Kyrgyzstan: Situation of Detained Member of Parliament Omurbek Tekebayev
Information about Tekebayev
Omurbek Chirkeshevich Tekebayev (born 22.12.1958) is a citizen of the Kyrgyz
Republic. He is married with four children. He is an Honoured Lawyer of the Kyrgyz
Republic. You can find out more detail via the link.[1]
Omurbek Tekebayev is the leader of the Ata-Meken Socialist Party,[2] a party with over
25,000 members throughout the country. He has been in politics for 30 years. In 2010,
after the revolution, as the Chairman of the Constitutional Council,[3] he played a major
role in the transition of the country from a presidential form of government to a
parliamentary one. The draft Constitution of the Kyrgyz Republic was recognised by the
Venice Commission[4] as the most successful among the former Soviet republics. After
becoming an MP in 2010, Tekebayev initiated more than 70 bills, including the revision
of all constitutional laws, to bring them in line with the parliamentary system of
governance under the new Constitution.
The bills introduced by him and adopted by the Parliament include: Law of the Kyrgyz
Republic No. 163 of 24 July 2013 “On Restricting Usury in the Kyrgyz Republic,”[5]
which limits excessive profits by microcredit companies and protects borrowers’
interests. The Constitutional Law of the Kyrgyz Republic No. 141, adopted by the
Parliament on 9 July 2008, “On the Status of Judges of the Kyrgyz Republic,”[6] the
Constitutional Law of the Kyrgyz Republic No. 37 of 13 June 2011 “On the
Constitutional Chamber of the Supreme Court of the Kyrgyz Republic,” [7] which
allowed the initiation of reforms in the judicial system. The Law on External Migration,[8]
and the Law on Internal Migration,[9] which allows migrants to return to the country,
even if they obtain the citizenship of another state, to be able to acquire real property
and live and work in their own country; the Law of the Kyrgyz Republic on Transfer
(Transformation) of Land,[10] allowing internal migrants to legalise their homes in the
suburbs, which opened access to state social services, education, medical, and ritual
services, and social assistance to the poor.
We also have obtained irrefutable evidence of violations of Tekebayev’s rights during
the electoral process in Kyrgyzstan, as well as evidence of discrimination against
Tekebayev’s supporters and members of the Ata-Meken party.
Key Points of Fabrication of His Case and Consequences
In 2016, Omurbek Tekebayev spoke out against the plans of Almazbek Atambayev,
then-President of the Kyrgyz Republic, Atambayev, to amend the Constitution and hold
a referendum,[11] [12] believing that this would lead to the usurpation of power. Right
up to his arrest he conducted extensive public campaigns,[13] together with members of
the Ata-Meken Party, human rights activists and civil activists, in order to inform the
public about the goals and the system of governance of Atambayev. He explained that
the proposed amendments to the Constitution would violate the terms of the moratorium
in force until 2020.[14] He initiated an appeal to the Venice Commission of the Council
of Europe and the OSCE on behalf of Almambet Shykmamatov, a member of the
Ata-Meken Party, Chairman of the Committee on Constitutional Legislation, requesting
an assessment of the proposed amendments to the current Constitution of the Kyrgyz
Republic.[15] Tekebayev has been and remains one of the leading critics of
Atambayev’s government. He ensured that facts of corruption in which Atambayev and
his entourage were involved reached the public domain.[16][17][18][19] He openly
spoke about the President’s involvement in the organisation of the escape of Aziz
Batukayev, a criminal leader, in 2013. [20][21] Following that, the parliamentarian
reported that he was under surveillance.
At a press conference on 22 November 2016, Tekebayev announced plans to prepare
for the impeachment of President Atambayev, citing a number of facts about violations
of laws and the Constitution of the Kyrgyz Republic by Atambayev and people from his
entourage.[22]
Investigation and Trial
On 25 February 2017, due to politically-motivated persecution authorities fabricated a
criminal case against Tekebayev under Articles 166 (Fraud) and 303 (Corruption) of the
Criminal Code of the Kyrgyz Republic. The charges were based on the false testimony
of Leonid Maevsky, a businessman and citizen of Russia.[23] Mayevsky stated that in
2010, he gave US $1 million to Omurbek Tekebayev to gain control over Megacom, a
mobile phone operator. The prosecution failed to meet the burden of proof to
corroborate the witness Mayevsky’s testimony.
