III.General observation on torture and ill treatment13–144
IV.National Preventive Mechanism15–185
V.Normative framework and reliance on confession evidence19–266
VI.Institutional framework and impunity27–407
VII.Fundamental safeguards41–689
A.Information on the reasons for arrest and on the rights of detainees42–439
B.Right to inform a member of the family or other third party44–4610
C.Right to legal assistance47–5110
D.Length of police custody and judicial review of detention52–5611
E.Medical examination57–6112
F.Registers62–6813
VIII.Conditions of detention and treatment69–10314
A.Conditions of detention in temporary detention facilitiesand other places under police custody70–7814
B.Conditions of detention in SIZO and colonies79–9615
C.Conditions of detention of persons serving life sentences97–10017
D.Detention under the State Committee of National Security101–10317
IX.Children104–10918
X.Mental health110–12018
A.Psychiatric hospital111–11418
B.Psycho-neurological institutions115–12019
XI.Corruption121–13020
XII.Repercussions of the visit131–13221
Annexes22
I.Places of deprivation of liberty visited by the SPT in Kyrgyzstan22
II.List of persons with whom the SPT met24
I.Introduction
1.In accordance with articles 1 and 11 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) carried out its first regular visit to Kyrgyzstan from 19 to 28 September 2012.
2.The SPT was represented by the following members: Mr. Arman Danielyan (Head of Delegation), Ms. Suzanne Jabbour (Vice-Chair of the SPT), Mr. Goran Klemencic, Mr. Christian Pross and Mr. Felipe Villavicencio Terreros.
3.The SPT was assisted by five staff members from the Office of the United Nations High Commissioner for Human Rights (OHCHR), including one security officer. In addition, the SPT was assisted by one officer from the United Nations Department of Safety and Security and five interpreters.
4.The SPT conducted 21 visits to a number of places of deprivation of liberty, including temporary and pre-trial detention facilities, prison colonies, children institutions and psychiatric and psycho-neurological institutions in the cities of Bishkek and Osh and in the Provinces of Chuy, Osh and Jalal-Abad (see Annex I). In addition, the SPT held meetings with the relevant authorities of Kyrgyzstan as well as with members of civil society, United Nations agencies and international organizations (see Annex II). The SPT wishes to thank them for the valuable information provided.
5.At the conclusion of the visit, the SPT presented its confidential preliminary observations orally to the authorities of Kyrgyzstan. Written comments from the authorities of Kyrgyzstan were received on 12 December 2012. In the present report, the SPT presents its findings and recommendations concerning the prevention of torture and ill-treatment of persons deprived of their liberty in Kyrgyzstan. This report uses the generic term “ill-treatment” to refer to any form of cruel, inhuman or degrading treatment or punishment.
6. The SPT requests the authorities of Kyrgyzstan to provide it with a Reply within six months from the date of transmission of this report, giving a full account of the State P arty’s actions taken to implement the recommendations.
7.The present report will remain confidential until such time as the authorities of Kyrgyzstan decide to make it public, as stipulated in OPCAT article 16(2). The SPT draws the State Party’s attention to the Special Fund established in accordance with article 26 of OPCAT, as recommendations contained in public SPT visit reports can form the basis of an application for funding of specific projects under the Special Fund.
8. The SPT recommends that Kyrgyzstan requests the publication of the present report in accordance with OPCAT article 16(2).
II.Access and cooperation
9.The SPT wishes to express its gratitude to the authorities for their cooperation and facilitation of the visit. In particular, the SPT would like to thank the Government of Kyrgyzstan for the information received prior to the visit, for issuing credentials for unrestricted access to places of detention in conformity with the OPCAT and for the designation of Ms. Aida Salyanova, the Prosecutor-General, as focal point for the SPT visit.
10.The authorities have granted access to all places visited by the SPT. However, in many of the temporary and pre-trial detention facilities and the detention places under the National Security Committee access was delayed from 20 to 40 minutes until officers in charge confirmed permission of their superiors to grant such access. Moreover, in a number of cases, the SPT faced difficulties in being granted access to locked places, such as certain rooms or offices, particularly those in which interrogations usually take place in police stations. In one instance, police staff tried to hide two detainees. It should be noted that in mental health institutions and children institutions cooperation was generally more satisfactory.
11.In some of the facilities visited, the SPT encountered problems with conducting confidential interviews, either due to interference by guards and officers or because inmates and patients were encouraged by staff “to tell the truth” or “not to complain too much”. Particularly in places under the Ministry of Internal Affairs and under the National Security Committee, the general atmosphere was not conducive to conducting private interviews, as the fear of reprisals was very much present.
12. The SPT wishes to emphasise that any form of intimidation or reprisals against persons deprived of their liberty consti tutes a violation of the State P arty’s obligation to cooperate with the work of the SPT under the OPCAT. The SPT calls upon the authorities of Kyrgyzstan to ensure that there are no reprisals following the SPT visit.
III.General observation on torture and ill-treatment
13.Despite some positive measures taken by the authorities to tackle the issue, torture and ill-treatment is prevalent in the country, primarily driven by the following alarming structural and systemic problems:
(a)Weak rule of law, including the absence and/or non-observance of basic legal safeguards and inadequate registration system;
(b)The reliance of the law enforcement and justice sectors on confessions and the lack of effective prosecutorial and judicial oversight of law enforcement activities;
(c)The lack of access to independent and qualified medical examinations and the insufficient access for detainees to appropriate health care;
(d)The prevalent corruption within the system, including in the legal profession, and exacerbated inter alia by the low level of professionalism in all sectors;
(e)The impunity and general lack of accountability of officials;
(f)The overall poor material and financial conditions of places of detention, psychiatric hospitals and institutions for persons with disabilities which often in itself lead to inhuman or degrading treatment;
(g)The on-going discriminatory practices faced by minority communities at both the institutional level and within the public at large.
