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Kyrgyzstan: Persecution of Political Opposition

Through the Criminal Justice System

The Case of Feliks Kulov

Summary

Feliks Sharshenbaevich Kulov is one of the best known political figures in the Central Asian Kyrgyz Republic. He has held the portfolios of vice president, minister of the interior, minister of state security, mayor of Bishkek and akim (governor) of Chuy oblast’. Most recently, in 1999, he was a founder of the Ar-Namys (Honor) Party, a major Kyrgyz political party. He stood as a candidate for the Kara Buura constituency in Talas Oblast’ in Kyrgyzstan’s February parliamentary elections. According to reports of most international observers, including the OSCE observer mission, Mr Kulov appears to have been elected by the constituency1. In the words of the European Union representatives, «We witnessed massive and carefully orchestrated manipulations on the part of the Kyrgyz authorities, not only on a local level, to deprive opposition candidates, most prominent among them Feliks Kulov and Danyar Usenov, of their victory.»2 As a result of the serious fraud perpetrated in connection with these elections, the officially announced tally favored a pro-Government candidate. This outcome provoked large-scale public protests in the Kara Buura district and in Bishkek, Kyrgyzstan’s capital, by supporters of Mr Kulov and his party and others concerned about the integrity of the parliamentary elections.3

1 The Final Report of OSCE’s Office for Democratic Institutions and Human Rights dated April 10, 2000 («OSCE Report») describes in considerable detail a massive election fraud perpetrated by Kyrgyz «state and election authorities aimed at securing the defeat of Feliks Kulov.» It also concludes that the official certification of Kulov’s opponent as victor in the race was fraudulent. To those used to studying OSCE reports of this nature, the use of such frank and harsh language is extraordinary and signals the observer mission’s conclusion that the evidence of fraud is uncontroverted and compelling. In particular, we note that the chairwoman of the Kara Buura election committee announced to monitoring officials in Bishkek that she was facing tremendous pressure to resign by Kyrgyz officials because she had resisted their efforts to falsify the vote totals in the first round. By the consensus view of international observers, Mr Kulov secured an absolute majority of votes in the first round.

2 European Union Statement, OSCE Report at 13.

3 OSCE Report at 22. While the election is outside of the scope of this report, it constitutes an important back-ground element and consequently was followed closely by ILHR. We refer to the Report on the Parliamentary Elections in Kyrgyzstan of the Congressional CSCE (July 7, 2000), whose conclusions generally parallel those of the OSCE Report. In particular we concur with the conclusions that the elections did not conform to CSCE standards and that a large number of opposition candidates, including Usenov and Kulov, were in fact elected, although their seats were taken from them by Government-perpetrated electoral fraud. In our investigation, we spoke with a number of Kyrgyz officials who were prepared to acknowledge,on a not-for-attribution basis, that the election was riddled with fraud and that Kulov was a particular target of Government-directed election fraud. In particular, one akim told us that he was specifically instructed by an official at the Kyrgyz presidential administration what returns to report and was told explicitly that harsh sanctions would follow if he failed to do as instructed. He noted that although pro-Government candidates were certified as victors, oppositional candidates had in fact prevailed in some of the races. He added «I did as told but felt heartsick about this. How could I look my people in the eyes after betraying them in such a fashion?»

In mid-March, Mr Kulov announced his candidacy for the office of president of the Kyrgyz Republic. Presidential elections are set to be held on or about October 29, 2000. On March 22, Mr Kulov was detained by officials of the Ministry of State Security (known by its Russian acronym «MNB»). He has remained in confinement since that time and faced prosecution in the Bishkek Military Court before Military Judge Nurlan Ashyrbekov, with court proceedings commenced on June 27, 2000. Professional monitors dispatched to these proceedings by OSCE, ILHR and various embassies were refused admission and found the courtroom cordoned off by rows of uniformed militia.