Tekebayev was arrested on 26 February 2017, as he was about to board a plane at
Manas Airport.[24] The next day the court ordered him to be detained at the pre-trial
detention facility of the State Committee for National Security of the Kyrgyz Republic
(hereinafter referred to as SIZO GKNB) for two months.[25]
On 8 June 2017, the trial against Omurbek Tekebayev and Duyshenkul Chotonov
began in the Pervomaysky District Court of the city of Bishkek.[26]
The pre-trial investigation and the judicial investigation were carried out hastily, in
violation of the principles of objectivity and fairness. In order to speed up the
proceedings, the investigative authorities and Courts committed gross violations of
procedural norms and Tekebayev’s fundamental human rights and those of other
persecuted members of the Ata-Meken Party.[27] Interrogations and court hearings
were held continuously for 10 hours or more. The detainees were deprived of sleep,
food, and time for preparation of defence. Lawyers were not admitted to see them and
came under pressure. Subsequently, court rulings were issued regarding the lawyers
Chinara Jakupbekova and Kanat Hasanov, ordering the revocation of their law practice
licences. Obstacles were created in every way to prevent Tekebayev’s participation in
the presidential elections of the Kyrgyz Republic in 2017.
Presidential Elections of 2017
The Eurasia Democracy Initiative observed that the Kyrgyz authorities used methods to
eliminate Tekebayev from the election race by limiting his voting rights. This was
manifested in the following ways:
– Authorities confiscated and withheld Tekebayev’s Kyrgyz national
identity card, which made it impossible for him to open an official bank
account and prevented the formation of an election campaign fund.
– The authorities prevented Tekebayev from taking a test to prove his
knowledge of the state language.[28]
– The Central Election Commission of Kyrgyzstan (hereinafter the
CEC), found, for formal reasons, that the 39,000 voters’ signatures
collected in support of the candidacy Tekebayev for Presidency were
invalid. The authorities did not allow the registration of Tekebayev as a
candidate for the President of the Kyrgyz Republic.[29] According to
representatives of civil society and Tekebayev’s supporters, the CEC was
under unspoken pressure,[30] and the CEC had to follow a political
order.[31]
– On 1 November 2017, the CEC prematurely revoked Tekebayev’s
mandate.[32]
– On 21 November 2017, Tekebayev was found guilty of committing a
crime under Article 303, Part 1 (Corruption) of the Criminal Code of the
Kyrgyz Republic by a ruling of the Kyrgyz Republic Supreme Court[33]
and sentenced to 8 years of imprisonment, with the confiscation of
property.
In Tekebayev’s election case, all national remedies in
Kyrgyzstan have been exhausted, namely:
On 21 June 2017, Almaz Zholdoshbekov, presidential candidate Tekebayev’s
authorised representative, notified the Central Commission for Elections and Referenda
of the Kyrgyz Republic that Tekebayev was held in the Pre-Trial Investigation Facility of
the National Security Committee (GKNB). Since the Central Commission for Elections
and Referenda of the Kyrgyz Republic, according to the Law of the Kyrgyz Republic “On
Election Commissions,” facilitates the preparation and conduct of the elections in the
Republic, whose tasks include ensuring equal legal conditions for candidates,
Zholdoshbekov asked them to provide equal electoral conditions for Tekebayev as
stipulated by the Constitution of the Kyrgyz Republic, that is, to provide Tekebayev with
the opportunity to participate in a test to determine the level of proficiency in the state
language by candidates for the post President of the Kyrgyz Republic.
On 24 June 2017, Almaz Zholdoshbekov, Tekebayev’s authorized representative
appealed to the Central Commission for Elections and Referenda of the Kyrgyz
Republic to urgently consider violations of Tekebayev’s electoral rights, with further
appeal and explanation to all interested bodies and persons, including Judge Aibek
Ernis-uulu, as well as representatives of the convoy unit of the State Penal Service to
prevent violation of Tekebayev’s electoral rights.
On 25 June 2017, the authorised representative of the presidential candidate O.
Tekebayev, Almaz Zholdoshbekov, requested the Central Commission for Elections and
Referenda of the Kyrgyz Republic to provide O. Tekebayev with the opportunity to
participate in a test determining the level of proficiency in the state language by
candidates for the post of the President of the Kyrgyz Republic, which were to be held
on 26 June 2017.
On 27 June 2017, Almaz Zholdoshbekov, Tekebayev’s authorized representative,
notified the Central Commission for Elections and Referenda of the Kyrgyz Republic of
their failure to provide a timetable for taking the state language examination.
On 27 June 2017, a response was received from the Central Commission for Elections
and Referenda of the Kyrgyz Republic that they had received Tekebayev’s documents
about his self-nomination as a presidential candidate, that his authorised
representatives were registered and he was to exercise his electoral rights
independently.