14.All these factors create a vicious circle of systemic problems in which the widespread practice of torture and ill-treatment represents an integral part of the law enforcement and justice system reality. While acknowledging the commitment of the Prosecutor-General to fight impunity for torture and ill-treatment by strengthening prosecutions against perpetrators and increasing the prosecutorial oversight over law enforcement officials, the lack of recognition of the depth and systematic nature of the problem by most officials and consequently the lack of political will (with few exceptions) to address the problem, is further combined with a general atmosphere of impunity. As a result, persons deprived of their liberty are at continued and systematic risk of being ill-treated and are deprived of effective protection from the State.
IV.National Preventive Mechanism
15.Kyrgyzstan should have created or designated a National Preventive Mechanism (hereinafter “NPM”) at the latest one year after its accession to the Optional Protocol. The draft law on the National Centre of the Kyrgyz Republic for the Prevention of Torture and Other Cruel, Inhuman and Degrading Treatment was adopted by Parliament on 7 June 2012, signed by the President on 12 July 2012, and officially published and entered into force on 17 July 2012. The adoption of the law and the openness of the authorities to oversight of detention places by civil society organisations is proof of the willingness of the authorities to put in place effective mechanisms for the prevention of torture.
16.According to the law, the NPM should have been established by 17 October 2012, three months after the entry into force of the law. After the completion of its mission, the SPT learned that in February 2013, the eight NGO members of the Coordination Council, were selected, but that Parliament was yet to nominate two of its members to the Council. The SPT also notes that 7 million KGS has have been included in the State budget for 2013, but is concerned that the full amount may not be made available because of the delays in setting up the NPM.
17. The SPT calls upon the Government to disburse the full amount allocated to the NPM in 2013, despite the delay in establishing the Centre. The SPT also urges the Government to increase the funding in the future so as to enable effective execution of the NPM mandate, as per article 21 of the law, without cutting down the Ombudsman’s budget. In this context, it recalls article 2 of the national law whereby the NPM should complement rather than replace existing systems of oversight, such as the Ombudsman and NGOs, which have mandates to visit places of deprivation of liberty.
18. The SPT urges the State P arty to ensure that the composition of the NPM includes multidisciplinary expertise in torture prevention and adequately represents the country’s key ethnic and minority groups. In line with the principle of cooperation and constructive dialogue with States parties and in conformity with article 11 (b)(iv) of OPCAT, the SPT expresses its willingness to further assist the State P arty, by means of a prompt advisory visit, which would seek to make recommendations and observations with a view to strengthening the capacity and the mandate of the designated NPM.
V.Normative framework and reliance on confession evidence
19.The SPT notes the prohibition of torture and ill-treatment in article 22(1) of the Constitution and takes note of the existence of a comprehensive normative framework in the area of criminal justice. However, the SPT is particularly concerned about the lack of implementation of the legal standards which creates actual gaps in the protection of persons deprived of their liberty. In addition, the SPT is deeply concerned at the over-reliance of the criminal justice system on confession evidence.
20.The SPT notes that article 305-1 of the Criminal Code (CC) was amended on 31 July 2012, codifying acts of torture as serious or grave crimes and increasing the penalties. The SPT notes with satisfaction that this amendment will allow ex-officio prosecution of torture, putting an end to the possibility of shelving criminal investigations and proceedings based on the withdrawal of complaints from the victims and/or amicable agreements. The SPT further notes that article 4 of the Law on General Principles of Amnesty and Clemency (Amnesty Law) excludes the possibility to apply amnesty for severe crimes.
21.The SPT notes with concern the systematic reliance of the law enforcement and justice sectors on confessions. The SPT was informed that despite the fact that the Constitution and the Criminal Procedure Code (CPC) require corroborative evidence in case of a confession, in practice, in many cases the conviction is based only on a confession or on evidence obtained as a result of a confession in the police station. In the course of its visit, the SPT received numerous and consistent allegations and testimonies about how confessions were extracted through beatings with metal sticks and bottles filled with water; asphyxiation using plastic bags or gas masks; application of electric shocks and stress positions; exposure to freezing temperatures without clothes; threats of rape against detainees and threats of use of force against family members.
22.The system of evaluating the performance of the police by using quotas to resolve crime combined with the lack of technical equipment and the low level of professionalism of police, promotes the systematic use of forced confessions. The situation is exacerbated by the ineffectiveness of prosecutorial and judicial oversight of law enforcement activities and the lack of application of effective fundamental safeguards.
23.In relation to the June 2010 violence, the SPT learned about ethnic discrimination in criminal investigations. With few exceptions, victims of torture and ill-treatment were mostly of ethnic Uzbek origin. The SPT noted that according to the National Commission of Investigation, out of a total of 271 individuals accused and detained for crimes during the June violence, 230 were ethnic Uzbeks. The SPT is particularly concerned that law enforcement bodies appeared to have given priority to investigations of crimes committed against ethnic Kyrgyz while ethnic Uzbeks comprised the majority of the victims of the June 2010 violence.
24. The SPT categorically condemns all acts of torture and ill-treatment and recalls that torture and ill-treatment cannot be justified under any circumstance, and must be completely prohibited. The SPT urges the authorities to ensure that amnesty is not applied to acts of torture and ill-treatment.
25. The SPT also recommends that all necessary steps be taken to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
26. The SPT recommends that thorough, independent and impartial investigations into allegations of torture be undertaken without regard to the ethnicity of alleged perpetrators. The SPT encourages an independent review of trials related to the June 2010 inter-ethnic violence, and further recommends the reopening of proceedings in cases where the authorities have not properly investigated allegations of torture or cases with serious violations of fair trial guarantees, particularly for long term imprisonment and life sentences related to the June 2010 violence.
VI.Institutional framework and impunity
27.The current institutional framework in Kyrgyzstan does not provide sufficiently robust protection against torture and ill-treatment. While noting the existence of different monitoring mechanisms as important measures for torture prevention, the SPT is highly concerned about the lack of effective complaint procedures and the overall failure of the State to properly respond to and investigate allegations of torture and ill-treatment.
28.The SPT noticed that very little or no information is provided to inmates on complaint procedures available in the different detention facilities. These mechanisms (including complaints to the Office of the Prosecutor-General or to the courts, as well as complaints made within the penitentiary system concerning conditions of detention, or appeals against the imposition of disciplinary measures) are largely perceived as ineffective, non-independent and futile since they fail to provide complainants with substantive hearings or effective remedies. The fear of reprisals further prevents the use of these mechanisms.
