KYRGYZSTAN

Prisoners of Conscience Back on Trial:

The cases of Topchubek Turgunaliyev and Yrysbek Omurzakov

INTRODUCTION

Amnesty International in May 1996 published the report Kyrgyzstan: A tarnished human rights record[1]. Comprising a summary of concerns about the non-observance in Kyrgyzstan of international human rights standards, the report featured the cases of a number of people who had been subject to criminal prosecution and in some cases imprisonment for exercising their fundamental human right to freedom of expression. They were prisoners of conscience. Among them were Topchubek Turgunaliyev, an opposition political leader, and Yrysbek Omurzakov, a journalist.

The cases against these two men featured in the 1996 report were resolved by the passing of suspended sentences against them, and they were freed from detention. However, since late 1996 both men have again become the subject of criminal prosecutions. In both cases it is Amnesty International’s contention that the bringing of criminal charges is clearly motivated by a desire on the part of the authorities to punish and silence two leading critics of the Government of President Askar Akayev. At the time of writing, Topchubek Turgunaliyev has already been convicted and is serving a custodial sentence, while Yrysbek Omurzakov is in detention pending trial due to start in mid-May. Both men are once again prisoners of conscience. Amnesty International is calling for their immediate and unconditional release.

Amnesty International is also concerned that two women, Damira Akmatova and Gulya Ibraimova, have been charged in connection with Yrysbek Omurzakov’s case. At the time of writing they are not in detention, but if convicted and imprisoned they would be regarded by Amnesty International as prisoners of conscience.

THE CASE OF TOPCHUBEK TURGUNALIYEV

Topchubek Turgunaliyev, a leading opposition activist, is serving a four-year sentence after being convicted of "abuse of authority". He was originally sentenced in January 1997 to a 10-year prison term after being convicted of three offences. On appeal the following month charges of "theft of state property" and "malfeasance" were thrown out, leaving only the "abuse of authority" charge in place, for which the appeal court imposed a sentence of four years’ confinement in a low-security penitentiary (one year of this sentence being an outstanding suspended sentence imposed in 1996 for defaming the President of the Kyrgyz Republic, on which charge Amnesty International had recognized Topchubek Turgunaliyev as a prisoner of conscience). As arranged by the appeal court, the sentence was apparently to have been in practice non-custodial, with Topchubek Turgunaliyev being allowed to live at home in Bishkek, the capital of Kyrgyzstan.

The decision of the appeal court was widely regarded as a face-saving solution to what had been a highly controversial case. There had been widespread protests inside Kyrgyzstan and internationally against the prosecution of Topchubek Turgunaliyev, on the grounds that the bringing of criminal charges appeared to be politically motivated, and of dubious legal validity.

On 7 March 1997, however, law enforcement officials removed Topchubek Turgunaliyev from his home and transported him to a low-security penitentiary in Leilek district, Osh Region, several hundred kilometres from Bishkek. Living conditions for prisoners at this penitentiary are said to be harsh. The reason for this change in the terms of his sentence appears to be that since the appeal hearing Topchubek Turgunaliyev had taken part in opposition political gatherings in Bishkek.

Amnesty International believes that Topchubek Turgunaliyev, having been the subject of a politically motivated and apparently bogus criminal prosecution, has had a non-custodial sentence replaced with a sentence of imprisonment in harsh conditions because he expressed his fundamental human right to freedom of expression.

The original case against Topchubek Turgunaliyev

The case against Topchubek Turgunaliyev concerned events which took place in 1994, when he was rector of the University of Humanities in Bishkek. He was accused, along with the university’s commercial director Timur Stamkulov, of having embezzled US$10,000 from university funds. Topchubek Turgunaliyev’s lawyer did not deny that his client authorized a payment of this amount to Timur Stamkulov for the development of business ventures, but asserted that this was done legally and that the initial decision to do this had been made by the university’s governing body. Topchubek Turgunaliyev left his post as rector later in 1994.