On 25 July 2017, the lawyer Khasanov appealed to the Pervomaisky District Court
requesting the release of candidate Tekebayev’s passport in order to open a bank
account and create an electoral fund in accordance with the Constitutional Law on
Elections of the President of the Kyrgyz Republic and Deputies of the Jogorku
Kenesh,[34] and asked to secure Tekebayev’s participation in a test for knowledge of
the state language. The Court refused to deal with the matter of releasing Tekebayev’s
passport, groundlessly citing the fact that consideration of this matter was beyond the
competence of the Court.[35]
On 1 August 2017, Tekebayev’s representative Almaz Zholdoshbekov submitted to the
Central Commission for Elections and Referenda a request to allow Tekebayev to
participate in a test to determine the level of proficiency in the state language by
candidates for the office of the President of the Kyrgyz Republic that was to take place
on 26 June 2017.
On 10 August 2017, by a Resolution of the Kyrgyz Republic CEC, the application by
Tekebayev’s representative was dismissed requesting Tekebayev’s participation in a
test to determine the level of his proficiency in the state language.
On 11 August Tekebayev’s representative submitted an application to the Inter-District
Court of Bishkek seeking to overturn the Resolution of the Kyrgyz Republic CEC dated
10 August 2017 refusing to provide Tekebayev with the opportunity to take a test for
knowledge of the state language;
On 17August 2017, the Kyrgyz Republic found the 38,648 signatures of voters in
support of Tekebayev to be invalid. The formal reason for the CEC decision finding the
voters’ signatures invalid was that funds in the amount of 103,000 som (about US
$1,500) used to purchase paper, print subscription lists and collect signatures were not
credited to the electoral fund of the presidential candidate of Kyrgyzstan.[36] But the
election fund, in turn, was not created, because money was not deposited into the bank
account, for which Tekebayev’s passport and samples of his signatures were required,
which had to be certified by a notary. Judge Aibek Ernis-uulu of the Pervomaisky District
Court refused to release Tekebayev’s passport from the case files, indicating that the
decision was beyond his authority and that he needed the passport to verify his
identity.[37][38]. The judge also refused to allow him to meet a notary in the courtroom
to check Tekebayev’s passport for the certification of the signature cards. Thus, formal
obstacles were created to prevent Tekebayev from participating in the elections.
On 18 August 2017, the Kyrgyz Republic Supreme Court upheld the decision of the
Inter-District Court of 14 August 2012, refusing to provide Tekebayev with the
opportunity to participate in a test of knowledge of the state language.
On 22 August, 2017 the Inter-District Court of Bishkek dismissed the appeal of
Tekebayev’s lawyer.
On 30 August 2017, the Kyrgyz Republic Supreme Court upheld the Decision of the
Inter-District Court of the city of Bishkek dated 22 August 2017, which had dismissed
the application of Tekebayev’s authorised representative seeking to overturn the
decision of the CEC dated 17 August 2017, finding invalid 38,648 signatures in support
of Tekebayev’s electoral candidacy president. The cassation appeal of Tekebayev’s
authorised representative of Tekebayev was dismissed.
Public Reaction
In 2017, following opposition politician Tekebayev’s arrest, peaceful protests[39][40]
were organised around the country by civic activists, human rights defenders and fellow
party members, which were a reaction to the total restriction on political activity for a
well-known opponent of Atambayev. As observations on violations of laws under formal
pretexts indicate, the protestors were severely restricted by the authorities[41][42]
through injunctions that violate citizens’ constitutional rights to peaceful assembly.
It is evident that the fabrication of the criminal case against Tekebayev and his
subsequent conviction were aimed at discrediting him and undermining public
confidence in him, which he deservedly enjoyed as one of the oldest and most popular
politicians of the country, and had the goal of depriving him of public support. It is also
obvious that Atambayev intends to remove Tekebayev from the political arena, so that
Atambayev himself can return unhindered and continue to participate in political
processes within the country. Although even today, as ex-president, Atambayev has
retained an unprecedented influence over all branches of government through his
protégés appointed to all major state and political posts in Kyrgyzstan. Thus,
Atambayev “cleaned up” the field of his political opponents, who in the event of
disagreement could oppose Atambayev’s further political plans.
All National Remedies in Kyrgyzstan Have Been Exhausted
in Tekebayev’s Case
1. On 7 March 2017, the lawyer Chinara Jakubbekova filed a complaint with
the Kyrgyz Republic Prosecutor General’s Office about the unlawful
instigation of a criminal case against Tekebayev, requesting to terminate it.