29.While the SPT noted as a positive development the recent efforts of the Prosecutor- General to strengthen the oversight over police and to pursue investigations into allegations of torture, this is facing many obstacles in its implementation and of the creation of a Specialized Prosecutors Unit with prosecutorial and investigative functions over cases of torture. The regaining of investigative functions by the prosecutors over crimes of torture and ill-treatment, further to the amendment of the CPC, should be supplemented by the creation of a central independent body, so as to avoid any conflict of interest.
30.There is a striking gap between alleged and observed cases of torture and ill-treatment in police custody and the lack of action - legal or institutional - against alleged perpetrators. The SPT is concerned at information that the offence of torture is usually not prosecuted under article 305-1 (torture) of the CC, but rather under the provisions relating to abuse of power (art. 304), exceeding power (art. 305-2), negligence (art. 306) or forced deposition (art. 325). According to information received from the Ministry of Internal Affairs, during 2012, there were no records of criminal cases under article 305-1 of the CC with respect to law enforcement officers. According to the information provided by the Prosecutor-General’s Office, from the 253 complaints received in 2012, merely nine cases were prosecuted under article 305-1 of the CC, out of which only five remain under investigation. This gap attests to the overall lack of accountability of law enforcement and prison officials.
31.The SPT observed that the impunity for perpetrators of torture is closely associated with the culture of institutional denial of the scope and depth of the problem at different levels - from police and prison management, prosecutors to courts and even the medical profession.
32.While the SPT acknowledges the on-going judicial reforms in Kyrgyzstan, it is highly concerned by the institutional failure of the justice system to provide effective, independent and prompt investigation of and remedy for allegations of torture and ill-treatment. During its visit, the SPT noted that allegations of torture by accused or defendants are in general summarily rejected by the courts, and judges fail to apply legal possibilities to order further investigations into such allegations. In this context, the SPT is concerned at the failure of the courts, including the Supreme Court, to fully recognise its responsibility in addressing the acute problem of torture and ill-treatment in the country.
33.The SPT noted that the problem of impunity is further exacerbated in the south of the country, following the June 2010 events.
34. The SPT further notes that while the authorities have accepted that donors finance training for judges, prosecutors, and law enforcement officers, no sufficient state funding is budgeted to ensure sustainable and systematic training on human rights.
35. The SPT also recommends that the problem of impunity be addressed as a matter of urgency, not only at the practical but also institutional level. In addition, the SPT recommends that allegations of torture be promptly investigated and alleged perpetrators prosecuted under the provision in the Criminal Code relating to torture (art. 305-1). The SPT wishes to receive further information from the Prosecutor-General on the current functioning of the Specialized Prosecutors Unit. The SPT urges the Prosecutor-General to establish clear procedures as to how torture complaints should be investigated, in accordance with the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). It recommends that allegations of torture and ill-treatment in the south of the country be handled with particular attention and that independent review and oversight is provided for.
36. The SPT recommends that the relevant authorities take the necessary measures to put in place adequate complaints mechanisms and ensure that they operate fairly and effectively.
37. The SPT recommends that the authorities establish a mechanism within the Office of the Prosecutor-General to supervise and ensure the strict compliance of prosecutors with the instructions of April, September and October 2011, with a view to strengthening prosecutors’ efforts to prevent and investigate torture.
38. The SPT also recommends that the authorities consider deploying supervisory bodies of the Office of the Prosecutor-General within prosecutors’ offices in Osh and Jalal-Abad to assess performances and compliance with anti-torture regulations.
39. The SPT urges the judiciary to take a more pro-active role as guardian of the protection of the rights of individuals and in the fight against impunity in cases of torture and ill-treatment. The SPT calls upon the judiciary to clearly spell out measures to be taken by courts should evidence appear to have been obtained through torture or ill-treatment. It further urges judicial authorities to ensure inadmissibility of evidence obtained through torture or in the absence of the lawyer, in compliance with article 81 (4) of the CPC.
40. The SPT recommends that the State allocate sufficient budget to ensure that law enforcement officers receive proper training on human rights of persons deprived of their liberty, including the prevention of torture and cruel, inhuman or degrading treatment. Such training should be also delivered to other persons with responsibility for the supervision and management of detainees, including training prison personnel, prison guards and managers, as well as judges and prosecutors.
VII.Fundamental safeguards
41.The persistent non-observance of legal safeguards in the initial stages of arrest and detention exposes persons deprived of their liberty to serious risk of torture and ill-treatment. While the SPT received numerous and consistent allegations of ill-treatment during police custody, particularly during initial interrogation, the system appears to be set up in a way in which traces of ill-treatment are covered-up, particularly through non-registration of periods of police custody, during which ill-treatment often occurs, and the inappropriate way in which medical examination is conducted. The SPT is further concerned by prolonged delays of police custody and the lack of exercise of the right to challenge the legality of the detention
A.Information on the reasons for arrest and on the rights of detainees
42.According to domestic law, information on the rights should be given to detained persons as soon as their custody is registered by the investigative officers and prior to interrogation. The SPT heard from many persons deprived of their liberty that they had not been informed of their rights or of the reasons for their arrest at the outset of their detention.
43. The SPT recommends that urgent measures be taken to ensure that all persons arrested are immediately informed of the reasons for their arrest, as well as their rights as detainees, at the very outset of their deprivation of liberty. Information on rights should be posted at every police station and in the temporary holding facilities in the relevant languages, including Kyrgyz, Russian and Uzbek.
B.Right to inform a member of the family or other third party
44.The right of persons deprived of their liberty to inform a person of their choice about their detention represents a basic safeguard against torture and ill-treatment. The SPT received consistent and widespread allegations that detainees had not been able to inform a member of their family or other third party of their whereabouts from the outset of their deprivation of liberty. Several days could pass before such an opportunity was granted. The SPT observed that even the family of juveniles was not always informed within the 12 hours prescribed by law.
45.The SPT further learned that meetings with relatives are only allowed upon approval by the investigating officer, prosecutor or the Court. As a result, only in rare cases do such meetings occur, although in most cases there are no objective reasons for limiting contact with family members.