A criminal investigation was started in 1995 against Topchubek Turgunaliyev and Timur Stamkulov under Article 88-1 of the Criminal Code of the Kyrgyz Republic ("theft of state or social property on an especially large scale"), Article 177 ("abuse of authority or of official position") and Article 182 ("malfeasance"). Reportedly on five occasions thereafter state procurators attempted to open criminal court proceedings, only to have the court rule that the case should be brought in a civil, not criminal court. In the latter part of 1996 a sixth submission of the case to criminal court was successful, however, and a trial date was eventually set for 5 December 1996. However, on that date Topchubek Turgunaliyev’s lawyer was unwell and a postponement was granted by the judge, Dzhamal Nogoibayeva, with no new date being set.

Events leading up to the arrest of Topchubek Turgunaliyev

Topchubek Turgunaliyev is Co-Chairman of the Erkin Kyrgyzstan("Free Kyrgyzstan") opposition party, and in late 1996 he was one of the people behind an initiative to set up a new opposition movement called "For Deliverance from Poverty". On 17 December 1996, in advance of the formal launch of this new movement, he was one of the organizers of a demonstration which took place outside the government headquarters in Bishkek by people protesting about low pensions and the loss of their savings in state banks, and was one of the people admitted to the building to represent the demonstrators in a meeting with Prime Minister Apas Dzhumagulov.

After leaving the government headquarters following this meeting Topchubek Turgunaliyev was detained by police on the street outside. The Bishkek city prosecutor later stated that Topchubek Turgunaliyev had been detained because he had refused to present himself at his rescheduled trial hearing the previous day, 16 December. However, it has been reported that on 16 December Topchubek Turgunaliyev had received a telephone call from judge Baktygul Abdymomunov, who had been appointed to take over the case, summoning him to the court. It has been claimed that only on presenting himself at the court was Topchubek Turgunaliyev told that his trial would begin that same day. Topchubek Turgunaliyev rejected this on the grounds that neither he nor his lawyer had been notified in advance.

After Topchubek Turgunaliyev’s arrest he was detained at the Bishkek city police department. His lawyer claims that he was not allowed to see Topchubek Turgunaliyev until 21 December. It was also alleged that Topchubek Turgunaliyev was denied visits from his family.

Topchubek Turgunaliyev went on trial in the Bishkek City Court on 25 December 1996 along with Timur Stamkulov. Despite testimony from witnesses including the Accountant General of the Humanities University, who reportedly testified that the University had no financial claims against Topchubek Turgunaliyev, and arguments by defence lawyers that the charges should at the very least be handled in civil, rather than criminal proceedings, both men were found guilty on 8 January 1997. Topchubek Turgunaliyev was sentenced to 10 years’ imprisonment and confiscation of his property (the state prosecutor had called for a sentence of 12 years’ imprisonment). Timur Stamkulov was sentenced to six years’ imprisonment.

Related events involving the movement "For Deliverance from Poverty", including arrests

The founding congress of the movement "For Deliverance from Poverty" went ahead in Bishkek on 21 December, despite obstacles including the sudden closure of the pre-arranged venue for "repairs". Topchubek Turgunaliyev was elected in his absence as one of three co-chairmen. After the congress, several of the participants were detained by police. All were released later the same day except Dzhumagazy Usupov, Chairman of the opposition Asharsociety, who was sentenced on 25 December to 15 days’ administrative arrest for "organizing an unsanctioned meeting", apparently because permission had not been sought in advance to use the venue, a sports arena, to which the congress had been moved at short notice.

About Topchubek Turgunaliyev - Topchubek Turgunaliyev as a former prisoner of conscience

Topchubek Turgunaliyev was born in 1941. He is married, with six children. As well as being a former rector of the Humanities University he has held a number of senior management posts mostly in state music institutes (he is a choral conductor by training), and is a former Director of the State Opera of Kyrgyzstan. In 1990 he was a founding member of the Democratic Movement of Kyrgyzstan, an umbrella organization uniting the opposition to the Communist regime. Initially a supporter of President Akayev, Topchubek Turgunaliyev later became one of his most outspoken critics.

