Introduction

Human rights experts of Central Asia have already recognized 2008 as the year when the region has become a zone free from capital punishment. The last country in Central Asia that abolished capital punishment’s application as an exclusive form of punishment was Uzbekistan. On January 1^st this year the law was adopted and this country de jure rejected this form of punishment.

The process of abolition of the strictest punishment in international practice was taking place within the humanization of criminal legislation, provided by the International Covenant on Civil and Political Rights, to which all countries of the region joined at different times.

The second important aspect of the on-going process of alleviating criminal legislation in Central Asian countries is judicial sanctioning, which is being discussed at all levels by human rights and international experts, representatives of law-enforcement and judicial bodies, and triggers a number of debates.

Being the most effective institute of human rights protection, its guarantee and observance of fundamental rights – the right to freedom - the introduction of judicial sanctioning in most of Central Asian countries was postponed for many years.

Today, most progress in this field is noticeable in Kyrgyzstan and Uzbekistan, where judicial sanctioning has been already introduced. Kazakhstan at the moment has only developed a draft bill. The question of additional mechanisms to abolish capital punishment, in particular, the issue of meeting international standards of human approaches to the imprisoned, those imprisoned for life, as well as of judicial control and judicial protection of fundamental human rights, requires the special attention of state bodies, the expert community, representatives of human rights movements and the mass media. The comprehensive approach to solving important questions for the further development of democratization in accordance with the recommendations of the international expert community is the major indicator of human rights observance. Central Asian countries need to strive for this.

Alternatives to capital punishment in Central Asia

The abolition of capital punishment in Central Asia was one of key conditions for further formation of democratic-jural society. Within 10 years of Central Asian countries gaining independence this question had been widely discussed by the public, including lawyers, human rights experts, and representatives of state and non-governmental organizations, and the mass media.

The abolition of capital punishment in all Central Asian countries was accepted by the whole international community as the biggest advancement in human rights for recent years. Local experts also valued highly the efforts of the regional countries’ leadership in the process of the humanization of criminal policy.

“In the constitutions of all Central Asian countries the highest value is life and the freedom of a citizen. Now we have come to such a stage, when society has started to understand that capital punishment’s application is the uncivilized way. If we kill a person, because he killed, the same we can rape a person, who has raped, etc. The decision to abolish capital punishment in all Central Asian countries was a political decision; it was not taken by referendum. It is the decision of politicians, who were able to take responsibility in solving such an important question,” – said Vera Tkachenko in an interview with an independent expert in Kazakhstan, the ex-director of the International Penal Reform.

“It is hard to imagine all the negative sides of capital punishment, except that we are modern people, who live in a civilized, democratic state, where no one has the right to take the life of another person. Simply, after surviving a totalitarian regime, it is difficult for our society to imagine life without capital punishment,” – argues the Director of the Institute of Media Representative in Kyrgyzstan, Ilim Karypbekov.

The most positive moment in the capital punishment abolition is the possibility to correct the judicial mistake. “When capital punishment took place, and it turned out that a judicial mistake occured, it would be impossible to correct. After execution, there is no possibility to rehabilitate a non-guilty person,”- says Chinara Musabekova, the director of the Master and post-graduate center of the Kyrgyz State Law Academy.

“I think that in the post-Soviet space, the existence of the norm on capital punishment is dangerous, because within our conditions, the possibility of its unfair application is higher than somewhere else. This is clear by the corruption in the judicial system, imperfect laws, and most dangerously, the imperfect law-enforcement system. There are ten times more chances to kill the non-guilty here than in the USA, in those states with capital punishment. In my view, the abolition of capital punishment, considered as a democratic norm, is not right, because it is not a manifestation of democracy but a manifestation of something else – the point of being reasonable and civilized,” – said Kazakh human rights expert and journalist, Sergey Duvanov.

Nowadays, there is no question on the abolition of capital punishment in Central Asia; the public of the region does not actively discuss the question of who is “for” and who is “against” this form of punishment. The major problem is the alternative to the capital punishment and the process of realization of this alternative form of punishment. As an alternative to “legal murdering” all countries of the region have chosen imprisonment for life.  