The prosecution of Mr Kulov has raised alarm among analysts of Kyrgyz affairs.4 The country was formerly considered a model of democratic reform in Central Asia. However, international observers considered the nation’s recent parliamentary elections to be seriously flawed and, in particular, to have been marked by ill-concealed manipulations and fraud perpetrated for the benefit of pro-Government candidates. A pattern has also emerged of use of criminal prosecutions for purposes of intimidating and disqualifying opposition candidates. In this regard, the prosecutions of Danyar Usenov and Feliks Kulov have attracted special attention.5

Press reports and reports of local human rights organizations brought the attention of the League to this matter in April. In communications with Kyrgyz authorities, the League sought permission to interview Mr Kulov in his cell and to be briefed by prosecutorial and investigatory authorities on the case. In April and again in June 2000, League President Scott Horton traveled to Bishkek to conduct a series of in-depth interviews with Kyrgyz government officials (the more forthcoming of whom requested not to be identified on the record), prosecutors, investigators, Mr Kulov, his defense team, local lawyers, judges and human rights advocates. The League also dispatched Dildabek Bekmanov, a well known Kazakh attorney, to monitor the proceedings and report on them. This report reflects the conclusions reached as a result of this process.

Conclusions

On the basis of its investigation and observation of the trial, the League has reached the following conclusions:

(1) The detention of Mr Kulov during the investigatory phase and his detention while his case was tried is a violation of his rights under Kyrgyz law and under internationally recognized human rights norms.

(2) The timing, facts and circumstances of the investigation and prosecution—even as presented by the prosecution alone, without considering Kulov’s defense—strongly suggests that the case was launched for political reasons and raises serious questions as to the bona fides of the prosecution.

(3) Kulov was denied access to counsel of his choice due to the authorities’ failure to admit and recognize the participation of Yury Shmit in the case, Kulov’s advocate of choice.

(4) No proper cause existed for the Kyrgyz authorities to conduct a closed trial of Mr Kulov; the conduct of the trial in such a fashion was illegal under Kyrgyz law and constituted a particularly serious violation of applicable international human rights standards.

(5) Kulov’s counsel was materially impaired in the conduct of Kulov’s defense as a result of work conditions imposed by the investigating authorities because of the allegedly «secret» nature of the investigative materials. When these authorities believed their propagandistic aims could be furthered by public disclosure of use of such materials, they did not hesitate to disclose them. This is further powerful evidence of bad faith in the claim of state secrecy.

(6) The charges identified by the prosecution—allegedly committed many years ago while Kulov was Minister for State Security, and almost exclusively turning on the wrongdoing of subordinates and questions as to exercise of discretion by Kulov—even if accepted as true, appear at best to amount to some sort of administrative infraction and do not in any event appear to form a plausible basis for criminal-law claims. These facts make completely clear that the motive of the Kyrgyz prosecutors is to disqualify Mr Kulov as a presidential candidate, not to punish him for a serious crime.

(7) When the prosecution of Kulov is considered in tandem with the prosecution of Danyar Usenov and equally specious legal proceedings commenced against candidates I. Kadyrbekov and Marat Kaipov, among other acts of intimidation in which legal process and procedure were abused, a clear pattern emerges. These legal actions have been carefully coordinated for purposes of discouraging the participation of viable opposition-oriented candidates in the electoral process. Indeed, in several cases these candidates can only be described as «opposition-oriented» in the broadest sense: all have generally supported the president’s reform programs, but seem out of favor with the current ruling groups. This consideration makes clear that the current crackdown lacks ideological content of any sort and instead is geared to perpetuation of the political privileges of the ruling elite through the erosion of democratic institutions.

The Case Against Kulov

On April 20, 2000, League President Scott Horton met with Boris Trofimovich Poluektov, Deputy Minister of State Security, at the MNB building on Erkendik Prospect in downtown Bishkek.

At our request, Poluektov provided a detailed description of the charges brought against Kulov and the evidence mustered on behalf of the prosecution. The charges are as follows:

First, that while minister of MNB, Kulov abused his office by promoting a functionary of the ministry, a certain Lieutenant j.g. Bakchiev, to the rank of captain, skipping over the rank of lieutenant.6 It was argued that the rank was beyond Bakchiev’s qualifications, although no objective criteria for this determination were cited other than the individual’s lack of higher education. Sections 30(5), (6), 315 and 177 of the Kyrgyz Criminal Code (revised) are cited in connection with this charge.

