28 June 2019

Introduction

A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) concluded a five-day official visit to Kyrgyzstan. The visit took place from 25 to 30 June 2019.

The delegation was composed of the Chair of the WGEID, Mr. Bernard Duhaime and Mr. Henrikas Mickevicius, member of the WGEID.

At the outset, the WGEID wishes to thank the Government of Kyrgyzstan for extending an invitation to visit the country, and for the efforts made before and during the visit to facilitate its smooth undertaking. They welcomed the Kyrgyz Republic’s openness to engage with the mandate and for organizing meetings with nearly all requested authorities.

The WGEID also wishes to thank the Regional Office for Central Asia of OHCHR for the continuous support during the visit.

The WGEID met inter alia with Representatives of the Ministry of Foreign Affairs, the State Border Guards, the State Registration Services, the Minister of Justice, the State Migration Service, the State Committee for Defense Affairs, the Human Rights Coordination Council, the Office of the President, the General Prosecutor’s Office, the State Committee for National Security, State Service of Execution of Punishment, the Ministry of Internal Affairs, the Ombudsman’s Office and the National Preventive Mechanism in Bishkek as well as the State Committee for National Security for Osh city and region, Police department under the Ministry of Internal Affairs in Osh city and region, the Head of the Pre-trial detention facility 25 and the Osh City and Regional Prosecutor's Office.

The WGEID also met with civil society organisations and lawyers and wishes to thank all stakeholders met.

The WGEID does not have any formal complaints registered in its database related to the Kyrgyz Republic under its humanitarian procedure, but notes that a number of individuals remain missing following the inter-ethnic clashes in the southern region of Kyrgyzstan in 2010.

Below is a non-exhaustive list of preliminary observations. The Working Group’s final report on the visits will be presented to the UN Human Rights Council in Geneva in September 2020.

Crime of Enforced Disappearance

The Working Group welcomed a number of positive steps taken recently by the Kyrgyz Republic to prevent enforced disappearances. The experts were informed of changes to criminal legislation that came into force in January 2019 that introduced for the first time the specific crime of enforced disappearance into national law. The definition is remarkable in that even one single act of enforced disappearance amounts to a crime against humanity.

They noted however that a few elements of the new provisions could be improved to bring the definition fully in line with international standards. For example, the crime is restricted to disappearances with the intention to remove a person from the protection of the law for a prolonged period of time, which risks excluding cases of enforced disappearances of a short duration. In this respect, the Working Group has consistently emphasized that there is no time limit, no matter how short, for an enforced disappearance to occur. The Working Group also noted that the competency for investigating cases under this article has been given to the Kyrgyz intelligence services, the State Committee for National Security, which raises concerns as intelligence services should not have investigative functions, notably on cases of enforced disappearances.

Notification and Registration

As safeguards during the first hours of deprivation of liberty are essential to prevent possible abuses, including enforced disappearances, the experts also welcomed that the new legislation requires registration and notification of family members as soon as an individual is deprived of liberty, and criminalises a failure to do so. This is an important improvement.

However, the Working Group received information that there is a deeply entrenched and continuing practice of delaying initial registration and notification of apprehended individuals in order to allow more time to collect information and to obtain confessions, which are then used in criminal proceedings. The Group was informed that this is so seen by many in the public as normal.

The Working group highlights that a failure to acknowledge deprivation of liberty by state agents and refusal to acknowledge detention constitute an enforced disappearance, even if it is of a short duration.

The Working Group encourages the Government to make a concerted effort to ensure that the new legal guarantees on notification and registration are systematically implemented in practice, and to sanction cases where families are not notified or moreover registration records are falsified. The experts underlined that all deprivations of liberty should be registered effectively and promptly from the moment of the first apprehension.

Non-refoulement

It transpired from a number of stakeholders met during the visit that both legislation and practice in Kyrgyzstan do not fully comply with the principle of non-refoulement and that Kyrgyzstan has returned or allowed the return of individuals to neighbouring states where they are put at risk. The declaration clearly states that a person can never be expelled or extradited to another State where there are substantial grounds to believe that she/he would be in danger of enforced disappearance.  The Experts recommended that the Kyrgyz Republic ensures that its legislation prohibits the expulsion of individuals at risk of enforced disappearance and ensure state officials are aware that returning individuals in this context constitutes a serious violation of international standards.

2010 inter-ethnic violence

The Working Group conducted a visit to Osh region, where inter-ethnic violence broke out between 11 and 14 June 2010. The experts received information that the conflict resulted in a significant number of missing persons. According to information from the government, 17 individuals are still missing and the remains of 9 individuals are still pending identification. While noting that the authorities provided assurances that the search was continuing, there has been no recent concrete progress. The Working Group hopes that further efforts can be made to search for those missing and complete identifications, with the involvement and participation of the relatives concerned.

Ratification and conclusion

The Working Group also recommended that Kyrgyz Republic swiftly ratify the International Convention on the Protection of All Persons from Enforced Disappearance, which would help cement the progress Kyrgyzstan is already making in this area. The Convention is the last remaining core human rights treaty not ratified by the country. It contains useful guidance for States to build a more solid and robust legal and institutional framework and would help Kyrgyzstan to overcome the few remaining gaps. A prompt ratification would also send a clear message that Kyrgyzstan is committed to providing full protection against the phenomena of enforced disappearances of any duration.