Kyrgyzstan: Decision to order the partial confiscation of the house of Mr. Azimjan Askarov

20/11/2019
Urgent Appeal

New information
KGZ 001 / 0910 / OBS 109.9
Restriction of property rights /
Judicial harassment /
Arbitrary detention
Kyrgyzstan
November 20, 2019

The Observatory for the Protection of Human Rights Defenders, a partnership of FIDH and the World Organisation Against Torture (OMCT), has received new information and requests your urgent intervention in the following situation in Kyrgyzstan.

New information:

The Observatory has been informed by reliable sources about the decision of the Jalal-Abad Regional Court to order the partial confiscation of the house of Mr. Azimjan Askarov, Director of the human rights organisation “Vozdukh” (Air), who is currently serving a life sentence on trumped up charges (see background information).

According to the information received, on September 6, 2019, the Bazar-Korgon District Court refused to satisfy a claim of the authorities to seize the property of Mr. Askarov. The authorities appealed this decision and the hearing has been held on November 20, 2019 before the Jalal-Abad Regional Court. The Court overturned the Bazar-Korgon District Court’s decision and ordered the partial confiscation of Mr. Askarov’s property in the amount of 125,000 KGS (1,620 EUR), corresponding to the “moral damage compensation” awarded to the wife of the killed policeman, given that his mother recently died and the 50,000 KGS (647 EUR) originally awarded to her on the same ground can therefore no longer be claimed.

The Observatory recalls that on March 11, 2019, Ms. Khadicha Askarova, Mr. Azimjan Askarov’s wife, received a notice from the Oktyabrsky District Department of Service of Court Bailiffs in Bishkek, dated February 28, 2019, stating that the house that she is currently living in would be seized. The decision was issued in connection with the “moral damage compensation” of 175,000 KGS (around 2,230 EUR), awarded by the Jalal-Abad Regional Court to the family of the policeman allegedly killed by Mr. Azimjan Askarov (see background information) as follows : 125,000 KGS (1,620 EUR) to the wife of the killed policeman and 50,000 KGS (647 EUR) to his mother. The wife of the killed policeman demanded the property seizure.

The Observatory expresses its concern over the ongoing attempts to confiscate the only property of Mr. Azimjan Askarov and his relatives, and considers this unlawful measure as a means of harassment and pressure against Mr. Askarov and his family. Confiscation of the only property of a person is prohibited under the Kyrgys Constitution and by the decision by the Constitutional Chamber of the Supreme Court of Kyrgyzstan dated December 23, 2013, N 16-p.

This is already the second attempt to confiscate Mr. Askarov’s property. Previously, on September 15, 2010, the Bazar-Korgon District Court had ordered the confiscation of Mr. Azimjan Askarov’s property as part of a life sentence handed down against him which was upheld by the Chuy Regional Court on January 24, 2017[1]. However, the Penal Enforcement Code of Kyrgyzstan (Annex to the Section VII, Chapter 22) prohibits the confiscation of the main residence of a convicted person or that of their family members. Mr. Azimjan Askarov’s house, where his wife lives, is their only residence and therefore, according to Kyrgyz law, cannot be subject to confiscation, nor to seizure[2].

Since 2010, the Prosecutor’s Office of Bazar-Korgon District has conducted several visits in view of the confiscation of Mr. Azimjan Askarov’s house.

On May 25, 2016, shortly after the United Nations (UN) Human Rights Committee (HRC) requested Kyrgyzstan to release Mr. Azimjan Askarov, the court bailiffs and representatives of the State Property Fund of Kyrgyzstan (SPFK) paid a visit at Mr. Azimjan Askarov’s house and took photos of the property. The SPFK explained to Mr. Askarov’s wife that they were implementing a decision adopted by the SPFK itself on April 27, 2016 to execute the confiscation order of the Bazar-Korgon District Court. Subsequently, Mr. Askarov’s lawyer filed a lawsuit before the Inter-district Court of Bishkek requesting it to declare the above-mentioned SPFK decision unlawful. Before the case was brought to trial, on September 26, 2016, the SPFK annulled its decision.

On August 16, 2017, the Bazar Korgon District Court of Jalal Abad Oblast considered another lawsuit filed by Mr. Azimjan Askarov requesting the court to prevent the family’s main and only residence from being seized[3]. On September 5, 2017, following an appeal, the Bazar Korgon District Court lifted the order to seize the property due to a “mistake in the confiscation procedures”[4].