Topchubek Turgunaliyev was previously recognized by Amnesty International as a prisoner of conscience after he had been arrested in December 1995, along with Dzhumagazy Usupov, and charged with "defamation", "insult" and "inflaming national discord or hatred" in connection with their alleged possession and distribution during Kyrgyzstan’s 1995 presidential election campaign of leaflets critical of President Akayev, who was running for and subsequently won re-election (Topchubek Turgunaliyev and Dzhumagazy Usupov had been involved in organizing the campaign of one of the rival presidential candidates). Amnesty International argued that the bringing of criminal charges of "defamation" and "insult" constituted a violation of the fundamental human rights of Topchubek Turgunaliyev and Dzhumagazy Usupov to freedom of expression. It argued that while all persons who believe themselves to have been the victims of defamation have a right to seek redress through the courts, it is widely recognized that public officials should expect to be subjected to a greater degree of public criticism than other individuals, and that the degree of restriction permitted to protect an individual’s reputation should be more limited in the case of a public official than a private person. Therefore, in Amnesty International’s view public officials or authorities who consider themselves defamed should be able to seek redress through civil laws in order to protect their reputation.

Information from unofficial sources also cast doubt on the legitimacy of the allegation of "inflaming national discord of hatred".

Topchubek Turgunaliyev and Dzhumagazy Usupov spent four months in detention in the town of Karakol. They were tried on 17-19 April 1996 in the Issyk-Kul Regional Court, found guilty, and given one-year suspended sentences. They were released immediately.

Indications of a political motive behind the latest prosecution of Topchubek Turgunaliyev

Amnesty International is concerned that a number of circumstances surrounding the criminal prosecution of Topchubek Turgunaliyev indicate that the prosecution was without legitimate foundation and was brought for political reasons. Specifically, Amnesty International notes that the arrest of Topchubek Turgunaliyev on 17 December 1996 took place immediately after he had taken part in an act of political protest and shortly before he was to have been involved in the founding congress of a new opposition political movement. Amnesty International notes further that the arrest and prosecution of Topchubek Turgunaliyev occurred only months after his release following his trial on a charge of defaming the President of Kyrgyzstan, a charge which attracted international criticism as a violation of Topchubek Turgunaliyev’s human rights and an abuse of criminal legislation. Finally, Amnesty International notes that the alleged crimes of theft of state property, malfeasance and abuse of authority predated the defamation case, a criminal investigation having been opened as far back as 1995 but reportedly halted repeatedly on the basis of adjudication that the alleged crimes be pursued as a civil case. A decision to actively pursue a criminal action was forthcoming apparently only after Topchubek Turgunaliyev’s release from prison after the defamation trial.

Topchubek Turgunaliyev is clearly the victim of a pattern of politically motivated persecution by authorities in Kyrgyzstan aimed at punishing his exercise of fundamental human rights. His prosecution on criminal charges in 1997 appears to demonstrate a determination on the part of the authorities to imprison Topchubek Turgunaliyev on any pretext available to them.

The February 1997 appeal hearing

The Supreme Court of the Kyrgyz Republic on 17-18 February 1997 heard an appeal against the 8 January verdict of the Bishkek City Court. It dismissed the charges against Topchubek Turgunaliyev of "theft of state or social property on an especially large scale" and "malfeasance", but upheld his conviction of "abuse of authority or of official position". His sentence was consequently reduced from 10 to four years, three of which were for the "abuse of authority" charge, and the fourth being the one-year conditional sentence passed by the Issyk-Kul Regional Court in April 1996, suspension of which was now withdrawn because Topchubek Turgunaliyev had reoffended.

The Supreme Court sentenced Topchubek Turgunaliyev to serve his sentence in a so-called "colony-settlement" (kolonia-poseleniein Russian). The mildest of the imprisonment regimes in the Soviet-era penal system, "colony-settlements" are reported to be falling into disuse in independent Kyrgyzstan. It was therefore apparently a common understanding at the end of the appeal hearing that in practice Topchubek Turgunaliyev would not be sent to a "colony-settlement", but would be allowed to live at home under conditions similar to probation. This is how Topchubek Turgunaliyev’s lawyer and supporters in the human rights community interpreted the sentence, and a member of the Supreme Court, Nailya Ibragimova, in comments to a correspondent of the Kyrgyz Service of the Prague-based Radio Liberty on 25 February, appeared to confirm that Topchubek Turgunaliyev would be allowed to live at home in Bishkek. Officially, Topchubek Turgunaliyev was ordered to serve his sentence at "colony-settlement" No.34, located near the village of Alga, about 35 kilometres from Bishkek, but on 25 February, upon his release from the investigation-isolation prison in Bishkek where he had spent his pre-trial detention, he was indeed allowed to return home to Bishkek, albeit the formal reason given for this was his need for medical treatment.