Second, that while minister of MNB, Kulov authorized the procurement of surveillance equipment which was not registered and authorized its use to illegally monitor telephone conversations. Section 177(2) of the Kyrgyz Civil Code (repealed) is cited in connection with this charge. The equipment was removed from MNB and was being used by persons loyal to Kulov for nonofficial purposes. Poluektov stated that the equipment was apparently acquired in 1997 and was discovered in 1999 during a raid on a «conspiratorial apartment.» This apartment is apparently the residence of Kulov’s driver and the individuals involved include the former head of MNB’s anti-terrorism unit, a Major Bakchiev. When asked how the surveillance equipment was used, Poluektov stated that it was used to overhear cellular telephone conversations. Poluektov also stated that issues existed concerning the source of funds used to purchase the surveillance equipment, since it does not appear to have come from budgeted money. Poluektov stated that Kulov refuses to identify the sources for the funds used to acquire this equipment.

Third, Kulov is accused of having given instructions to organize surveillance in the Kyrgyz parliament. Section 304(3)(3) is cited in support of this charge; these provisions deal with abuse (or overstepping) of authority by a government official.

We note an obvious error by the prosecutorial and investigatative authorities in connection with the presentation of the accusations to Kulov, an obligatory step under Kyrgyz criminal procedure. The decision of the Procurator General on Mr Kulov’s apprehension handed to him on June 13, 2000 was different from the one which was served on him at the time of his detention on March 22, 2000. These documents, which play a role in Kyrgyz procedure comparable to that of an indictment or information in the common-law countries, are superficially identical, but on closer scrutiny it appears that the first document to be presented contained two claims, namely under Section 30(5), (6) (aiding and abetting liability) and Section 315 (service forgery), whereas the later one elided these allegations.

4 See, e.g., U.S. Congress, House Committee on International Relations, Subcommittee on Asia and the Pacific, Hearing on Democracy in the Central Asian Republics, Testimony of Dr. Martha Brill Olcott (Apr. 12, 2000).

5 See, e.g., Dailey, «Kyrgyzstan: Closed Trial, Open Secrets,» http://www.eurasianet.org/cen_ eurasia/hrr063000.

6 The Kyrgyz ministries involved in the administration of justice continue the practice of the Soviet Union, which in turn was inherited from the tsarist days, of giving military ranks to civil servants they employ. While the military ranks convey some of the militarism in the so-called «power ministries» of the state, the ministries involved in the administration of justice are not military institutions, and the ranks are the rough equivalent of civil-service grades.

Not-withstanding the absence of charges, the trial court apparently allowed the prosecution to proceed to present evidence under these provisions. In any event, this inconsistency demonstrates an attitude towards documents on the part of the prosecution which is altogether curious, particularly considering the lame charge of «forgery.»

In early June we met with Kulov’s attorney, Liubov Ivanova. Scott Horton recounted to her the charges and case against Kulov as detailed by Poluektov. Ms Ivanova was quite surprised to learn that this information had been provided to the League’s representatives as she had been told all of it was a matter of strict state secrecy. However, she confirmed that the charges remained as detailed and that the case and evidence had not been changed since early April.

Circumstances of Detention

We obtained sharply varied accounts of the facts surrounding Kulov’s detention. Poluektov asserts that Kulov had been systematically «hiding» from the authorities during the terminal period of the investigation. In particular, Poluektov states that Kulov had been staying in different apartments each evening. He stated that Kulov was told that he would have to appear on March 20 to receive and answer charges against him. He states that Kulov failed to appear and that a bench warrant then issued for Kulov’s apprehension. This account of the facts is significant, since it would provide a basis for Kulov’s continued pre-trial detention on the grounds of perceived risk of flight to avoid prosecution.

However, Deputy Minister Poluektov’s account of the facts does not withstand scrutiny. Indeed, his account is inconsistent even with the statements of other government representatives. The facts collectively derived from these interviews establish that a representative of MNB was dispatched to Kulov with a notice in mid-March. The proposed text of the notice required Kulov’s appearance on March 20. Kulov stated that he would happily appear, but that on March 20 he had a meeting arranged with representatives of OSCE. March 21 and 22 are the Kyrgyz lunar new year’s holiday of nooruz. Kulov therefore agreed to appear on March 23. Kulov and the MNB representative then amended the notice to state «March 23,» Kulov signed his acceptance and the MNB representative initialed the change.