The Prosecutor General’s Office refused to grant the motion.
2. On 7 March 2017, lawyer Chinara Jakubbekova filed a complaint with the
Kyrgyz Republic Prosecutor General’s Office, requesting to dismiss the
investigation team. The Prosecutor General’s Office rejected the petition.
3. Lawyer Chinara Jakubbekova appealed to the Pervomaysky District Court,
the Bishkek City Court and the Kyrgyz Republic Supreme Court, against
violations of the procedure for detention and remand of Tekebayev in custody
as a preventive measure. The lawyer’s petitions were dismissed by all three
instances.
4. On 13 March 2017, the lawyer Chinara Jakubbekova filed a petition to
transfer Tekebayev to inpatient treatment due to the serious state of his
health. On 17 March 2017, by a resolution of the Investigator of the State
National Security Committee, the application of the lawyer was rejected.
5. On 25 April 2017, lawyer Chinara Jakubbekova filed an application with the
Kyrgyz Republic Prosecutor General’s Office asking to initiate criminal
proceedings against L. Mayevsky; on 2 May 2017, the State National Security
Committee refused to open a criminal case against L. Mayevsky.
6. On 20 June 2017, lawyer Chinara Jakubbekova filed an application with the
Kyrgyz Republic Prosecutor General’s Office, asking to initiate a criminal case
against judges of the Bishkek City Court who committed a gross procedural
violation while considering the issue of choosing a preventive measure
against Tekebayev. The Court considered the cassation appeal of the
Bishkek City Prosecutor’s Office against the preventive measure chosen by
the Pervomaisky Court for Tekebayev after the expiration of the statutory
deadlines; on 29 June 2017, the Kyrgyz Republic Prosecutor General’s Office
refused to open a criminal case against judges of the Bishkek City Court.
7. On 16 August 2017, by a verdict of the Pervomaisky District Court of
Bishkek (presiding Judge Aibek Ernis-uulu, Tekebayev was found guilty of
committing a crime under Article 303, paragraph 1, of the Criminal Code of
the Kyrgyz Republic.
8. On 25 August 2017, lawyer Chinara Jakubbekova filed an appeal to the
Bishkek City Court against the verdict of the Pervomaisky District Court of
Bishkek, where Tekebayev was found guilty of committing a crime under
Article 303, paragraph 1 of the Criminal Code of the Kyrgyz Republic.
9. On 28 August 2017, the lawyer Chinara Jakubbekova filed 32 appeal
applications with the Bishkek City Court against 32 Decisions of the
Pervomaisky District Court of Bishkek, issued by Judge Aibek Ernis-uulu:
– dismissing the motion of Tekebayev’s lawyers seeking recusal of the
judge;[43]
– sending the criminal case to the Prosecutor Office to fill in the gaps in
the investigation ;[44]
– challenging the prosecutors in the case ; [45]
– seeking termination of the criminal case against Tekebayev and
Chotonov;[46]
– asking for appointment of a psychiatric examination of L. Mayevsky;
– asking to appoint a state defence lawyer for Tekebayev and Chotonov,
despite their protest ;[47]
10. On 2 October 2017, by verdict of the Bishkek City Court, the decision of the
Pervomaisky District Court of Bishkek of 16 August 2017 was upheld, and the
lawyer’s appeal was dismissed. All 32 decisions specified in paragraph 9
were upheld.
11. On 21 November 2017, by ruling of the Kyrgyz Republic Supreme Court, the
sentences of the Courts of the first and appellate instances were upheld; 32
cassation appeals were dismissed; and the supervisory complaint of the
lawyer about the illegality and unfounded nature of the charges was
dismissed.
12. By decisions of the Bishkek City Court of 2 October 2017 and the Kyrgyz
Republic Supreme Court of 21 November 2017, the 32 decisions of the
Pervomaisky District Court of Bishkek were upheld; the appeals and
supervisory complaints of lawyers were dismissed.
As the analysis shows, during the investigation of the
criminal case against Omurbek Tekebayev the following
provisions of law were violated: [48]
Constitution of the Kyrgyz Republic
a) Article 26:
– Part 1, “Everyone shall be presumed innocent of committing a crime unless
found guilty in accordance with the law and his/her guilt is ascertained by a court
verdict that has entered into force. The violation of this principle shall give
grounds for compensation of material and moral damage through a court.”
– Part 2, “No one shall prove his/her innocence. Any doubts in respect of culpability
shall be interpreted in favour of the accused.”