46. The SPT recommends that persons deprived of their liberty be able to inform a family member or third party of their detention from the outset. Meetings of arrestees with their relatives and other means of communication with the outside world should be allowed, unless the court decides otherwise, for objective reasons related to the investigation of the case, at the request of the investigative body. Any institution, upon admission of persons deprived of their liberty, should officially notify their family (or at the request of the detainee another person) about their whereabouts.
C.Right to legal assistance
47.As a fundamental safeguard against torture and ill-treatment, detainees should have the right to independent legal assistance from the outset of detention, and an independent legal representative should be entitled to be present and assist the detainee during all questioning and during appearances before a judge.
48.The SPT notes that on 6 August 2012, the requirement for a written certificate issued by an investigator, prosecutor or the court for a lawyer to see his/her client, was removed through amendment number 151 to the Law on Procedure and Conditions of the Detention of Persons Suspected or Accused of a Crime in Custody. However, the SPT is concerned that domestic law is inconsistent in relation to the moment in which access to legal counsel should be provided.
49.The SPT learned from many testimonies that at the early stages of detention a duty lawyer is usually provided, who often is an acquaintance of the investigator and is called by him or her. The SPT heard many complaints that these lawyers do not have sufficient professional qualifications, and often cooperate with the investigation to the detriment of the defendant and/or serve as intermediary for bribes against a promise of dropping charges. In view of the fact that the detainees have no or little contact with the outside world, most of them do not have the possibility to choose their legal counsel.
50. The SPT was informed about a draft law on the Bar Association and wishes to receive further information on the content and current status of this draft law. The SPT recommends that the system of duty lawyers be reformed and that an effective and independent public defence system be established, with proper remuneration for defence lawyers. The authorities should ensure that all detainees are provided with access to independent legal counsel from the very outset of their deprivation of liberty. The SPT also recommends that investigations into cases of alleged corruption be launched.
51. The SPT recommends that any person deprived of liberty has access to legal counsel from the moment of apprehension as established by article 24 (5) of the Constitution.
D.Length of police custody and judicial review of detention
52.Persons kept in custody by the police are held in temporary detention facilities (IVS), under the authority of the Ministry of Internal Affairs, until the prosecutor determines whether to pursue the case. Domestic law prescribes that detained persons should be brought before a judge within 48 hours following their apprehension. Following authorization of detention by a judge, detainees should be transferred to a pre-trial detention facility (SIZO).
53.With very few exceptions, all persons interviewed by the SPT in police custody had been held without respect of the time limits established by law. The SPT met with a detainee who had been held up to seven months in an IVS. Lack of infrastructure is one of the reasons for prolonged periods of police custody, especially in the South, where there is only one SIZO covering three provinces. Long distances and lack of transportation lead to a situation where detainees are kept in IVS for months both during the pre-trial phase and during trial. It was alleged that in some cases even when it was manageable to transfer a detainee to SIZO, the police had not respected the maximum period of detention in the IVS, in order to hide traces of torture or to have unhindered access to a detainee during the investigation phase to secure confession or testimonies.
54.The inaccurate recording of police custody makes it difficult to ascertain whether the legal time limit for judicial review is respected or not. While interviewed persons acknowledged that they have been taken before a judge, it was alleged that the judicial review of the detention is a simple formality in which the lawfulness and arbitrariness of the detention is not examined. While the right to challenge the legality of detention is enshrined in article 24 (4) of the Constitution, the SPT noted with great concern that such right is not exercised, both due to the lack of a procedure defined in the law and the lack of knowledge by the detainees of their rights.
55.It was further noted that the administration of SIZOs visited by the SPT refused to accept detainees with traces of violence, putting detainees at further risk of abuse by police officers.
56. The SPT recommends that the maximum period of police custody provided for by law be strictly respected and that this be rigorously monitored by the relevant authorities, including through effective judicial review of the detention. The SPT urges the adoption of measures that would allow for the effective exercise of the right to challenge the legality of the detention. The SPT also recommends that specialized oversight mechanisms for judicial review and due process be established.
E.Medical examination
57.Medical examinations and the proper recording of injuries incurred by persons deprived of their liberty constitute important safeguards for the prevention of torture and ill-treatment, and in combating impunity. According to article 40, part 5, of the Code of Criminal Procedure (CPC), a suspect is to undergo a compulsory and documented medical certification every time he or she is placed in custody or when a complaint is made regarding physical abuse. Similar legal provisions apply to an accused person (article 42, part 7 of the CPC).Such examinations should be carried out in private by a health professional trained in the description and reporting of injuries, include an independent and thorough medical and psychological examination, and the results be kept confidential from police or prison staff, and shared only with the detainee and/or the detainee’s lawyer, in accordance with the Istanbul Protocol.
58.The SPT observed that not all IVS visited had permanent medical or paramedical staff. In some cases the SPT observed that medical examination was not conducted appropriately and not in accordance with the Istanbul Protocol. Even in cases when traces of violence had been registered, these were not described in sufficient detail and could not be used as evidence. Furthermore, the SPT observed some discrepancies in the information recorded.
59.At least in one case, the SPT observed that the main role of paramedic personnel, assigned by the Ministry of Health to an IVS, was to complete a registry stating that all traces of ill-treatment observed (of newly arrived detainees) had occurred before the detainee was admitted to the IVS. Furthermore, if a detainee did not complain, a proper medical examination was not performed and consequently no report was filed with the Prosecutor even if traces of torture were visible.
60.The SPT further noted that forensic examination was not independent and was performed only upon request of the Prosecutor or investigator by health personnel in the service of the Ministry of the Internal Affairs, often after a considerable lapse of time leading to the disappearance of possible traces. In addition, an unofficial forensic examination performed by doctors hired by defence lawyers was not considered by the Court at the same level as an official forensic examination.
61. The SPT recommends that any person brought to a closed institution must be examined by a competent independent medical practitioner upon admission. In addition, measures should be taken to establish access to alternative independent forensic expertise, the conclusion of which should have the same evidential power as the “official” examination.
