08.2006
The Kyrgyz Committee for Human Rights
«Murder - is a person plus murder.
True validity is made
When the judge punishes murder and
revives the person».
Krishna Ayer, the former judge of
The Supreme Court, India.
Death penalty.
One of problems in the criminal law, exciting not only lawyers, but also all society was and is a problem of a death penalty. At the moment its urgency is connected by that now many states go on mitigation of the legislation, thus cancelling a death penalty. The theme of a cancellation of a death penalty is one of the most actual not only in Kyrgyzstan, but also all over the world. Its present refraction in a context of struggle for human rights and, in particular, major of them - rights for a life, is a fruit of centuries-old discussions. Now we are witnesses of the culmination of this struggle and we can even enter it, make the offer to Government of KR about a cancellation of a death penalty.
For the first time in Kyrgyzstan the moratorium on performance of a death penalty has been declared by the decree of the president in December, 1998 for 1999-2000 - in honour of the 50-anniversary of acceptance by the United Nations Organization of the General declaration of human rights. Then President of KR has prolonged the moratorium for one year. In January, 2002 the third decree under the account about stay of a death penalty has left.
Later the new president had been declared the new moratorium which differs from the previous themes that the death penalty in a place of that is to constants while the previous moratoriums of former authority speculated with formal adherence to human rights, i.e. that will completely be cancelled every year was prolonged, thus of a condition of the maintenance sentenced awful, are brutal.
On March, 23, 2004 President of KR had been signed Law of KR
«About modification in Criminal code of KR», accepted by Jogorku Kenesh on January, 20, 2005.
There were following 3 articles in Criminla Code on which the death penalty is provided: an item 97 (for murder); an item 129 (for rape juvenile, entailed especially heavy consequences) and an item 373 (for a genocide). As the following step in liberalization of criminal punishment Ombudsman of KR suggests to exclude in the nearest months punishment as a death penalty under articles 129 and 373 of Criminal Code KR.
the Ombudsman of KR, expressing sincere solidarity with a position of the President and Parliament of the country on gradual replacement of an exclusive measure of punishment as a death penalty on life imprisonment, nevertheless, once again reminds the initiative from December, 10, 2003 of a full cancellation of a death penalty in the Kyrgyzstan.
Now in the country for performance of the supreme measure of punishment about 180 person wait. In total prisoners in our country about seventeen thousand, and some years this figure essentially does not vary. What will be with people expecting performance of the supreme measure of punishment after its cancellation, nobody knows. Whether will give all of them different terms or begin to hold in prisons for life, will place on separate territory or together with other prisoners - questions much. Now condemned men contain in Investigatory Insulator on the same conditions, as other prisoners. Them at all have not settled in single chambers as it is necessary under the law - simply the place does not suffice. Nevertheless, not looking that the moratorium on performance operates, verdicts to a death penalty continue to be born. Only for last year, on data of Ombudsman, in republic 17 verdicts about an exclusive measure of punishment are born. He informed about it at a meeting with management of Central Asian project of the international group on prevention of crises. The part of such prisoners as asserts Ombudsman, dies, not waiting performances of a verdict, - from a tuberculosis or, that is more often, as a result of suicides. Ombudsman considers, that execution for criminal acts in Kyrgyzstan should be cancelled in general. While Ombudsman calls to declare urgently in courts the moratorium on removal of verdicts to the supreme measure of punishment. Some examples of verdicts to a death penalty, born lately:
1. The judge of Sverdlovsk court Zamirbek Termechikov has sentenced to the supreme measure of punishment - to execution - murderer Halmurat Kadyrov. Accomplices of crimes - native sister of Kadyrov Mihrei and his wife Nazira Aidarova - are deprived of freedom for eighteen years everyone with confiscation of property. Two helpers of Kadyrov, Stas and Beinerd, now are in search.