Background information:

As the Director of the human rights organisation “Vozdukh” (Air), Mr. Azimjan Askarov has been documenting police ill-treatment of detainees and monitoring the human rights situation in the province of Jalal-Abad, in particular the mass violence in Bazar Korgon in June 2010.

On June 15, 2010, Mr. Askarov was arbitrarily arrested by agents of Bazar Korgon police department for allegedly having urged ethnic Uzbeks to take the district official Mr. A. Artykov hostage, for having ordered the blockade of the Bishkek-Osh highway and for having urged to attack police officers. One of the attacks caused the death of a policeman, Mr. Sulaimanov.

On September 15, 2010, following a mock trial, Mr. Askarov was sentenced to life imprisonment after he was found guilty of complicity in Mr. Sulaimanov’s murder. The trial was marred with irregularities, including alleged torture and the courtroom intimidation of witnesses by police and of lawyers by the audience. Mr. Askarov and the other defendants had pleaded not guilty during the trial. Mr. Askarov’s lawyer, Mr. Nurbek Toktakunov, asked for a medical examination, which was denied.

On November 10, 2010, the Court of Appeal upheld the life sentence of Mr. Azimjan Askarov following another trial marred by irregularities. At that time, the health of Mr. Askarov had already severely deteriorated.

On January 26, 2011, the defence lawyers requested the Supreme Court to examine and include new evidence in the criminal case, including a testimony made by Ms. Aziza Abdirasulova, Director of the human rights organisation Kylym Shamy, that showed that, in May 2010, Mr. Azimjan Askarov had warned the authorities that acts of violence were being prepared in Bazar Korgon. According to Mr. Azimjan Askarov’s lawyer Nurbek Toktakunov, this warning might have triggered the fabrication of this case. In addition, defence lawyer Kairat Zagibaev provided evidence showing that Mr. Askarov was not present at the scene where the incidents took place. The Supreme Court accepted the new evidence and on February 8, 2011, the same Court decided to open an investigation into the conditions of detention in Kyrgyzstan, especially in provisional detention centres, and to suspend sine die the trial against Mr. Askarov. This decision was taken following a petition made by Mr. Nurbek Toktakunov, lawyer of Mr. Askarov, on the appalling conditions of detention of his client and other prisoners in the temporary detention facilities of Bazar Korgon, which have hampered the preparation of the defence.

In October 2011, Mr. Askarov’s defence team conducted a private investigation and gathered evidence pointing to the innocence of the latter and reporting use of torture and inhuman treatment against him.

On December 20, 2011, the Supreme Court upheld the sentence to life imprisonment. After years of pressure, in May 2013, a new investigation was ordered by the Vice Prosecutor General of the Kyrgyzstan Republic, but was closed nine months later for lack of legal basis.

On September 3, 2014, the Supreme Court overturned the Bishkek District Court decision of April 30, 2014 which requested the re-opening of Mr. Askarov’s case. The hearing was marked by acts of intimidation against Mr. Askarov.

In March 2016, the United Nations Human Rights Committee (UNHRC) found that Mr. Azimjan Askarov was arbitrarily detained, held in inhumane conditions, tortured and otherwise ill-treated without redress, and was not given a fair trial. The Opinion noted that Kyrgyzstan “violated the author’s rights under article 14 (3) (e) of the Covenant [International Covenant on Civil and Political Rights].” The UNHRC urged Kyrgyzstan to immediately release Mr. Azimjan Askarov[5]. In an April 2016 statement, the European Union (EU) called on Kyrgyzstan to “fully implement” the Committee’s Opinion[6].

However, on January 24, 2017, the Chuy Regional Court of Kyrgyzstan confirmed the life sentence against Mr. Azimjan Askarov following a retrial marked by bias and procedural irregularities, including court refusal to hear some defence witnesses, inaction towards threats and violent behaviour of the deceased police officer’s wife, restrictions to access to the courtroom, failure to investigate credible allegations of torture, and inaction towards acts of pressure and intimidation targeting defence witnesses and lawyers.

More recently, in January 2019, the European Parliament adopted a resolution[7] within the framework of the European Union-Kyrgyzstan comprehensive agreement calling for Mr. Azimjan Askarov’s immediate release and full rehabilitation.

On March 18, 2019, Mr. Askarov was transferred from temporary detention facility SIZO-1 in Bishkek, where he was held in solitary confinement in a small cell of approximately 1.15 meters x 3.5 meters with a bed made from concrete, an open toilet and no natural light, to Prison Colony No. 19, located about an hour away from Bishkek, in the Chuy region.