Such a decision was first taken in Kazakhstan in January 2004. Thus, Kazakhstan was the first country which introduced imprisonment for life. The next were Tajikistan, Kyrgyzstan and Uzbekistan. This form of punishment is basically similar in all countries of Central Asia. For example, it is not applied with regard to the under-aged, women and men who committed a crime and by the moment of passing of sentence reached a certain age, in some countries the age of 60 (for example, in Uzbekistan), in some – the age of 65 (Kazakhstan).

Imprisonment for life does not always mean that a person will be in prison until the end of his biological life, since in most countries of the region, there is a possibility for conditional release. The length of punishment is also similar, on average it is 20-25 years. It means that after being imprisoned for 20-25 years, a person still has a chance for conditional release.

The life sentence in Central Asia has a number of common characteristics:

1. Those imprisoned for life are isolated from other prisoners;
2. Those imprisoned for life do not receive secondary education;
3. All imprisoned after arriving in the correctional facility of a special regime are placed under the strict conditions of serving a sentence (10 years). The change into the normal and light conditions is possible after serving not less than 10 years of punishment;
4. Contact with the outside world of those imprisoned for life are limited.

At the moment, the expert community, human rights experts and representatives of state structures of Central Asian countries openly declare that our countries were not ready for the humanization of criminal policy, in particular, to the application of the life sentence as the highest form of punishment.  

"In this view, I would like to turn your attention to the alternative of capital punishment – the life sentence. And here is the problem: it turns out that our penitentiary system is not ready for this. Nowadays, in the basements of detention centers in Kyrgyzstan there are 170-180 sentenced to death, and they are not kept in the conditions they should be, even though there is a possibility to build a special prison. I remember, the Minister of Justice was talking excitedly about building a prison with grant money, but I worry that every time when it comes to this question, there is no money. In order to have a state that is able to realize the mechanisms that replaced capital punishment, it is required to solve the first problem – the material-technical,” – says Isihak Masaliev, a member of the Kyrgyz parliament.

Experts especially worry about the conditions in which those imprisoned with the highest sentence are kept. In the legislation of Central Asian countries, the emphasis is made on security issues. Here, the possibility of social work with the imprisoned who may be conditionally released is not well-considered. The main purpose of such work is to counter-balance the harmful impact of a life sentence or lengthy sentence as well as to expand and improve the ways of successful return of the imprisoned into society and the law-abiding behavior after their release.

The oppressive conditions in prisons that are the result of lack of financing of the penitentiary system, the absence of special infrastructure, lack of professional cadres, including social workers, the attitude of the prison personnel,the absence of working conditions for prisoners and of social contact with family members, is the most debatable question in the context of humanization.

Many experts today work on the dilemma: is a life sentence, in fact, more humane regarding the imprisoned, where there are some cases when those imprisoned prefer to die voluntarily, while taking into account the above factors. The global statistics prove the fact: the risk of committing suicide is twice as high among those imprisoned for life than other prisoners.

Also it has to be noted that inhumane conditions of the imprisoned become more difficult because of the especially strict terms of imprisonment.

“As for the conditions of those sentenced to death, for most of them it is preferable to have capital punishment than death after long suffering in terrible conditions. I am for the improvement of conditions of those death sentenced, and since the government positions Kyrgyzstan as a democratic state, the best way to solve this question, in my view, is to completely abolish capital punishment and to agree with the requirements not to allow such excesses,” – noted Ilim Karypbekov.

An expert from Uzbekistan shared his opinion that Central Asian society is tired of cruelty, especially in Uzbekistan; the abolition of capital punishment is the expected reaction to developments in the region: “People want humanization and not only in the field of judicial and criminal proceedings. Society does not need blood; we want to let people learn to have a kind and humane attitude to each other. The tightening of criminal measures under conditions of the corrupt legal system will result in the blind Femida remaining blind to the non-guilty as well. Capital punishment is something irreversible. To bring back a person after execution is not possible.”

“The conditions for prisoners in Central Asia are not the best. Unfortunately, we are in such a position where we need to justify a punishment that takes place in the unsanitary, cold, inhumane and poor economic conditions. All these problems were present in the past as well. The state must care to allocate enough budget means for this. Even in the colonies, there must be normal conditions that must not disgrace a human being, and provoke a growth in the deceased,” –says the president of public foundation “Open position”, Dmitriy Kabak, who commented during the interview on his position to the question on the conditions of the imprisoned.