F.Registers
62.According to domestic legislation, within three hours following the arrest, police officers must take a person to an investigative officer where detailed recording of custody should be done. Within 12 hours from the establishment of this record, the investigator must inform the prosecutor in writing about the detention.
63.The systematic absence and/or inaccurate recording of police arrest and custody observed by the SPT makes it difficult to ascertain whether legal time limits for record keeping are respected.
64.The SPT noted with particular concern that in most police stations visited the custody of criminal suspects was not properly registered. While there was a book to record the date and time of arrest and arrival to the police station of “administrative cases” and to register witnesses coming to provide their statements, there was no such systematic record in the case of criminal suspects. In one case the duty officer made a record about the time of the arrest just in the presence of the SPT member, although the person had been arrested one day before. In many cases, registration would only take place once the suspect arrived at the IVS.
65.The SPT observed that the interrogation of suspects generally took place in the investigators’ offices at the police stations, to which the suspects were brought from the IVS or SIZOs. This practice increases the risk of torture, as the custodial responsibility is temporarily transferred to investigating officers without proper recording. The SPT is particularly concerned by the absence of recording of such transfers in the registries of the SIZO of the State Committee of National Security (SCNS).
66.The SPT recalls that the maintenance of complete and reliable records of persons deprived of their liberty is one of the fundamental safeguards against torture or ill-treatment, and is an essential condition for the effective exercise of due process guarantees, such as the right of the detainee to be brought before a judge promptly and the right to challenge the legality of detention.
67. The SPT recommends that all persons under the control of the relevant law enforcement bodies are immediately registered and that registers are scrupulously maintained with the following information: (1) exact date and time of apprehension; (2) exact time of arrival at the facility; (3) reasons for the arrest; (4) authority ordering the arrest; (5) identity of the arresting officer/s; (6) date, time and reasons for transfer/s or release; (7) precise information about where the person was held during the whole period of detention (e.g. cell number); (8) date, time and identity of the person notified of the detention, including the signature of the officer who proceeded to this notification; (9) date and time of a family visit; (10) date and time of request and/or meeting with a lawyer; (11) date and time of request and/or visit of a health professional; and (12) date and time of the detained person’s first appearance before a judicial or other authority . Police and custodial officers should be properly trained in the maintenance of registers, and should enter the information upon arrival of the detainee. Registries should be regularly inspected by prosecutors and by internal oversight bodies of the police and the penitentiary system. Disciplinary sanctions should be provided for breaches of keeping complete and timely registers.
68. The SPT recommends that electronic registers be progressively established throughout the country, and that registers be harmonised. The SPT also recommends that a standard national database be set up to be updated with systematic case information, which would enable the authorities to track each detainee. The SPT suggests that in the future this software be also rolled out to the courts as well as centrally at ministerial level.
VIII.Conditions of detention and treatment
69.The SPT found that the material conditions in some cases amount to inhuman and degrading treatment and is particularly concerned about the inhuman conditions of disciplinary cells.
A.Conditions of detention in temporary detention facilities and other places under police custody
70.The SPT visited different detention places under police custody, including a reception-distribution centre where material conditions of detention were found to be appalling.
71.Cells visited by SPT had limited space and were located in underground facilities, without natural light and ventilation and with very bad hygienic conditions. The SPT was informed that in many instances, the one-hour daily outdoor exercise provided by law was not respected and inmates were frequently confined 24 hours per day in their cells. In those facilities in which toilets were not inside the cells, the SPT was informed that reduced access was granted and access to cold showers was allowed, once per week in the best case. One meal was provided per day, leaving detainees to rely on food deliveries by relatives, despite the lack of authorization to see them. The SPT also observed inadequate conditions for bedding with lack of mattresses and blankets.
72. The SPT noted that in the Reception-Distribution Centre undocumented and homeless persons were detained up to 15 days in very poor conditions, particularly in terms of low temperatures in the underground cells and the lack of provision of blankets due to budgetary constraints. The SPT is concerned by the use of "administrative arrest and detention" in this centre for the sole reasons of being undocumented or homeless.
73.The SPT further observed the presence of minors together with adults in the IVS in Uzgen.
74.The SPT is concerned about the use of closed-circuit television surveillance inside some cells, noting the need to balance the right to privacy with security needs.
75.The SPT is particularly concerned about the handcuffing of detainees on a big iron chair in one IVS, which IVS authorities claimed to use to calm down “violent detainees” or detainees with mental health problems. The SPT also observed with concern the presence of a dog (rottweiler) next to the walking area in one of the IVS visited.
76.The SPT considers that the practice of regularly holding detainees for prolonged periods of police custody in the appalling material conditions it witnessed amounts to ill-treatment. The SPT is also concerned that such prolonged police detention increases the risk of torture of detainees in order to extract confessions.
77. The SPT recommends that minimum conditions of detention be ensured in respect of human dignity and in accordance with international standards, and in particular that all cells have natural light and ventilation, sufficient access be given to toilets and bathing facilities and that minors be separated from adults.
78. The SPT also recommends that the practice of using handcuffing as a means of punishment be eliminated immediately.
B.Conditions of detention in SIZO and colonies
79.While the material conditions of detention in SIZOs and colonies varied from inadequate to acceptable, the SPT considers inhuman the conditions of those inmates in pre-trial detention facilities who are confined most of the time to underground cells which are poorly illuminated and ventilated.
80.In some instances, the SPT notes the lack of hygienic conditions during the preparation of meals, including the use of inappropriate means, such as an old bathtub to clean food in one of the colonies. The SPT is concerned about the absence of proper cooking facilities in some places of detention which can result in infected food and ultimately can lead to diseases.
81. The SPT urges the Government to improve conditions of detention in accordance with international standards and respect for human dignity and to close the underground cells immediately.
82. The SPT recommends that authorities in Kyrgyzstan ensure that food-quality inspections are undertaken and that all meals are prepared in a hygienic manner, in sufficient quantity, and with the nutrition quality and variety.
83.In addition, the SPT wishes to highlight the following serious concerns:
1.Discipline and sanction
84.The SPT found that the conditions of disciplinary cells in all SIZOs and colonies visited were inhuman due to their size, high degree of humidity, darkness, lack of ventilation and heating and absence of toilet facilities and adequate hygiene conditions.