2. Not stabil POSITION or prosecution of the Uigurs or the order of the big neighbour?
The Supreme court of Kyrgyzstan one of these days has born a final verdict on sensational case about murder of the leader of Uigurs of Kyrgyzstan Nigmat Bazakov. Concerning the citizen of Uzbekistan Otabek Ahadov the death sentence is left in force, which else in December, 2001 has been accepted by Sverdlovsk regional court, and then kept without change by the Bishkek city Court. The supreme measure of punishment has been appointed for execution in Bishkek, near Alamedin market, chairman of society "Ittipak" Nigmat Bazakov. Also Ahadov was recognized guilty of fulfilment of act of terrorism concerning the Chinese citizens, that he was a member of extremist organization "SHAT", other evil deeds. However the lawyer of condemned Nina Zotova has made the official application to journalists, that the Supreme court has born “ the unprecedented decision ”, upheld a verdict about a death penalty. As she said, in 11 toms of case are not present authentic and indisputable proofs of participation of Ahadov to this crime. For example, father of the victim, Abdihadyr Bazakov, in the indications asserted, that in day of murder saw “shooting, similar to dungan, korean or chinese”. And the defendant on the appearance in any way did not suit under this description. He is of high growth and is similar to caucasianа. About it the video shooting of the Uigur public, in Europe has been distributed, among the international organizations including the European Parliament and in opinion of Uigurs, former Kyrgyz authorities made it specially to discredit Uigurs in Kyrgyzstan.
Zotova considers, that investigation has been constructed on inconsistent indications of witnesses. From the very beginning there was an impression that have detained people not involved in murder.
At the same time even during investigation witness Chernogubov has identified the murderer on behalf of the arrested person before the representative of Kazakh criminal grouping Akpaev. But he for some reason have quickly let off, and accusations have been showed to Ahadov. Moreover, Zotova has resulted the conclusions of medical expertise, confirming, that from the citizen of Uzbekistan the indication was simply beat out. Actually accusation has been constructed on written recognitions of accused, though Ahadov in the beginning refused them, but has subscribed under threat of ex-tradition of him home or to China. And there it is known, what with terrorists happens - at once to a wall. By words of lawyer, it turns out, that the court has broken the obligatory remedial principle guaranteed by article 85 of Constitution of KR where it is spoken: “ Nobody can be condemned only on the basis of his own recognition in fulfilment of a crime ”. The head of human rights defending center “Citizens against corruption” Tolekan Ismailova counts , that taken place process brightly shows, that reform yet has not touched judicial and law-enforcement system of Kyrgyzstan and attendants of justice are far from observance of constitutional laws of citizens.
3. The Sverdlovsk regional court of capital has born a verdict of two defendants, accused in partnership in murder of deputy of Jogorku Kenesh Bajaman Erkinbaev. Accused Ruzimetov has declared, that did not accept participation in murder of the deputy, and the weapon, of which illegal storage him accuse (automatic device AKSU with 419 patrons, pistols TT, Margolin), has got for self-defense. The second accused Batyrov swore, that any conversation with Erkinbaev about the heroine was not. As he said, he, as good friend of Bajamana, has arrived to Bishkek under his invitation and was with him before to death. Grateful indications has given under pressure of inspector of SNS. However the court has not taken into account these applications, having considered fault of defendants convincingly proved.
4. Ahmed Gjunan the citizen of Turkey, Askar Tohti native of {Xingang the citizen of Turkey, Chotchaev Nazyr the citizen of the Russian Federation, Bahramzhan Ahmad native of Xingang the citizen of Chinese People's Republic are sentenced by the Osh city court to an exclusive measure of punishment. They were accused of creation of criminal community, the organization of acts of terrorism in Osh. Some from the above-named persons never were in Kyrgyzstan. Also assert that distances grateful indications under pressure and application of force on the part of employees of SNS. In opinion of lawyers of the defendants, the specified verdict is illegal, contradicting materials collected on case and based on doubtful conclusions of court. Rights of defendants were roughly broken, him have not been give translators, the right on protection has not been provided during carrying out of investigation. The proofs collected on case contradict each other. And the facts confirming the basic accusations in general are not present.