A representative of legal non-governmental organization in Uzbekistan who wished to remain unnamed said in the interview that the results of the conducted monitoring showed that “the place and conditions of the imprisoned are unbearable.” “In the course of our work, we often met people who said that it would be better to be shot than to keep them in such inhumane conditions.”

The inhumane,unsanitary conditions of the imprisoned in Central Asia are worsened by scarce meals and cruel attitudes of the prison’s personnel to the imprisoned.

In Uzbekistan the position of the imprisoned becomes more difficult because in the new legislation, the regulation on the life sentence is a topic of secrecy. In practice, it means that relatives of the imprisoned do not have a right to know where and how their relatives – those with the highest form of punishment - are kept. This norm is regulated by state secrecy, which was opposed by human rights activists but they failed to change this norm within the humanization of criminal policy in Uzbekistan. This norm remains in the provision on “The highest form of punishment.” Earlier in the Uzbek legislation there was a norm on state secrecy regarding tthe place of burial and place of execution for those subjected to capital punishment.

Kuat Rahimberdin, the director of the Eastern-Kazakhstan branch of the International Bureau on Human Rights and legality in Kazakhstan, and the dean of the law faculty of the Esatern-Kazakh University, thinks that the rate of civilization of a state is defined by its approach to prisoners. He said: “Central Asian countries cannot be a good example for imitation in this regard. Despite economic wellbeing in Kazakhstan, little attention is given to the question of the criminal execution system. The budget increases year by year; for example, in 2004 the budget of the penitentiary system of Kazakhstan was 17 billion tenge (142 million dollars), and in 2007 it was 22 billion (184 million dollars). However, these means are not yet enough to create decent conditions for prisoners.”

In addition, Kuat Rahimberdin shared his view on the problem of the penitentiary system of Tajikistan: “I often visited Tajikistan as an expert. The penitentiary system there is very closed. The financing in Tajikistan is based on the residual principle. The imprisoned are fed badly, in most parts they rely not on the state but their relatives. The population is not rich; each family tries to find some means in order to bring food often to prisoners.”

The expert added that one of the major problems in the criminal system of the regional countries is the high percentage of cadres flow. The work of a correction facility employee is not prestigious, and the average salary, for example, in Tajikistan is 30-40 dollars. Also, according to the lawyer, there is no proper public control and monitoring of correction facilities in Central Asian countries.

According to Kuat Rahimberdin, the most acute problem of the penitentiary system in the region is its corrupt nature: “In all Central Asian countries one can observe the differentiation of prisoners along their social class. It blossoms especially in Kazakhstan. Within 1.5 years, the problem of corruption was seen in our criminal system. There were facts that in one of the criminal facilities of Almaty, there were specially designed commercial rooms, where for a certain price employees will create good conditions for prisoners: hotel services, meal, rest, the possibility for constant meetings and telephone calls.”

Marat Kayipov during a meeting with representatives of the Kyrgyz media at the Bishkek Press Club emphasized the residual principle of financing of the penitentiary system, mentioned by the Kazakh expert regarding Tajikistan. “We are always financed on the residual principle, because the first plan is social needs. For example, in 2005 the meal of one prisoner was 13 soms (0.35 $) while it should be more than 50 (1.4$). Now the meal is better, but still the amount allocated for these purposes is lower than the normative rate and is only 37 soms (1$),”- said the head of the Ministry of Justice.

“Under the current conditions of these colonies and their internal arrangement, the state is not capable of performing correctional or fostering functions,” – said the minister. Therefore, according to Marat Kayipov, the state must pay special attention to building new correctional facilities, making an overall repair of the existing ones and undertaking some structural changes.