85.The SPT is particularly concerned about the placement of detainees in such disciplinary cells for prolonged periods (up to 14 days according to internal rules and regulations at least in one place visited) and highlights the lack of transparency and inconsistency in which disciplinary measures appear to be applied. The SPT was not able to check the records of the use of disciplinary cells in the places visited.
86.The SPT is of the view that the presence and regular use of punishment cells in all prisons indicates that the penitentiary system is primarily focused on punishment rather than on reintegration or/and rehabilitation.
87. The conditions of detention and regime in the disciplinary cells in SIZOs and colonies should be revised as a matter of priority. All facilities should maintain a specific register of disciplinary measures that must indicate all data about the identity of the inmate, the infraction committed, the authority that imposed the sanction, date and hour of the commencement and completion of the sanction and whether the decision and sanction was approved by a second authority.
2.System of “privileges”
88.Most of the premises used as detention facilities were built in Soviet-times, are in need of renovation and have very bad hygiene conditions. Deficiencies in the budgetary allocations were further observed in terms of inadequate conditions of bedding, with a lack of mattresses and blankets. However, “privileges” for inmates were clearly visible and the SPT is concerned about the effects of the so-called “black system” - a parallel system of governance of the life and privileges inside the prison system - in certain places of detention. The SPT is particularly concerned about the vulnerability and stigmatization of certain categories of detainees who are subject to segregation, and are exposed to worse living conditions than other detainees. In this context, the SPT observed that the so-called “lower caste inmates” in colonies live in separate premises from the rest of the prison population and are forced to carry out degrading tasks. The SPT is also concerned that the existing parallel system of control over inmates exercised by criminal leaders may lead to abuses and/or corruption.
89. The SPT urges the Government to take all necessary measures to prevent abuses and to protect the most vulnerable detainees from stigmatisation and improve their living conditions in line with international human rights norms.
3.Health and mental health
90.The SPT observed that health units in SIZOs and colonies were poorly equipped and suffered from a shortage of qualified staff. Due to insufficient State funding and inadequate levels of medical supplies, medication had to be paid by the prisoners or their relatives. The SPT noted with particular concern that no funds were allocated for medicine and equipment for those facilities under the SCNS. However, the SPT noted that with the financial support of foreign donors, a high standard of diagnostic and therapeutic services for inmates suffering from tuberculosis and drug addiction are in place in some detention facilities.
91.The SPT was informed that the only central penitentiary hospital, located in Colony No. 47 in Bishkek, had to serve a prison population of 8,000 persons from closed facilities. This hospital had poor sanitary conditions and no central heating. The SPT observed the general lack of medication, out-dated medical equipment and poorly qualified, over-aged and underpaid staff as well as the non-existence of mental health specialized staff (no psychiatrists and psychologists). In addition, the hospital had to treat the severe consequences of ill-treatment, which in many cases, were not properly diagnosed. The SPT noted with concern the high death rate among detainees brought to the hospital due to lack of adequate treatment.
92.The SPT expresses its concern at the lack of adequate training of medical professionals on assessing and responding to cases of human rights violations, including torture and ill-treatment. The SPT is further concerned that forensic services are reportedly not staffed with medical personnel trained in documenting and investigating torture in accordance with the provisions of the Istanbul Protocol.
93. The SPT recommends that the State P arty urgently conduct a country-wide audit of the needs of all institutions, in order to facilitate the provision of sufficient medical supplies. The poor conditions and out-dated equipment at the penitentiary hospital should also be addressed as a matter of urgency.
94. The existing infrastructure and human resources should be improved and training of staff be enhanced. In this context, the SPT recommends that all health professionals working with persons deprived of their liberty are given basic training in the description and assessment of injuries, and in how to report torture and to refer victims of expert examinations, based on the principles of the Istanbul Protocol.
4.Transportation
95.The SPT is concerned about the means of transportation used to transfer detainees from one facility to another. The vehicles examined by the SPT were dark, without any ventilation, and were excessively cramped. The SPT is particularly concerned about the transport of detainees with tuberculosis at the same time as other detainees and without the use of any preventive measure. The SPT is further concerned about the information received on conditions of transfer of detainees to court hearings, including the lack of provision of food and water.
96. The SPT recommends that the modes of transportation be reviewed, in particular to prevent the transportation of healthy detainees together with detainees suffering tuberculosis.
C.Conditions of detention of persons serving life sentences
97.Further to changes in the legislation and the abolition of the death penalty, the number of prisoners serving life sentences has increased. This was particularly observed in relation with the June 2010 events. The SPT notes with concern that out of the 44 persons sentenced to life in Osh and Jalal-Abad in relation with the June 2010 events, 41 were of Uzbek ethnic origin.
98.The SPT visited the premises where prisoners serving life sentences were kept, in SIZOs and in isolated areas of colonies, and notes with particular concern the inhuman conditions of lifers held in former death row cells in SIZO No. 1. These cells with very limited space (1,2 x 3,8 meters) were located underground without natural light and ventilation and with high degrees of humidity. Prolonged detention in these cells entails serious health consequences and the SPT expresses concern at the limited access to medical health care for these detainees.
99.The SPT observed that the security, visiting and outdoor exercise regimes applied to prisoners serving life sentences were much stricter than those applied to other prisoners, and were in general equivalent to a permanent disciplinary regime. In the absence of an individual risk assessment, there was an automatic assumption on the part of prison staff that all life prisoners were extremely dangerous.
100. The SPT urges the authorities to improve material conditions for prisoners sentenced to life and to ensure that prisoners serving life sentences are treated on an equal basis with other detainees and without discrimination. The SPT also calls upon the authorities to immediately close the former death row cells in SIZO No. 1 where prisoners serving life sentences are held.
D.Detention under the State Committee of National Security
101.The SPT visited the two main detention facilities operated by the SCNS. These facilities are under exclusive control of the SCNS and serve at the same time for interrogation and investigation as well as for temporary and pre-trial detention for persons arrested by the SCNS.