Similarly, the sentence passed on co-defendant Timur Stamkulov was cut from six to three years, also to be served technically in a "colony-settlement".

Assault and detention of pickets of the appeal hearing

On 17 February 1997, the first day of the hearing of the appeal, a group of around 40 supporters of Topchubek Turgunaliyev attempted to stage a peaceful picket of the Supreme Court building. They were forced by police to move on, but continued to demonstrate in one of the main squares in Bishkek. During the police action against the pickets, two people were detained: Tursunbek Akunov, a local human rights activist and one of the organizers of the picket, and Chynybek Aitkulov, a member of the non-registered Kyrgyz Patriotic Movement. Tursunbek Akunov claimed later that he was beaten by a police officer in the course of being detained, a claim which has been substantiated by the testimony of a witness. Chynybek Aitkulov was released later on 17 February 1997 on the grounds of ill health, but Tursunbek Akunov was sentenced by a judge of the Pervomaysky District Court to an administrative punishment of 24 hours’ detention for "organizing an unsanctioned meeting". Amnesty International considers Tursunbek Akunov and Chynybek Aitkulov to have been prisoners of conscience.

Tursunbek Akunov appealed against his sentence of administrative arrest. On 18 March the Supreme Court ruled in his favour and dismissed the conviction handed down by Pervomaysky district court.

Topchubek Turgunaliyev’s removal from Bishkek to the Arka "colony-settlement", Osh Region

On 7 March law enforcement officials came to Topchubek Turgunaliyev’s home in Bishkek and took him into custody. He was taken to a "colony-settlement" at the village of Arka, in the Leilek district of Osh Region. Arka is close to the border with Tajikistan, and about as far from Bishkek as it is possible to go within Kyrgyzstan. According to Kyrgyzstani human rights monitors, the conditions at the Arka "colony-settlement" are harsh: there is no running water (water is delivered by truck), the prisoners’ diet comprises only bread and tea, and tuberculosis is rife.

The reason for the sudden transfer of Topchubek Turgunaliyev to Osh Region appears to be that he participated in several political gatherings in Bishkek in late February and early March, and court hearings in Bishkek against the independent newspaper Kriminal, which resulted in the newspaper being closed down by order of the Pervomaysky District Court for defamation of various government members and for "publishing deliberately false information". Topchubek Turgunaliyev’s lawyer and human rights activists in Kyrgyzstan claim that the sentence passed by the Supreme Court on 18 February did not include a prohibition on Topchubek Turgunaliyev’s engaging in political activity.

Reportedly, a further appeal against Topchubek Turgunaliyev’s sentence has been lodged with the Supreme Court, and at the time of writing it is awaiting consideration.

THE CASE OF YRYSBEK OMURZAKOV

Yrysbek Omurzakov is a journalist with the independent Bishkek newspaper Res Publika. His is due to go on trial on 19 May 1997 in the Lenin District Court in Bishkek on a criminal charge of libelling a factory manager in a newspaper article. He has been in pre-trial detention since late March. This is the second time within a year that he has faced criminal prosecution for libel.

Amnesty International believes that the bringing of criminal charges against Yrysbek Omurzakov in this case, as in the case against him in 1996, is unjustified and an improper use of criminal legislation; that the motives are political; and consequently that his imprisonment and impending criminal trial are in violation of his right to freedom of expression.

The case against Yrysbek Omurzakov

In January 1997 Res Publikapublished an article by Yrysbek Omurzakov entitled "People are ready to resort to extreme measures". Critical of the implementation of the government’s privatization policies, the article featured the case of a workers’ hostel in Bishkek where residents were resisting moves by managers of the now idle factory (the Frunze agricultural machinery factory - a state-owned enterprise) to which the hostel belonged, allegedly to privatize the hostel into their own hands.[2]

The director of the Frunze agricultural machinery factory, Mikhail Paryshkura, reportedly in February initiated legal action against Yrysbek Omurzakov. The two men subsequently had a meeting at which Yrysbek Omurzakov showed Mikhail Paryshkura a petition, referred to in the article, signed by 108 workers at the factory complaining about conditions at the factory hostel. Yrysbek Omurzakov claims that as a result of their meeting Mikhail Paryshkura agreed to drop his complaint.[3]

However, on 12 March Yrysbek Omurzakov was notified that a criminal case had been instigated against him on 7 March, on the basis of a petition by Mikhail Paryshkura, on a charge of libelling Mikhail Paryshkura. On 24 March Yrysbek Omurzakov was called to an interview with the state procurator conducing the criminal investigation, Turusbek Murzabekov of the Lenin district procurator’s office in Bishkek, at which he was arrested and taken into custody. At the time of writing, pending trial Yrysbek Omurzakov remains in custody, on the grounds that he may otherwise flee the country to avoid prosecution.