 The cruel attitude to prisoners is another cornerstone issue in the process of the  introduction of the alternative to capital punishment in Central Asia. According to Dmitriy Kabak, certain means of the treatment and torture are used by investigators quite often: “The only question is how effective is the state system at preventing such things? Unfortunately, it is usually the case when controlling bodies, including courts, deny such statements, or recognize those facts as non-confirmed. I think when we have such an attitude in state bodies, when there is no common denial of torture and cruel treatment that humiliate, this problem will remain for a long period.”In the view of human rights activists, at the moment there is an urgent need to reconsider the procedure, and analyze which factors contribute to torture and cruel treatment: “it is important to develop public control, for example, and to create a national body to prevent torture, which may include lawyers and human rights activists. It is provided in the Additional protocol of the Convention on torture, of which Kyrgyzstan is not yet a member. On the other side, it is perhaps necessary to think about the technical equipment of those bodies that deal with criminal investigation. In addition, there must be a clear division of competence, to know who is responsible for what. Then, it will be possible to know who will be responsible for any violation of procedures.”

Ilim Karypbekov also expressed his view with regard to the cruel treatment towards prisoners. “There are almost no ncidents of initiating criminal proceedings on exceeding one’s authority among the law-enforcement bodies. There were such statements from prisoners, but they are quickly completed because of the absence of proof and often do not reach the court. I have never heard about a case when an employee of a law-enforcing body was punished for torture. Recently, the zero number of such cases was announced in Kyrgyzstan,” – said the expert.

“I believe that torturing is an extensive practice, and the problem is that it is impossible for the tortured to prove the involvement in the crime of certain people. Moreover, an important factor is the human factor – the fear of making employees of law-enforcing bodies and their officials responsible. Another point is the complicated legislation that limits the process of bringing to justice, and proving the guilt, of anyone who has tortured. I think the government needs to work hard in this field, because there is a very complex situation,” – said the lawyer.

Sergey Duvanov believes that violation and tortures in correction facilities is very well hidden: “Members of the law-enforcing system do not consider it as torture. The humiliation of prisoners and disgracing their human dignity is the norm for them. In other words, it is similar to Soviet times. Battery by prison’s personnel is not  torture, but punishment, despite the fact that force can be applied only in the case of resistance.”

According to experts, human rights activists in Kazakhstan are struggling for the openness of prisons, to allow public organizations that deal with these issues proper contact with prisoners, so the latter can complain without going through management. “Today, a prisoner has the right to complain through those who have tortured. This is nonsense. Therefore, the only form of protest at present is when prisoners commit suicide. It is done to attract public attention to what happens in prisons. I was there, and I know when they are beaten long and cruelly, people have no choice but to commit suicide. In other words, they choose blood of the two evils. The personnel do not touch this person for a long time, because they are simply afraid that the repaired wound may be reopened,” – added Duvanov.

Experts from Uzbekistan included in the list of problems the problem of a bad ecological environment in those places where prisons are located: “The location of prisons where the imprisoned for life stay is lifeless. The average life expectancy of local people in this region is 45-50 years. It is a dehumidified territory, with a high concentration of salt. During Soviet times, nearby there was a chemical battalion with corresponding land-buried waste. Therefore, we request conducting a preliminary ecological assessment and make the results public.”

Another of the negative consequences of the life sentence is the high social isolation of prisoners, de-socialization, the lack of personal responsibility, the crisis of identification and the high dependence on the prison’s administration. In this context, experts think that special attention must be given to the problem of social work with prisoners, and expanding social contact with the outside world, with relatives. “If there are possibilities for the imprisoned for life to have conditional release, we need to conduct social work. Unfortunately, according to our legislation, to believe that prisoners will have social contact with the outside world is difficult.

The legislation of Kazakhstan, Kyrgyzstan and Uzbekistan says that during the first ten years, a prisoner must be under the strictest conditions, and has a right for one meeting with family members per year. Basically social contact is absent,” – emphasized Vera Tkachenko.   

Also Tkachenko stressed the humiliating forms of treatment with those sentenced to the highest punishment: “The position that a person needs to make, when exiting the room is more than humiliating. The imprisoned must consistently repeat for how long and which article was applied to sentence him. On the clothes, there are big letters “IFL” so that everyone can see that a person was imprisoned for life.” As for the medical support for those with “IFL,” they cannot be taken out of the correction facility even in an emergency case.

