PEN International and Article 19 have made a joint submission on freedom of expression and freedom of peaceful assembly issues in Kyrgyzstan to the United Nations Universal Periodic Review (UPR). The UPR process of the UN Human Rights Council will closely scrutinize Kyrgyzstan’s human rights record for the second time in January 2015.
The joint report found that since 2010 the government has taken measures to advance protections for the right to freedom of expression and freedom of peaceful assembly, addressing several of the recommendations made during the last UPR. Notwithstanding these improvements, there is concern for fundamental human rights in Kyrgyzstan in light of new mechanisms for criminalising public interest expression, continued cases of impunity for crimes against journalists, restrictions on Internet freedom, and attacks on the freedom of expression rights of minority groups.
Read the full report here.
Despite evidence of liberalisation and a renewed commitment to human rights since 2010, there have been substantial efforts to re-establish repressive governance methods, including the “foreign agents law” that was registered in the Kyrgyz Parliament on 26 May 2014. If implemented, this law would stigmatize many NCOs that engage in ‘political activities’ and receive international/foreign funding by requiring them to register as ‘foreign agents’ and penalizing them with up to 6 months suspension and criminal liability for non-compliance. The introduction of such measures has been widely condemned, including by the Venice Commission.
New mechanisms for criminalising public interest expression
Laws targeting freedom of expression have been passed or amended to capture more activities within their scope. Not only do these new laws impose criminal sanctions, but they also provided no ‘public interest’ defence for such expression. These laws give the government of Kyrgyzstan greater powers to control and penalize the activities of journalists and writers, and will likely be exploited to limit governmental criticism and pubic interest discussions. As well, the new laws effectively negate the gains made by the decriminalization of defamation and violate the 2010 Constitution Article 20(6).
Continued cases of impunity for crimes against journalists
Since 2010, there has been a decrease in the level of violence to which journalists are exposed but attacks persist and impunity remains prevalent.
In October 2007, well-known journalist Alisher Saipov, who published critical materials about Uzbek President Karimov’s regime and worked with Voice of America and Fergana.ru in Kyrgyzstan, was shot dead at close range in Osh. In May 2010, the court concluded that Saipov’s murder was a domestic dispute and dismissed the politically motivated nature of the crime. Former policeman Abdulfarit Rasulov was sentenced to 20 years of imprisonment despite the fact that Saipov’s family did not believe he was the killer. In October 2012, the Supreme Court of Kyrgyzstan overturned the sentence and the criminal investigation into the killing of Alisher Saipov resumed, but to date it remains unsolved.
On 10 August 2011 Shohruh Saipov, critical journalist and brother of Alisher Saipov, was attacked by a group of unknown men at the Osh airport. Shohruh Saipov, who is also the chief editor of UzPress.kg which actively reported on the ethnic tensions between the Kyrgyz and the Uzbek communities, suffered a concussion, lost several teeth, and required medical treatment but none of his belongings were stolen, leading credence to the belief that the attack was related to his professional activities. Despite the public nature of the attack, the authorities have failed to identify those responsible.
Restrictions on Internet freedom
After ethnic clashes in the Ferghana Valley in June 2010, parliament implemented a decree restricting freedom of expression online. The decree required Ministries to investigate “nationalist and extremist” content in media and included a recommendation to block the Fergana.ru website nationally, without providing a reason. No evidence has been provided to suggest that content on the website reached the threshold of incitement under Article 20 of the ICCPR, or that the blocking measure was necessary and proportionate under Article 19 (3) of the ICCPR.
In February 2012, Internet Service Providers were given orders to block the website through an expedited process. Court proceedings objecting to the decree lasted over five months, and ended because of the statute of limitations expired. Later, the State Agency stated that the order was simply a recommendation, allowing providers to reopen access to the website.
Legal mechanisms for blocking websites were only introduced into the national legislation in 2013. The law “On Countering Extremist Activities” bans the use of communication networks and the publication of materials by groups that the government labels extreme. This includes, for instance, the “Innocence of Muslims” YouTube video which was blocked in September 2010 after an investigation labelled the video as containing signs of ethnic hatred propaganda
Attacks on the freedom of expression rights of minority groups
Constitutional protection against discrimination (Article 16b) has not been implemented through legislation. Religious and ethnic minorities, and lesbian, gay, bisexual and transgender people (LGBT), continue to face systematic discrimination in the exercise of their freedom of expression and information rights.
Minority individuals or groups are not represented in the media, and issues of concern to them rarely receive media coverage. Criminal provisions on “incitement” are also abused to suppress critical discourse on the position of minorities in society in the name of promoting “nationalism”.
Parliament is currently considering amendments to prohibit the so-called “propaganda” of “non-traditional” (i.e. same sex) relations. The amendments, if passed, will target any positive discourse around diverse sexual orientations and gender identities in the public arena. It will certainly lead to the media avoiding any positive coverage of issues that affect LGBT people, and to similar censorship in the education and health care fields. While this prohibition applies generally, it also specifically targets the media and assemblies by providing criminal penalties of up to six months imprisonment for violations.
Inter-ethnic tension in the country is also frequently used as an excuse to censor discussion related to ethnicity. Most media outlets either avoid these topics or adopt the discriminative majority view. Those entities that publicly diverge from the nationalistic narrative face criticism for being unpatriotic or for inciting ethnic hatred, tending towards an environment of self-censorship.
The Submission makes the following recommendations:
- Repeal Article 329 of the Criminal Code, decriminalising the offence of disseminating “knowingly false messages about the commission of a crime”, making clear that public officials are expected to tolerate more, not less, criticism than non-public officials;
- Reject current proposals to introduce a ‘foreign agent’ law, as proposed on 26 May 2014 through the draft law “
- Ensure that any mandatory blocking of websites, IP addresses, ports, network protocols or types of use (e.g. social networking) is in accordance with international standards;
- Repeal the law on Countering Extremist Activities, and enact legislation to protect national security that comply with Article 20(2) ICCPR and the Rabat Plan of Action;
- Release human rights defender and journalist Azimjan Askarov, quash his conviction, and investigate effectively and impartially the allegations of torture and other ill-treatment with the view to providing adequate redress;
- Carry out an independent and effective investigation into the 2007 murder of the journalist Alisher Saipov and bring the responsible perpetrators and instigators to justice;
- Protect the freedom of expression and association rights of groups at risk of discrimination, in particular ethnic minorities, LGBT people, and religious minorities, and specifically:
- Amend Article 299 of the Criminal Code on incitement to conform with Article 20(2) of the ICCPR, removing references to “humiliating the Kyrgyz nation” and ensuring the protection of public interest expression that is critical of the State, as outlined in the Rabat Plan of Action;
- Reform the Law “On Freedom of Belief and Religious Organisations in the Kyrgyz Republic” (2008), removing Article 5 on “proselytism”, Article 22(6) restricting the dissemination of religious materials, and provisions that restrict the registration of religious missionaries;
- Reject legislative initiatives to restrict positive expression in relation to non-heterosexual relationships, in particular the draft law “On Introducing Additions to Some Legislative Acts of the Kyrgyz Republic”.
PEN International will be conducting advocacy around freedom of expression issues in Kyrgyzstan in the run up to the 21st session of the UPR in January 2015. For further information on PEN International’s policy and advocacy work at the United Nations please contact Sarah Clarke, International Policy and Advocacy Officer, at email@example.com.