– Part 4, “The burden of proof of guilt in criminal case shall be on the accuser.
Evidence obtained in violation of the law cannot be used in support of the
accusation and as grounds for delivery of court verdict.
– Part 5, “No one shall testify against himself, his/her spouse or close relatives as
determined by law. The law may provide for other instances exempting from the
obligation to testify.
b) Article 40:
– Part 1, “Everyone shall be guaranteed judicial protection of his/her rights and
freedoms stipulated by this Constitution, laws, international treaties to which the
Kyrgyz Republic is a party as well as universally-recognised principles and norms
of international law.”
– Part 3, “Everyone shall have the right to be provided with qualified legal
assistance. In cases provided for by the law, legal assistance shall be rendered
at the expense of the state.
c) Article 41:
– Part 1, “Everyone shall have the right to appeal to state authorities, local
self-governance bodies as well as officials thereof, who should provide a
substantiated answer within a deadline established by law.
d) Article 52:
– Part 1, para. 2, “Citizens have the right to elect and be elected to organs of
government and local self-governance bodies in accordance with the procedures
established by this Constitution and law;
The Code of Criminal Procedure of the Kyrgyz Republic: [49]
a) Article 19:
– “An investigator shall take all measures provided by this Code in order to
thoroughly, completely and objectively detect circumstances and facts of the case,
to find out evidence both establishing the guilt of the suspect and accused and
justifying him as well as both aggravating and mitigating circumstances.
b) Article 81:
– Part 3, “Information obtained with a substantial violation of the provisions of laws
shall be deemed inadmissible […]”.
– Part 4, “The inadmissible evidence shall be the testimony of […] a witness based
on the conjecture, assumption, hearsay, also the testimony of a witness who
cannot point out the source of his knowledge, if it is not confirmed by the totality
of examined evidence during the investigation or trial”.
c) Article 88:
– Identifying witnesses are adults […], having no interest in the outcome of the
case”.
d) Article 191:
– Part 4, “[…] it shall be prohibited to ask leading questions”
e) Article 196:
– Part 1 stipulates that “An investigator shall conduct a cross examination between
two earlier interrogated persons in whose testimony there are considerable
contradictions”. Instead, the investigators, in breach of this Article documented
“records of additional questioning”, which are not stipulated by the Code of
Criminal Procedure of the Kyrgyz Republic.
f) Article 197
– Part 2, “The identifying persons must be previously interrogated about the
circumstances under which they observed a certain person, about distinctive
marks and special characteristics by which they can identify.”
g) Article 198:
– Part 3, “Identification of a person can be carried out using his photo, if it is not
possible to present the person for identification.”
h) Article 312:
– Part 1, “In rendering a verdict, the court must find 1) whether the act incriminated
to the defendant had taken place; 2) whether it is proven that the act was
committed by the defendant.” Both aspects of this article were not proven in
Tekebayev’s case.
i) Article 315
– Part 1, “A guilty verdict shall be passed only upon a condition that during the trial
the guilt of the defendant in committing the crime is confirmed by the cumulative
body of the examined evidence and cannot be based on assumptions.”
j) Article 319:
– Contrary to Part , the sentence does not contain the description of the criminal
act, which is deemed proven by court, with indication of the place, time, method
of its commission, the form of guilt, motives, goals and the consequences of the
crime.
The Criminal Code of the Kyrgyz Republic: [50]
Article 77:
– Part 2, “When imposing punishment on participants in crime, the court shall take
into account the nature and degree of participation of each of them in committing
the crime.”
In the sentence against Tekebayev and Chotonov, the Court confined itself only to a
term “the Defendants” and did not define the role of each of them in the crimes
attributed to them.
Other normative-legal acts:
Decree No. 8 of the Plenum of the Kyrgyz Republic Supreme Court of 27 February
2009, “On the Judgment” states that “When delivering a Judgement, all
the evidence considered at the court hearing shall be evaluated,
both confirming the Court’s conclusions on the issue to be
resolved when passing the Judgement, and those contradicting
these conclusions. The Court shall indicate in the Judgement why
some of the evidence was found credible, while other evidence
was rejected.” In this case, however, the Court failed to evaluate the statements of
witnesses in favour of Tekebayev.
Constitutional Law of the Kyrgyz Republic of 9 July 2008, No. 141 “On the Status
of Judges of the Kyrgyz Republic” [51]
Article 3. Principles of the Administration of Justice
1. In the administration of justice, judges are guided by the following basic principles:
– equality of all before the law and the court;
– openness and publicity of proceedings in all courts;
Article 51. Requirements for a Judge in Accordance with His Status
1. The judge is obliged:
1) to strictly observe the Constitution and laws of the Kyrgyz Republic, be faithful to the
oath
6) to observe the rules of labor regulations established in the appropriate court.