On July 30, 2019, the Chuy Regional Court of Kyrgyzstan was to review the conviction of Mr. Askarov following the mitigation of several provisions of the new Criminal Code of Kyrgyzstan. In 2017, Mr. Askarov had been found guilty of violating, inter alia, Article 30–340 of the Criminal Code of the Kyrgyz Republic (“complicity in murder of law-enforcement officer”) which carried life imprisonment as the maximum sentence, but this provision was removed from the new Criminal Code of Kyrgyzstan, and, according to Mr. Askarov’s lawyer, Mr. Valerian Vakhitov, the defender has already served the term in respect to the other charges brought against him[8].

At the July-30 hearing, despite requests from Mr. Askarov himself and his lawyer Mr. Valerian Vakhitov, Mr. Askarov was not allowed to attend the retrial, in violation of Article 14.3 (d) of the International Covenant on Civil and Political Rights (“In the determination of any criminal charge against him, everyone shall be entitled [...] to be tried in his presence”).

During this hearing, Mr. Vakhitov pleaded in favour of Mr. Askarov’s release pursuant to the provisions of the new Criminal Code, and stressed the deterioration of Mr. Askarov’s health. However, the state Prosecutor alleged that the cases of convicts sentenced to life imprisonment shall not be subject to revision. The Court followed the state Prosecutor’s position and upheld the sentence, stating that under the article on which Mr. Askarov was convicted, the new Criminal Code also provides for life imprisonment.

After the retrial, Mr. Askarov’s advocate stated that the state Prosecutor did not get acquainted with the legislation, according to which they should have reclassified the case: the law of the Kyrgyz Republic No. 10 of January 24, 2017, that establishes the procedure for the entering into force of the new Criminal Code, indeed provides for the revision of criminal cases under Article 340 which was repealed in the new Code.

Mr. Askarov’s defence appealed the decision of the Chuy Regional Court to the Supreme Court of the Kyrgyz Republic. The hearing will take place on December 2, 2019 and Mr. Askarov demanded the authorities’ permission to attend the hearings.

Mr. Askarov has already served nine years in prison following an unfair trial marred by a flawed investigation, bias, lack of substantial evidence and allegations of torture and the absence of investigation thereof.

Furthermore, on the eve of the retrial, on July 29, 2019, a doctor who assessed Mr. Askarov’s health condition concluded that he needs a comprehensive examination and treatment. During the doctor’s visit Mr. Askarov reported "dull aches in the heart area [...], shortness of breath when walking [...], pain and heaviness in the right hypochondrium, nausea, pain in the joints, especially knees; abdominal pain, frequent urination [...], headaches, dizziness and weakness" (the Observatory holds a copy of the report in Russian). His health has severely deteriorated as he has been held in appalling conditions[9]. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, known also as “the Nelson Mandela Rules”, persons with health conditions, “for whom staying in prison would mean an exacerbation of their condition, shall not be detained in prisons”.

Actions requested:

Please write to the authorities of Kyrgyzstan, urging them to:

i. Immediately and unconditionally release Mr. Azimjan Askarov as his detention is arbitrary since it only seems to aim at punishing him for his human rights activities, and severely contributes to the deterioration of his medical condition;

ii. Comply with the national legislation regulating property confiscation;

iii. Provide Mr. Azimjan Askarov with adequate compensation in accordance with the decision of the UNHRC;

iv. Undertake a prompt, impartial and thorough investigation into the claims of torture, otherwise, ill-treatment of Mr. Azimjan Askarov with a view to publishing the results and bringing those responsible to justice in accordance with international standards;

v. Put an end to all acts of harassment, including at the judicial level, against Mr. Azimjan Askarov and all human rights defenders in Kyrgyzstan;

vi. Ensure Mr. Askarov’s rights to due process and to a fair trial including by ensuring that the recent changes in the Criminal Code are duly respected thus allowing for a revision of his case;

vii. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially Articles 1 and 12.2; and

viii. More generally, ensure respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Kyrgyzstan.

Addresses :

Mr. Sooronbay Jeenbekov, President of the Kyrgyz Republic, Chuy Ave, 205, Bishkek, Kyrgyzstan Tel: +996 312 63 91 17, Fax: + 996312626191

Mr. Kashkar Junushaliev, Minister of Internal Affairs, Frunze st. 469, Bishkek, Kyrgyzstan, Tel: +(996 312) 26 60 54, Fax: + 996312682044 / + 996312623853, email: secretariat@mvd.kg

Mr. Marat Dzamankulov, Minister of Justice, 32 M. Gandi Str., 720010 Bishkek, Kyrgyzstan, Tel: +996 (312) 656490, Fax: +996 (312) 656502, email: jm.26@mail.ru