Reportedly, the charge against Yrysbek Omurzakov has been brought under Article 123 part 3 of the Criminal Code ("defamation combined with an accusation of commission of a crime against the state or other grave crime").

The Res Publikanewspaper is well-known for its critical reporting about the government of President Akayev. Yrysbek Omurzakov is not the first Res Publikajournalist to be prosecuted: in 1995 two female journalists on the newspaper, editor Zamira Sadykova and deputy editor Tamara Slashcheva, were prosecuted and given suspended sentences of 18 months’ and one year’s imprisonment respectively for an article about the President [4]. It has also been reported that shortly before the bringing against Yrysbek Omurzakov of the charge of defaming Mikhail Paryshkura, Yrysbek Omurzakov had been threatened with prosecution for his coverage of the trial of Topchubek Turgunaliyev.[5]

About Yrysbek Omurzakov - Yrysbek Omurzakov as a former prisoner of conscience

Yrysbek Omurzakov was born in 1958, and is married with two pre-teenage children. He was a high-school teacher of Russian language and literature before turning to journalism.

Yrysbek Omurzakov was previously recognized by Amnesty International as a prisoner of conscience after he had been arrested on 12 April 1996, on a criminal charge of defamation (the exact criminal code article defining the offence was reportedly changed twice in the course of the investigation and subsequent trial). Sources reported that the charge was connected with the alleged distribution by Yrysbek Omurzakov of leaflets critical of the President, and that his case was linked to the case, at that time about to come to trial, of Topchubek Turgunaliyev and Dzhumagazy Usupov (see above), albeit the case was brought by the procurator’s office of Naryn Region, rather than in the neighbouring Issyk-Kul Region where the Turgunaliyev-Usupov case was prosecuted.

Yrysbek Omurzakov was arrested at his home in Bishkek, but was held in detention before his trial and while awaiting his appeal hearing in the town of Naryn. He was tried in the Naryn District People’s Court on 2-5 July 1996, found guilty under Article 128 part 2 of the Criminal Code ("libel"), and sentenced to two years’ imprisonment. However, he was freed on the basis of a successful appeal to the Naryn Regional Court, which on 31 July replaced the custodial sentence with a suspended sentence, officially on the grounds that Yrysbek Omurzakov was of previously good character and had a family to support.

As with the 1996 case of Topchubek Turgunaliyev and Dzhumagazy Usupov, Amnesty International had argued that a criminal charge in this case was inappropriate because the degree of restriction permitted to protect the reputation of a public official such as President Akayev should be more limited than for a private person, and that redress should be sought through civil laws.

Amnesty International’s concerns about the latest charge against Yrysbek Omurzakov

Amnesty International recognizes that all persons who believe themselves to have been victims of defamation have a right to seek redress through the courts. Amnesty International also does not dispute that the prosecution of a defamation case using criminal legislation may be legitimate in certain circumstances.

However, Amnesty International does not believe that a criminal prosecution for the alleged defamation of Mikhail Paryshkura by Yrysbek Omurzakov is appropriate. In using criminal legislation, rather than requiring a remedy to be sought in civil legislation, the authorities in Kyrgyzstan are effectively seeking to hold Yrysbek Omurzakov responsible for committing an injury to society, and are seeking his imprisonment as a penalty. Amnesty International does not agree that Yrysbek Omurzakov’s article, although containing strong personal criticisms of and accusations of wrongdoing by Mikhail Paryshkura and others, constitutes such an injury to Kyrgyzstani society at large. The organization takes the view that Mikhail Paryshkura’s complaint against Yrysbek Omurzakov should be addressed in a civil proceeding in which Mikhail Paryshkura can pursue his complaint of and seek compensation for personal injury to his reputation.

