Follow-up to recommendations made by the Working Group on Enforced or Involuntary Disappearances in the report of its visit to Kyrgyzstan from 25-30 Jun 2019: Report of Working Group on Enforced or Involuntary Disappearances (A/HRC/57/54/Add.2) [EN/RU]

Human Rights Council
Fifty-seventh session
9 September–9 October 2024
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development

Summary

The present report contains information provided by the Government of Kyrgyzstan, the authorities, civil society and other stakeholders relating to follow-up measures to the recommendations made by the Working Group on Enforced or Involuntary Disappearances, following its visit to Kyrgyzstan in 2019.

In paragraph 7 (a) of its resolution 7/12, the Human Rights Council requested Governments that have accepted visits from the Working Group to pay all necessary attention to the Working Group’s recommendations, and invited them to inform the Working Group of any action they take on those recommendations. The Council reiterated this request in paragraph 16 (a) of its resolution 21/4.

The present format of the follow-up reports aims to facilitate the identification of the concrete steps taken in response to the specific recommendations and to reflect the information gathered from different stakeholders involved in the process, on the basis of which the Working Group formulates its observations on the level of implementation of its recommendations.

The Working Group continues to offer its assistance to the Governments that have received a visit for them to comply with the recommendations made, and stands ready to assist them in their efforts to prevent and combat enforced disappearances.

Annex

Follow-up to the recommendations made by the Working Group on Enforced or Involuntary Disappearances in the report of its visit to Kyrgyzstan from 25 to 30 June 2019

1. On 22 December 2022, the Working Group on Enforced or Involuntary Disappearances requested the Government of Kyrgyzstan to provide information on measures taken to implement the recommendations that were made in its report following its visit to the country in June 2019.1 The Working Group thanks the Government of Kyrgyzstan for the information submitted on 14 March 2023.

2. At its 130th session, the Working Group decided to postpone consideration of the follow-up report due to lack of sufficient input from other relevant stakeholders. 2 The Working Group thanks all stakeholders who submitted information for its consideration for the present report.

3. Based on the information provided, the Working Group finds that while Kyrgyzstan has taken steps to implement the recommendations made in the report after its visit to the country, they have been insufficient to produce any significant changes.
   Legislative and institutional framework

4. Since the visit of the Working Group in 2019, Kyrgyzstan has undergone significant legislative reform. In 2021, following the adoption of the new Constitution, the parliament adopted the new Criminal Code, which includes article 404 on enforced disappearance.

5. The legislative reform process provided a unique opportunity to implement the recommendation of the Working Group to broaden the scope of application of provisions criminalizing enforced disappearance. However, the drafting process took place behind closed doors and seemingly did not take the Working Group’s recommendation into account.
   As a result, the definition of enforced disappearance in the new Criminal Code remains unchanged and overly restrictive; it only covers cases where there is an intention of the perpetrator to remove a person from the protection of the law for a prolonged period of time.

6. Failure to implement the Working Group’s recommendations does not contribute to the eradication of the previously noted practice of alleged enforced disappearance that resulted from delays in the registration of arrested persons and notification of their relatives and defence lawyers, as well as other instances in which the disappeared persons eventually reappeared. 3 Furthermore, non-application of article 404 of the Criminal Code to such enforced disappearances not only deprives the victims of criminal law remedies, but also creates an impression that enforced disappearance is not an issue in Kyrgyzstan, as evidenced by the fact that no cases of enforced disappearance were registered or investigated between 2019 and 2022.

7. The Government of Kyrgyzstan has not provided any statistical information concerning investigations into cases in which families have not been notified, or in which registration records of deprivation of liberty have been falsified, which makes it difficult to assess the level of implementation of the relevant recommendation.

8. The Working Group is concerned about the procedure of “pre-investigative examination”. According to article 153 of the Code of Criminal Procedure, upon receipt of a crime report, the investigator or prosecutor has 10 days to decide whether to launch an investigation or not. It is a “grey area” period, during which procedural guarantees do not extend to the victim, who until the launch of the investigation is considered a witness, and thus investigative actions cannot be undertaken. As the law gives investigators and prosecutors the discretion to decide whether to register the case or not, it implies that instances of enforced disappearance may not be investigated.

9. The Working Group notes with concern that the level of implementation of recommendations of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, made following its visit in 2018, remains very low, with only 11 per cent of 73 recommendations being partially implemented, 56 per cent in the process of implementation and 30 per cent not implemented. The Working Group is alarmed by what seems to be a trend of disregard towards recommendations formulated by international human rights mechanisms and calls on the Government of Kyrgyzstan to redouble its efforts and undertake effective measures to live up to its international obligations.

10. Even more concerning is the categorical statement of the Government of Kyrgyzstan (as contained in the government response of 14 March 2023) that it will not ratify the International Convention for the Protection of All Persons from Enforced Disappearance due to its irrelevance, because no criminal cases related to enforced disappearance have been registered or investigated in recent years. In that regard, the Working Group would like to stress the preventative nature of the Convention, which makes it relevant even for States where enforced disappearances are not widespread or are non-existent.

11. One of the ways to accurately assess the situation of enforced disappearance in Kyrgyzstan would be to amend article 404 of the Criminal Code by broadening the scope of its application to include all acts of enforced disappearance, irrespective of any temporal element. Ratification of the International Convention for the Protection of All Persons from Enforced Disappearance, with recognition of the competence of the Committee on Enforced Disappearances to receive and examine individual and inter-State complaints, pursuant to articles 31 and 32 of the Convention, would ensure that there is independent, international oversight and assessment of the country’s compliance with the prohibition of enforced disappearance and its obligations to investigate such acts and prosecute those responsible.

12. The Working Group welcomes the reported efforts of the Government of Kyrgyzstan to provide training on enforced disappearance to legal professionals. At the same time, the Working Group stresses that, to be effective, such training should be based on an internationally recognized definition of enforced disappearance, on the Working Group’s general comments and the jurisprudence of the Committee on Enforced Disappearances.

13. The Working Group welcomes the efforts made by the Government of Kyrgyzstan to ensure that the guarantees of notification and registration following apprehension of an individual are systematically implemented in practice, in particular by providing training and awareness-raising activities on those guarantees to legal professionals, law enforcement officials and the public, and by extending video registration of any detentions. At the same time, the Working Group is concerned about the effectiveness of informing law enforcement officials that delays in notifications and the falsification of detention records may amount to the crime of enforced disappearance, in the light of the above-mentioned shortfalls in the definition of enforced disappearance in article 404 of the Criminal Code. The risk of being prosecuted under this article is very low, unless such delays last “for a long period of time”.

14. As concerns the investigations, the Working Group notes that in accordance with article 159 of the Code of Criminal Procedure, investigation of acts of enforced disappearance falls within the competence of the State Committee for National Security. However, pursuant to article 35 of the Code of Criminal Procedure, in exceptional cases the prosecutor can reassign the investigation to a different investigator, which leaves a wide margin of discretion.

15. The Working Group reiterates its recommendation concerning the enforceable right for victims of enforced disappearance to receive full reparation, including compensation, satisfaction, restitution, rehabilitation and guarantees of non-repetition, which has not been implemented.