Ms. Otkurbek Dzhamshitov, General Prosecutor Office, 39 Erkindik Avenue, 720040 Bishkek, Kyrgyzstan,Tel: +996 (312) 663373, Fax: +996 (312) 661734

Permanent Mission of Kyrgyzstan to the United Nations in Geneva, Avenue Blanc 51 (3rd Floor) 1202 Geneva, Tel: +41 22 707 92 20, Email: kyrgyzmission@bluewin.ch, Fax: +41 22 707.92.21

Embassy of Kyrgyzstan in Brussels, Abdijstraat 47 1050 Brussels, Belgium, Tel: + 32 2 640 18 68 / + 32 2 640 38 83, Fax: + 32 2 640 01 31, Email: aitmatov@infonie.be

Mr. Mamytov Tokon Bolotbekovich, Kyrgyz Republic Akyikatchy (Ombudsman), +996 (312) 66-32-80 ombudsman@inbox.ru

Ms Bolormaa Amgaabazar, World Bank Representative in the Kyrgyz Republic, niosipenko@worldbank.org, dpccsecretariat@outlook.com

Mr. Michaël Roux, French Ambassador to Kyrgyzstan, Embassy’s coordinator Guzel , Email : guzel.ishenova@diplomatie.gouv.fr

Ms. Natalia Gherman, Special Representative of the United Nations Secretary-General for Central Asia, @Natalia_Gherman / press contact: muhiyeva@un.org

Mr. Peter Burian EU Special Representative for Central Asia, @EUSR_CA

Mr. Eduard Auer, Head of EU Delegation, Eduard.AUER@eeas.europa.eu

Mrs. Charlotte Adriaen, Head of Cooperation of the Delegation of the European Union to the KR, charlotte.ADRIAEN@eeas.europa.eu

Please also write to diplomatic representations of Kyrgyzstan in your respective countries.

***

Paris-Geneva, November 20, 2019

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to intervene to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

To contact the Observatory, call the emergency line:
E-mail: Appeals@fidh-omct.org
Tel and fax FIDH + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80
Tel and fax OMCT + 41 (0) 22 809 49 39 / + 41 22 809 49 29

___

[1] See the Observatory Press Release on January 24, 2010
[2] Article 119 Part 4 of the Criminal Procedure Code of Kyrgyzstan stipulates that seizure cannot be imposed on property that is not subject to confiscation.
[3] A seizure is a preventive measure to secure the execution of a court order to confiscate property.
[4] https://www.frontlinedefenders.org/en/case/azimjan-askarov-sentenced-life-imprisonment#case-update-id-10505
[5] See : https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19853&LangID=E
[6] See : https://eeas.europa.eu/headquarters/headquarters-homepage_my/2869/Statement%20by%20the%20Spokesperson%20on%20Azimjon%20Askarov
[7] See : https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjVi-f_5sjjAhVBLBoKHfs8BnoQFjAAegQIAhAC&url=http%3A%2F%2Fwww.europarl.europa.eu%2Fdoceo%2Fdocument%2FTA-8-2019-0004_EN.docx&usg=AOvVaw0O_xzTHAzClBMm7aFmr4BP
[8] The decision of Bazar-Korgon District Court (Judge Mr. N. Alimkulov) dated September 15, 2010 sentenced Mr. Azimjan Askarov to 9 years of imprisonment under Articles 28, 30, 227 Part 2 § 1, 3 of the Criminal Code (hostage taking); to 1 year of imprisonment under Article 241 Part 1 (illegal possession of firearms); to 5 years of imprisonment with deprivation of the right to occupy certain positions or engage in certain activities under Article 299, Part 2 § 1 (inciting hatred); to 9 years of imprisonment under Article 233§1, to 4 years of imprisonment under Article 233§2 and 3 years of imprisonment under Article 233§3 (organisation of riots); and to life imprisonment under Article 30-340 (complicity in the murder of a law enforcement officer). He was acquitted for lack of corpus delicti under Article 299-2 part 1 of the Criminal Code (for more details see an ICJ legal opinion on Mr. Askarov’s retrial: https://www.icj.org/kyrgyz-republic-icj-legal-opinion-on-askarov-retrial-concludes-his-conviction-should-be-quashed/).
[9] According to his lawyers, “Askarov has lost weight, he is coughing all the time. He has a dry cough, and at times, he is unable to catch his breath. Ar. Askarov complained that his legs aere very cold, and nothing helps – not socks, shoes, or heating. He has stopped drinking fluids to lessen the number of times he must use the toilet.”

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