102.In comparison to other places of detention, the outdoor exercise regime is even more restricted. The SCNS is not part of the agreement concluded by other state bodies with civil society for visiting places of detention. While the material conditions of detention do not depart from the average observed in other IVS and SIZOs, the SPT observed that isolation from the outside world is much higher than in other facilities. The SPT is concerned about the fact that the same body (SCNS) is responsible and accountable for arrest, investigation and detention.
103. The SPT urges the authorities to take appropriate measures towards the functional and institutional separation between responsibility for investigation and detention, as to avert the risk of torture or ill-treatment. The SPT recommends that access to the detention places under the SCNS be granted on a permanent basis to relevant oversight bodies, as well as civil society.
IX.Children
104.The SPT visited one prison colony for juvenile offenders, as well as one school for social adaptation and rehabilitation and one transit centre.
105.The SPT expresses its concern at the current punitive approach taken towards juvenile offenders, reflected in the frequent pre-trial detention of juveniles in SIZOs for minor offences as well as the high percentage of juveniles sentenced to imprisonment. The SPT is also concerned that they are often intimidated into signing confessions. However, the SPT is encouraged by recent improvements, including a decrease in the number of prison sentences imposed on juveniles.
106.The SPT found that the living conditions in Colony No. 14 were generally poor, while the educational facilities were good. The SPT is seriously concerned at the widespread use of punishment cells in which juveniles are held in solitary confinement, usually for 2-3 days but sometimes longer. These cells were without direct daylight, were damp and had rat faeces on the floor.
107.The SPT was favourably impressed by both the material conditions and the dedication of the staff at the TSARN transit centre in Bishkek. However, the SPT found that the conditions in the Belovodsk Special School for Minors were generally poor, with the exception of the classrooms. In addition, the SPT is concerned that most of the children interviewed rarely received visits due to the distance from their family domicile.
108. The SPT recommends that children and adolescents only be deprived of their liberty as a measure of last resort, for the shortest possible period of time, and that the imprisonment be reviewed on a regular basis with a view to its withdrawal. The SPT urges the authorities to close the punishment cells in Colony No. 14 immediately.
109. The SPT recommends that the necessary financial resources be allocated for the improvement of living conditions at the prison colony for juveniles as well as the schools for social adaptation and rehabilitation. The SPT further recommends that specific psychological intervention and follow-up as well as rehabilitation services for these children be strengthened to prepare them for reintegration in their communities and to avoid recidivism.
X.Mental health
110.The SPT visited one psychiatric hospital and two psycho-neurological institutions.
A.Psychiatric hospital
111.The SPT noted with serious concern that the living conditions at the Chim-Korgon psychiatric hospital were characterized by extremely poor sanitary conditions, including lack of showers, putrid smell of faeces and filthy broken as well as old matrasses and beds. This was particularly evident in Unit No. 10 for women. The hospital is located in old run-down buildings, where patients were placed in rooms with up to 17 beds with no possibilities for physical activity. The SPT is of the view that conditions observed amount to inhuman and degrading treatments. In addition, the SPT observed that there were special isolation rooms with no mattresses for agitated or aggressive patients and that physical restraints were applied frequently. Although restraints were documented, there were no written rules for their application.
112.The SPT also observed that all units were closed, although most patients could be treated in open wards. Although most patients were placed in these institutions on a "voluntary" will, the SPT found that some had in fact been admitted under pressure applied by relatives to resolve family disputes or as a consequence of the fact that there was nobody dedicated to take care of them. Patients who could function well in an appropriate setting had been classified as incapable and put under guardianship, while such guardians often did not act in the interest of the patients towards protecting their rights. Most of the time, patients had signed papers of consent but it was unclear whether this signature was given out of free will. During interviews, the SPT was informed that patients could not appeal against their placement, that there was no review of cases involving “voluntary admissions” under the 1999 Law on Psychiatric Aid and Citizens’ Rights and that it was up to the doctor and the relatives to decide when a person could be released. In this respect, the SPT noted with concern that patients rarely had access to a lawyer and if so, the legal professional did not always represent their interests. Patients interviewed by the SPT were generally intimidated by members of the staff and were afraid to talk to the SPT members.
113. The SPT recommends that living conditions in Chim-Korgon be improved and that Unit No. 10 be closed immediately. The SPT also recommends that Chim-Korgon and other mental institutions be transformed into predominantly open institutions with adequate recreational and occupational facilities. The SPT further recommends that adequate human and financial resources be allocated to the area of mental health and that more fully qualified psychiatrists be employed. Domestic legislation should be reviewed in order to guarantee the rights of patients in respect to the so-called "voluntary" placements and the non-functioning review procedures.
114. The SPT also recommends that the relevant authorities update the national program “Mental Health of the Population of the Kyrgyz Republic in 2001-2010", calling for a community-based mental health care system and ensuring that the necessary financial resources be allocated for the effective implementation of such program.
B.Psycho-neurological institutions
115.The SPT observed that the living conditions in the Tokmok psycho-neurological centre for the disabled were generally poor. The standard of care was also predominantly inadequate, with many of the severely disabled patients accommodated on the floor, without a proper bed. In addition, the medical and dental services provided were not sufficient and of poor quality.
116.The SPT found that patients’ rights were not respected at the Tokmok centre and that institutions for the disabled have occasionally served as a dumping ground for healthy, but socially deprived persons. The SPT is of the view that the internment of individuals without mental impairments in a psychiatric or psycho-neurological institution may amount to inhuman and degrading treatment. In this context, the SPT noted with concern that placement of patients in psycho-neurological institutions was based on the study of individual files conducted by a “medical expert group”, rather than on personal examination and direct observation.
117.The SPT was positively impressed by the Belovodsk children’s psycho-neurological facility, where a committed director has transformed a run-down institution into a modern high standard facility, within only three years. This example demonstrates that, despite limited resources, it is possible to make a difference and reach good standards in terms of quality of services provided; thus this case can serve as a model for other institutions.
118.The SPT further observed the inadequate budgetary allocations from the Government to institutions for persons with disabilities, lack of sufficient and qualified staff as well as little to no support in terms of training and career advancement opportunities for the staff employed.
119. The SPT recommends that appropriate human and financial resources be allocated for services provided to persons with disabilities. The SPT also recommends that salaries be increased in order to attract qualified staff and that regular training programmes for staff be established.