In the trials of Tekebayev and Chotonov, live video broadcast and video recording was
prohibited by the judges. Labor regulations were not observed by the judges. Court
hearings continued during lunch breaks and after the end of the working day.
The analysis of the Eurasia Democracy Initiative shows that
in the course of the investigation and the trial, the Kyrgyz
Republic violated the following obligations under
international agreements in the field of human rights:
a) The UN Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment [52]
Article 1
For the purposes of this Convention, the term “torture” means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Article 11
Each State Party shall keep under systematic review interrogation rules,
instructions, methods and practices as well as arrangements for the custody and
treatment of persons subjected to any form of arrest, detention or imprisonment
in any territory under its jurisdiction, with a view to preventing any cases of
torture.
Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt
and impartial investigation, wherever there is reasonable ground to believe that
an act of torture has been committed in any territory under its jurisdiction.
Article 16
1. Each State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in article I, when
such acts are committed by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity. In particular, the obligations contained in articles 10, 11, 12 and
13 shall apply with the substitution for references to torture of references
to other forms of cruel, inhuman or degrading treatment or punishment.
b) International Covenant on Civil and Political Rights [53]
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided
for by the legal system of the State, and to develop the possibilities
of judicial remedy;
(c) To ensure that the competent authorities shall enforce such
remedies when granted.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
Article 9
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as
are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed of any charges
against him.
Article 10
1. All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.
2.
a) Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons and shall be subject to separate
treatment appropriate to their status as non-convicted persons;
Article 14
1. All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law. The press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre public) or national security in a
democratic society, or when the interest of the private lives of the parties
so requires, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of
justice; but any judgement rendered in a criminal case or in a suit at law
shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands
of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment by
him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or
speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
Article 26
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
c) The United Nations Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms: [54]
Article 1
Everyone has the right, individually and in association with others, to promote
and to strive for the protection and realization of human rights and fundamental
freedoms at the national and international levels.
Article 2
1. Each State has a prime responsibility and duty to protect, promote and
implement all human rights and fundamental freedoms, inter alia , by adopting
such steps as may be necessary to create all conditions necessary in the social,
economic, political and other fields, as well as the legal guarantees required to
ensure that all persons under its jurisdiction, individually and in association with
others, are able to enjoy all those rights and freedoms in practice.
Article 3
Domestic law consistent with the Charter of the United Nations and other
international obligations of the State in the field of human rights and fundamental
freedoms is the juridical framework within which human rights and fundamental
freedoms should be implemented and enjoyed and within which all activities
referred to in the present Declaration for the promotion, protection and effective
realization of those rights and freedoms should be conducted.
Article 9
1. In the exercise of human rights and fundamental freedoms, including the
promotion and protection of human rights as referred to in the present
Declaration, everyone has the right, individually and in association with others, to
benefit from an effective remedy and to be protected in the event of the violation
of those rights.
2. To this end, everyone whose rights or freedoms are allegedly violated has the
right, either in person or through legally authorized representation, to complain to
and have that complaint promptly reviewed in a public hearing before an
independent, impartial and competent judicial or other authority established by
law and to obtain from such an authority a decision, in accordance with law,
providing redress, including any compensation due, where there has been a
violation of that person’s rights or freedoms, as well as enforcement of the
eventual decision and award, all without undue delay.
3. To the same end, everyone has the right, individually and in association with
others, inter alia:
(a) To complain about the policies and actions of individual officials and
governmental bodies with regard to violations of human rights and
fundamental freedoms, by petition or other appropriate means, to
competent domestic judicial, administrative or legislative authorities or any
other competent authority provided for by the legal system of the State,
which should render their decision on the complaint without undue delay;
4. To the same end, and in accordance with applicable international instruments
and procedures, everyone has the right, individually and in association with
others, to unhindered access to and communication with international bodies with
general or special competence to receive and consider communications on
matters of human rights and fundamental freedoms.
Article 10
No one shall participate, by act or by failure to act where required, in violating
human rights and fundamental freedoms and no one shall be subjected to
punishment or adverse action of any kind for refusing to do so.
Article 11
Everyone has the right, individually and in association with others, to the lawful
exercise of his or her occupation or profession. Everyone who, as a result of his
or her profession, can affect the human dignity, human rights and fundamental
freedoms of others should respect those rights and freedoms and comply with
relevant national and international standards of occupational and professional
conduct or ethics.