At the same time, the staff of correction facilities accepts the difficult epidemiological situation in the penitentiary system, where the rate of deaths is very high.  Doctors need to come on time to render quick medical assistance to prisoners. Here, the question arises, how much such a norm is justified; is it possible that doctor will come on time to the place far from the city? For example, the probability of finding a surgeon quickly when a prisoner has appendicitis is minimal,” – argues Vera Tkachenko.

The distinct attention to solving the problem of alternatives to capital punishment must be given to the topic of mechanisms of reviewing those decisions on the application of the highest form of punishment in all Central Asian countries. All decisions on capital punishment are usually taken by the Supreme Court. After its abolition, the sentence must be reviewed again. However, the question remains unclear which instance will take decisions. After the decision of the Supreme Court, none of the rayon courts will review it, since this decision cannot be appealed. At the moment, experts are perplexed since capital punishment was replaced with the life imprisonment. Many human rights activists insist on the individual review of sentences.

Tamara Chikunova, the founder of the organization “Mothers against capital punishment and torture,” established in memory of her son Dmitriy, who was secretly executed and buried in Uzbekistan, said during an interview with IWPR: “Now, after the official abolition of capital punishment, each case of those sentenced to death must be reviewed individually. For all those sentenced to death to be automatically imprisoned for life is not quite correct.”

Surat Ikramov, the head of the initiative group of independent human rights activists based in Tashkent, also calls upon the authorities to review individual cases of those sentenced to death. “If there is a review of cases without the participation of the imprisoned, it is difficult to expect results,” – Sukramov explained to IWPR.
 
According to Uzbek experts, at the moment it is hardly possible that the authorities will review the sentences of those sentenced to death. However, before the adoption of the new law, relatives of the imprisoned were hoping to be granted pardons, and now they are afraid that capital punishment will be automatically replaced with a 30 yeas prison term . According to the current law in Uzbekistan, those sentenced for life have the right to ask for a pardon only after serving 25 years of punishment. 

1. Conditions and treatment towards the imprisoned for life;
2. Progressive system of punishment;
3. Possibility of conditional release;
4. Preparation of personnel;
5. Medical assistance;
6. Public monitoring;
7. Review of criminal cases sentenced to death;
8. Information on the place of burial of those executed by the death penalty; 

All questions concerning the more humane  version of the highest punishment, and a possibility of a successful return of the imprisoned for life, and their law-abiding behavior after their return, must be studied thoroughly by representatives of law-enforcing and judicial bodies in Central Asian countries.

After that, along the recommendations of international and local experts, it is necessary to take quick measures to introduce international standards for prisons as well as international principles of treatment with prisoners sentenced for a long period or for life, provided within the recommendations of the European Council. Special attention must be given to the issues of planning the term of prisoners, their protection and security in penitentiary facilities, the selection of personnel, and management with special groups of the imprisoned, reducing the negative effects of imprisonment. Experts recommend developing a plan of serving a sentence with the active participation of prisoners and close cooperation with observation bodies after release, and some other structures. Here, the plan must include an estimation of risks and needs, which is an indispensable part of the progressive system of punishment. 

“If one looks at the statistics, both in Kazakhstan and Kyrgyzstan the majority of the imprisoned are quite young people, the average age is not more than 30-35 years. More than a half are sentenced for the first time. Despite the crimes committed by prisoners, the recommendations of the European Council say that one should not judge them as dangerous in accordance with the crimes committed. Their guilt is proven by the court, but it is not known how they will behave in the future. It is not necessarily true that during 25 years criminals will be dangerous for other prisoners or the administration of the facility. Therefore, many European countries have the system of risk estimation for each prisoner. Psychologists, lawyers and social workers work on this issue,” – explained Vera Tkachenko.

“Thus, there is the common practice that this category of prisoners are not kept in a separate facility, but in different ones. Depending on the danger level, they can be transferred from one place to another, and correspondingly, the regime changes,” – added the expert.

Regarding the protection and security within the penitentiary facility, the performance of prison control must be based on the application of dynamic security, i.e. to establish the positive relations of prisoners and personnel based on the strictness and fairness accompanied by the understanding of personal situations and risks.