According to numerous independent observers, Kulov was arrested on March 22 while an outpatient obtaining medical treatment for a high blood pressure condition at a Bishkek clinic. The arrest occurred on the pretext of Kulov’s failure to appear on March 20. We therefore conclude that the suggestion that Kulov was evading MNB in failing to appear on March 20 is consciously misleading and the arrest would accordingly appear to lack any proper legal basis.

Conditions of Detention

While several reports have circulated to the effect that Kulov was imprisoned in harsh, and indeed life-threatening conditions, a visit to Kulov’s place of detention suggested that the conditions of his incarceration conformed to minimum standards. Kulov himself described his treatment as essentially «korrektno» (adequate). He also noted that he personally knew most of the prison guards since most had served under his tenure as minister, and that their behavior was professional and honorable. Kulov acknowledged that he had been permitted to receive food from his wife and family and that he was permitted a brief period of exercise in fresh air each day. Since the time of our inspection of Kulov’s incarceration conditions, however, press reports suggest that these conditions have worsened, and in particular that Kulov’s visitation rights have been curtailed together with his right to receive outside food. Kulov staged a hunger strike in protest of these deprivations.

Legitimacy of Pre-Trial Detention

International law binding on the Kyrgyz Republic recognizes the right of an accused to secure his freedom pending trial in order to assist in the preparation of his defense.7 Because the law must presume innocence and continued incarceration is deemed to severely hamper an accused in the preparation of his defense, continued detention is improper if the accused provides proper undertakings and a bond. Exceptions exist in cases where the accused presents a clear threat to the community or where a reasonable perception exists that the accused will flee to avoid prosecution if released.8 Moreover, the accused is guaranteed access to a court for the validation of these rights.9

Authorities of the Kyrgyz Republic have violated this law in their prosecution of Kulov. First, as has been shown, Kulov cannot be said to have evaded the investigatory authorities when they sought to compel his appearance to receive and answer charges. The available evidence clearly demonstrates that Kulov was willing to appear and that Kulov and the MNB representative agreed on a subsequent time for this appearance. Second, shortly before his arrest, Kulov returned from a trip to Europe and the United States. During this trip he noted to several interlocutors, including representatives of the League, that he had been informally warned by officials of the Kyrgyz Republic that a criminal case was being prepared against him and that it would be filed if he stood as a candidate in the forthcoming elections. In fact, Kulov returned notwithstanding these «warnings.» Moreover, Kulov is a public personage of considerable prominence and a declared candidate for the nation’s presidency. Considered together, these facts render the suggestion that Kulov would flee the jurisdiction to avoid prosecution little short of preposterous. Third, under the procedural regime applied to Kulov’s case, decisions as to his continued detention were left in the hands of the investigators preparing the case against him, a clear violation of the requirement that such decision be subject to a «judicial power.»10 Indeed, through most of the period covered by our investigation, no prosecutor was assigned to the case and Kyrgyz authorities maintained total ambivalence over whether the case would be heard in civil or military courts.

Kulov clearly should have been freed for purposes of the preparation of his defense. His continued detention during this period must be considered to have unfairly undermined the preparation of his defense.

7 International Covenant on Civil and Political Rights («ICCPR»), art. 14(2). ICCPR has been in force with respect to the Kyrgyz Republic since 1995.

8 ICCPR art. 9(1), (3).

9 ICCPR art. 9(3), (4).

10 ICCPR art. 9(3).

Access to Counsel

We conclude that Kulov was denied fair access to counsel to conduct a free and fair defense of the claims against him.11 It is of course clear that Kulov engaged Liubov Ivanova and secured advice from other counsel who are acknowledged to be able and competent and that Kulov’s right to counsel was therefore not completely abridged. However, the right to counsel comprehends the rights: (1) not to have selection of counsel unreasonably interfered with by the State; (2) to have free and confidential communications with counsel; and (3) against unreasonable restrictions on the conduct of the defense. Compelling evidence exists demonstrating that each of these rights was violated by the Kyrgyz authorities.