Article 12
2. The State shall take all necessary measures to ensure the protection by the
competent authorities of everyone, individually and in association with others,
against any violence, threats, retaliation, de facto or de jure adverse
discrimination, pressure or any other arbitrary action as a consequence of his or
her legitimate exercise of the rights referred to in the present Declaration.
3. In this connection, everyone is entitled, individually and in association with
others, to be protected effectively under national law in reacting against or
opposing, through peaceful means, activities and acts, including those by
omission, attributable to States that result in violations of human rights and
fundamental freedoms, as well as acts of violence perpetrated by groups or
individuals that affect the enjoyment of human rights and fundamental freedoms.
d) Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment [55]
Principle 1
All persons under any form of detention or imprisonment shall be treated in a
humane manner and with respect for the inherent dignity of the human person.
Principle 2
Arrest, detention or imprisonment shall only be carried out strictly in accordance
with the provisions of the law and by competent officials or persons authorized for
that purpose.
Principle 3
There shall be no restriction upon or derogation from any of the human rights of
persons under any form of detention or imprisonment recognized or existing in
any State pursuant to law, conventions, regulations or custom on the pretext that
this Body of Principles does not recognize such rights or that it recognizes them
to a lesser extent.
Principle 5
These principles shall be applied to all persons within the territory of any given
State, without distinction of any kind, such as race, colour, sex, language, religion
or religious belief, political or other opinion, national, ethnic or social origin,
property, birth or other status.
Principle 6
No person under any form of detention or imprisonment shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.
No circumstance whatever may be invoked as a justification for torture or other
cruel, inhuman or degrading treatment or punishment.
Principle 7
States should prohibit by law any act contrary to the rights and duties contained
in these principles, make any such act subject to appropriate sanctions and
conduct impartial investigations upon complaints.
Principle l0
Anyone who is arrested shall be informed at the time of his arrest of the reason
for his arrest and shall be promptly informed of any charges against him.
Principle 11
2. A detained person and his counsel, if any, shall receive prompt and full
communication of any order of detention, together with the reasons therefor.
Principle 12
1. There shall be duly recorded:
(a) The reasons for the arrest;
(b) The time of the arrest and the taking of the arrested person to a place
of custody as well as that of his first appearance before a judicial or other
authority;
(c) The identity of the law enforcement officials concerned;
(d) Precise information concerning the place of custody.
2. Such records shall be communicated to the detained person, or his counsel, if
any, in the form prescribed by law.
Principle 18
Interviews between a detained or imprisoned person and his legal counsel may
be within sight, but not within the hearing, of a law enforcement official.
Principle 23
1. The duration of any interrogation of a detained or imprisoned person and of the
intervals between interrogations as well as the identity of the officials who
conducted the interrogations and other persons present shall be recorded and
certified in such form as may be prescribed by law.
Principle 24
A proper medical examination shall be offered to a detained or imprisoned
person as promptly as possible after his admission to the place of detention or
imprisonment, and thereafter medical care and treatment shall be provided
whenever necessary. This care and treatment shall be provided free of charge.
Principle 36
1. A detained person suspected of or charged with a criminal offence shall be
presumed innocent and shall be treated as such until proved guilty according to
law in a public trial at which he has had all the guarantees necessary for his
defence.
2. The arrest or detention of such a person pending investigation and trial shall
be carried out only for the purposes of the administration of justice on grounds
and under conditions and procedures specified by law. The imposition of
restrictions upon such a person which are not strictly required for the purpose of
the detention or to prevent hindrance to the process of investigation or the
administration of justice, or for the maintenance of security and good order in the
place of detention shall be forbidden.
Tekebayev’s situation after the election of new Kyrgyz
Republic President Sooronbay Jeenbekov did not change.
On 22 May 2018, Tekebayev’s lawyers filed a motion to the Kyrgyz Republic
Prosecutor General’s Office requesting initiation of proceedings in the criminal
case against Tekebayev and Chotonov, due to newly-discovered evidence
and the transfer of the case for review to the court.
In their statement to the Prosecutor General, the lawyers indicated that the courts
failed to establish and prove the most important element of criminal law – the
event of a crime, that is, the time and place of the allegedly-committed act. The
investigation and the judicial proceedings were carried out hastily for
politically-motivated reasons, and the circumstances proving the innocence of the
defendants were not duly reviewed. To date, Tekebayev’s lawyers have identified
5 (five) facts that were not known to the court when charges were brought
against Tekebayev and Chotonov and which prove their innocence.