The use of criminal legislation in this case strongly suggests to Amnesty International that authorities are acting from political motives, and have seized an opportunity to try to punish Yrysbek Omurzakov for his opposition to President Akayev’s government, having backed down from imprisoning him in a defamation case in 1996 in the face of international protests.

Related prosecutions: Damira Akmatova and Gulya Ibraimova

It has been reported that, in connection with Yrysbek Omurzakov’s article in Res Publika, two women residents of the Frunze factory hostel and former Frunze factory workers, identified by local human rights monitors as Damira Akmatova and Gulya Ibraimova, have been charged with the criminal offence of "making a report known to be false". At the time of writing they are not in pre-trial detention, but they were reported to have given signed undertakings on 24 April 1997 not to leave Bishkek, pending the outcome of an investigation. Since their case is an extension of the case of Yrysbek Omurzakov’s, Amnesty International has the same concerns about violation of the right to freedom of expression and the inappropriate use of criminal legislation. Therefore, if Damira Akmatova and Gulya Ibraimova are brought to trial on this charge, convicted and sentenced to imprisonment, Amnesty International will regard them as prisoners of conscience.

It has also been reported that some of the residents of the hostel who were signatories of a petition against the Frunze factory managers, mentioned in Yrysbek Omurzakov’s article, have made retractions. The circumstances which might have prompted them to do this are unclear.

AMNESTY INTERNATIONAL’S APPEALS TO AUTHORITIES IN THE KYRGYZ REPUBLIC

- ON BEHALF OF TOPCHUBEK TURGUNALIYEV:

1. Immediate and unconditional release from detention

Amnesty International is calling for the immediate and unconditional release of Topchubek Turgunaliyev. The nature of the criminal charges against him, and the circumstances in which they were brought, point clearly towards a motive of seeking to punish Topchubek Turgunaliyev’s opposition political activism. This appeared to be recognized in the ruling on the appeal against his sentence by the Supreme Court on 18 February, which left him effectively at liberty and apparently free to engage in political activity. However, his subsequent exercise of his rights to freedom of association and expression appears to have contributed to his being imprisoned after all.

2. Appropriate medical care, and guarantees of his safety and well-being

Amnesty International is also concerned about Topchubek Turgunaliyev’s state of health. Before being moved to the Arka "colony-settlement" he was reported to be experiencing health problems as a consequence of the more than two months he had spent in the investigation-isolation prison in Bishkek before and during his trial and the appeal process. Fears for his health have increased in the light of the very bad conditions reported at the Arka "colony-settlement", including the risk of infection with tuberculosis. Consequently, Amnesty International is calling for Topchubek Turgunaliyev to be given all appropriate medical care, and for authorities in Kyrgyzstan to guarantee his safety and well-being.

- ON BEHALF OF YRYSBEK OMURZAKOV:

Immediate and unconditional release from detention, and an end to criminal proceedings

Amnesty International is calling for the immediate and unconditional release of Yrysbek Omurzakov, and for criminal proceedings in the case brought against him for allegedly libelling Mikhail Paryshkura to be dropped. There appear to be political motives for bringing this as a criminal case, the objective being to punish Yrysbek Omurzakov for his activities, including his journalistic work, in opposition to the government of President Akayev.

- ON BEHALF OF DAMIRA AKMATOVA AND GULYA IBRAIMOVA:

An immediate end to criminal proceedings

Since the case of Damira Akmatova and Gulya Ibraimova is an extension of that of Yrysbek Omurzakov, Amnesty International has the same concerns in this case about the inappropriate recourse to criminal legislation for political ends, in violation of the right to freedom of expression. If they are convicted as charged and imprisoned Amnesty International will regard them as prisoners of conscience. It is calling for an immediate end to criminal proceedings against them.

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(1) AI Index: EUR 58/01/96.

(2) Amnesty International is in possession of a copy of the article, but it is not being reproduced here for legal reasons.

(3) Information from the Kyrgyz Service of Radio Liberty, Prague

(4) See the Amnesty International report Kyrgyzstan: A tarnished human rights record, AI Index: EUR 58/01/96.

(5) Letter of protest to President Akayev from the US-based non-governmental organization Committee to Protect Journalists, as reported by Radio Free Europe/Radio Liberty, 20 February 1997.