Interference with Selection of Counsel. Kulov sought to retain Yury Shmit, a prominent St Petersburg advokat, to serve as co-counsel. Mr Shmit is a well known human rights defender and an internationally recognized expert on the abusive invocation of claims of «state secrecy» in prosecutions (among other notable cases, he recently successfully defended Captain Niktin in an action commenced by the Russian State Security Service). Mr Aitkulov, apparently on behalf of the Kyrgyz Prokuror-General, told Shmit he would not have a visa to travel to Kyrgyzstan and could not appear for Kulov because his case involved «state secrets.» As the Russian Constitutional Court correctly ruled in the first round of the Niktin case, a claim of state secrecy cannot be invoked to preclude an accused’s selection of counsel if the counsel is prepared to give appropriate undertakings surrounding the use of secret materials. Moreover, as will be demonstrated at greater length below, the claim of state secrecy in the Kulov case is utterly bogus.

Confidential Communications with Counsel. Kyrgyz law properly guarantees an accused the right to communicate in confidence with his counsel concerning the defense of charges brought against him. Both Kulov, his counsel and independent sources have advised us that Kulov has been permitted meetings only in a meeting room which is subject to surveillance by MNB officers. We consider these claims credible. We also note the extreme irony that prosecutors pursuing claims against Kulov for unlawful surveillance are themselves engaged in unlawful surveillance for purposes of thwarting his defense of the charges.

Several published reports also note that Kulov’s access to counsel has been unreasonably denied, particularly that Ms Ivanova was denied permission to visit Kulov on two or three occasions when she visited his place of imprisonment. We have investigated this issue. It does appear that on three occasions Ms Ivanova was denied leave to visit her client on the grounds that the interview chamber was unavailable. However, numerous consultation visits were permitted. We do not believe that these occasional denials taken alone amount to deprivation of a right to counsel.

Unreasonable Restrictions on Counsel. Kulov’s counsel advise us that while they were permitted access to the investigatory file containing materials to be used in Kulov’s prosecution, as required by Kyrgyz criminal procedure law, this access was unreasonably restricted. In particular, they note

(1) They were not permitted to photocopy such documents or retain copies of any such documents, so that all inspection had to occur in the offices of the investigator;

(2) They were required to sign an oath concerning the secrecy of the materials presented, in order to gain access to them, whereas they (correctly) believe that the matters are not secret;

(3) Their own pencil notes from the documents were taken from them and stored in the investigator’s vault.

The latter act constitutes an unlawful confiscation of attorney-privileged materials by the prosecution authorities. Since, as noted below, the prosecution claim of state secrecy is bogus and is asserted in bad faith, each of these acts was improper and constitutes a material impairment of the preparation of Kulov’s defense.

11 ICCPR art. 14(3)(d).

Claim of State Secrecy

«In the determination of any criminal charges against him,. . . [an accused] shall be entitled to a fair and public hearing. . .»12 Clearly the most striking violation of procedural norms by Kyrgyz authorities comes in the claim of state secrecy affecting the case, and in particular in the exclusion of the public, including the duly accredited observers of international organizations (such as OSCE) and the representatives of ILHR, a non-governmental organization with special consultative status at the United Nations Economic and Social Council, from the proceedings. A representative of the Kyrgyz president asserts that the decision to conduct these proceedings in secret was a matter «up to the trial court.»13 However, the prosecution requested this treatment, and the conduct of these proceedings tends to demonstrate that the Kyrgyz courts do not function independently of the Government and prosecution. The fact that the proceedings were conducted in secret, taken apart from all other considerations in this case, strips them of any pretense of legal legitimacy.

The investigators and subsequently the trial court have viewed the claims against Kulov as affected by «state secrets» apparently because they relate to internal operations of the MNB. However, a study of the conduct of Kyrgyz officials involved in the case shows that this information is labeled as a «state secret» only when it is furnished to Kulov or his representatives or in connection with the trial. In other contexts, Kyrgyz officials have aggressively peddled these very same «state secrets» to the media for purposes of promoting public support of their case and tarnishing Kulov’s reputation.