On 11 June 2018, Kyrgyz Republic Deputy Prosecutor General Jamila
Jamanbayeva denied the initiation of proceedings due to newly-discovered
circumstances.
On 20 June 2018, the lawyers T. Toktakunova and C. Dzhakupbekova appealed
to the Oktyabrsky District Court of Bishkek asking the court to deem illegal the
actions of the Kyrgyz Republic Deputy General Prosecutor Jamanbayeva in
refusing to initiate proceedings in the criminal case against Tekebayev and
Chotonov for newly discovered- circumstances, and to oblige the Kyrgyz
Republic Prosecutor General’s Office to remove the violation.
On 25 June 2018, the Oktyabrsky District Court of Bishkek refused to accept an
appeal of Deputy Prosecutor General Jamanbayeva’s denial to institute
proceedings due to newly-discovered circumstances.
On 26 June 2018, lawyers appealed the 25 June 2018 decision of the Oktyabrsky
District Court of Bishkek to the Bishkek City Court for determination.
On 3 August 2018, the Bishkek City Court denied the complaint of the lawyers
and upheld the decision of the 25 June 2018 Oktyabrsky District Court of
Bishkek.
During the review of the motion to initiate proceedings due
to newly-discovered circumstances in Tekebayev’s case, the
following articles of the Constitution of the Kyrgyz Republic w ere
violated:
Article 26.
1. Everyone shall be presumed innocent until his guilt is proven in accordance
with the procedure prescribed by law and established by a court decision that has
entered into legal force. Violation of this principle is the basis for compensation
through the court of material and moral harm.
2. No one is required to prove his innocence. Any doubts regarding guilt are
interpreted in favour of the accused.
Article 40.
1. Everyone is guaranteed judicial protection of his rights and freedoms provided
by this Constitution, laws, international treaties to which the Kyrgyz Republic is a
party, generally-recognized principles and norms of international law. The state
ensures the development of extrajudicial and pre-trial methods, forms and ways
of protecting human and civil rights and freedoms.
2. Everyone has the right to defend his rights and freedoms in all ways not
prohibited by law.
The Criminal Procedure Code of the Kyrgyz Republic
Article 15. (3) All doubts regarding the proof of charge, which can not be cleared
within the framework of due process of law in accordance with this Code, are
interpreted in favor of the accused. Unresolved doubts arising in the application
of the law should also be resolved in the favor of the accused.
Article 18
(1) Criminal proceedings are conducted on the basis of competitiveness and
equality of the prosecution and defense parties.
(6) The court, preserving objectivity and impartiality, creates the necessary
conditions for the parties to exercise their procedural rights and obligations.
(7) The parties participating in criminal proceedings shall be equal in rights. The
court issues the procedural decision only based on evidence which was studied
with equal participation by each of the parties.
Article 384
(1) A verdict that has entered into legal force, a determination, or a court decision
may be revoked and the proceedings resumed on new or newly discovered
circumstances.
(2) The grounds for resuming proceedings in a criminal case on newly discovered
circumstances are:
5) circumstances unknown to the court when passing judgment, evidence that,
alone or together with previously established circumstances, testify to the
innocence of the convicted person or to the committing of a crime other than the
one for which he was convicted, or prove the guilt of the acquitted person or a
person in whose respect the case was closed.
Annexes:
а) Links to Speeches in the West:
“If Tekebayev’s detention is politically motivated, it could pose a threat to
the development of democracy in the country” – Maya Kosjancic, Press
Secretary of the EU High Representative for Foreign Affairs and Security
Policy.[56]
“Kyrgyz Opposition Leader Omurbek Tekebayev Detained”[57]
“Omurbek Tekebayev, Political Pugilist At Center Of Kyrgyzstan’s
Storm”[58]
“Opponents of President Atambayev are Given Long Prison Terms”[59]
“Kyrgyz Opposition Leader Tekebayev Handed Eight-Year Prison
Sentence”[60]
“Kyrgyzstan Opposition Politician Arrested on Corruption Charges”[61]
b) Links to Kyrgyz Media:
“Controversial points in Tekebayev’s Case”[62]
“Tekebayev Case: Testimony of MegaCom Head Inconsistent”[63]
“Case of Omurbek Tekebayev: Chronicle of Court Proceedings, Part 3”[64]
“Testimony of Leonid Mayevsky Washed Away by Flood”[65]
“Tekebayev/Chotonov Trial: Verdict Causes Controversy”[66]
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