Also experts recommend paying attention to international standards on the special groups of the imprisoned for life (foreigners, elderlypeople, women, children, seriously-diseased, etc.)

Selection and training of personnel to work with the imprisoned for life must take place after consideration of working conditions as well as professional behavior with prisoners. In addition, experts emphasize the necessity to conduct regular studies on the impact of life and long sentences on personality, while paying a special attention to those factors that reduce the negative effects and encourage a constructive adaptation to life in prison.

The above recommendation refers to the principle of normalization that concerns the imprisoned for life. “The point here is that it is necessary to do all possible things to let the imprisoned know of developments on the outside, so that their conditions will be at a maximum close to normal life. The major point is to escape the situation when being released after a while, prisoners will enter a completely unknown world, where they will not be able to find themselves, and they do not have a choice but to return to the criminal world,” – emphasised Tkachenko.

Experts identified the necessary condition to improve the situation of prisoners as the problem of having public control over the activities of penitentiary systems by means of presenting an opportunity for representatives of civil society and the mass media to regularly visit prisons. The distinct question, in the view of experts, is the issue of reviewing criminal proceedings of those sentenced to death and announcing the information on the burial place of those executed by the death penalty.

Some experts insist on having as an alternative to capital punishment not only life imprisonment, but also a lengthy sentence with a fixed term. International experts think those imprisoned for life, even though they know the average length of punishment, cannot hope for release until they receive it in fact. This uncertainty, according to specialists, causes additional psychological pressure on prisoners.

Other experts arguing for the fixed term explain it by the long length of terms in Central Asian region and the punitive practice. For example, the criminal codes of Kazakhstan and Kyrgyzstan provide for the strict punishment of 20-25 years, a total of sentences up to30 years and capital punishment, while during the Soviet times the gravest punishment was imprisonment for 15 years and capital punishment. In other words, after gaining independence, these countries increased the term of punishment twice.

At the moment, Central Asia, during the trend of humanization, abolished capital punishment but replaced it with life imprisonment, which does not solve the problem of increasing prisoner numbers; the most urgent issue of the current times.

Some state officials who work in the system of punishment in Central Asian countries think that because of the increase in the number of prisoners, the humanization package of laws on criminal responsibility in the region is a forced measure. “Life made us develop such laws and proposals to deputies,” – stressed the head of the Ministry of Justice of Kyrgyzstan Marat Kayipov during an interview with journalists.

One of the reasons for humanization laws, as noted by Kayipov, is the difficult situation in the correction facilities that can be observed recently. The colonies are full, and only in 2005, according to the head of the Ministry, there were 17 thousand prisoners. However, after undertaking some measures on the humanization of laws, their number was reduced to 11.5 thousand people.

“As heritage from the USSR, we received a great number of prisoners; Kazakhstan was in third place in the world in terms of the number of prisoners; 570 people per 100 thousand of population. In Tajikistan, with a population of 5 million, about 10 thousand people were in prisons. There is little information on the same issue in Turkmenistan and Uzbekistan,” –said Kuat Rahimberdin.

In the view of experts, this problem can be solved, if countries succeed in introducing and developing alternatives to imprisonment. It can be addressed by the effective and modern agency of probation. Nowadays, in some countries of the region, there are inspections, but they often lack financing and cadres. As for long-term recommendations, experts commented on the necessity of having an effective struggle against corruption in the judicial system.

“It is not the cruelty of punishment that reduces crimes but the unavoidability of punishment. When the judicial system and investigation bodies operate well, when we know for sure that a criminal will be punished irrespective of one’s social status and the corrupt officials, then there will be no need for capital punishment and other strict forms of punishment,” – concluded Chinara Musabekova.

Judicial sanctioning

A great amount of work is being done in all Central Asian countries in the trend on the humanization of criminal laws, which concerns judicial sanctioning introduced already in Kyrgyzstan and Uzbekistan. In Kazakhstan, the draft bill that has been recently developed is being widely discussed. Civil society of Central Asian countries tries to attract attention, over more than 10 years, to the question of bringing a national legislation in conformity with international legal standards in the field of criminal proceedings, particularly, with the International Covenant on Civil and Political Rights. 