Use in Broadcast Media. Senior Kyrgyz officials with the MNB openly cooperated with television journalists in the production of two programs, one broadcast on local television, and the other completed in connection with Russian Independent Television (NTV), both carrying the name «Korruptsiya» (corruption). These programs recycle the claims asserted against Kulov in the current trial and present documentary and witness evidence in support of such claims. They also include nebulous unsubstantiated accusations of espionage, treason and corruption in commercial matters all linked to Kulov’s name. ILHR has obtained and reviewed videotapes of each of these programs and has interviewed journalists involved in their production. A local Kyrgyz film editor who spoke on condition of anonymity informed us that preparation of both programs was an official state project directed from the President’s administration and that senior officials of MNB were heavily involved. We were told that the objective of the program was to destroy the reputation of Feliks Kulov through the circulation of innuendo. Both films, but particularly the one made domestically in Kyrgyzstan, have a crude propagandistic quality about them.

12 ICCPR art. 14(1).

13 Letter dated June 27, 2000 from M. Ukushov of the Legal Department of the Presidential Administration to Catherine Fitzpatrick, Executive Director, ILHR.

Use in Print Media. Major Kyrgyz newspapers, particularly Government-controlled Slovo Kyrgyzstana, have run a series of articles attacking Kulov based on materials taken from the criminal investigation. Kyrgyz Government sources, particularly at MNB, are cited in connection with these articles, and their hand in the tenor of the articles is unmistakable. In this regard we note in particular:

Copies of these materials are on file with ILHR. These articles provide conclusive evidence of a systematic and aggressive policy of Kyrgyz officials of leaking allegedly «secret» materials to the media for use in connection with articles attacking Kulov.

A series of similar articles have appeared in mass circulation Russian press, notably including a feature in Nezavisimaya gazeta on April 13, 2000. We interviewed several Russian reporters involved in the preparation of these articles. We were told, on condition of preservation of the anonymity of the interlocutors, that a group of Russian newspaper journalists were brought to Bishkek at the expense and on the initiative of the Kyrgyz government, and that the effort was coordinated by individuals in the President’s administration. We were further advised that journalists received dossiers containing allegedly «secret» investigatory materials relating to Kulov’s case with the understanding that these materials would be used for the preparation of articles critical of Kulov. As a further inducement, the journalists involved were allowed to visit Kulov in his detention place (with no notice to or permission from Kulov)14 and were given a group meeting with President Akayev.

These facts taken collectively suggest that the allegedly «secret» materials have been used as fodder in an aggressive public relations campaign against Kulov which has been masterminded by individuals on the staff of President Akayev.

It is certainly ethically dubious for prosecutorial officials to engage in public relations campaigns designed to vilify an accused on the eve of his trial. However, it is utterly unconscionable for those officials on one hand to disseminate their case materials to the media in connection with such a campaign and on the other to insist that the materials constitute a «state secret» justifying severe restrictions on their use by defense counsel and a closed trial. Such tactics can only be described as utterly audacious and a betrayal of the basic norms underlying the impartial administration of justice.

It is also noteworthy that the claim of state secrecy has been used to thwart Kulov’s presentation of his defense in the court of public opinion. Defense counsel have been warned not to allude to or cite the allegedly secret materials, with these warnings coming from the precise individuals who themselves are guilty of disclosure of these materials to presumably «friendly» press sources. Moreover, since the trial proceedings are closed to all outside observers, the public will be unable to learn how Kulov answers the charges which have been asserted against him and have been widely spread in the media. While ILHR expresses no ultimate opinion on Kulov’s guilt or innocence with respect to these charges, we did take careful note of the defenses that Kulov intends to raise and found them very persuasive.

14 The introduction of journalists to the accused’s place of detention under such circumstances constitutes a violation of ICCPR art. 10(1).

Insubstantial Charges

Kyrgyz officials have in several public utterances described the charges against Kulov as «grave» and «severe.» The chief of staff of the President’s administration, Mr Misir A. Ashirkulov, is described by a senior diplomat in Bishkek as having told OSCE Chair-in-Office Benita Ferrero-Waldner that Kulov faced a potential «death sentence» for the alleged infractions. These claims cannot be reconciled with the charges actually brought against Kulov and suggest a lack of familiarity with or indifference to the actual charges on the part of senior Kyrgyz officials. Careful examination of these charges shows that almost without exception they relate to an alleged abuse of discretion by Kulov as a government official or his failure in the supervision of subordinates. In either case, the charges are generally of an administrative law character and it seems an incredible contortion to characterize them as criminal charges of any sort. Bringing charges of such a nature, based on events which date back many year and based on operative facts which have been established by investigators for a considerable period, against a prominent political candidate in the midst of an election campaign raises serious questions as to the bona fides of the criminal prosecution.

