Kyrgyzstan ponders a change in approach toward criminal justice

Daniel Sershen 6/12/07

A criminal justice reform package awaiting Kyrgyz President Kurmanbek Bakiyev's signature would abolish the death penalty and partially decriminalize drug possession for personal use. The government claims that the draft will ease pressure on Kyrgyzstan's crumbling prison system and rationalize law enforcement, but critics say the package does not go far enough.

In addition to reforming drug laws and replacing the death penalty with life imprisonment, the bill would transfer the power to issue arrest warrants from the Interior Ministry to the Ministry of Justice. It also would reduce sentences for some crimes and offer judges more flexibility in doling out alternative punishments, such as community service.

Even though the Bakiyev administration originally introduced the reform package, there remains a chance that the president will veto the controversial legislation. He has until June 26 to make his decision.

Marat Djamankulov, the head of the department for penal system reform at the Ministry of Justice, said this "humanization" of the criminal code came about largely through an assessment of the country's dilapidated prison network. Due to Kyrgyzstan's limited resources and its inheritance of a strict, Soviet-era approach to law and order, the country's jails are now filled to the bursting point. The ratio of 15,500 convicts out of an overall population of 5.3 million places the country's incarceration rate well above the global norm, Djamankulov said.

"Today, the prison system is in the deepest of crises," Djamankulov maintained. "Kyrgyzstan is not such a rich state that it can support such a large amount of prisoners. If one analyzes the situation, something like 25 to 30 percent of the imprisoned could be punished in other ways, more useful for both society and the state."

Calling the prison system "a mirror for the state's criminal policy," Djamankulov viewed prison overcrowding as a symptom of broader flaws in Kyrgyzstan's justice system.

"The goals of punishment are the correction of the convict, the restoration of social justice, and the prevention of new crimes. Today I feel as if not a single one of these goals ... are being achieved in our [prison] colonies," he said.

Few doubt that the reforms are necessary, but some legal experts say the current legislation only scratches the surface, particularly after intra-governmental debates led to a dilution of its original intent. The changes to the drug laws have been particularly controversial.

Erik Iriskulbekov is a lawyer and project coordinator with Adilet, a nongovernmental legal clinic that defends the rights of drug users. Although he called the new law a "small but definite step forward," he said in practice the changes would make little difference either for the average drug user or for the overburdened Kyrgyz prison system.

The current proposal subjects an individual caught with a "small amount" of drugs to administrative punishment, such as community service or a fine. Any further infractions within a year's time would result in criminal prosecution and a likely jail term.

Iriskulbekov supports a full decriminalization of personal possession, both to allow drug users to seek treatment, and prevent the spread of infectious diseases. He said the reduction in imprisonment for drug offenses would be "minimal" if the new legislation passes. According to Iriskulbekov, the average user takes drugs five times a day, leaving a high probability that an individual caught once would be convicted again within a year and end up in prison anyway.

The legislation, which is retroactive in the case of the drug laws, could release up to 2,500 minor drug offenders. However, Iriskulbekov said, without efforts to ease their transition back into society, they too could find themselves returning to prison in short order. "We just pushed the problem back some," he said.

During discussions prior to the law's passage, he said, the police were adamant that users should eventually face criminal prosecution. "For law enforcement bodies – for the non conscientious employees – this [drug code] is a very tasty morsel," Iriskulbekov said. Unscrupulous police officers will, he said, "stop a drug user illegally, plant some drugs on him, and in that way extort money from his relatives." Moreover, he added, the draft legislation gives police new powers to detain those who are under the influence of drugs, creating a further opportunity for corruption.

Groups opposing the death penalty in Kyrgyzstan have given a more enthusiastic endorsement to the reform package. The current proposal makes official a declaration that appeared in the January 2007 constitution, which says that the state cannot deprive its citizens of life. Remaining capital crimes would be subject to life imprisonment, with the possibility of parole after 30 years.

A May 18 roundtable sponsored by the human rights group Citizens Against Corruption produced a resolution that hailed the abolishment of capital punishment, which has not been carried out in Kyrgyzstan since 1998. However, it called for an earlier parole option and a swift review of the cases of the 174 people currently on death row, whose status remains unclear.

Natalia Ablova, director of the Kyrgyz Bureau for Human Rights and the Rule of Law, noted that she and other human rights defenders had worked closely with the Ministry of Justice to assemble the entire package. She said that the death penalty shift amounted to a major precedent for the Central Asian region. (Turkmenistan abolished capital punishment in 1999, but Uzbekistan still executes prisoners. Capital crimes remain on the books in Kazakhstan and Tajikistan, although both countries have suspended the implementation of death sentences.)

Ablova also welcomed efforts to reduce penalties for petty crimes. "There will no longer be the ability to detain people simply because they stole a sack of potatoes in the bazaar or a chicken. People ended up [in prison] for completely meaningless crimes, and then began the road to recidivism," she said.

Djamankulov said he also hoped that keeping the imprisoned closer to everyday life would result in a more humane and effective criminal justice system. "These are citizens of Kyrgyzstan who are temporarily isolated from society – temporarily," he said. "How they return – angry, holding a grudge against the whole world, or looking to improve themselves and make a change – is what we need to think about."

Editor's Note: Daniel Sershen is a freelance journalist based in Bishkek.

Posted June 12, 2007 © Eurasianet