Article 9 of this international document says: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”

Among all Central Asian countries, according to the expert community, Kyrgyzstan has succeeded most in this direction; it introduced judicial sanctioning not only on arrests but also on other rights-restricting actions.

“Regarding the issue of the improvement of criminal proceedings, it can be objectively recognized that nowadays Kyrgyzstan is ahead of its neighbors in Central Asia when it comes to the introduction of democratic institutes into the criminal proceedings. I would say that Kyrgyzstan is rapidly approaching the introduction of fair criminal process into national legislation. It is good that in Kyrgyzstan there is judicial sanctioning of arrests but also of all criminal-procedural and operative-investigation operations that may limit the constitutional rights and freedoms of citizens. One is glad to know that Kyrgyzstan intends to incorporate the jury court in the near future. I think that one needs to estimate positively these changes and wish success to our Kyrgyz friends in the further advancement of judicial-legal reforms,” – said Daniyar Kanafin, a lawyer, member of the Presidium of Almaty Lawyers’ Society.

In Kyrgyzstan, judicial sanctioning was introduced earlier than in other countries of Central Asia as the indispensable attribute of the humanization of criminal policy, but also retained an extensive understanding of the concept of Habeas Corpus (the prescription which says that those convicted and suspected shall be brought promptly before a judge).

“We went further than other countries of the post-Soviet space. The Kyrgyz judges now sanction taking into custody, and also putting an arrest on property, mail correspondence, home arrest, recess, search and arresting. The investigation bodies have no right to hear citizens without the court’s resolution. Before, it was under the competence of an attorney; now – only judges. This practice started in July 2^nd 2007,” – explained Lyubov Ivanova, member of Lawyers’ Society of Kyrgyzstan, the founder of public foundation “Voice of freedom.”

Judicial sanctioning has many advantages in respect of human rights protection. For example, the judicial trial on the selection of arrest as the measure of limiting the arrested gives more opportunities to protect one’s right to freedom. Judicial sanctioning of arresting implies competition in the court, when before a judge, the lawyer of the suspect and attorney make speeches, and the latter hasn’t the right to decided solely on taking into custody.

Both sides have equal rights to appeal for release and arresting the convicted. The court trial is an open process, which also reduces the risk of non-objective proceedings. “Judicial sanctioning creates additional guarantees for objective decisions on choosing arrest as the measure to limit rights; it allows measures of restricting characters only in the case of substantial grounds - the defense has the opportunity for the qualified protection of interests while the question on sanctioning is being decided; it gives some additional leverages for civil society to control the implementation of justice,” – noted Daniyar Kanafin. 

However, the most debated questions are the principal issues pertaining to arrest sanctioning. Kyrgyzstan has faced the problem –a lack of judges who need to decide on the fairness of taking into custody the convicted or suspected.

Also, the question on the formation of a special staff of judges who will deal only with the procedure of sanctioning remains unanswered. The problem is that a judge who made the decision on arresting the convicted, is not morally ready to take positive decisions concerning the same person in the course of trial. Some experts think it would be more ethical not to have the same judge whether it is appeal or the reversal of a judgment, if the concerned judge decided upon the sanctioning of arrest.

Recommendations

The general recommendations for all Central Asian countries on the qualitative introduction of the democratic institute of judicial sanctioning given by experts included the following: an effective struggle against corruption in the judicial system, attraction of public and media attention to the judicial processes to provide more transparent and open processes of judicial decisions and sentencing.

Also experts emphasized the need to establish and expand the staff of specialized judges who will decide only on the sanctioning of law-enforcing actions in order to avoid the prejudice towards the convicted or suspected. In all countries of the region, except Kyrgyzstan, it is required to consider the question on expanding the concept of judicial sanctioning that at present is applicable to the taking into custody of the convicted or suspected. During the trend of humanization of criminal laws, it is necessary to pay special attention to sanctioning of other law-enforcing actions: search, recess, arrests on property, mail correspondence, home arrest, and hearing.

The expert community and human rights activists of Central Asian countries are certain that the expansion of the judicial functions on sanctioning can create a positive image of the region, where the countries have chosen the path of democratic development.

Gulnura Toralieva, especially for Voice of Freedom www.vof.kg