Right to an Impartial Tribunal

«Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.»15 While it is beyond argument that Kulov was deprived of his right to a public hearing, it further appears that the tribunal hearing the case was not «fair and impartial» in that it was subject to pressure and manipulation by Kyrgyz authorities. This suspicion is buttressed by the following facts:

First, the proceedings were conducted in secret. As there were in fact no state secrets to protect due to the disclosure of the evidence used against Kulov by prosecution authorities to the news media, the logical inference to be drawn is that secrecy was invoked to protect Kyrgyz authorities from embarrassment which would follow from a public viewing of the trial and in particular the considerable defense evidence which Kulov proposes to introduce.

Second, while we understand that the process of trying Kulov before a military court may be in conformity with Kyrgyz procedure and usage, we question the validity of such process in a high-profile case involving what are essentially administrative infractions.

Third, the Military Court ignored the lawful right of Kulov to be defended in court by his immediate relatives in addition to legal counsel. This right is clearly provided under Kyrgyz law, and Kulov petitioned the court to admit his brother, M. Kulov, as co-counsel. This petition was rejected without substantiation.

Fourth, the proceedings must be viewed in tandem with those brought against other prominent candidates for elective office, such as Danyar Usenov and Marat Kaipov. Considered collectively, these cases establish a pattern of abusive prosecution for the purpose of disqualifying candidates viewed as oppositional.16

15 ICCPR art. 14(1).

16 The case of Marat Kaipov, president of the Kyrgyzstan Bar Association, is particularly illustrative of the waning independence of the Kyrgyz judiciary. Kaipov, a former Constitutional Court functionary, stood for election in a Jalalabad oblast’ constituency. His candidacy was challenged and he was struck from the list on the technicality that he had not finalized the process of resigning from his Constitutional Court position, even though he had submitted all necessary papers for a leave of absence. At the same time innumerable candidates supporting the Government continued to hold office and preferments without challenge or issue being raised. The complicity of the Supreme Court and Constitutional Court in securing Kaipov’s disqualification is striking and a harbinger of the cooption of the senior judiciary in the political process. It is also noteworthy that the procurator of Jalalabad oblast’, who secured Kaipov’s disqualification, has now been promoted to the office of procurator general of the republic, and consequently oversaw the prosecution of Kulov. See OSCE Report at 8.

Fifth, the conduct of the proceedings themselves suggests that the defendants and their counsel were not afforded a proper hearing and that their applications were not properly considered. This includes the court’s summary disposition of procedural motions made by the defense including efforts to compel witness testimony on their behalf. In particular, the court’s decision to continue the proceedings in secret in the absence of any basis for such a decision is very strong evidence of bias and partiality in light of the utterly untenable nature of the claim of «state secrecy.» In this regard, we take particular note of the comment of Deputy Dooronbek Sadyrbayev, who attended the proceedings as a victim, and who departed the proceedings on June 28, stating «The trial started with the [defendants’] lawyers submitting their petitions and the judge dismissed them all. After the dismissal of the second request, I could not help but object. I understood that the court was biased.»17

Sixth, our representatives conducted several interviews with Kyrgyz judges in connection with this report. We were informed on a not-for-attribution basis that, while judges exercise autonomy in many matters, this is not the case with politically sensitive matters in which officials of the Government, and in particular of the President’s administration, intervene regularly and directly. Interventions were described as having been channeled through several intermediaries including the chairwoman of the Constitutional Court, the legal department of the President’s administration and the President’s chief of staff. The circumstances of this case suggest strongly that improper interventions have consistently occurred tainting the impartiality of the court.

For all of these reasons, we consider the Bishkek Military Court to have demonstrated inproper partiality towards the prosecution and against the defense.

17 BBC, «Kulov Trial Gets Underway,» June 28, 2000, CAU 280600/BB/MK.

 Received through

Leonid A. Rempel
FIELD REPRESENTATIVE IAC EURASIA
in Kyrgyzstan
The own correspondent
office 14, Isanova st. 60.
720001, POB, 1212 Bishkek,
Kyrgyzstan
phone :+996 (312) 660188
phone/fax:+996 (312) 660420
E- mail:
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