120. The SPT urges the relevant authorities to regularly review the diagnosis of individuals placed in psychiatric or psycho-neurological institutions in order to ensure that no mentally and physically healthy individuals are referred to such institutions. The proposed review should include a personal examination of patients and revision of cases, to be conducted by independent medical experts.
XI.Corruption
121.The SPT underlines the close link between endemic corruption at different levels of the law enforcement, justice and prison system on the one hand and torture and ill-treatment on the other hand. Low salaries of law enforcement and prison staff and the lack of a comprehensive institutional response to curb corruption have created an environment in which corruption has become one of the main facilitating factors for torture and ill-treatment.
122.The SPT heard of numerous instances of extortion of arrested persons and their families by police officers, investigators and even state-paid lawyers. Threats of continuing detention, use of force and adding additional charges are used to extract money from arrested persons or their families with lawyers appointed to the detainees by investigators sometimes serving as intermediaries.
123.In some cases – especially in the South – the SPT could conclude that the symbiosis of corruption and torture has led to an environment where threats of torture have become a means of systematic income-generation for actors involved in the system.
124.The lack of material and financial resources in colonies and SIZOs results in an environment - observed in most places visited by the SPT – where the corruption governs the amount of “privileges” a particular detainee has, such as the equipment of cells, family visits or access to outside medical service. Furthermore, the development of the so-called “black system” can to a large extent be attributed to the endemic corruption in the country.
125.The system of privileges was as well observed by the SPT in psychiatric hospitals, concerning access to specialists and expensive diagnostic procedures and medication.
126. The SPT urges the Government to work towards fully functioning law enforcement, judiciary, prison and health and mental health systems free from corruption and other outside influences. To this end, the Government should ensure adequate remuneration and equitable pay scales for police, prison, judicial and health staff members.
127. The SPT recommends that the Government regularly provide human rights training programmes for civil servants, including to enhance their awareness of the risks of corruption.
128. The SPT encourages the State Party to establish procedures requiring law enforcement officials to declare additional income in order to avoid conflict of interest in respect to their functions as public officials.
129. The SPT recommends that the problem of corruption also be systematically addressed in the legal profession, inter alia in the context of the draft law on the Bar Association.
130. Although the SPT notes that a new Anti-Corruption Agency was established within the SCNS in 2012 , the SPT urges the State Party to create an independent investigative body on allegations of corruption in places of detention.
XII.Repercussions of the visit
131.The Subcommittee is concerned about the possibility of reprisals against the persons interviewed. It emphasizes that any form of intimidation or reprisals against interviewees would constitute a violation of the State Party’s obligation to cooperate with the Subcommittee in its work under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In accordance with article 15 of the Optional Protocol, the Subcommittee urges the authorities in Kyrgyzstan to ensure that there are no reprisals following the delegation’s visit.
132. In accordance with article 15 of OPCAT, the SPT calls upon the relevant authorities in Kyrgyzstan to ensure that there are no reprisals following the SPT visit. The SPT requests the State P arty to provide detailed information in its Reply on what it has done to prevent the possibility of reprisals against anyone who was visited by, met with or provided information to the SPT during the course of its visit.
Annexes
Annex I
Places of deprivation of liberty visited by the SPT in Kyrgyzstan
I.Temporary detention places (“IVS”) and other places under Police
1.Reception Center of Internal Affairs Directorate in Bishkek
2.Leninskiy District Police Station in Bishkek
3.Sverdlovskiy Distric Police in Bishkek
4.Sulaiman-Too City Police Department in Osh
5.IVS of Bishkek City Police Department?.
6.IVS of Osh City Police Department
7.IVS of Jalal-Abad City Police Department
8.IVS of Kara-Suu District Police Department
9.IVS of Uzgen District Police Department
II.Pre-trial detention places (“SIZO”) under the State Penitentiary Service (“GSIN”)
1.Facility# 21 in Bishkek (referred to as “SIZO # 1” informally)
2.Facility # 25 in Osh (referred to as “SIZO # 5” informally)
III.Detention places under the National Security Committee
1.SIZO of the National Security Committee in Bishkek
2.SIZO of the National Security Committee in Osh
IV.Correctional detention places (“colonies”) under GSIN
1.Colony # 47 in Bishkek
2.Colony # 10 in Jalal-Abad
V.Facilities for Children and Adolescents
1.Colony # 14 for juveniles in Voznesenovskaya
2.Centre for Isolation, Adaption and Rehabilitation of Juveniles in Bishkek
3.Special School for Minors in Belovodsk
4.Children’s psycho-neurological facility in Belovodosk
VI.Medical facilities
1.Chim-Korgon Psychiatric Hospital
2.Psycho-Neurological Center for the Disabled in Tokmok
Annex II
List of persons with whom the SPT met
I.National level
A.Authorities
1.Office of the General Public Prosecutor
2.Jokorku Kenesh (Parliament)
3.Ministry of Internal Affairs
4.Ministry of Justice
5.State Services of Execution of Punishment
6.State Committee of National Security
7.Ministry of Health
8.Ministry of Social Development
9.Ministry of Education
10.Supreme Court of Justice
B.Ombudsman
C.United Nations Agencies and International Organizations
D.Civil society
1.Kylym Shamy
2.Golos Svobody
3.Youth Human Rights Group
4.Citizens against Corruption
5.Open View Point
6.Public Foundation
7.Independent Human Rights Group
8.Children’s Rights Defenders League
9.Adilet
10.Mental Health and Society
11.New Perspective on Mental Health
II.Regional level
A.Authorities
1.Office of the Public Prosecutor in Osh
2.Ministry of Internal Affairs - OshCity and Province Police Departments
B.Ombudsman representative for Osh province and Osh city
C.Civil society
1.NGO “Spravedlivost”
2.Association of NGOs “HumanRightsAdvocacyCenter”
3.NGO “Luch Solomona”
4.NGO “Citizens against Corruption”
5.NGO “Center for International Protection”
6.NGO “Kelechek Nuru”
7.NGO “Nadezhda i Mir”
8.NGO “Chintamani”
9.NGO “Egida Shans