Guards also the fact of that cases of prosecution of Uigurs recently have become frequent. From the above described facts we can see, that in three facts from four to a death penalty Uigurs are sentenced. In that it is a concurrence is trusted hardly. At former board the facts of "performance of orders of Chinese People's Republic» on all prosecution objectionable to it took place. Arrested in KR Uigurs were given out in Chinese People's Republic where they were threatened with tortures and death or they were judged in KR on affairs in which their fault "has been proved" to actually far-fetched proofs which for often contradicted each other. And the born verdicts are than other as discredit of justice democratic and a lawful state Kyrgyzstan. The Uigur public of Kyrgyzstan switching human rights defending organization "Democracy" is sure that authority have condemned them illegally.
For the analysis of discussion about a death penalty it is possible to consider attentively once again a position of active opponents of a death penalty, to designate their arguments. Opponents of a death penalty result the most different arguments in protection of the position.
«Moral principles are not subject, neither logic, nor a science. These are the supreme principles before which all other arguments are powerless. The death penalty is a sphere of moral categories, and any conversations on expediency here are not applicable».
« The society bears the responsibility for the members which have committed a crime, and has no right to bear the death sentence as of a crime it is guilty not only the murderer ».
The school of social protection denies a death penalty also, leaning that the most part of executed is made of socially - unprotected groups of the population.
«Nobody in the right to take away that did not allow. The life is not created by the person and cannot be taken away at anybody is ».
« The death penalty is murder too. The one who executes, itself becomes the criminal ».
« The death penalty is condemned by the world community, therefore all countries in which there is a death penalty, cannot admit civilized ».
« Greatest of the moral qualities distinguishing an animal from the person - mercy. Only showing mercy to the criminal, the person can prove the person ».
« The right for a life - the sacred, major right of each person. Nobody can take away from the person his unique life, not having made a mortal sin ».
In present Kyrgyzstan the actual moratorium on its application was established. Applying a death penalty, it is possible to pass easily a side which separates criminal punishment from terror.
Example. At us the death penalty is stipulated for premeditated murder under especially aggravating circumstances. Maniacs such as Chikatilo it is necessary to shoot on a place, but as far as we know, on same case of Chikatilo have been executed some innocent people . In the USA after 1976 it is possible to speak about 24 cases of tragical substitution. If in the USA where the judicial system is advanced on the order above than we have miscarriages of justice what it is possible to speak about us? What is the guarantee of that will sentence to a death penalty really guilty person? When guilt is proved, the criminal can be held safely in prison that will be coordinated to a principle of validity: our prisons it is worse than a death penalty the penalty continuing all life, spiritual and physical, hence, is provided.
In our opinion, the death penalty in Kyrgyzstan should be cancelled, not looking on anything. First, the President and his administration are bound by promise to the European community to finish with a death penalty. Second, the cancellation of a death penalty is dictated by that direction on which went as a result of reorganization our criminal legislation. Thirdly, the future cooperation of Kyrgyzstan and the European Union, destiny of investments depends on a cancellation of a death penalty and trading preferences. And the last, the prospective cancellation will be coordinated to moods of the most part of intelligency and followers of religious cults at us in the country.
The cancellation of a death penalty will be one of the first steps directed on improvement of a society and an establishment of mutual trust of its members, dictating them necessity of coexistence. It is necessary to note, that the question is here not only a cancellation of a death penalty, but also liquidation of institute of murder in general, in particular legal murder, which representatives today are war and abortions. Cancelling a death penalty, Kyrgyzstan makes one more step aside constructions of a humanistic lawful state. And let each of us then with pride will tell to descendants: « I , struggled for it too ».
For such outcome has put, we have put before ourselves the purpose to make the offer to Government of KR about a cancellation of a death penalty, by means of exception of the project of the new Constitution of a death penalty to help our society to become more humane that there was nobody to punish by supreme measure of punishment.